Military Lawyers

Article 80 of the Uniform Code of Military Justice makes it an offense to attempt to commit any crime under the Code. A natural question is what happens when the crime the accused was trying to commit could never have succeeded because of some fact the accused did not know. If the intended theft targets an empty pocket, or the intended sale of contraband involves a substance that turns out to be harmless, can the service member still be convicted of an attempt? Military law answers yes in most of these situations, because factual impossibility is generally not a defense. This article explains why, and it distinguishes the situations where impossibility can matter.

The elements of attempt under Article 80

An attempt under Article 80 has four core components. The accused did a certain overt act. The act was done with the specific intent to commit a particular offense under the Code. The act amounted to more than mere preparation. And the act apparently tended to bring about the commission of the intended offense, even if it failed or was prevented. The emphasis on intent and on conduct that goes beyond preparation is the key to understanding how impossibility is treated.

Attempt liability punishes culpable purpose carried into action. The law is concerned with a person who has decided to commit a crime and has taken real steps toward it. Whether the crime was ultimately completed is not the measure of blameworthiness, because the accused has already demonstrated both the criminal intent and the willingness to act on it.

Why factual impossibility does not excuse the attempt

Factual impossibility exists when the accused intended to commit a crime and took steps toward it, but some fact unknown to the accused made completion impossible. The classic illustration is the pickpocket who reaches into a pocket to steal, only to find it empty. The would-be thief has the intent to steal and has performed an overt act going beyond preparation. The only reason no larceny was completed is the unforeseen emptiness of the pocket.

Military law treats this as attempted larceny. Factual impossibility is not a defense, because the accused did everything required to manifest the criminal purpose and to act on it. The failure resulted from circumstances outside the accused’s knowledge and control, not from any lack of intent or effort. To excuse the attempt because of such a fortuity would …

Security clearance adjudication operates on a different logic than a criminal trial. A court-martial asks whether the government can prove an offense beyond a reasonable doubt. A clearance adjudication asks a forward-looking question: can this person be trusted with classified national security information? Because of that difference, conduct that was never charged, never prosecuted, or even formally cleared in a criminal forum can still play a central role in whether a clearance is granted, continued, or revoked. Service members and contractors are often surprised to learn that an allegation they thought was behind them resurfaces in the clearance process.

The governing framework

Clearance decisions are made under Security Executive Agent Directive 4, known as SEAD 4, which sets out the National Security Adjudicative Guidelines. These thirteen guidelines cover areas such as criminal conduct, personal conduct, financial considerations, alcohol consumption, drug involvement, and handling of protected information. The same standards are reflected in federal regulation. Adjudicators apply these guidelines together with the whole-person concept, weighing the entire picture of an individual rather than any single incident.

The key feature of this framework is that it is predictive, not punitive. Adjudicators are not deciding whether to punish past behavior. They are deciding whether future behavior can be relied upon. That orientation is why uncharged conduct is fair game. The question is not whether the person was convicted, but whether the conduct, if it occurred, says something about the person’s judgment, reliability, honesty, or vulnerability.

Why uncharged conduct is relevant at all

In a clearance proceeding, the absence of a charge does not make conduct irrelevant. Several guidelines reach behavior that may never form the basis of a criminal case. The personal conduct guideline, for example, expressly addresses conduct that creates doubt about a person’s reliability, trustworthiness, or willingness to comply with rules, including conduct that may not be criminal at all. The criminal conduct guideline can be triggered by an allegation of criminal behavior regardless of whether the person was formally charged, prosecuted, or convicted. Even lawful conduct can raise a security concern if it bears on judgment or susceptibility to coercion.

This means an adjudicator may consider an arrest that led to no charges, an investigation that was closed without action, an Article 15 that was set aside, or an internal command inquiry that found insufficient evidence for prosecution. The conduct is treated as information about the person, not as a …

Basic training, officer candidate school, and other initial entry environments are built on instant obedience. When a recruit balks at an order, the question naturally arises whether that refusal can become a court-martial charge under Article 90. The short answer is that Article 90 can apply in a training setting, but several of its elements make it a poor fit for the everyday friction of boot camp. Understanding why requires looking closely at who Article 90 protects and what it actually requires.

What Article 90 covers

Article 90 of the UCMJ punishes a service member who strikes, draws a weapon against, or offers violence to a superior commissioned officer in the execution of office, or who willfully disobeys a lawful command of a superior commissioned officer. The provision protects commissioned officers specifically. The elements for willful disobedience are that the accused received a lawful command from a commissioned officer, that the officer was the accused’s superior commissioned officer, that the accused knew that officer was a superior commissioned officer, and that the accused willfully disobeyed the command.

Two features of those elements shape everything about boot camp cases.

Drill instructors are usually not commissioned officers

The most important practical point is that the people a recruit interacts with most are drill sergeants, recruit division commanders, and drill instructors, who are almost always noncommissioned officers or petty officers, not commissioned officers. Article 90 protects commissioned officers. Refusing or disrespecting an NCO drill instructor therefore falls under Article 91, which addresses insubordinate conduct toward warrant officers, noncommissioned officers, and petty officers, not under Article 90.

So when a recruit defies the drill instructor running the bay, the natural charge is Article 91, not Article 90. Article 90 only enters the picture when the order or the assault involves a commissioned officer, such as a company commander, a series officer, or another officer in the training cadre who is the recruit’s superior.

“Willful” disobedience is a high bar

Article 90 willful disobedience requires intentional defiance of authority. Failure to follow an order through carelessness, forgetfulness, slowness, or simple inability is not willful disobedience. A recruit who cannot complete an exercise, who freezes under stress, or who misunderstands a rapid-fire instruction has not necessarily committed any Article 90 offense. The government would have to prove a deliberate, knowing refusal to obey a lawful command from a commissioned officer the recruit knew to be a …

Defense contractor employees who hold or seek security clearances occupy a distinct legal space. They are not service members and are not subject to the UCMJ, but their access to classified information is governed by the Department of Defense. When that access is questioned, the case is handled by the Defense Office of Hearings and Appeals, known as DOHA. Contractor employees often ask what process they are entitled to when their clearance is at risk. The answer is a structured set of procedural protections, set against an important constitutional limitation on how far those protections reach.

The threshold limitation: no constitutional right to a clearance

It is essential to start with what the process does not guarantee. The Supreme Court, in Department of the Navy v. Egan, held that there is no constitutional right to a security clearance and that the grant of a clearance is a discretionary judgment committed to the Executive Branch in the interest of national security. The substance of a clearance decision, the predictive judgment about whether granting access is consistent with the national interest, is therefore given great deference and is generally not subject to the kind of merits review a court would apply to other government actions.

This matters because it frames the nature of the rights involved. Contractor employees in DOHA proceedings receive procedural protections, a fair process for presenting their side, rather than a guarantee of a favorable outcome or a full judicial trial on the wisdom of the decision.

The governing framework for contractor cases

Contractor personnel are processed under a framework rooted in Executive Order 10865, Safeguarding Classified Information Within Industry, and the implementing Department of Defense directive that established the Defense Industrial Personnel Security Clearance Review Program. This is the industrial security track, distinct from the process that applies to federal civilian employees and military members. Cases in this track move through the Industrial Security Clearance Review process, and the adjudicative guidelines for determining eligibility for access to classified information supply the substantive standards.

Within this framework, contractor employees receive a defined sequence of procedural rights.

Notice through the Statement of Reasons

The process begins with notice. When the government cannot find that granting or continuing a clearance is clearly consistent with the national interest, DOHA issues a Statement of Reasons. This document identifies the specific concerns and the conduct or circumstances behind them, organized around the adjudicative guidelines, …

Yes. Medical evidence can be central to defending against an opioid-positive urinalysis, and in many cases it is the strongest tool a service member has. But the framing of the question deserves precision. Military law does not actually create a true legal “presumption” of guilt from a positive test. What it allows is a permissive inference, and medical evidence works by undercutting that inference rather than by rebutting a conclusive presumption. Understanding the difference explains exactly how prescription records, a Medical Review Officer’s findings, and expert testimony fit into the defense.

What a positive urinalysis legally proves, and what it does not

Under Article 112a of the Uniform Code of Military Justice, the offense is the wrongful use of a controlled substance. The critical word is “wrongful,” which requires that the use be both knowing and without legal justification. A positive urinalysis, standing alone, does not establish a crime. It establishes the presence of a substance or its metabolite in the member’s system at the time of the test.

From that laboratory result, the law permits the members of a court-martial to draw a permissive inference that the use was knowing and wrongful. A permissive inference is not a mandate. The panel may draw it, but it is free to decline if the evidence as a whole creates reasonable doubt. This is the doorway through which medical evidence enters: it gives the panel a reason not to draw the inference, or it negates the knowing and wrongful elements outright.

How a valid prescription changes the analysis

Opioids are not contraband in the way many street drugs are. Oxycodone, hydrocodone, morphine, and codeine are legitimately prescribed every day. If a service member used an opioid pursuant to a valid prescription, the use is not wrongful, and the elements of the Article 112a offense are not met. Medical evidence in the form of a current prescription, a pharmacy record, and a documented diagnosis can therefore be a complete defense rather than merely a mitigating factor.

This is also why the testing process itself contemplates medical review. When a sample tests positive for opioids, a Medical Review Officer ordinarily reviews the member’s prescription records to determine whether a legitimate prescription explains the result. A documented prescription that matches the detected substance can resolve the matter before it ever becomes a court-martial. Where the records are incomplete or the prescription belongs to a different …

Most military drug prosecutions under Article 112a of the UCMJ rest on a positive urinalysis processed by a Department of Defense forensic laboratory. But cases arise where the only chemical evidence comes from a civilian lab, for example a hospital screen taken during medical treatment, an emergency-room toxicology result, or a test ordered by a civilian employer or court. The question is whether prosecutors can build a wrongful-use case solely on a civilian result from a laboratory that lacks DoD accreditation. The short answer is that it is legally possible, but it is much harder, because the procedural and evidentiary scaffolding that makes a DoD lab result so persuasive does not automatically attach to a civilian test.

How DoD drug testing normally works

The military operates a network of accredited forensic toxicology drug testing laboratories that process specimens under DoD Instruction 1010.16 and service regulations. These labs follow standardized collection, chain-of-custody, screening, and confirmation procedures. A presumptive positive on an immunoassay screen is confirmed by gas chromatography or liquid chromatography coupled with mass spectrometry, the results are documented on standardized custody forms, and the laboratory maintains detailed litigation packages designed to be defended in court.

This system matters for two reasons. First, it produces reliable, well-documented results. Second, it supports a settled body of law allowing a properly documented positive result, together with expert testimony, to support a permissive inference that the accused knowingly used the drug. That inference is what often carries a urinalysis case to conviction. A civilian test from a non-accredited lab does not come with this framework built in.

Civilian lab results are not categorically inadmissible

There is no rule that automatically excludes a civilian drug-test result. The Military Rules of Evidence apply to all scientific evidence, and they do not require DoD accreditation as a precondition to admissibility. A civilian result can come in if the proponent lays the proper foundation under the rules governing authentication, hearsay, and expert testimony.

In practice that means the government must establish where the specimen came from and that it was the accused’s, account for its handling, show the laboratory used a reliable methodology, and present a qualified witness to explain the testing and its meaning. Many hospital and reference-laboratory records can be admitted as business records, and a forensic toxicologist can testify to the reliability of the methods used. So a civilian result is not dead on arrival.…

Service members are subject to routine and random urinalysis, and a positive result can lead to action under Article 112a of the UCMJ, which prohibits the wrongful use of controlled substances. A recurring and genuinely complicated situation arises when the member has a valid prescription for a medication that can produce a positive result, but the use occurred outside the bounds of the prescription, for example after it expired, in a larger dose than prescribed, or during a period when the member was no longer authorized to take it. The way prescription use during an unauthorized period affects a urinalysis outcome depends on a careful separation of two ideas: what the test detects, and whether the use was wrongful in the legal sense.

What a urinalysis actually shows

A urinalysis detects the presence of a substance or its metabolites in a sample. It can confirm that a controlled substance was in the member’s system. What it generally cannot show, by itself, is when the substance was taken, why it was taken, or whether the use was authorized. A positive result for a substance that the member was once lawfully prescribed looks, at the chemical level, much like a positive result from an unauthorized source. The test result is therefore a starting point, not a conclusion about wrongfulness.

This distinction matters because Article 112a does not punish the mere presence of a substance. It punishes wrongful use. The legal question is not simply whether the substance was detected, but whether the use of it was knowing and wrongful.

Lawful prescription use versus unauthorized use

Using a controlled substance pursuant to a legitimate prescription issued to the member is not wrongful. The authorization supplied by a valid prescription is what makes the use lawful. The problem appears when the use falls outside that authorization. Using medication prescribed to someone else, using a member’s own medication in a manner inconsistent with the prescription, or continuing to use a medication after the authorized period are situations where the protective effect of the prescription may no longer apply. In those circumstances, the use can be treated as wrongful even though the same substance was, at an earlier time and in a different manner, lawfully prescribed.

So the existence of a prescription does not automatically resolve a positive test. It frames a further question: was the particular use that produced the positive result within the scope …

Article 91 of the Uniform Code of Military Justice (UCMJ) governs insubordinate conduct toward a warrant officer, a noncommissioned officer (NCO), or a petty officer. One of the ways the article can be violated is by willfully disobeying the lawful order of such a person. The word “willfully” carries specific legal meaning in this context, and it is the element that separates a punishable refusal from a mere failure or delay. This article explains how willful disobedience is defined and what the government must prove.

Where willful disobedience fits in Article 91

Article 91 reaches three distinct kinds of conduct: striking or assaulting a warrant officer, NCO, or petty officer in the execution of office; willfully disobeying the lawful order of such a person; and treating with contempt or being disrespectful toward such a person in the execution of office. The article applies to enlisted members and, for the relevant conduct, to warrant officers as the actor. The willful disobedience prong is the focus here, and it has its own elements distinct from disrespect or assault.

The elements of willful disobedience under Article 91

To convict for willful disobedience under Article 91, the prosecution must prove that the accused received a lawful order from a warrant officer, NCO, or petty officer; that the accused knew the person giving the order held that status; that the accused had a duty to obey the order; and that the accused willfully disobeyed it. A point worth noting is that, unlike the assault and disrespect prongs, the willful disobedience prong does not require that the superior have been in the execution of office at the moment, as long as the order itself was lawful and related to military duty.

What “willfully” means

In Article 91 jurisprudence, willful disobedience means an intentional defiance of authority. It is more than negligence, forgetfulness, or an inability to comply. The accused must have understood the order and then made a conscious choice not to follow it. A genuine misunderstanding of what was ordered, a physical inability to perform, or a momentary lapse is not the same as the intentional refusal the word “willful” requires. This is why the prosecution must show that the accused both knew of the order and deliberately declined to obey.

The order must be lawful

A central requirement is that the order disobeyed was lawful. A lawful order must relate to military duty, which …

A guilty plea in a court-martial is a serious and largely binding step, but it is not irreversible. When an accused who has pleaded guilty later claims that defense counsel acted in bad faith, and seeks to withdraw the plea before the sentence is announced, military procedure provides a defined standard for whether withdrawal is allowed. The answer is that withdrawal is permitted in this window if the accused shows a fair and just reason for it, and an allegation that counsel acted in bad faith, if substantiated, can supply that reason. The strength of the claim depends on what the accused can actually show about counsel’s conduct and its effect on the decision to plead.

The governing standard before sentence is announced

Rule for Courts-Martial (RCM) 910 governs guilty pleas. The timing of the request to withdraw controls which standard applies, and the rule recognizes distinct stages.

Before the military judge accepts the plea, the accused may withdraw it as a matter of right. Once the judge has accepted the plea but before the sentence is announced, withdrawal is no longer automatic. At that point the accused may withdraw the plea only if the military judge, in the exercise of discretion, finds a fair and just reason to permit it. This is the standard that applies to a pre-sentencing request, and it is more forgiving than the standard that applies after sentencing, where relief is available only on direct appeal or collateral review and typically requires a showing closer to manifest injustice.

So the procedural posture matters. A request made after the plea is accepted but before sentencing is evaluated under the fair and just reason test, with the burden on the accused and the decision committed to the sound discretion of the military judge.

How a bad-faith allegation fits the standard

An accused’s claim that trial defense counsel acted in bad faith is not, by itself, a magic phrase that compels withdrawal. The military judge will look at what the accused means by bad faith and whether the conduct described undermined the voluntariness or the knowing and intelligent character of the plea. A guilty plea is valid only if it is voluntary and made with an understanding of the charges and consequences, and the providence inquiry the judge conducts on the record is designed to confirm exactly that. A later claim that counsel’s misconduct corrupted the plea is, …

A defense contractor employee who holds access to classified information operates under a continuous obligation to report certain personal activities, and unreported foreign travel is one of the activities the government scrutinizes most closely. When an agency moves to revoke a clearance on that basis, the action is not a criminal proceeding and does not follow the rules of a court-martial. It is an administrative national security determination governed by a specific body of executive directives, adjudicative criteria, and a defined appeal process. Understanding which standards apply, and how they differ from a punitive case, is the starting point for any meaningful response.

The reporting obligation comes from SEAD 3

The duty to report foreign travel does not arise from the contractor’s employment contract alone. It is set by Security Executive Agent Directive 3 (SEAD 3), which establishes reporting requirements for covered individuals who hold access to classified information or hold a sensitive position. SEAD 3 requires covered individuals to report unofficial foreign travel in advance, and in some cases to obtain approval before traveling, along with reporting certain foreign contacts. The precise pre-travel and post-travel procedures are implemented by each cognizant agency, so the exact form and timing of a report depend on the agency and contractor facility involved. The key point is that the obligation is affirmative and continuing. A clearance holder is expected to know it and to comply without being prompted.

Revocation is adjudicated under the SEAD 4 guidelines

When unreported travel comes to light, the question of whether the clearance should be revoked is decided under Security Executive Agent Directive 4 (SEAD 4), which contains the National Security Adjudicative Guidelines. These guidelines list the categories of conduct that raise security concerns and are applied uniformly across the government. Two guidelines are most relevant to a failure to report foreign travel.

Guideline B, Foreign Influence, addresses concerns that foreign contacts or interests could create a heightened risk of foreign exploitation or divided loyalty. Undisclosed travel to certain countries, or contact with foreign nationals during travel, can raise issues under this guideline.

Guideline E, the guideline addressing personal conduct, is often the more direct fit. The failure to report is itself the concern, because the adjudicative system treats a deliberate omission of required information, or a pattern of rule violations, as evidence bearing on a person’s reliability, trustworthiness, and willingness to follow security rules. The government’s worry …