Military Lawyers

Article 86 of the Uniform Code of Military Justice covers absence without leave, commonly called AWOL. Unlike many offenses where the maximum punishment is fixed, the punishment for an Article 86 absence is tiered: how long the service member was gone is one of the single most important factors driving the authorized sentence. The longer the absence, and the way it ends, can move a case from a minor administrative matter to one carrying a punitive discharge and confinement.

Why duration is built into the offense

Article 86 is not a one-size offense. It describes several types of absence, including failing to go to an appointed place of duty, going from that place, and absenting oneself from the unit, organization, or place of duty. For the most serious form, a continued unauthorized absence, the duration of the absence is treated as a measurable aggravating element rather than a mere sentencing consideration. The Manual for Courts-Martial sets out escalating maximum punishments keyed directly to how many days the absence lasted.

Importantly, Article 86 does not require proof that the member intended to stay away permanently. That intent is what separates AWOL under Article 86 from desertion under Article 85. Because there is no permanent-intent element, the law uses duration and the manner of termination as the primary measures of seriousness.

The escalating tiers of maximum punishment

The maximum authorized punishment for an unauthorized absence increases in steps as the length of the absence grows. The tiers recognized in the Manual for Courts-Martial work as follows.

For an absence of three days or less, the maximum punishment includes forfeiture of two-thirds pay per month for one month, confinement for one month, and reduction to the lowest enlisted grade. This is the least severe tier and notably does not authorize a punitive discharge.

For an absence of more than three days but not more than thirty days, the maximum rises to forfeiture of two-thirds pay per month for six months, confinement for six months, and reduction to the lowest enlisted grade. A punitive discharge is still not authorized at this level.

For an absence of more than thirty days, the picture changes sharply. The maximum punishment includes a dishonorable discharge, forfeiture of all pay and allowances, confinement for one year, and reduction to the lowest enlisted grade. Crossing the thirty-day line is the point at which a punitive discharge becomes available and confinement …

Missing movement under Article 87 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. section 887, punishes a service member who, through neglect or design, misses the movement of a ship, aircraft, or unit with which the member is required in the course of duty to move. Of the offense’s four elements, the one most often litigated is knowledge: the government must prove that the accused knew of the prospective movement. That knowledge requirement is the doorway through which a defense attorney can challenge whether the accused was ever properly put on notice. This article explains how that challenge works.

What the government must actually prove about notice

To convict under Article 87, the prosecution must establish beyond a reasonable doubt that the accused was required in the course of duty to move with a ship, aircraft, or unit; that the accused knew of the prospective movement; that the accused missed the movement; and that the accused did so through design or neglect. The knowledge element does not require proof that the accused knew the exact hour or even the exact date of departure. It requires actual knowledge that a movement was coming and that the accused was required to be part of it.

That distinction matters. The government does not have to show a perfect paper trail of a formal briefing. It can prove knowledge through circumstantial evidence: a posted movement order, a unit formation where the date was announced, an email distribution, a manifest with the accused’s name on it, or testimony that the accused discussed the deployment with others. A defense attorney challenging notification is therefore not just looking for the absence of a single signed document. The attorney is testing whether the total proof, direct and circumstantial, actually establishes that this accused knew.

Attacking the source of notification

The first line of attack examines how notice was supposedly delivered. Many missing movement cases rest on a generalized assumption that “everybody in the unit knew.” That assumption is not evidence. A careful defense asks who specifically told the accused, when, and how. If the government relies on a posted order, the defense probes whether the accused was present to see it, whether it was posted where the accused would encounter it, and whether it identified the accused as required to move. If the government relies on a roster or manifest, the defense asks whether …

When a service member reports a sexual assault under Article 120 of the UCMJ, or testifies about such a complaint, the law treats any reprisal against that person as a separate criminal offense. This is a point of frequent confusion. People assume that retaliation is handled only through administrative equal opportunity channels or inspector general complaints. Those avenues exist, but military law also makes retaliation a punitive offense that can be tried by court-martial. Understanding how that works, and where its limits lie, matters to anyone who comes forward about an Article 120 allegation or who later faces accusations of having punished someone who did.

Two distinct articles are in play

It is important to keep two articles separate. Article 120 is the sexual assault statute. It defines offenses such as rape, sexual assault, aggravated sexual contact, and abusive sexual contact. A “complaint” or “testimony” under Article 120 refers to a person reporting one of those offenses, cooperating with an investigation, or testifying at a hearing or trial.

Retaliation itself is prosecuted under a different statute, Article 132 of the UCMJ, codified at 10 U.S.C. 932. Article 132 was added by the Military Justice Act of 2016 and took effect in 2019. Before that, reprisal conduct was usually addressed administratively or charged under the general Article 134. The creation of a dedicated retaliation article reflects a deliberate decision to make reprisal a freestanding crime. So a retaliation claim arising from Article 120 complaint testimony is, in criminal terms, an Article 132 matter built on an Article 120 underlying report.

What Article 132 prohibits

Article 132 criminalizes two related categories of conduct. The first is taking or threatening to take an unfavorable personnel action against a person, or withholding or threatening to withhold a favorable personnel action, with the intent to retaliate for a protected communication or for reporting a criminal offense. The second is wrongfully discouraging a person from reporting a criminal offense or from making a protected communication.

For a retaliation claim tied to Article 120 testimony, the typical theory is the first one. The government must prove that the accused wrongfully took, threatened, withheld, or threatened to withhold a personnel action, and that at the time the accused specifically intended to retaliate against the person for making a report or a protected communication. Reporting a sexual assault, and testifying about it, fall within the conduct the statute protects.…

Yes. Military courts are required to honor the disclosure obligations established by Brady v. Maryland, 373 U.S. 83 (1963), and the military justice system reinforces those obligations with discovery rules that are in some respects broader than what civilian defendants receive. A service member facing a court-martial is entitled to the constitutional protection that the government must disclose favorable, material evidence, and that entitlement is woven into both due process and the Rules for Courts-Martial.

The Constitutional Baseline

Brady v. Maryland holds that the prosecution’s suppression of evidence favorable to an accused violates due process when the evidence is material to guilt or to punishment. The duty applies regardless of whether the prosecutor acted in good faith, and it covers both exculpatory evidence that tends to negate guilt and impeachment evidence that undermines the credibility of government witnesses. Because the guarantee flows from the Due Process Clause, it reaches service members through the constitutional protections that apply in military proceedings. Courts-martial are not exempt from this foundational rule.

How the Military System Implements Brady

The military does not rely on Brady alone. Rule for Courts-Martial 701 governs discovery and imposes affirmative disclosure duties on trial counsel that often exceed civilian practice. The rule requires the government to disclose a range of information to the defense, including evidence favorable to the accused. In practice, military discovery is comparatively generous, giving the defense access to materials a civilian defendant might have to fight to obtain. The combined effect is that the Brady duty operates inside a framework that already obligates the government to be forthcoming.

This layered structure means a disclosure failure in a court-martial can violate both the constitutional Brady standard and the regulatory requirements of Rule for Courts-Martial 701. The two sources can lead to different analytical paths depending on whether the defense made a specific request and whether the undisclosed material was constitutionally material.

The Materiality Standard

Not every failure to disclose requires reversal. Under the standard the Court of Appeals for the Armed Forces applies, evidence is material only if there is a reasonable probability that, had it been disclosed, the result of the proceeding would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome. This is the same materiality concept that governs Brady analysis in civilian courts, and it focuses on the effect of the nondisclosure rather than on the prosecutor’s …

Insubordination and disrespect charges often grow out of relationships that were already tense. A service member who has clashed with a supervisor for weeks, then has a heated exchange, may find that exchange charged as disrespect or insubordinate conduct. A natural question follows: does the history between the two people change the legal picture? The history does not change the elements the government must prove, but it can matter a great deal to how those elements are evaluated, to the credibility of the accuser, and to defenses the accused may raise. Understanding where the prior relationship is relevant and where it is not is essential to handling these cases well.

The charges at issue

Disrespect and insubordination offenses arise under several articles of the Uniform Code of Military Justice (UCMJ). Article 89 prohibits disrespect toward a superior commissioned officer. Article 90 covers willful disobedience of a superior commissioned officer. Article 91 prohibits insubordinate conduct, including disrespect and disobedience, toward a warrant officer, noncommissioned officer (NCO), or petty officer. Each requires the government to prove specific elements, and the existence of a prior strained relationship does not erase any of them.

For a disrespect specification, for example, the government must show that the accused used certain language or behavior, that it was directed toward and within sight or hearing of the superior, that the accused knew the person’s status, that the person was in the execution of office, and that the conduct was disrespectful under the circumstances. A bad relationship does not supply or excuse any of these. The prosecution still has to prove each element beyond a reasonable doubt.

Where the prior relationship becomes relevant

Although the relationship does not alter the elements, it bears on the case in several concrete ways.

First, intent. Disrespect and insubordination require more than a misunderstanding; the prosecution must establish that the conduct was actually disrespectful or that the disobedience was willful. A long, mutually combative relationship can cut in either direction. The government may argue the history shows a settled contemptuous attitude. The defense may argue that what looks like disrespect was the product of frustration, miscommunication, or an emotional moment, not an intent to be contemptuous, and that the words must be read against the backdrop of an ongoing personal dispute rather than as a deliberate affront.

Second, credibility and motive of the accuser. If the superior had a prior conflict with …

Absence without leave under Article 86 of the Uniform Code of Military Justice (UCMJ) covers a wide range of conduct, from a brief, isolated late return to a prolonged unauthorized absence. Many cases fall into a gray zone where reasonable decision-makers could go several ways: take no formal action, counsel, impose nonjudicial punishment, or refer the matter to a court-martial. In that borderline space, the disposition often depends less on the bare facts of the absence than on the climate of the command handling it. Understanding how command climate pushes these decisions, and where the law draws limits, is essential for anyone facing an Article 86 allegation.

Why AWOL cases are unusually sensitive to command climate

Article 86 disposition involves broad discretion. The duration of the absence, the circumstances surrounding it, the member’s prior record, and the needs of the unit all bear on what response is proportionate. A short, explained absence by a strong performer is frequently handled informally, while the same absence by a member already on thin ice may draw harsher treatment. Because the governing factors are this elastic, the prevailing attitude of the command, what leaders treat as tolerable, how seriously they regard absences, and how they balance discipline against mission, naturally colors the outcome.

A command climate that prizes strict accountability and visible enforcement tends to push borderline absences toward formal action, sometimes nonjudicial punishment or a court-martial referral, to send a message to the unit. A climate focused on rehabilitation and retention tends to resolve the same facts with counseling or administrative measures. Neither orientation is inherently improper; commanders are entitled to set disciplinary tone and to consider good order and discipline. The difficulty is that climate-driven decisions can shade into something the law forbids.

The line between legitimate command influence and unlawful command influence

The military justice system depends on commanders to make disposition decisions, so command involvement is not only permitted but structural. What the law prohibits is unlawful command influence, often called the mortal enemy of military justice. Unlawful command influence occurs when command pressure improperly affects the exercise of discretion in a particular case, for example when a senior leader signals that a certain class of offenders must be court-martialed, when leadership pressures a subordinate authority toward a predetermined result, or when the command acts out of bias or a desire to make an example of someone.

In a borderline …

An Article 86 charge under the Uniform Code of Military Justice, for absence without leave, rises or falls on documentation. Because the offense turns on dates, the absence of authority to be away, and the manner the absence ended, the government builds its case largely from administrative records rather than eyewitness narrative. Knowing what paperwork is typically generated, and what each document is meant to prove, helps explain how these cases are assembled and where they can be challenged.

What the documentation has to establish

Before listing the forms, it helps to understand what they must collectively prove. An unauthorized absence requires showing three things: that the member had a duty to be present, that the member was in fact absent, and that the absence was not authorized. For the most serious tier of Article 86, the records must also fix the inception date when the absence began and, ordinarily, the termination date when it ended, because the length of absence sets the maximum punishment. The documents described below exist to lock down these facts.

Records that establish presence, duty, and authority

The first category of paperwork establishes the member’s duty status and shows that the member had no permission to be away. Personnel and attendance records maintained by the unit document who was accounted for on a given day and who was not. Leave records show whether the member had approved leave or pass authority covering the dates in question, which is central because an absence is only unlawful if it was unauthorized. Duty rosters, appointment schedules, or orders directing the member to a particular place at a particular time support the lesser forms of the offense, such as failing to go to an appointed place of duty.

Because services differ in their forms and their record-keeping systems have changed over time, the specific titles vary. What stays constant is the function: these records show that the member was required to be present and lacked authorization to be elsewhere.

Records that fix the inception and termination of the absence

The second category documents when the absence started and stopped. Entries reflecting the date and time the member was first noted as absent help establish the inception. Records reflecting the member’s return, whether by voluntary surrender or otherwise, help establish the termination. Where the member is gone long enough that the command treats the matter as a possible desertion, the …

When a service member disobeys an instruction during a medical evacuation, the question of which punitive article applies is not academic. Article 90 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. section 890, punishes willful disobedience of a lawful command from a superior commissioned officer and carries severe penalties. But Article 90 has specific requirements that many medical-evacuation scenarios do not meet. In a good number of cases, the proper charge is failure to obey an order under Article 92, not Article 90. Whether Article 90 reaches the conduct depends on who gave the order and the relationship between that person and the accused. This article works through that analysis.

The elements of Article 90

To convict under Article 90, the government must prove that the accused received a lawful command from a certain commissioned officer; that this officer was the superior commissioned officer of the accused; that the accused then knew that this officer was the accused’s superior commissioned officer; and that the accused willfully disobeyed the lawful command. Three features of these elements matter for the medical-evacuation question.

First, the order must come from a commissioned officer. An order from an enlisted member, including a senior noncommissioned officer, does not fall under Article 90. Second, that officer must be the accused’s superior commissioned officer, a status that depends on rank and command relationship, not merely on the officer outranking the accused in the abstract. Third, the disobedience must be willful, meaning an intentional defiance of authority, not mere forgetfulness, inability, or negligence.

Why medical evacuation complicates the “superior commissioned officer” element

A medical evacuation often places a service member among personnel who are not in the member’s normal chain of command. Flight medics, corpsmen, and many of the crew handling an evacuation may be enlisted. Medical personnel giving instructions may be officers, but they are frequently not the patient’s superior commissioned officer in the command sense Article 90 requires. An order to lie still, to accept treatment, or to follow a loading procedure may come from someone who has functional authority over the situation without being the patient’s superior commissioned officer.

This is the crux. Article 90 is reserved for willful disobedience of one’s superior commissioned officer. When the order during an evacuation comes from someone who does not hold that specific status relative to the accused, the conduct does not fit Article 90, …

Aiding a co-accused while an investigation is underway can be prosecuted under Article 78 of the Uniform Code of Military Justice, but only if the facts fit the precise structure of the accessory-after-the-fact offense. The phrase “during an investigation” is where many of these cases turn, because Article 78 is concerned with the timing of the underlying crime, not the timing of the investigation. The key question is whether the offense was already complete when the help was given and whether that help was meant to defeat the justice process. When the conduct does not fit Article 78, the same facts often fall under a different and frequently more apt charge: obstruction of justice.

Article 78 keys on the completed offense, not the investigation

Article 78 punishes a person who, knowing that another committed an offense punishable under the code, receives, comforts, or assists that offender after the offense, for the purpose of hindering or preventing apprehension, trial, or punishment. The critical word is “after.” The assistance must follow a completed offense. An investigation, by contrast, can begin before, during, or after the underlying crime is finished. So the existence of an investigation neither creates nor defeats accessory liability. What matters is whether the principal’s offense was already complete at the moment the accused stepped in to help.

In practice, an ongoing investigation usually means the offense has already occurred, which is why aiding a co-accused at that stage can support an Article 78 charge. If a service member learns that a fellow member committed an offense and then, while investigators are working the case, helps that person hide, flee, or avoid detection, the timing element is satisfied because the help came after the crime.

The purpose element separates help from obstruction

Even when the timing fits, Article 78 requires that the assistance be given for the purpose of hindering or preventing apprehension, trial, or punishment. This is a specific-intent requirement. Lawful support to a co-accused, such as helping the person find a defense attorney, offering moral support, or declining to volunteer information, is not accessory conduct. Article 78 reaches active steps aimed at defeating the case, such as concealing the offender, helping the person leave the area, or hiding or destroying physical evidence.

The knowledge element applies with equal force. The government must prove the accused had actual knowledge that the co-accused had in fact committed an offense. Suspicion …

Security clearance holders are reinvestigated periodically, and the process requires them to complete the Questionnaire for National Security Positions, Standard Form 86 (SF-86), and to answer follow-up questions truthfully. Many cleared personnel worry about a specific scenario: they received counseling or therapy at some point, did not report it, and now fear what happens at reinvestigation. The most important thing to understand is that the government is generally far more concerned with whether you were honest than with the fact that you sought counseling. Failing to disclose required information, when it should have been disclosed, can create problems that are more serious than the counseling itself ever would have been.

Seeking counseling is usually not the problem

The adjudicative guidelines used to evaluate clearances, set out in Security Executive Agent Directive 4 (SEAD 4), make clear that seeking mental health care is not, by itself, disqualifying. The guideline addressing psychological conditions focuses on whether a condition causes a defect in judgment, reliability, or trustworthiness, not on whether a person sought help. Federal agencies have repeatedly emphasized that obtaining counseling is often viewed as a responsible, positive step rather than a red flag.

Equally important, the SF-86 does not ask applicants to report every instance of counseling. The mental health section contains specific exclusions. Certain categories, such as counseling related strictly to marital, family, or grief matters, or counseling related to adjustments from service in a military combat environment, are not reportable in the way other treatment is, provided the counseling was not court-ordered and was not connected to a reportable concern such as a threat of violence. This means that some “past counseling” a person worries about may never have been reportable at all, in which case there was nothing to disclose and no violation in not listing it.

When nondisclosure becomes the real issue

The danger arises when the information was actually required and the applicant omitted it, especially if the omission appears deliberate. In clearance adjudication, the most damaging issues frequently are not the underlying facts but the integrity questions surrounding them. The Personal Conduct guideline (often called Guideline E) targets conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules, and it is commonly applied to applicants who provided false or incomplete answers on their security forms. A familiar principle in this field is that the cover-up is treated more harshly than the …