Military Lawyers

Article 88 of the Uniform Code of Military Justice, codified at 10 U.S.C. 888, makes it an offense for a commissioned officer to use contemptuous words against a specific list of officials. Those officials are the President, the Vice President, Congress, the Secretary of Defense, a Secretary of a military department, the Secretary of Homeland Security, and the Governor or legislature of any State, Commonwealth, or possession in which the officer is on duty or present. The question here is narrow and practical: if an officer says something contemptuous about one of those officials while speaking at a private event, can that spoken remark be charged under Article 88? The answer is that it can be charged in principle, but several built-in limits make a charge for genuinely private spoken remarks unlikely, and the setting matters a great deal.

Who and what the article covers

Two threshold points define the article’s reach. First, it applies only to commissioned officers. Enlisted members and warrant officers cannot be charged under Article 88, although other provisions may reach their speech. Second, the prohibited conduct is the use of contemptuous words against one of the enumerated officials. The words must be contemptuous, meaning scornful, disrespectful, or expressing disdain, and they must be directed at an official the statute names. Spoken remarks plainly count; the article is not limited to writing. So a spoken statement at an event is, on its face, capable of being an Article 88 violation if it targets a covered official with contemptuous words.

The publication element is decisive for private settings

The element that does the most work in a private-event scenario is publication. To prove Article 88, the government must show that by some act of the accused, the contemptuous words came to the knowledge of a person other than the accused. The words cannot be a purely internal sentiment; they must reach an audience. This is what connects the offense to the setting in which they were spoken.

That requirement cuts in two directions for a private event. On one hand, remarks spoken aloud at an event, even a private one, are usually heard by other people, so the publication element can be satisfied. A statement made to a room of guests has reached persons other than the speaker. On the other hand, the Manual for Courts-Martial’s explanation of Article 88 provides meaningful protection for private expression. It …

Sometimes evidence that favors the accused does not surface until after a court-martial is over and the case is on appeal. A witness recants, a document the defense never received turns up, a forensic result is reinterpreted, or it emerges that the prosecution sat on something favorable. The military justice system has structured ways to handle exculpatory evidence discovered at this late stage, and the route depends largely on why the evidence is only now coming to light. The two main avenues are a petition for a new trial under Article 73 and the appellate courts’ own power to order fact-finding or relief.

Two different problems: suppressed evidence and newly discovered evidence

It helps to separate two situations that are often grouped together. The first is suppressed evidence: favorable, material evidence that the government had and failed to disclose. The second is newly discovered evidence: favorable evidence that nobody had at trial and that surfaces only afterward. They are handled under overlapping but distinct standards.

When the government suppressed favorable evidence, the constitutional rule of Brady v. Maryland is in play. Under Brady, the suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material to guilt or punishment, regardless of the prosecution’s good or bad faith. The government’s disclosure obligations in the military are also reinforced by the Rules for Courts-Martial and the discovery practice that governs trials. A Brady violation discovered on appeal is a legal error that the appellate court can address directly, because it goes to the fairness of the trial itself.

Petition for a new trial under Article 73

The principal mechanism for newly discovered exculpatory evidence is a petition for a new trial under Article 73, codified at 10 U.S.C. 873. After the Military Justice Act of 2016, the accused may petition the Judge Advocate General for a new trial at any time within three years after the entry of judgment under Article 60c, on the grounds of newly discovered evidence or fraud on the court. This three-year window replaced the older two-year period and runs from entry of judgment rather than from the convening authority’s action.

The standards for granting a new trial are set out in Rule for Courts-Martial 1210. A petition based on newly discovered evidence is granted only if three things are shown: the evidence was discovered after the trial; the evidence would …

Article 90 of the Uniform Code of Military Justice, codified at 10 U.S.C. 890, punishes willfully disobeying a lawful command of a superior commissioned officer (and, historically, striking or assaulting such an officer). A conviction is serious, and in time of war the article even authorizes the death penalty. Yet a guilty finding does not fix the sentence. After findings, a court-martial conducts a separate sentencing proceeding, and the accused’s service record becomes one of the most important pieces of evidence the sentencing authority weighs. Understanding how that record is introduced, by whom, and to what effect is central to defending against the punishment phase of an Article 90 case.

Sentencing Is a Separate Proceeding

In the military system, findings and sentencing are distinct. Once a panel or military judge enters a guilty finding under Article 90, the court moves into presentencing under the Rules for Courts-Martial. The sentencing authority, whether a military judge alone or a panel acting as the sentencing body, hears evidence from both sides before deciding on confinement, discharge, forfeitures, reduction in grade, or other lawful punishments. The accused’s prior service is squarely relevant here in a way it generally is not during the findings phase.

The Government’s Use of the Service Record

Rule for Courts-Martial 1001 governs the presentencing procedure and sets the order in which matters are presented. The prosecution goes first. It may introduce service data taken from the charge sheet, personal data about the accused, and evidence of the character of the accused’s prior service as reflected in the member’s personnel records. The government may also offer evidence of prior convictions, evidence in aggravation, and evidence concerning the accused’s rehabilitative potential.

This means the service record cuts both ways. Where the personnel file documents prior discipline, poor evaluations, letters of reprimand, or a history that suggests the disobedience was part of a pattern, the prosecution can use that material to argue for a heavier sentence. Prior convictions, military or civilian, may be proven through the personnel records, the record of conviction itself, or the order promulgating the result of an earlier trial. A record that paints the accused as a repeat problem can substantially increase sentencing exposure.

The Defense’s Use of the Service Record

After the prosecution and any victim presentation, the defense presents matters in extenuation and mitigation. Extenuation concerns the circumstances surrounding the offense and helps explain why it occurred. …

When a service member faces serious charges, one path that may be available is a request for voluntary discharge in lieu of trial by court-martial. This is sometimes called a discharge in lieu of court-martial, and for enlisted soldiers in the Army it is associated with Chapter 10 of the governing separations regulation. Submitting such a request is a strategic decision that must be supported by sound legal arguments, both to persuade the convening authority to approve it and to protect the service member’s interests. This article explains the kinds of arguments that support requesting a voluntary discharge instead of facing a punitive court-martial.

What the request is and how it works

A discharge in lieu of court-martial is a voluntary, written request by an accused who is facing charges that could result in a punitive discharge. The service member asks the general court-martial convening authority, through the chain of command, to be administratively separated rather than tried. As a condition of the request, the accused must generally admit guilt to at least one charge that authorizes a punitive discharge. The request must be in writing and signed by the accused, and the accused must be given the opportunity to consult with defense counsel before submitting it. Service members are typically afforded a period of time, often a minimum of several days, to consider the decision.

If the convening authority approves the request, the court-martial charges are dropped and the service member is separated administratively. The characterization of service is frequently other than honorable, which carries consequences, but the outcome avoids a federal conviction and the heavier penalties a court-martial could impose, such as confinement. Understanding this trade is the foundation for the legal arguments that support the request.

Argument one: avoiding a federal criminal conviction and confinement

The most direct argument is comparative risk. A special or general court-martial conviction is a federal criminal conviction. It can bring confinement, total forfeiture of pay and allowances, reduction in grade, and a punitive discharge such as a bad-conduct or dishonorable discharge. A voluntary discharge in lieu of trial, by contrast, is an administrative separation. It avoids the criminal conviction and the possibility of confinement entirely.

The legal argument here is that the administrative route serves the interests of both the service member and the government by resolving the matter without the expense, delay, and uncertainty of a contested trial, while still …

A court-martial finding of not guilty only by reason of lack of mental responsibility does not simply send the accused home. It triggers a distinct post-trial process focused on mental health and public safety, in which medical and psychological evaluation plays a central role. The review that follows is not a typical medical board in the disability-evaluation sense; it is a statutorily defined commitment inquiry that depends on expert mental examination. Understanding the distinction matters, because the consequences of this finding can include hospitalization.

What the finding means

The affirmative defense of lack of mental responsibility requires the accused to prove that, at the time of the offense, the accused suffered from a severe mental disease or defect and, as a result, was unable to appreciate the nature and quality or the wrongfulness of the conduct. When a court-martial returns a finding of not guilty only by reason of lack of mental responsibility, it has concluded that the elements of the offense were otherwise present but that the accused is not criminally responsible because of that mental condition. The verdict is an acquittal in name, yet it carries unique aftercare obligations precisely because the accused has been adjudged to have acted while seriously mentally ill.

The post-trial commitment hearing

Federal law and the Rules for Courts-Martial provide a specific procedure for what happens next. Article 76b of the Uniform Code of Military Justice, codified at 10 U.S.C. 876b, governs the consequences of a finding of lack of mental responsibility and ties the military process to the federal commitment scheme. Rule for Courts-Martial 1102A establishes a post-trial hearing to determine whether the acquitted person should be committed because of a present mental disease or defect.

That hearing is held promptly, within forty days of the finding. Before it occurs, the military judge or convening authority orders a new psychiatric or psychological examination of the accused, and the resulting report is provided for use at the hearing. At the hearing, the person bears the burden of proving that release would not create a substantial risk of bodily injury to another person or serious damage to the property of another due to a present mental disease or defect. The standard of proof depends on the seriousness of the offense involved: for the most serious offenses the person must show this by clear and convincing evidence, and otherwise by a preponderance of the evidence. …

When a military appellate court reverses a conviction, the service member’s first hope is freedom and the government’s first instinct is often to try again. Whether the government can do that depends on a single, decisive question: why did the appellate court reverse? If the reversal rested on the conclusion that the evidence was insufficient to support guilt, the case is over and cannot be retried. If the reversal rested on a legal error in how the trial was conducted, a rehearing is usually permitted. The phrase “insufficient findings” can describe either situation, so understanding the distinction is the key to the whole answer.

The constitutional dividing line

The governing principle comes from double jeopardy. The Supreme Court drew the controlling distinction in Burks v. United States, holding that when an appellate court reverses a conviction because the evidence was legally insufficient to support a guilty verdict, the Double Jeopardy Clause bars a second trial. In that situation the reviewing court must order the equivalent of an acquittal. The reasoning is that a reversal for evidentiary insufficiency means the government had its chance and failed to prove its case, so giving it a second opportunity would be exactly the repeated prosecution the Constitution forbids. The Court added that it makes no difference whether the trial court or the appellate court is the one that found the evidence insufficient; either way, retrial is barred.

Burks contrasted that scenario with reversal for trial error. A reversal for trial error, such as an erroneous evidentiary ruling, a flawed instruction, or a procedural mistake, says nothing about whether the accused is actually guilty. It simply means the first proceeding was conducted unfairly. In that situation, retrial is permitted, because the remedy for an unfair trial is a fair one, not a windfall acquittal. This framework applies in the military justice system just as it does in civilian courts.

What “insufficient findings” can mean

The term in the question can point to different things, and each leads to a different result.

If “insufficient findings” means the appellate court found the evidence legally insufficient, meaning no rational factfinder could have found every element of the offense beyond a reasonable doubt, then Burks controls and the proceedings cannot be reopened on that charge. The reversal operates as an acquittal, and double jeopardy bars any new trial on the same offense.

If instead it means the court found …

When a service member is pulled from a unit roster, sidelined from a key billet, or flagged for removal based on a leader’s say-so that cannot be backed up with records, the action can carry real career consequences even though it feels informal. Military defense attorneys dispute these removals by forcing the action out of the realm of unverifiable opinion and into the realm of documented fact, by demanding the process and the proof the situation calls for, and by building a record that exposes the weakness of the underlying input. The strategy depends on the legal vehicle the command used, but the core approach is consistent: insist on evidence, exercise rebuttal and appeal rights, and attack the reliability of the leadership input itself.

Identify the mechanism behind the removal

The first task is to determine what kind of action the removal actually is, because that controls the rights available. A removal from a roster or billet may flow from an adverse counseling, a relief for cause, a derogatory evaluation, a letter of reprimand such as a General Officer Memorandum of Reprimand, a flag or suspension of favorable actions, or the early stages of an administrative separation. Each of these has its own governing service regulation, its own response and rebuttal rights, and its own appeal or removal path. Counsel pins down the mechanism first, because a counseling rebuttal, an evaluation appeal, and a reprimand response are handled differently even when the underlying complaint is the same.

Demand the factual basis and supporting documentation

Unverifiable leadership input is the central vulnerability, and counsel attacks it directly by demanding the factual basis. Adverse actions are supposed to rest on facts, not on uncorroborated impressions. Counsel requests the documents and evidence the command relied on, including any investigative materials, witness statements, counseling records, and the source of the leadership assertion. When the command can produce nothing beyond a leader’s unsupported characterization, that absence becomes the argument: an action that cannot be tied to verifiable facts should not stand. The service member is generally entitled to see the evidence being used against them, and pressing for that evidence often reveals that the input is thin, secondhand, or undocumented.

Use the rebuttal right to build a factual record

Most adverse personnel actions carry a right to respond in writing. Counsel uses the rebuttal to do more than express disagreement. A strong rebuttal supplies a …

Appellate review in the military justice system depends heavily on the record of trial. When a service member appeals a court-martial conviction, the service court of criminal appeals and, potentially, the Court of Appeals for the Armed Forces examine what happened below by reading the record. If a key portion of the trial was never captured in a verbatim transcript, that record has a hole in it, and the missing piece can change the outcome of the appeal. Military law has developed specific rules for handling these gaps. This article explains how appellate courts treat a record that is missing a verbatim account of an important part of the proceedings.

Why a verbatim record matters in the first place

Article 54 of the Uniform Code of Military Justice and the Rules for Courts-Martial require that a complete record of proceedings and testimony be prepared in serious cases. In general terms, a complete and verbatim record is required when the sentence includes death, a punitive discharge or dismissal, confinement for more than six months, or forfeiture of pay for more than six months. The verbatim requirement exists because meaningful appellate review is difficult or impossible if the reviewing court cannot see exactly what was said and done. A summarized or incomplete record may be enough to support a lesser sentence, but the more severe sentences require the fuller, word for word account.

What happens when part of that record is missing

Transcripts can fail for many reasons. A recording device may malfunction, audio may be lost, or a portion of the proceedings may simply never be transcribed. When that happens and the case requires a verbatim record, the appellate court does not ignore the gap. Instead, military law applies a presumption. A record that is incomplete or non-verbatim raises a presumption of prejudice to the accused. The government then bears the burden of rebutting that presumption. If the government cannot rebut it, the consequence usually falls on the sentence: a sentence that legally required a verbatim record cannot stand on a record that is not verbatim.

This is why the requirement of a complete and substantially verbatim record, where one is needed to support the sentence, has been described as a matter of jurisdictional proportion that cannot be waived. The accused does not lose the protection simply by failing to object, because the integrity of the record goes to the court’s …

Article 89 and Article 91 of the Uniform Code of Military Justice both protect the chain of command from disrespect and insubordination, but they aim at different targets and apply to different accused. Article 89, codified at 10 U.S.C. 889, addresses disrespect toward a superior commissioned officer. Article 91, codified at 10 U.S.C. 891, addresses insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer. Understanding how the two articles divide the field clarifies which charge fits which situation and why the same misconduct can be labeled differently depending on who the victim is and who the accused is.

The target of the protection

The most basic difference is whom each article protects. Article 89 protects superior commissioned officers. The disrespect must be directed at a commissioned officer who is superior in rank or command to the accused and who is, at the time, in the execution of office or whose office gives rise to the duty of respect. Article 91 protects warrant officers, noncommissioned officers, and petty officers. The conduct must be directed at one of those members while that member is in the execution of office.

This split mirrors the structure of military authority. Commissioned officers occupy one tier of the protection scheme, while warrant officers and the senior enlisted ranks occupy another. The article chosen depends on which tier the victim belongs to.

Who can be charged

A second important difference concerns the accused. Article 91 applies to warrant officers and enlisted members as accused. It is the vehicle for charging an enlisted member or a warrant officer who is disrespectful or insubordinate toward a warrant officer, noncommissioned officer, or petty officer. A commissioned officer who engages in similar conduct toward those same members is ordinarily not charged under Article 91. Instead, a commissioned officer’s misconduct is addressed through other provisions appropriate to officers. Article 89, by contrast, can reach any subordinate, whether enlisted or commissioned, who is disrespectful toward a superior commissioned officer.

The superior-subordinate relationship

A subtle but significant difference lies in whether a formal superior-subordinate relationship must be proven. Article 89 generally requires that the officer who is the object of the disrespect be superior to the accused, which builds the relationship into the offense. Article 91 has the same general objects as Articles 89 and 90, namely to ensure obedience to lawful orders and to protect the named members from violence, insult, …

A reprimand connected to Article 88, contempt toward officials, can follow an officer for the rest of a career. Article 88 makes it an offense for a commissioned officer to use contemptuous words against certain officials, and discipline for that conduct often arrives not as a court-martial conviction but as a written reprimand. Whether that reprimand can be appealed or removed depends entirely on how it was issued. The avenues, the standards, and the odds differ dramatically between an administrative reprimand and a punitive one, so the first task is always to identify which kind you are dealing with.

Understanding what a reprimand actually is

A reprimand is a formal written censure. In the Article 88 context it usually grows out of an officer publicly disparaging a covered official, since Article 88 reaches only commissioned officers and only contemptuous words against a defined list that includes the President, Vice President, Congress, the Secretary of Defense, the Secretary of Homeland Security, a Secretary of a military department, and the governor or legislature of a state or territory. Not every harsh comment qualifies. Words must be genuinely contemptuous, meaning scornful or expressing disdain, and ordinary criticism, even pointed criticism, is not automatically contemptuous.

Even when conduct arguably crosses that line, commanders frequently choose an administrative response rather than a trial. That choice determines what relief is available later.

Administrative reprimands and the rebuttal stage

The most common form is an administrative reprimand, such as a General Officer Memorandum of Reprimand in the Army or its equivalents in other services. These are not criminal convictions. When an officer receives one, the very first opportunity to fight it is the rebuttal stage. The officer is notified of the reprimand and given a deadline to submit matters in response. Those matters can deny the allegations, provide context, offer evidence of good character and performance, and argue about where the reprimand should be filed.

Filing is the central battleground. A reprimand can be placed in a local file or in the permanent file. A locally filed reprimand is visible to the chain of command but not to promotion boards and is generally removed after a change of station or after a set number of years. A permanently filed reprimand goes into the official record where promotion boards see it and where it can quietly end a career. Persuading the issuing authority to file locally rather than …