Military Lawyers

Facing an accusation under Article 120 of the Uniform Code of Military Justice, the statute at 10 U.S.C. 920 covering rape, sexual assault, and related sexual contact offenses, is frightening even when the accusation is untrue. A false allegation does not resolve itself, and the military justice process moves forward regardless of a service member’s innocence. Understanding the legal options available from the earliest moment is the single best protection an accused has. This article describes the rights and avenues a service member can use to respond, without suggesting any particular outcome, because every case turns on its own facts.

Exercise the right to remain silent under Article 31

The first and most important option is to say nothing about the allegation to investigators. Article 31 of the UCMJ requires that a service member suspected of an offense be advised of the nature of the accusation and of the right not to make any statement, and warned that any statement may be used against them. These rights apply during questioning by military law enforcement and commanders acting in an official capacity. A person who believes the accusation is false often feels an urge to explain, but explanations given without counsel can be misremembered, taken out of context, or used to lock in a version of events before the facts are fully known. Invoking the right to silence is not an admission of anything.

Request a defense attorney immediately

Every service member facing investigation or charges is entitled to free representation by a military defense counsel through the Trial Defense Service or the equivalent service organization, and may also retain a civilian defense attorney at personal expense. An accused can have both. Counsel can communicate with investigators and the prosecution on the client’s behalf, advise on whether and how to respond, and begin building a defense long before any charge is formally preferred. Engaging counsel early preserves options that erode with delay.

Preserve evidence that supports the defense

False-accusation defenses often rely on evidence that is fragile and time-sensitive. Text messages, social media exchanges, location data, photographs, call logs, and the names of people who can speak to the relationship or the events can disappear or fade from memory. Because Article 120 defines consent as a freely given agreement and provides that lack of resistance alone does not establish it, communications showing the nature of an interaction can be significant. An …

Unauthorized absence, known as UA in the Navy and Marine Corps and as AWOL in the Army and Air Force, is one of the most common offenses in the military justice system. It arises under Article 86 of the Uniform Code of Military Justice and covers situations where a service member fails to be where they are supposed to be, without authority. Many service members assume that once they have missed a movement, failed to report, or been away from their unit, a charge is inevitable. That is not always true. A military attorney can often help prevent a UA situation from becoming a formal charge, or from becoming a worse charge than the facts warrant. This article explains how.

What Article 86 Actually Requires

Article 86, codified at 10 U.S.C. 886, addresses three related forms of absence: failing to go to an appointed place of duty at the prescribed time, leaving that place of duty, and being absent from one’s unit, organization, or place of duty without authority. The government must prove its case beyond a reasonable doubt, and the elements differ slightly among the three forms. For a failure-to-go or absence charge, the government generally must prove that a competent authority appointed a specific time and place of duty, that the accused knew of that appointed time and place, and that the accused, without authority, failed to be there or remained away.

A critical point is the knowledge element. The accused must have known of the appointed place and time of duty before an absence can be treated as unauthorized in any meaningful sense. Equally important, Article 86 does not require proof that the accused intended to stay away permanently. That intent to remain away permanently is what separates simple unauthorized absence under Article 86 from the far more serious offense of desertion under Article 85. Understanding this distinction is central to preventing a minor absence from being charged as something graver.

How a Charge Can Sometimes Be Prevented

The phrase preventing a charge can mean several different things, and a military attorney can help with each.

First, an attorney can help a service member who is currently absent return to military control in the most favorable way possible. The manner and timing of a return matters. A voluntary surrender is treated very differently from an absence terminated by apprehension, both in how the command is likely to …

Confinement credit is the mechanism by which the military justice system reconciles the time and hardship a service member endures before a verdict with the punishment ultimately imposed. When a member spends days in pretrial confinement, is restricted under conditions that resemble confinement, is punished before trial in violation of the law, or has already been punished for the same conduct through nonjudicial means, the system reduces the adjudged sentence to account for what has already been suffered. Getting these credits right is central to the integrity of military sentencing. Getting them wrong undermines confidence in the fairness of the entire process.

Why Credit Exists

A core premise of criminal justice is that a person should not serve more total punishment than the law allows for the offense of conviction. In the armed forces, members are frequently confined or restrained before trial for legitimate reasons related to flight risk or the seriousness of the alleged offense. Other times, restraint is imposed improperly, or commands punish members before any finding of guilt. Confinement credit ensures that time spent in custody before sentencing, and any improper pretrial punishment, is subtracted from the sentence rather than added on top of it. The doctrine protects the principle that pretrial detention is not itself punishment and that no one is punished twice for the same act.

Allen Credit for Pretrial Confinement

The most basic form of credit is administrative credit for lawful pretrial confinement. A service member who is held in pretrial confinement is entitled to day-for-day credit against the adjudged sentence to confinement for each day spent in that confinement. This credit, commonly called Allen credit after the case that established it, is automatic and does not depend on any misconduct by the government. It simply recognizes that time already served in custody counts toward the sentence.

Allen credit is a straightforward accounting exercise, but it is essential. Without it, a member who waited months in pretrial confinement before trial could end up serving far longer in total than the sentence the court actually imposed. The credit keeps the total period of confinement aligned with the adjudged punishment.

Mason Credit for Restriction Tantamount to Confinement

Not all pretrial restraint involves a locked cell. A member may be placed on conditions of restriction that, while short of formal confinement, are so restrictive that they amount to the equivalent of confinement. When restriction is tantamount to …

A criminal conviction is not the only consequence a service member faces from an allegation of adultery. Even when a case never reaches a court-martial, an accusation of extramarital conduct can ripple through a career in ways that are sometimes more damaging than the criminal exposure itself. Promotions, assignments, retirement eligibility, and access to classified information can all be affected. This article focuses on those collateral consequences: how the conduct, now formally titled “Extramarital sexual conduct” under Article 134 of the Uniform Code of Military Justice, can shape a career and a security clearance, separate and apart from any criminal punishment.

The Criminal Consequence Is Only the Starting Point

Extramarital sexual conduct is listed at Part IV, paragraph 99 of the current Manual for Courts-Martial and is charged under Article 134, codified at 10 U.S.C. section 934. For offenses under the current Manual, the maximum punishment is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for one year. A punitive discharge of that kind ends a career and carries lifelong consequences for veterans benefits and civilian employment. But many cases never go that far, and the career effects flow from a wider set of administrative tools that commanders can use even without a conviction.

Nonjudicial Punishment and Its Career Footprint

A common path is nonjudicial punishment under Article 15. While the punishments available through Article 15 are limited compared to a court-martial, the record of that punishment can be filed in the service member’s official record. That filing can be considered by promotion boards, can influence assignment decisions, and can mark the beginning of separation processing. Even a relatively minor sanction can carry an outsized career cost because of how it is documented and how future boards interpret it.

Adverse Administrative Actions

Beyond formal punishment, commanders have several administrative tools. These can include a letter of reprimand, a relief for cause, an adverse evaluation report, or removal from a position of trust. A reprimand placed in the permanent record is frequently career ending in practice, because selection boards weigh it heavily even though it is not a criminal conviction. Adultery allegations can also trigger administrative separation proceedings, in which a board considers whether the service member should be discharged and, if so, with what characterization of service. A discharge characterized as other than honorable can jeopardize benefits and follow the member into civilian life.

Effect on Promotions,

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Article 134 of the Uniform Code of Military Justice is often called the general article, and it is one of the most powerful and most criticized provisions in military criminal law. Where most punitive articles describe a specific offense, Article 134 sweeps broadly, reaching conduct that no other article names. That breadth gives commanders and prosecutors flexibility, but it also raises a hard question that has occupied military courts for decades: where are the limits? This article explains how Article 134 works, what the government must prove, and the legal boundaries that keep a general misconduct charge from becoming a charge for anything a commander dislikes.

What Article 134 Covers

Article 134 is codified at 10 U.S.C. 934. It does not list particular acts the way that, for example, the larceny or assault articles do. Instead, it punishes three broad categories of misconduct that are not capital offenses and not covered elsewhere in the Code. These categories are usually called the three clauses of the article.

Clause 1 reaches disorders and neglects to the prejudice of good order and discipline in the armed forces. Clause 2 reaches conduct of a nature to bring discredit upon the armed forces. Clause 3 reaches noncapital crimes and offenses that violate federal law, allowing certain federal statutes to be enforced through a court-martial. Each clause is a distinct theory of liability, and military courts have made clear that they are not interchangeable.

The Terminal Element

The most important limit on Article 134 comes from what military lawyers call the terminal element. Under Clause 1 and Clause 2, it is not enough for the government to show that the accused did something objectionable. The government must also prove the additional element that the conduct was either prejudicial to good order and discipline or service-discrediting. That requirement is what separates a crime under Article 134 from conduct that is merely distasteful, foolish, or in poor judgment.

This was sharpened by the Court of Appeals for the Armed Forces in United States v. Fosler, decided in 2011, which held that the terminal element must be alleged and cannot simply be assumed from the underlying conduct. The practical effect is that a specification that fails to plead the terminal element can be challenged, and the government cannot rely on the bare fact of misconduct to supply the missing element.

Military appellate courts have also emphasized that no conduct …

A court-martial panel is the military equivalent of a jury, and like a civilian jury its legitimacy depends on the impartiality of its members. When a panel member harbors bias, whether openly admitted or quietly held, the fairness of the entire proceeding is put at risk. Military law treats this danger seriously, and it has developed doctrines that differ in important ways from civilian jury rules. This article explains how panel members are selected, what kinds of bias the law recognizes, how challenges work, and what happens on appeal when a biased member is allowed to sit.

How Court-Martial Panels Are Different

In the civilian system, jurors are drawn from the community at random. In the military system, panel members are not random citizens. They are service members detailed to the court-martial by a convening authority, who is typically a senior commander. The convening authority is required to select members who, in that authority’s opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.

This selection method is one of the structural features that makes impartiality such a sensitive issue in military justice. Because members are chosen by a commander rather than drawn at random, and because they often share a professional world with the witnesses and the chain of command, the system relies heavily on the screening process at trial to remove members who cannot be fair. That screening happens through voir dire and challenges.

The Two Kinds of Bias

Military law recognizes two distinct categories of bias, and they are analyzed differently.

Actual bias is bias in fact. It exists when the evidence shows that a particular member will not act impartially, that the member holds a personal bias that will not yield to the military judge’s instructions and the evidence presented at trial. Actual bias focuses on the individual member’s actual state of mind. A member who, despite questioning, reveals a fixed predisposition for or against the accused, or who cannot set aside an outside influence, presents actual bias.

Implied bias is different and broader. It exists when, regardless of a member’s sincere disclaimer of bias, most people in the same position would be prejudiced, or when the circumstances create an unacceptable appearance of unfairness. The test for implied bias is objective. It is viewed through the eyes of the public and focuses on the appearance of …

A court-martial for an Article 120 offense is a serious proceeding, and many service members facing investigation want to know whether the matter can be resolved before it ever reaches a trial. Article 120 of the Uniform Code of Military Justice, found at 10 U.S.C. 920, covers rape, sexual assault, aggravated sexual contact, and abusive sexual contact. A military defense lawyer cannot promise that any particular case will avoid trial, but counsel can pursue several recognized avenues that, depending on the evidence and the circumstances, may keep a case from being referred to a court-martial. This article explains where those opportunities exist and what shapes them.

Who now decides whether an Article 120 case goes to trial

Understanding the decision-maker is essential. For covered offenses including Article 120, the authority to decide whether a case is referred to court-martial no longer rests with the accused’s commander. The Office of Special Trial Counsel, established by the Fiscal Year 2022 National Defense Authorization Act and operational across the services in late 2023, makes that determination through independent, specialized prosecutors. A defense lawyer who wants to keep a case out of trial must therefore engage with this office, not simply with the local command. This is a significant change from the older system and affects how and where defense advocacy occurs before referral.

Presenting evidence before a charging decision

One of the most direct ways a lawyer can work to avoid a court-martial is by presenting exculpatory or mitigating information to the special trial counsel before a disposition decision is made. If the defense can show that the evidence is weak, that the complaining witness has given inconsistent accounts, that forensic evidence does not support the allegation, or that the conduct does not meet the statutory definition of an offense, the prosecutor may decide not to refer the case. Because Article 120 defines consent as a freely given agreement by a competent person, evidence bearing on consent can be central to persuading a prosecutor that the case should not proceed.

Using the Article 32 preliminary hearing

When the government seeks a general court-martial, the case ordinarily passes through an Article 32 preliminary hearing. The hearing officer evaluates whether the specifications state an offense, whether there is probable cause, and whether the court-martial has jurisdiction, and then makes a recommendation about disposition. A defense lawyer can use this hearing to test the government’s evidence …

Article 120 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. section 920, covers rape, sexual assault, and related sexual offenses. Because these cases often turn on what happened between two people in private, the investigation rarely produces a single decisive piece of proof. Instead, military investigators build a case from many sources: the account of the person reporting, physical and forensic evidence, digital records, and the statements of the accused and any witnesses. Understanding how that evidence is gathered helps explain both how the government proves these cases and where the defense looks for weaknesses.

Which agency investigates

Sexual offense allegations are referred to the military criminal investigative organization for the service involved. The Army uses the Criminal Investigation Division, the Department of the Navy uses the Naval Criminal Investigative Service for both Navy and Marine Corps cases, the Department of the Air Force uses the Office of Special Investigations for Air Force and Space Force cases, and the Coast Guard uses the Coast Guard Investigative Service. These are professional investigative bodies staffed by trained agents, not the accused’s local chain of command, which is meant to keep the inquiry independent of unit leadership.

A second feature unique to the military is the restricted reporting option. A service member who experiences a sexual assault may make a restricted report through a Sexual Assault Response Coordinator or a victim advocate, which allows access to medical care and a forensic examination without triggering a law enforcement investigation. If the person later converts to an unrestricted report, or if someone in the chain learns of the assault independently, the investigation proceeds. This system affects timing and the preservation of evidence in ways that often matter later.

The forensic medical examination

A central source of physical evidence is the sexual assault forensic examination, performed by a specially trained nurse or clinician, sometimes called a SANE or SAFE exam. With the patient’s consent, the examiner documents injuries, collects biological samples such as swabs that may contain DNA, preserves clothing, and records the patient’s account of the event for medical purposes. The resulting collection, often called a kit, is sealed and turned over to investigators.

Forensic evidence can be powerful, but it has limits that experienced investigators and counsel understand. The presence of DNA can show that sexual contact occurred but usually cannot show whether it was consensual, which is frequently the …

Learning that you are under investigation or have been accused of adultery under the Uniform Code of Military Justice is unsettling, and the decisions made in the first hours and days often shape everything that follows. The offense, now titled “Extramarital sexual conduct” at Part IV, paragraph 99 of the current Manual for Courts-Martial, is charged under Article 134, codified at 10 U.S.C. section 934. This article lays out the practical steps a service member should consider when facing such an accusation. It is general guidance rather than legal advice, and the single most important step is to obtain counsel from a qualified military defense attorney as early as possible.

Step One: Exercise Your Right to Remain Silent

Before anything else, understand and use your rights. Article 31 of the UCMJ requires that you be advised of the nature of the accusation and of your right to remain silent before you are questioned as a suspect. You are not obligated to explain yourself, and statements made in the moment, even ones intended to minimize or clarify the situation, can be used against you. The safest course is to politely decline to answer questions about the allegation and to state that you wish to speak with an attorney. This is true whether you are approached by law enforcement, a commander, or an investigator.

Step Two: Do Not Discuss the Case Casually

It is natural to want to talk through a crisis with friends, family, or unit members, but conversations about the facts can create witnesses against you and can complicate your defense. Anyone you confide in may later be interviewed. Limit discussion of the substance of the allegation to your attorney, with whom communications are privileged. Be especially careful with text messages, emails, and social media, all of which can be collected as evidence.

Step Three: Preserve Evidence and Avoid Destroying Anything

Do not delete messages, photographs, or other records, and do not encourage anyone else to do so. Destroying potential evidence can itself lead to additional charges such as obstruction and can severely damage your credibility. Instead, preserve documents that may help your defense. Records that show the legal status of your marriage, such as a court order of legal separation or a divorce decree, can be critical given the defenses available for this offense. Keep them safe and provide them to your attorney rather than acting on them yourself.…

The United States and Greece approach military justice from very different starting points. The United States fields a large, all-volunteer, globally deployed force governed by a single federal code and a permanent system of military courts. Greece maintains a smaller force built around mandatory conscription, with a military justice system that operates through dedicated military courts but is firmly bound by a modern democratic constitution and European human rights standards. Comparing the two shows how a shared commitment to disciplined, lawful armed forces can take quite different institutional forms.

The American framework: the UCMJ and courts-martial

In the United States, military law is codified primarily in the Uniform Code of Military Justice, a federal statute in Title 10 of the United States Code, and elaborated in the Manual for Courts-Martial. The UCMJ defines military offenses, establishes court-martial procedure, and applies to members of all the armed services.

The American system is largely internal to the military. Cases are tried before courts-martial, which come in three forms: summary courts-martial for minor matters, special courts-martial as an intermediate forum, and general courts-martial for the most serious offenses. Military judges preside, panels of service members can act in a role comparable to a jury, and a commander known as the convening authority refers charges for trial. Appellate review runs through each service’s Court of Criminal Appeals and then to the United States Court of Appeals for the Armed Forces, a court of civilian judges, with limited further review possible at the Supreme Court of the United States. Civilian control is exercised through that appellate structure and through Congress.

The Greek framework: military courts under constitutional discipline

Greece retains dedicated military courts, but their role has been reshaped by the country’s return to democratic constitutional government. Under the framework established by the 1975 Constitution adopted after the fall of the military dictatorship, the jurisdiction of military courts was restricted to military personnel, ending earlier practices under which civilians could in some circumstances be tried by military tribunals. This was a deliberate move to confine military justice to its proper sphere and to guarantee judicial protections.

Greek military justice is governed by the country’s Military Penal Code and related procedural law. Enlisted personnel, including conscripts, accused of criminal acts are, as a general matter, tried by military courts, and the jurisdiction of those courts extends to both distinctly military offenses and ordinary crimes committed by …