Military Lawyers

Article 87 of the Uniform Code of Military Justice, codified at 10 U.S.C. 887, punishes missing the movement of a ship, aircraft, or unit. The statute is unusual because it builds two different mental states directly into a single offense. A service member can miss a movement “through neglect or design,” and the choice between those two words changes both how the government proves the case and how much punishment a court-martial may impose. When people speak of “voluntary” versus “negligent” absence under Article 87, they are really describing the difference between missing a movement by design and missing it through neglect.

What Article 87 Actually Covers

Article 87 is narrower than general absence offenses. It does not reach every instance of being away from a duty station. It targets the specific failure to be present when a particular ship, aircraft, or organized unit moves, and the accused must have had a duty to move with that ship, aircraft, or unit. The government must prove that the accused was required in the course of duty to move with the named entity, that the accused knew of the prospective movement, and that the accused missed it. Because of that knowledge element, Article 87 assumes the member was aware a movement was coming. The dividing line between design and neglect addresses what the member did, or failed to do, in the face of that knowledge.

Missing Movement by Design

“Design” describes a deliberate, intentional failure. A member who misses a movement by design has formed a specific intent not to be present for it. The conduct is purposeful rather than accidental. Examples that courts and practitioners commonly treat as design include deliberately walking away before a scheduled deployment, intentionally checking into a different location to avoid boarding, or knowingly arranging to be elsewhere so that the movement cannot include the member. The hallmark is intent directed at the movement itself, not merely intent to do something else that happened to cause the absence.

Because design reflects a conscious decision to defeat the movement, it is treated as the more serious form of the offense. The maximum punishment for missing movement by design is more severe than for neglect, reflecting the greater culpability of a member who chooses to abandon a known obligation.

Missing Movement Through Neglect

“Neglect” describes a failure to exercise the care that a reasonable person would have used under …

Article 78 of the Uniform Code of Military Justice covers the offense of accessory after the fact. People sometimes assume that any help connected to someone who has fled justice can be charged under this article. A common version of the question involves a service member who sends money or other support to the family of a fugitive, perhaps a spouse who deserted or a friend who absconded to avoid trial. The short answer is that giving money to a fugitive’s family is not, by itself, an Article 78 offense. Whether it can be prosecuted depends entirely on what the support was meant to accomplish and what the person giving it knew. This article explains why the dividing line falls where it does.

What Article 78 actually requires

To convict a person of being an accessory after the fact, the government must prove four things beyond a reasonable doubt. First, that a specific person committed an offense punishable under the UCMJ. Second, that the accused knew that this person had committed that offense. Third, that after the offense, the accused received, comforted, or assisted the offender. Fourth, that the accused did so in order to hinder or prevent the offender’s apprehension, trial, or punishment. Each of these elements must be present. If even one is missing, the charge fails.

The structure of these elements shows that Article 78 is not about loose association or general loyalty to someone in trouble. It is about deliberate help given with a specific purpose: shielding the offender from the justice system.

Knowledge is the first hurdle

The knowledge element is strict. The accused must actually know that the person being helped committed an offense. Suspicion, rumor, or a vague sense that something is wrong is not enough. A service member who sends money to a relative’s household without knowing that the relative has committed any crime cannot be an accessory after the fact, because the required knowledge simply does not exist. This protects people who provide ordinary family support without any awareness of wrongdoing.

The purpose element is where most of these cases turn

Even when knowledge exists, the government must still prove the purpose behind the assistance. The help must be given in order to hinder or prevent the offender’s apprehension, trial, or punishment. This is the element that decides almost every question about supporting a fugitive’s family.

Consider the difference between two …

A security clearance or access determination can shape a military career as decisively as any disciplinary action. When a service member is denied access and the stated reasons feel vague or amount to little more than a command’s generalized discomfort, the personnel security system provides a structured set of procedures designed to convert vague concerns into specific, written allegations the member can answer. Knowing those procedures, and the requirement that the reasons be detailed rather than conclusory, is the key to challenging a denial.

The Foundation: Reasons Must Be Specific

A core protection in the Department of Defense personnel security process is that an unfavorable clearance decision generally may not be made unless the individual has first received a written Statement of Reasons. The Statement of Reasons is required to be as detailed and comprehensive as national security permits. This requirement exists precisely to address the problem of vague objections. A command cannot lawfully rest a denial on an unspecified hunch or a generalized assertion that a member is untrustworthy. The member is entitled to a written explanation tied to the recognized adjudicative guidelines, so that the member knows what must be rebutted.

If the reasons a member receives are genuinely vague, that vagueness is itself a procedural problem. The remedy built into the system is the Statement of Reasons and the response process, which forces the government to articulate the concern with enough particularity for the member to respond.

Distinguishing the Type of Access Decision

The procedures depend on what kind of access is at issue. A formal denial or revocation of a security clearance triggers the personnel security due-process framework described below. By contrast, a commander’s decision to suspend access on a temporary or precautionary basis, or to decline to nominate a member for access, may follow different and sometimes more discretionary paths. A member who is told only that a command “objects” should clarify whether an actual clearance eligibility denial has been made or whether something short of that has occurred, because the available procedures differ. Counsel can help identify which track applies.

The Statement of Reasons and the Member’s Response

When the process reaches a denial or revocation of eligibility, the member receives the Statement of Reasons together with a letter of instruction. That letter explains the member’s options, including the opportunity to respond in writing, the ability to request a hearing, and the consequences of …

A Board of Inquiry is the administrative show-cause process the armed services use to decide whether a commissioned or warrant officer who has come under question should be retained or separated. It is governed for the Department of Defense by DoD Instruction 1332.30 on commissioned officer administrative separations, with each service adding its own implementing regulation. Because a BOI is an administrative proceeding rather than a criminal trial, the way a confidentiality breach during preparation affects the hearing is different from how a similar breach would play out at a court-martial. Understanding that difference is essential to answering the question accurately.

What a BOI is and what protects its integrity

A Board of Inquiry is a statutory hearing that gives the respondent officer an opportunity to respond to and rebut the basis for separation. Findings must be supported by a preponderance of the evidence, the lower civil standard rather than proof beyond a reasonable doubt. The voting members deliberate in closed session, with only voting members present, and findings and recommendations are reached by majority vote. The hearing is meant to be fair, orderly, and based on a defined record. Confidentiality expectations attach at several points: deliberations are closed; some underlying records are protected by the Privacy Act; mental-health, medical, or law-enforcement materials may carry their own access restrictions; and counsel on both sides handle sensitive personnel information.

When people refer to confidentiality violations during BOI prep, they usually mean one of a few things. A board member or recorder may have improperly disclosed protected information. Privileged communications between the respondent and defense counsel may have been intercepted or shared. Protected personnel or medical records may have been released to people without a need to know. Or a member of the board may have been exposed to information outside the hearing that prejudices the case before evidence is presented. Each of these touches a different part of the proceeding and carries a different consequence.

Administrative proceedings do not use the exclusionary rule the same way

The first key principle is that a BOI is not a criminal trial, so the constitutional exclusionary rule that suppresses unlawfully obtained evidence in a court-martial does not transfer automatically. A confidentiality breach during preparation does not, by itself, void the hearing. The governing question in the administrative setting is whether the irregularity caused material prejudice to the respondent’s substantial rights and whether the proceeding …

When a criminal investigation touches a service member, the question of who may know about it, and where that information may appear, quickly becomes critical. Army Criminal Investigation Division (CID) cases, like those handled by other defense criminal investigative organizations, generate records that follow specific rules. One recurring problem arises when a rater or reviewer wants to mention the existence or outcome of a CID investigation in an official performance evaluation. Doing so carries legal implications that flow from how military investigative records are created, how they may be disclosed, and what an evaluation is permitted to contain.

Understanding titling and what a CID outcome actually means

To assess disclosure, it helps to understand the underlying record. Under Department of Defense Instruction 5505.07, an investigative organization “titles” and “indexes” a subject in the Defense Central Index of Investigations once it determines that credible information exists that the subject committed a criminal offense. Credible information is a low threshold; it means information that, considering its source and the totality of circumstances, is sufficiently believable to lead a trained investigator to presume the fact in question is true. That is far short of probable cause and much further still from proof of guilt.

This matters for evaluations because the “outcome” of a CID investigation is frequently ambiguous. A case may close as founded, unfounded, or unsubstantiated, and a titling decision may stand even where no charges follow. The same instruction makes the point directly: judicial or adverse administrative action will not be taken based solely on the existence of a titling or indexing record. An investigative outcome, standing alone, is not an adjudication of misconduct.

The core tension with performance evaluations

Official performance evaluations, such as an officer or noncommissioned officer report, are designed to assess demonstrated performance and potential. The services maintain regulations governing what those reports may contain, and a common theme across them is that adverse comments must be based on facts and on conduct that has been properly substantiated, not on unproven allegations or the mere pendency of an inquiry. Referencing a CID investigation that has not resulted in a finding of misconduct risks importing an unproven allegation into a permanent personnel record under the guise of documented performance.

The legal exposure runs in several directions. First, an evaluation that characterizes a member based on an unsubstantiated investigation may be substantively inaccurate, which is itself a basis for …

When a service member commits an act that is a crime under both civilian law and the Uniform Code of Military Justice, both the civilian authority and the military have jurisdiction over the same conduct. This is concurrent jurisdiction. A frequent and stressful situation arises when the civilian prosecutor looks at the case and decides not to file charges, or files them and then drops them. Many service members assume that a civilian declination ends the matter. It usually does not. The military retains its own independent authority to act, and a civilian decision to walk away from a case rarely prevents the command from pursuing it.

Two sovereigns, two sets of authority

The reason a civilian declination does not bind the military lies in the structure of American criminal jurisdiction. The federal government, including the armed forces, and a state are separate sovereigns. Under the dual sovereignty doctrine, each sovereign may prosecute conduct that violates its own laws, and a prosecution by one does not block a prosecution by the other for the same act. The military justice system is a federal system created by Congress, distinct from a state’s criminal courts.

This matters in two directions. Even a civilian acquittal or conviction does not, by itself, bar a later court-martial for the same underlying conduct, because the two proceedings belong to different sovereigns. And when a civilian authority simply declines to prosecute, there has been no civilian proceeding at all that could even raise a jeopardy question. A declination is the civilian prosecutor exercising discretion, often for reasons that have nothing to do with the strength of the case, such as resource constraints, jurisdictional convenience, or a judgment that the military is better positioned to handle the matter.

What Article 44 does and does not protect

The UCMJ contains its own double jeopardy protection in Article 44, codified at 10 U.S.C. 844, which provides that no person may, without consent, be tried a second time for the same offense. Article 44 is important, but its protection runs within the military system. It prevents a second court-martial for the same offense after jeopardy has attached in a first court-martial. It does not convert a civilian prosecutor’s decision into a bar on military action. Because the civilian and military systems are separate sovereigns, the protection against being tried twice operates inside each system rather than across them.

It is also …

A service member can find themselves caught between two systems at once: a medical evaluation process that may lead to disability retirement, and an administrative or punitive separation for misconduct. When the misconduct is unrelated to the medical condition, members understandably ask whether the medical retirement process can simply override and displace the pending separation. The short answer is that the disability system does not automatically trump a misconduct separation. The two processes can run in parallel, but when they conflict, the resolution generally rests with a designated commander or authority who decides which action will control, and certain pending separations can bar entry into the disability system altogether.

Two Separate Systems

Disability evaluation in the armed forces runs through the Disability Evaluation System, which uses a Medical Evaluation Board to document and refer conditions and a Physical Evaluation Board to determine fitness for duty and, where appropriate, disability ratings that can lead to medical separation or medical retirement. Misconduct separation runs through a different track, governed by enlisted and officer administrative separation rules or by the court-martial system for punitive discharges. The two systems serve different purposes. The disability system asks whether a medical condition renders the member unfit to continue serving. The misconduct system asks whether the member’s conduct warrants involuntary separation or punishment.

Because the systems are distinct, a member may be processed in both at the same time, a situation often described as dual processing. The existence of a Medical Evaluation Board referral does not, on its own, stop a misconduct separation, and a pending misconduct separation does not always stop a medical referral.

When a Pending Separation Bars the Disability System

There is an important threshold limit. A member is generally ineligible for referral into the Disability Evaluation System when the member is pending an approved, unsuspended punitive or administrative discharge or dismissal. In other words, once a separation has been approved and is not suspended, the door to the disability system can be closed. This is the opposite of the disability process overriding separation. It means that the status of the misconduct action can foreclose the medical retirement path rather than the other way around.

Timing therefore matters enormously. For dual processing to be available, the medical referral often must occur before the separation action reaches the stage of final approval. In officer cases, for example, referral to the Medical Evaluation Board generally must …

The military conducts urinalysis testing for several distinct purposes, and the legal limits on a compelled test depend heavily on which purpose it serves. When a urinalysis is ordered outside of a fitness-for-duty examination, the rules that govern its lawfulness and the use of its results shift. The central limitation is this: the basis on which a urine sample is compelled determines whether the results can be used to prosecute the service member at a court-martial, and several legal doctrines constrain when and how commanders may compel testing.

The framework: inspections, probable cause, and consent

Urinalysis is a search under military law because it examines a person’s bodily fluids. Military Rule of Evidence (MRE) 313 governs inspections, and MRE 312 and related rules govern bodily intrusions and probable cause searches. Whether a compelled urinalysis is lawful, and whether its results are admissible, generally turns on which of three categories it falls into.

The first is the inspection. Under MRE 313, an inspection is an examination of all or part of a unit conducted as an incident of command, the primary purpose of which is to ensure the security, military fitness, or good order and discipline of the unit. A commander may order a unit sweep urinalysis as an inspection without probable cause, and the results are generally admissible at court-martial because the testing was a legitimate command function rather than a search aimed at building a case against an individual.

The second is the probable cause search. If a commander wants to compel a specific service member who is suspected of drug abuse to provide a sample, that is not an inspection. It requires probable cause and proper authorization, the same as any other search directed at an individual based on suspicion. Without probable cause, the results of such a directed test are vulnerable to suppression.

The third is consent. A service member may voluntarily consent to provide a sample, and consent must be genuinely voluntary to validate the search.

The subterfuge limitation

A key limitation on inspection-based testing is the rule against subterfuge. Under MRE 313, if an examination is ordered under the guise of an inspection but is in fact a search directed at finding evidence against a particular person, it loses the protection that inspections enjoy. Courts examine the primary purpose of the testing. Where there is evidence that the commander used a supposedly unit-wide inspection as …

Service members charged with disobeying an order are sometimes coerced into that disobedience by a genuine, immediate threat. Military law recognizes that reality through the affirmative defense of duress. The defense is available in courts-martial, including to disobedience offenses, but it is narrow. It does not excuse disobedience grounded in fear of ordinary consequences, disagreement with the order, or generalized pressure. It applies only when a specific and immediate threat of death or serious bodily harm left no reasonable alternative to committing the offense.

What the duress defense requires

The duress defense is set out in Rule for Courts-Martial 916(h). Under that rule, it is a defense to any offense except killing an innocent person that the accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would immediately be killed or would immediately suffer serious bodily injury if the accused did not commit the act. The rule contains several demanding requirements that must all be satisfied.

First, the threatened harm must be death or serious bodily injury, not lesser harms such as economic loss, embarrassment, or career damage. Second, the apprehension of that harm must be reasonable, meaning a reasonable person in the accused’s position would have shared it. Third, the danger must be immediate, and the apprehension must reasonably continue throughout the commission of the act. Fourth, and often decisive, the defense does not apply if the accused had any reasonable opportunity to avoid committing the act without exposing the accused or another innocent person to the threatened harm. If a lawful escape or alternative existed, duress fails.

How duress fits disobedience charges

Disobedience offenses, such as those charged under the articles addressing willful disobedience of a superior or failure to obey orders, are not excluded from the duress defense. A service member who refused or failed to carry out an order may, in principle, argue that the refusal was compelled. Consider a member coerced at gunpoint into not reporting to a duty post, or forced by an immediate threat of grave violence to abandon a required task. If the threat was real, reasonable, immediate, and inescapable, the elements of duress can be presented to the factfinder.

In practice, however, disobedience cases rarely involve the kind of immediate physical coercion the rule demands. Most refusals stem from objection to the order, fear of future or speculative consequences, or pressure that …

A service member charged with a new offense under Article 86 of the Uniform Code of Military Justice often worries that earlier episodes of unauthorized absence will be paraded before the court. Article 86 covers failing to go to an appointed place of duty, going from an appointed place of duty, and being absent without leave (AWOL). Whether the prosecution can put a prior AWOL incident in front of the fact-finder depends heavily on the phase of trial and the purpose for which the evidence is offered. Prior absences are not freely admissible to suggest the accused is the kind of person who skips out, but they can become relevant under defined evidentiary rules.

Elements the Prosecution Must Prove

To understand when prior incidents matter, it helps to start with what the government must establish. For a failure-to-go offense, the prosecution must prove that a certain authority appointed a certain time and place of duty, that the accused knew of that time and place, and that the accused, without authority, failed to go. The knowledge element is important, and as the Court of Appeals for the Armed Forces explained in United States v. Adams, 63 M.J. 223, actual knowledge may be proved by circumstantial evidence. For an AWOL offense, the inception and termination dates frame the absence, and the duration affects the available punishment.

These elements shape the relevance analysis. Evidence of a prior absence is only admissible if it bears on a fact the government must prove or a fact the defense has placed in dispute.

The Propensity Bar: Military Rule of Evidence 404(b)

The central rule is Military Rule of Evidence 404(b). It prohibits using evidence of other acts to show that the accused has a bad character and therefore acted in conformity with that character on the charged occasion. In plain terms, the prosecution cannot tell the panel, “He went AWOL before, so he probably did it again.” That is exactly the forbidden propensity inference.

The same rule, however, permits other-acts evidence for non-propensity purposes. These recognized purposes include proof of motive, intent, plan, knowledge, absence of mistake, and identity. So a prior AWOL incident may be admissible if it genuinely tends to prove one of these legitimate points rather than mere bad character.

When a Prior Absence Becomes Relevant

Knowledge and intent are the most common gateways. Suppose the accused claims he did not understand that …