Military Lawyers

Drug cases in the military often involve more than a single act of use or possession. A service member who tries to get someone else to use drugs, or who urges a fellow member to join in, may face charges that go beyond the drug statute itself. Two articles of the Uniform Code of Military Justice come into play: Article 112a, which criminalizes drug offenses directly, and Article 82, which criminalizes soliciting another to commit an offense. The question of whether an attempt to solicit drug use can be charged under both requires a careful look at what each article actually punishes and at the rules against piling on duplicative charges.

What Article 112a covers

Article 112a punishes the wrongful use, possession, manufacture, distribution, importation, exportation, or introduction of controlled substances. The listed substances include opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana, along with any compound or derivative and any substance on the controlled substance schedules. The offense has two essential components for any given act: the act itself and its wrongfulness, meaning that it was done without legal justification or authorization.

What Article 112a does not directly punish is the act of asking or encouraging someone else to use drugs. The article reaches conduct like using or distributing, not the inchoate step of soliciting another person to do so. That gap is exactly where Article 82 enters.

What Article 82 covers after the 2019 revision

Article 82, codified at 10 U.S.C. 882, is the solicitation statute. Following the changes that took effect at the start of 2019, the article is broad. Under subsection (a), any person subject to the code who solicits or advises another to commit an offense under the code, other than the specific offenses listed in subsection (b), may be punished as a court-martial directs. Subsection (b) carries enhanced treatment for soliciting the most serious offenses such as desertion, mutiny, sedition, and misbehavior before the enemy.

Because a drug offense under Article 112a is an offense under the code and is not one of the enumerated offenses in subsection (b), soliciting another to commit a drug offense falls squarely within Article 82(a). The elements are that the accused solicited or advised another to commit an offense under the code, and that the accused did so with the intent that the offense actually be committed. The solicitation is complete when it …

Usually not as a complete defense, but the answer depends heavily on the offense charged. Military law generally treats ignorance or mistake of law as no defense, and many customs-and-courtesies violations are general intent offenses where the member’s lack of awareness does not excuse the conduct. There are, however, narrow situations where knowledge of a particular duty is itself an element the government must prove, and there the absence of training can matter. The distinction between these categories is where this question is won or lost.

The general rule: ignorance of law does not excuse

The starting point is a long-settled principle. Ignorance or mistake of law, including ignorance of general orders and regulations, is ordinarily not a defense in military justice. The classic example is that not knowing it is unlawful to possess a controlled substance is no defense to possessing it. The same logic applies to many obligations that flow from military custom. The fact that a member was never specifically taught a particular courtesy, or did not realize a custom carried disciplinary weight, generally will not excuse a violation if the conduct itself is prohibited.

This rule exists for a practical reason. If lack of training were a blanket defense, discipline would depend on each individual’s instruction history rather than on shared standards. Military service presumes that members are responsible for conforming to the established norms of the service, and those norms include customs that are not always written down in a single regulation.

General intent offenses and why training gaps rarely help

Many of the offenses tied to military customs are general intent crimes. Disrespect toward a superior, contempt toward officials, and similar conduct turn on whether the act or words were objectively disrespectful or contemptuous under the circumstances, not on whether the member subjectively understood the relevant custom. For these offenses, the government does not have to prove that the accused knew a custom existed or had been trained on it. A member who claims, “no one ever taught me that was disrespectful,” is making an argument that the law generally does not recognize as a defense to a general intent charge.

That does not make the training history irrelevant. It can still be powerful in mitigation. A genuinely inexperienced member who acted out of ignorance rather than defiance may receive a more favorable disposition, a lesser charge, or a lighter sentence. Mitigation and defense …

Article 88 of the UCMJ, contempt toward officials, applies only to commissioned officers and addresses contemptuous words against protected officials such as the President, Congress, the Secretary of Defense, and certain other named officials. Because it is a punitive article, an Article 88 matter can in theory go to court-martial. In practice, many such matters are resolved through administrative channels instead. Commands often conclude that a full court-martial is disproportionate, hard to prove, or unwise given the speech-related nature of the conduct, and they turn to a range of administrative actions. Knowing which actions commonly follow an investigation helps an officer understand the realistic range of consequences.

Why administrative resolution is common

An Article 88 charge is unusual. It involves speech, it implicates sensitive First Amendment considerations, and it requires proving that words were genuinely contemptuous rather than merely critical. Adverse but non-personal policy criticism is not an offense, and private expressions of opinion ordinarily should not be charged. Those features make courts-martial under Article 88 rare and give commands strong incentives to handle the conduct administratively. Administrative actions also impose career consequences without the higher burden of proof and procedural cost of a criminal trial.

It is worth keeping the distinction clear. A court-martial is a criminal proceeding that can result in a federal conviction and punishment. The actions discussed below are administrative or non-judicial; they affect an officer’s career and record but are not criminal convictions. They commonly follow an investigation regardless of whether any court-martial is ever convened.

Nonjudicial punishment under Article 15

A frequent first-tier response is nonjudicial punishment under Article 15 of the UCMJ. This allows a commander to impose limited punishment for minor offenses without a court-martial. For an officer, authorized punishments can include forfeiture of pay, restriction, and a punitive reprimand, depending on the level of the imposing authority. An officer generally has the right to refuse nonjudicial punishment and demand trial by court-martial, which is a strategic decision that depends on the strength of the case and the officer’s appetite for risk. Article 15 resolution avoids a criminal conviction while still producing a documented disciplinary outcome.

Administrative reprimands and adverse paperwork

Even where no Article 15 is imposed, a command commonly issues a written administrative reprimand, such as a General Officer Memorandum of Reprimand in the Army or its service equivalents. A reprimand is not a criminal punishment, but when filed in …

When a service member commits, or is accused of, solicitation while stationed or present in a foreign country, two legal systems can claim an interest: the host nation’s criminal law and the United States military justice system. A Status of Forces Agreement, or SOFA, is the treaty or arrangement that allocates authority between those systems. The phrase “SOFA protections” is something of a misnomer, because a SOFA is less a shield against accountability than a framework that decides which sovereign prosecutes and that secures certain procedural safeguards for U.S. personnel abroad. Solicitation offenses sit squarely inside that framework.

Two Possible Sources of Liability

Solicitation by a service member overseas can violate the host nation’s penal code, which may criminalize soliciting prostitution, soliciting a crime, or related conduct depending on the country. The same conduct can also violate U.S. military law. The Uniform Code of Military Justice reaches service members wherever they are in the world, so an offense does not escape military jurisdiction simply because it occurred on foreign soil. Conduct amounting to solicitation can be charged under the UCMJ provision addressing solicitation, and related misconduct can be charged under general provisions such as conduct prejudicial to good order and discipline or service-discrediting conduct, depending on the facts. The practical question abroad is usually not whether the conduct is punishable, but who will punish it.

How a SOFA Allocates Jurisdiction

Most SOFAs follow a recognizable pattern for criminal jurisdiction. The host nation generally has primary jurisdiction over offenses its laws define when they are committed within its territory by visiting forces. That is the baseline: the country where the conduct occurs ordinarily has the first claim to prosecute.

SOFAs then carve out exceptions where the United States holds primary jurisdiction. Two classic exceptions are offenses committed by U.S. personnel against other U.S. personnel or property, sometimes called inter se cases, and offenses committed in the performance of official duty. In those categories, the sending state, the United States, typically has the primary right to exercise jurisdiction.

Where both nations could prosecute the same conduct, jurisdiction is concurrent, and the SOFA assigns priority. The state with the primary right may exercise it or may decline. Importantly, SOFAs commonly include waiver provisions: the state with primary jurisdiction may waive that right in favor of the other state, and many agreements call for sympathetic consideration of a waiver request when the requesting state …

When a service member is arrested by civilian police away from the installation, commands sometimes treat the resulting absence as unauthorized and begin processing it under Article 86 of the Uniform Code of Military Justice. The instinct is understandable: the member is not at the place of duty. But the legal question is more subtle than mere absence. Article 86 punishes unauthorized absence, and the heart of that offense is fault. An off-base civilian arrest, standing alone, is often the opposite of what the statute requires, and treating every such arrest as automatic proof of unauthorized absence misreads the law.

What unauthorized absence under Article 86 requires

Article 86 reaches a service member who, through the member’s own fault, is not at the appointed place of duty at the prescribed time, or who absents himself or herself from the unit, organization, or place of duty without authority. The recurring word is fault. The government must show that the member, by some voluntary act or culpable omission, brought about the absence. An absence that the member did not cause and could not control is not, without more, an unauthorized absence in the culpable sense the statute contemplates.

This fault requirement is what distinguishes a service member who simply walks away from duty from one who is prevented from reaching duty by forces outside the member’s control. The distinction matters enormously when the cause of the absence is a civilian arrest.

Why a civilian arrest usually terminates rather than starts unauthorized absence

The Manual for Courts-Martial addresses civilian custody directly, and its rules generally cut against using an arrest to justify unauthorized absence status. When a member is taken into custody by civilian authorities at the request of the military, the absence is terminated by that apprehension. When a member is in the hands of civilian authorities for other reasons and those authorities make the member available for return to military control, the absence is terminated once the military is informed that the member is available. In both situations the rules treat civilian custody as a point at which an absence ends, not a point at which it begins.

This makes intuitive sense. A member sitting in a county jail is not freely choosing to stay away from duty. The member is being held by someone else. The absence flows from the confinement, not from the member’s will to avoid the unit.…

Probably not, on those facts alone. Article 91 of the Uniform Code of Military Justice punishes disrespect that is directed toward a noncommissioned officer while that NCO is in the execution of their office. A joke about an NCO’s appearance, made in a genuinely private conversation that is not aimed at the NCO and does not occur while the NCO is performing official duties, ordinarily falls outside the core elements of the offense. That said, the answer is fact-sensitive, and the same comment can take on a different character depending on who hears it, where it happens, and how it gets back to the NCO.

What Article 91 actually prohibits

Article 91 covers insubordinate conduct toward warrant officers, noncommissioned officers, and petty officers. It reaches three categories: striking or assaulting such an officer, willfully disobeying that officer’s lawful order, and treating that officer with contempt or being disrespectful in language or deportment. The disrespect branch is the one relevant to a joke about appearance.

The accused under Article 91 is an enlisted member or a warrant officer. Disrespect by a commissioned officer toward a senior is handled under different articles. For the disrespect branch, the prosecution must prove that the accused committed certain acts or used certain language, that the accused knew the person was a noncommissioned officer, that the NCO was in the execution of their office, and that under the circumstances the conduct treated the NCO with contempt or was disrespectful.

The two elements that usually decide the private-joke question

Two requirements do most of the work here.

First, the conduct must be disrespectful or contemptuous toward the NCO. Disrespect under this article generally contemplates language or behavior directed at the NCO that detracts from the respect due the NCO’s office. A private joke shared between peers, not addressed to the NCO and not intended to reach the NCO, is meaningfully different from mocking the NCO to their face or in a setting designed to undermine them. Lighthearted humor among service members is part of ordinary life, and not every irreverent remark rises to the level of treating an NCO with contempt.

Second, and often decisive, the NCO must be in the execution of their office. The disrespect branch of Article 91 is tied to the NCO performing official duties at the relevant time. A remark made in an off-duty, private conversation, when the NCO is not carrying …

Service members sometimes miss a formation, a report time, or a recall because they genuinely forgot, not because they intended to be absent. When that leads to charges, a natural question follows: is forgetting a defense? The answer depends on exactly which offense is charged under Article 86 of the Uniform Code of Military Justice (UCMJ), because the different forms of unauthorized absence have different mental requirements. Forgetfulness is not a free-standing excuse, but it can defeat an element of certain charges.

Article 86 is a general intent offense

Article 86 covers absence without leave, often called AWOL or unauthorized absence. The basic offense is a general intent offense. The government does not have to prove that the service member wanted to be absent or intended any wrongdoing. It must prove that the absence occurred and that it was without authority. Because there is no specific intent element for the basic offense, simply saying “I did not mean to” does not, by itself, answer the charge. Many Article 86 situations arise from miscommunication, administrative errors, or misunderstandings rather than deliberate misconduct, but the absence is still chargeable.

The knowledge element in failure-to-go cases

The analysis changes for the specific variant of failing to go to, or going from, an appointed place of duty. The Manual for Courts-Martial requires that the accused actually knew of the appointed time and place of duty. This actual knowledge requirement is an element the government must prove, and it is precisely where forgetfulness can matter.

There is an important distinction between never having known and having known but forgotten. If the service member never had actual knowledge of the time and place of duty, the knowledge element is not satisfied and the offense is not made out. If the service member knew but later forgot, courts have generally treated that as not negating the actual knowledge that existed, so genuine prior knowledge followed by forgetfulness does not automatically defeat the charge. The government can prove the knowledge element through circumstantial evidence, such as published schedules, briefings, or routine recall procedures.

Why forgetfulness is not a stand-alone excuse

Forgetting is not listed as an affirmative defense in the way duress, mistake of fact, or lawful authorization are. For a general intent offense, the law focuses on whether the act occurred without authority, not on the accused’s reasons. So a service member who was properly granted no …

Failure to report for duty is one of the most common allegations in the military justice system. Under Article 86 of the Uniform Code of Military Justice, a service member can be charged with failing to go to an appointed place of duty at the time prescribed. Service members who miss a formation, a shift, or a movement often insist that the absence was unavoidable, that circumstances beyond their control kept them away. The question of whether a failure to report was “truly unavoidable” is not answered by the member’s sincerity. It is answered by examining the elements of the offense and the recognized defenses, and by asking what a reasonable service member in the same situation could have done.

The Elements Frame the Inquiry

The government’s burden under the failure-to-report theory of Article 86 is straightforward. It must prove that a competent authority appointed a certain time and place of duty for the accused, and that the accused, without authority, failed to go to that appointed place of duty at the prescribed time. The offense is built around the simple fact of not being where one was ordered to be, when one was ordered to be there.

Because the elements are this basic, the unavoidability question usually does not attack whether the member was absent. The member often was absent. Instead, the question is whether the absence was “without authority” and whether the member is excused because being present was genuinely impossible or because the member is otherwise not at fault. Courts and panels evaluate that by testing the member’s account against objective standards rather than accepting a bare claim of helplessness.

Knowledge and Authority Come First

Two threshold issues often decide the case before any discussion of unavoidability. The first is knowledge. A member cannot be faulted for missing a duty the member did not know about. If the member never received notice of the appointed time and place, or reasonably misunderstood it through no fault of his own, the absence may not be culpable at all.

The second is authority. An absence is only criminal if it is unauthorized. If the member reasonably believed permission to be absent had been granted, even informally, by someone with the authority to grant it, the absence may not be “without authority.” Courts look closely at who granted the permission, whether that person had authority, and whether the member’s belief was …

Fraternization is the offense of an officer engaging with enlisted members on terms of military equality in a way that violates the custom of the service and prejudices good order and discipline or discredits the armed forces. It is typically charged under Article 134 of the UCMJ. A recurring question is whether an officer can be prosecuted for attempting to fraternize, under Article 80, when no actual prohibited relationship ever formed. The answer is yes in principle. Article 80 reaches attempts to commit offenses under the Code, and fraternization is no exception, though proving an attempt without a completed relationship is demanding.

How Article 80 attempt liability works

Article 80, codified at 10 U.S.C. section 880, defines an attempt as an act, done with specific intent to commit an offense under the Code, that amounts to more than mere preparation and tends, even though failing, to effect the commission of the offense. The elements are that the accused did a certain overt act; that the act was done with the specific intent to commit a certain offense; that the act amounted to more than mere preparation; and that the act apparently tended to effect the commission of the intended offense.

The crucial feature of attempt law is that the underlying offense need not be completed. The whole point of punishing attempts is to reach conduct that fell short of the target crime. So the absence of a formed relationship does not, by itself, defeat an attempted fraternization charge. What the government must show instead is the intent to fraternize and a substantial step toward doing so.

Applying attempt elements to fraternization

To understand attempted fraternization, start with the completed offense. Fraternization under Article 134 requires that the accused was a commissioned or warrant officer; that the accused fraternized on terms of military equality with one or more enlisted members; that the accused knew the persons to be enlisted; that the fraternization violated the custom of the service; and that, under the circumstances, the conduct was prejudicial to good order and discipline or service-discrediting.

An attempt charge transposes these into the attempt framework. The government must prove that the officer specifically intended to engage in the prohibited fraternization, knowing the other person’s enlisted status, and took an overt act amounting to more than mere preparation that tended to bring about that prohibited relationship. The relationship’s failure to materialize, whether because the …

A relationship that a service member did not report to the command can become the seed of an integrity allegation. The relationship itself may be only a personnel or fraternization concern, but once investigators conclude that the member concealed it, lied about it, or destroyed evidence of it, the focus often shifts from the relationship to the member’s honesty. That shift matters, because integrity allegations are evaluated under a different set of rules than the underlying relationship, and they can be far more serious. Understanding how the two are assessed, and how they interact, is essential for a member facing this situation.

Two separate questions

The first thing to recognize is that an unreported dating relationship raises two distinct questions, and they are judged separately. The first question is whether the relationship was itself improper. The second is whether the member committed an integrity violation in connection with it, such as making a false statement or concealing information when there was a duty to disclose. A member can be cleared on the first and still face the second, and the two are evaluated under different standards.

When is an unreported relationship a problem at all

Not every relationship that goes unreported is misconduct. The relationship becomes a concern when it crosses a line drawn by policy. The classic example is fraternization, an improper relationship that violates the custom of the service, most often between officers and enlisted members on terms of military equality, when the conduct is prejudicial to good order and discipline or brings discredit upon the armed forces. Beyond classic fraternization, the services prohibit certain unprofessional or improper relationships and may require disclosure of relationships in particular contexts, such as supervisory or training relationships. Whether a given relationship had to be reported depends on the applicable service policy and the positions of the people involved. If there was no duty to report and the relationship violated no policy, the failure to mention it is not itself misconduct.

This is why the analysis cannot skip to the integrity question. If there was no obligation to disclose the relationship, then silence about it is not concealment in the relevant sense. The existence and scope of any reporting duty is the foundation on which an integrity allegation built on nondisclosure must rest.

How the integrity allegation is evaluated

The integrity piece turns on conduct, not on the relationship. The most common …