Military Lawyers

Article 90 of the Uniform Code of Military Justice, codified at 10 U.S.C. 890, covers two distinct kinds of misconduct against a superior commissioned officer: striking or using violence against that officer, and willfully disobeying a lawful command. The first prong is what people usually mean when they ask about “assault under Article 90.” A common and important question is whether something less than an actual blow, such as a raised fist, a menacing lunge, or a verbal threat, can support a charge. The short answer is that a physical gesture often can, while a bare verbal threat usually cannot. The reasons turn on how military law defines an assault.

What Article 90 actually punishes

The assault prong of Article 90 reaches a service member who strikes a superior commissioned officer, or who draws or lifts up a weapon or offers any violence against that officer while the officer is in the execution of office. To sustain a charge, the government must prove that the person was a commissioned officer, that the officer was superior to the accused in rank or command, that the accused knew the officer held that superior status, and that the accused struck the officer or offered violence against the officer. The status and knowledge elements are what separate Article 90 from the general assault statute. Article 90 does not invent a new definition of assault. It borrows the ordinary military meaning of assault and attaches the additional requirement that the victim be a known superior commissioned officer acting in an official capacity.

How military law defines an assault

Because the assault concept inside Article 90 tracks the general assault definition used under Article 128 (10 U.S.C. 928), the analysis of gestures and threats follows the same rules courts apply across the code. Military law recognizes more than one form of assault. A battery is an assault that is completed by actual physical contact, meaning bodily harm done with unlawful force or violence. But contact is not required for an assault. An “offer-type” assault is committed when a person performs an act that is intended to, and that reasonably does, place another person in apprehension of immediate bodily harm. No touching and no injury need occur. The offense is the menacing act itself combined with unlawful force or violence.

This is why a physical gesture can qualify. Raising a fist toward an officer, drawing back to …

A court-martial panel is the military equivalent of a jury, made up of service members who decide guilt at a trial by members. Unlike a civilian jury in most state and federal felony cases, a noncapital military panel does not need to reach a unanimous verdict to convict. That feature changes how a so-called split panel, where members disagree, plays out, especially in a case that charges several distinct offenses. The key to understanding the result is to see that a court-martial does not return one global verdict; it votes separately on each specification, and a single voting rule is applied independently to each one.

The voting rule for a noncapital court-martial

For a noncapital general or special court-martial tried by members, conviction requires the concurrence of at least three-fourths of the members present. This threshold was raised by the Military Justice Act of 2016, whose changes took effect on January 1, 2019. Before then, the rule was a two-thirds majority. The three-fourths standard now governs findings of guilt for noncapital offenses.

The mechanics of a split are straightforward once the threshold is understood. If the votes in favor of guilt fall short of three-fourths, the result is an acquittal on that charge. There is no hung jury in the civilian sense for findings, and there is no mistrial simply because members disagree. A panel that cannot muster three-fourths for guilt has, by operation of the rule, acquitted. For example, on an eight-member panel where six members would need to agree to reach three-fourths, a five-to-three vote in favor of guilt does not convict; it acquits, because five is below the required threshold.

Each specification is voted separately

The phrase multiple specifications is where the analysis becomes important. A charge sheet commonly lists several specifications, each alleging a separate offense or a separate instance of misconduct. The panel does not decide the case as a single yes-or-no proposition. It deliberates and votes on each specification on its own, applying the three-fourths rule to each. This means a panel can convict on some specifications and acquit on others within the same trial. A member who votes guilty on one specification is free to vote not guilty on another, and the outcome for each is determined solely by whether three-fourths of the members concurred in guilt for that particular specification.

The practical consequence is that mixed results are normal and entirely valid. …

Refusing to report for or to provide a sample during a military urinalysis is treated as a disciplinary matter in its own right, separate from anything a test might have revealed. The refusal can expose a service member to charges even when no drug use is ever proven, because the conduct being punished is the failure to comply with a lawful directive. Whether the proper charge is Article 92, Article 134, or another article depends on the exact nature of the order and the surrounding facts.

Why a refusal is itself an offense

Military drug testing is conducted under standing regulations and through specific orders given by commanders and collection personnel. When a member is directed to report to a collection point and to produce a specimen, that direction is ordinarily a lawful order. A refusal to comply is therefore a failure to obey, and the government does not need a positive test result to pursue it. The offense is complete when the lawful order is given, communicated, understood, and disobeyed. This is why a member who walks away from a collection, declines to provide a sample, or never reports at all can face action regardless of what a sample would have shown.

Article 92 as the usual charging vehicle

Article 92 of the Uniform Code of Military Justice addresses failure to obey orders and regulations. It is the most common basis for charging a refusal connected to urinalysis. The article reaches several distinct theories. One is violation of, or failure to obey, a lawful general order or regulation, which fits situations where a service-wide or command-wide drug testing regulation imposes a duty that the member ignores. Another is failure to obey a lawful order issued by a member of the armed forces, which fits a direct, individualized order to report and provide a sample. A third theory under the same article is dereliction in the performance of duties.

Which theory applies turns on how the testing requirement reached the member. A specific verbal order from a noncommissioned officer at the collection point points toward the failure-to-obey-an-order theory, while a published command policy mandating participation points toward the general-order theory. In either case, the prosecution must establish the existence of the order or regulation, the member’s knowledge or duty to know of it, and the member’s failure to comply. Whether the order was lawful is a recurring issue, because an …

Article 91 of the Uniform Code of Military Justice, codified at 10 U.S.C. 891, punishes insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer. The offense includes striking or assaulting such an officer in the execution of office, willfully disobeying that officer’s lawful order, and treating that officer with contempt or being disrespectful in language or deportment while the officer is performing official duties. A frequent and practical question is whether the article still applies when the disrespected noncommissioned officer or petty officer belongs to a different branch of the armed forces. The answer, under the structure of the statute, is generally yes.

Article 91 Does Not Require a Superior-Subordinate Relationship

The most important feature distinguishing Article 91 from related offenses is that it does not require a superior-subordinate relationship between the accused and the victim. Articles 89 and 90, which protect commissioned officers, are framed around a superior commissioned officer, meaning the protected person must outrank and stand in a position of superiority over the accused. Article 91 is written differently. It protects warrant officers, noncommissioned officers, and petty officers as a class while they are in the execution of their office, without making chain-of-command superiority an element of the offense.

Because superiority is not an element, the practical objection that “this petty officer is not in my chain of command” does not by itself defeat an Article 91 charge. The protected status flows from the victim’s position as a warrant officer, noncommissioned officer, or petty officer carrying out official duties, not from a command relationship with the accused.

Why Cross-Branch Conduct Can Be Reached

Given that Article 91 turns on the victim’s office and its execution rather than on a same-branch command relationship, disrespect directed at a noncommissioned officer or petty officer of another service can fall within the article. In a joint environment, members of different branches routinely work together, and a soldier may receive a lawful order from or interact with a sailor, airman, marine, or guardian who holds noncommissioned or petty officer rank. Where that other-branch member is acting in the execution of office and the accused shows contempt, uses disrespectful language, or behaves disrespectfully, the elements of the disrespect variation can be satisfied.

The same logic applies to the disobedience variation. If a warrant officer, noncommissioned officer, or petty officer of another branch gives a lawful order within the scope of that …

A denial of a security clearance is not always permanent. A service member who lost or was refused eligibility for access to classified information can, in most situations, seek reconsideration if the underlying concerns have genuinely changed. The system is built around the idea that security concerns can be mitigated over time, and that a person who has resolved the issues that caused a denial may once again be eligible. The key is understanding when reapplication is allowed and what kind of evidence actually moves an adjudicator.

The framework that governs reconsideration

Eligibility for access to classified information is adjudicated under Security Executive Agent Directive 4, known as SEAD 4, which sets out the national adjudicative guidelines. Those guidelines list categories of concern, such as financial considerations, personal conduct, alcohol or drug involvement, and others, and they pair each concern with conditions that can mitigate it. A denial means an adjudicator concluded that, on the whole record at that time, the disqualifying concerns outweighed the mitigation. Reconsideration asks whether that balance has shifted.

For Department of Defense personnel whose cases are decided by the Defense Office of Hearings and Appeals, reconsideration generally cannot be sought until one year has passed from the date of the unfavorable decision. If the member received a Statement of Reasons and litigated the matter through a written response or a hearing before an administrative judge, the one-year period runs from the date of that final decision. The waiting period is intended to allow real change to occur, not merely a renewed request on the same facts.

New mitigation evidence is the heart of the case

Reapplication built on the same record that produced the denial is unlikely to succeed. The reconsideration process exists to evaluate whether the conditions that drove the original concern have been resolved or sufficiently mitigated. In practice, the member is expected to provide the prior adverse decision and evidence showing that the security concerns no longer apply with the same force.

What counts as meaningful new mitigation depends on the guideline at issue. For financial concerns, that often means documented payment plans, satisfied debts, completed counseling, and a sustained record of responsible management. For alcohol or substance concerns, it can mean completed treatment, a favorable prognosis from a qualified professional, and a demonstrated period of sobriety. For personal conduct concerns rooted in past dishonesty, the strongest evidence usually shows full disclosure, …

Yes. When a court-martial sentences a service member for misconduct involving a relationship that the parties describe as consensual, the fact that one person held a superior position over the other can be treated as aggravating. The consent of the participants does not erase the military’s separate concern with rank, authority, and the integrity of the chain of command. In the sentencing phase, the abuse or exploitation of a superior-subordinate dynamic is exactly the kind of circumstance that can increase a sentence. This article explains how that works under the Rules for Courts-Martial and why consent does not neutralize it.

Sentencing is a distinct phase with its own rules

After findings of guilt, a court-martial moves to a separate sentencing proceeding governed by Rule for Courts-Martial 1001. In that phase, the prosecution may present evidence in aggravation, and the defense may present matters in extenuation and mitigation. The sentencing authority then arrives at an appropriate sentence within the limits the law allows. The key vehicle for the government’s case is Rule for Courts-Martial 1001(b)(4), which permits trial counsel to present evidence of aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty. This includes evidence of the impact of the offense, such as social, psychological, and other harm to a victim, and evidence of significant adverse impact on the mission, discipline, or efficiency of the command resulting directly and immediately from the offense.

That framing is important. The rule is not limited to a fixed checklist of factors. It opens the door to circumstances that flow from the offense and bear on its seriousness. A superior-subordinate dynamic fits naturally within that category, because the relationship between the parties is part of the circumstances of the offense and shapes how much harm the misconduct did to good order and discipline.

Why rank disparity aggravates even consensual conduct

In civilian thinking, consent often goes to whether an offense occurred at all. In the military, an offense may be defined precisely because of the relationship, regardless of consent, and the rank dynamic then speaks to how serious the proven offense is. The recognized aggravating considerations in military sentencing include the rank or position of the accused and the abuse of authority. When a senior member engages in misconduct with a subordinate, several aggravating themes emerge.

First, abuse of position. A superior who uses, or trades …

Article 97 of the Uniform Code of Military Justice makes it an offense for a person subject to the UCMJ to unlawfully apprehend, arrest, or confine another person. A practical question that arises in the field is whether taking away a service member’s identification card or orders, so that the member cannot freely move or travel, counts as unlawful detention under Article 97. The answer is not a simple yes or no. Confiscating documents can amount to a form of restraint, but whether it fits Article 97 depends on whether the conduct meets the article’s specific definitions of apprehension, arrest, or confinement and whether the restraint was unlawful. This article works through that analysis.

What Article 97 prohibits

Article 97 provides that any person subject to the code who, except as provided by law, apprehends, arrests, or confines any person shall be punished as a court-martial may direct. To obtain a conviction, the government must prove two elements beyond a reasonable doubt: that the accused apprehended, arrested, or confined a particular person, and that the accused did so unlawfully, meaning the accused unlawfully exercised authority to impose the restraint. The article is aimed at people who hold authority under the UCMJ to restrain others and who misuse that authority. It does not reach purely private acts of false imprisonment by someone with no such authority, and it does not turn every interference with another person into a federal military offense.

The three forms of restraint defined

Article 97 is built around three defined categories of restraint, and understanding them is the key to the identification question.

Apprehension means placing restrictions on the freedom of another person, the military equivalent of taking someone into custody. Arrest, in this context, means imposing moral restraint through orders directing a person to remain within specified limits. Confinement means physical restraint, holding a person under guard or in a cell or similar facility. The restraint must be against the will of the person restrained, although the use of physical force is not required. Notably, arrest as a form of restraint is accomplished by orders rather than by locks and walls, which is why non physical methods of restricting movement can be relevant.

Where confiscating identification or orders fits

Taking a service member’s identification card or travel orders does not physically lock the member in a room, so it is not confinement in the literal sense. …

Article 88 of the Uniform Code of Military Justice is the rare statute that limits what an officer may say about the nation’s leaders. It prohibits a commissioned officer from using contemptuous words against certain officials. A reasonable question for any officer who follows the news is whether that prohibition reaches criticism of judges and courts. The direct answer is that Article 88, by its terms, does not list the judicial branch, so contemptuous words about judges fall outside its specific reach. That answer comes with an important caveat, however, because other provisions of military law can still apply to disrespectful or unprofessional speech about the courts.

The officials Article 88 actually names

Article 88 is built around a closed list. It punishes a commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the governor or legislature of a state, territory, commonwealth, or possession in which the officer is on duty or present. The list is drawn from the executive and legislative branches at the federal and state levels.

Two consequences follow from reading the list carefully. First, the named bodies are protected as institutions, not as collections of individuals. Authorities interpreting the article explain that “Congress” and “legislature” do not include their members individually, so contemptuous words aimed at a single senator or representative do not violate Article 88, even though Congress as a body is covered. Likewise “governor” does not include a lieutenant governor. Second, and decisive for this question, the judicial branch simply is not on the list. There is no mention of federal judges, the Supreme Court or its Justices, courts of appeals, district courts, or state courts. Because Article 88 is defined by enumeration, an official or institution that is not enumerated is not covered.

Why critiques of judges fall outside Article 88

Putting those points together, a commissioned officer who makes contemptuous remarks specifically about the judiciary is not committing an Article 88 offense, because the judiciary is outside the article’s defined scope. The same is true of remarks about an individual judge, since Article 88 is doubly inapplicable: judges are neither named as a covered category nor reachable as individuals even within the categories that are named. The article was written to protect the chain of civilian command and the legislative bodies that …

This question requires a careful look at what Article 96 of the Uniform Code of Military Justice actually criminalizes, because the answer depends heavily on the precise offense at issue. Article 96, codified at 10 U.S.C. 896, is titled “Release of prisoner without authority; drinking with prisoner.” It is not a general regulatory or written-policy offense. Understanding that distinction is the first step in evaluating whether a misunderstanding can serve as a defense, and it is also the reason a service member should be precise about which article a command has actually charged.

What Article 96 Punishes

Article 96 addresses two specific kinds of misconduct connected to the custody of prisoners. The first is releasing a prisoner without proper authority, or, through neglect or design, allowing a prisoner committed to one’s charge to escape. The second is unlawfully drinking with a prisoner. For the release variation, the government must generally prove that a person was a prisoner under the custody or control of the accused, that the accused released the prisoner or permitted the escape, and that this occurred without proper authority. In this context, “release” refers to the custodian removing restraint under circumstances showing the prisoner is no longer in legal confinement, as opposed to the prisoner breaking free on the prisoner’s own.

Because Article 96 is keyed to the custody and release of prisoners, a typical charge under it arises from custody operations, not from a member’s failure to follow an ordinary written policy or regulation. That framing matters for the misunderstanding defense.

Where Written-Policy Violations Usually Live

Charges that turn on failing to obey a written policy, regulation, or general order are ordinarily brought under Article 92 of the UCMJ, which addresses failure to obey a lawful order or regulation and dereliction of duty. If the real allegation is that a service member misapplied or violated a written command policy, the governing article is much more likely to be Article 92 than Article 96. A member who is told the charge involves a written policy should confirm with counsel exactly which article and specification have been preferred, because the elements, defenses, and maximum punishments differ. Mislabeling the charge can change the entire analysis.

How Mistake or Misunderstanding Operates as a Defense

Mistake of fact is a recognized defense in the military justice system, and how it applies depends on the mental state the charged offense requires. When …

Fraternization cases often arrive at an administrative board with no smoking gun. There may be no photographs, no messages of a romantic nature, and no eyewitness to anything physical, just an accusation, some circumstantial observations, and a command that wants the relationship explained. Many service members assume that the absence of physical evidence means the case cannot succeed. That is a dangerous assumption, because administrative boards operate under a far lower standard of proof than a court-martial. At the same time, the lack of hard evidence opens several genuine defenses. This article explains how fraternization is judged administratively and what defenses tend to matter when the proof is thin.

What the board is actually deciding

Fraternization is generally charged under Article 134 of the Uniform Code of Military Justice, codified at 10 U.S.C. 934, the general article, which reaches conduct prejudicial to good order and discipline or service-discrediting in nature. The core concern is an improper personal relationship that crosses recognized boundaries, most often between an officer and an enlisted member, in a way that compromises, or appears to compromise, the chain of command. The specific prohibited relationships and the customs that define them are set out in each service’s policies, and the exact contours vary by branch.

An administrative board, such as an enlisted separation board or an officer board of inquiry, is not a criminal trial. It decides two basic questions: whether the alleged misconduct occurred, and if so, what the consequence should be, which can include separation and the characterization of any discharge. Crucially, the board uses the preponderance of the evidence standard, meaning the misconduct need only be shown to be more likely than not. It does not require proof beyond a reasonable doubt, and these boards are not bound by the strict rules of evidence that apply at a court-martial. That is why a member should never relax simply because there is no physical proof. Circumstantial evidence, hearsay, and uncorroborated reports can all be considered.

Defenses that target the elements of fraternization

Because there is no physical evidence, the defense should focus on whether the relationship was actually improper under the governing standard, not merely whether two people knew each other.

The first and often strongest defense is the true nature of the relationship. Fraternization requires a personal relationship that violates the customs of the service, not ordinary professional or social contact. If the interactions …