Military Lawyers

One of the most distinctive powers in American criminal law belongs to the military’s intermediate appellate courts. Under Article 66 of the UCMJ, a Court of Criminal Appeals (CCA) may review a conviction not only for legal sufficiency, the question every appellate court asks, but for factual sufficiency, an independent assessment of whether the evidence actually proves guilt. Recent statutory changes have reshaped how that review is conducted, and a 2023 decision of the Court of Appeals for the Armed Forces (CAAF) settled how the new standard works.

Legal sufficiency versus factual sufficiency

It helps to separate the two inquiries. Legal sufficiency asks whether, viewing the evidence in the light most favorable to the prosecution, any rational factfinder could have found the elements proven beyond a reasonable doubt. That is a deferential test focused on whether a verdict was rationally possible, and it is the standard civilian appellate courts apply.

Factual sufficiency is different and far less common. It permits the appellate court itself to weigh the evidence and decide whether it is convinced of guilt. Historically, under the older version of Article 66, the CCAs reviewed the record independently, weighed the evidence, made allowances for not having personally seen the witnesses, and could set aside a conviction if they themselves were not convinced of guilt beyond a reasonable doubt. This gave the military an extraordinary safeguard, a second body empowered to second-guess the factual verdict rather than merely test its rationality.

The statutory change

Congress narrowed this power. Through the Military Justice Act of 2016 and a further revision in the National Defense Authorization Act for fiscal year 2021, the factual sufficiency provision was rewritten and is now codified at Article 66(d)(1)(B). For cases in which every conviction involves an offense occurring on or after January 1, 2021, the new framework applies, and it differs from the old open-ended review in two important ways.

First, factual sufficiency review is no longer automatic. The appellant must specifically request it and must make a threshold showing, a specific showing of a deficiency in proof. The court does not reweigh the evidence on its own initiative. Second, when the court does reach the question, it must give appropriate deference to the trial court’s firsthand view of the witnesses and the evidence, recognizing that the panel or military judge saw and heard what an appellate court reads only on paper.

How CAAF interpreted

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A court-martial is meant to be presided over by a single, continuous judicial officer. Occasionally, though, the military judge who heard the findings must be replaced before sentencing is complete, perhaps because of a permanent change of station, illness, disqualification, or another emergency. When that happens, the accused does not simply absorb the disruption. The rules for courts-martial protect the accused’s interest in a fair, informed, and uninterrupted sentencing proceeding. This article explains what those protections are and how they operate.

The rule that governs a change of judge

The detailing and replacement of a military judge are governed by Rule for Courts-Martial (RCM) 505, which addresses changes of members, the military judge, and counsel. The rule treats a change of judge differently depending on when it happens. Before the court-martial is assembled, a military judge may be changed more freely. Once the court is assembled, and especially after the proceedings are well underway, a change requires a justification and is hedged with safeguards, because by that point the trial has acquired a settled character that the law is reluctant to disturb without reason.

Sentencing in a court-martial follows the findings, and after assembly the court has committed itself to a particular composition. A reassignment at this stage is therefore the kind of mid-trial change that triggers the protective machinery rather than the routine pre-assembly substitution.

Right to a qualified and properly detailed replacement

The first protection is structural. Any replacement must be a qualified military judge who has been properly detailed to the case in accordance with the rules. The accused is entitled to have the substitution reflected on the record so that the change of judicial officer is transparent and reviewable. An undocumented or irregular switch of judges is the kind of error that appellate courts can examine, because the identity and authority of the presiding judge go to the legitimacy of the proceeding.

Right to an impartial and informed judge

The replacement judge must satisfy the same impartiality and qualification standards as the original. The accused retains the right to challenge the new judge for cause if grounds exist, for example a personal bias, a disqualifying prior involvement in the case, or any basis that would prevent the judge from acting fairly. The accused also retains, in the appropriate posture, the ability to inquire into the new judge’s fitness to sit, just as he could have inquired …

Military drug testing relies on a tightly controlled process. A service member provides a urine sample under observation, the sample is sealed and labeled, a chain of custody documents each transfer, and a Department of Defense laboratory analyzes it. When a positive result becomes the basis for nonjudicial punishment under Article 15 of the Uniform Code of Military Justice, the defense often points to mistakes in that process. A bottle was labeled out of order, an observer’s initials were missing, a form was completed late. The natural question is whether such minor procedural errors are fatal to the commander’s case at nonjudicial punishment. The honest answer is that they usually are not automatically fatal, but they can still matter a great deal.

How nonjudicial punishment differs from a court-martial

The first thing to understand is the forum. Nonjudicial punishment is not a criminal trial. It is a commander’s tool for handling minor misconduct without the formality of a court-martial. There is no military judge, no panel, and no application of the formal rules of evidence in the way they govern a court-martial. The commander acts as the decision maker and may consider a wide range of information.

This has a direct effect on how procedural errors are handled. In a court-martial, the Military Rules of Evidence control admissibility, and a serious break in the chain of custody or a foundational defect can lead a judge to exclude a urinalysis result altogether. At nonjudicial punishment, those exclusionary mechanisms do not operate the same way. The commander is generally free to consider the urinalysis report and to weigh any flaws in the process as part of deciding what happened, rather than being required to throw the evidence out.

The standard the commander applies

Because nonjudicial punishment is not a trial, the burden of proof is not the criminal beyond-a-reasonable-doubt standard. The practice varies by service. In the Navy and Marine Corps, the recognized standard is a preponderance of the evidence, meaning the commander must conclude it is more likely than not that the offense occurred. In some other services the burden is not stated as a fixed legal standard at all, and the commander decides based on a personal evaluation of the evidence. Either way, the threshold a procedural error must overcome is lower than at a court-martial.

Why minor errors are usually not fatal

A genuinely minor, technical error rarely undermines …

Article 99 of the Uniform Code of Military Justice (UCMJ), misbehavior before the enemy, is among the most serious offenses in military law and one of the few that authorizes the death penalty. A natural question is whether conduct during a retreat can fall within Article 99 when the service member ultimately survives the engagement and rejoins the unit. The short answer is yes. Liability under Article 99 turns on what the service member did and intended at the moment of the conduct, not on whether the engagement ended well or the member later returned to the fight.

What Article 99 covers

Article 99, codified at 10 U.S.C. section 899, lists several distinct forms of misconduct committed before or in the presence of the enemy. They include running away, shamefully abandoning or surrendering a command or position or military property, endangering the safety of a command or unit through disobedience, neglect, or misconduct, casting away arms or ammunition, cowardly conduct, quitting one’s place of duty to plunder or pillage, causing a false alarm, and willfully failing to do one’s utmost to encounter, engage, or destroy enemy forces. The form most relevant to a retreat scenario is running away.

“Running away” does not require permanent abandonment

The key to the question is the nature of the running-away offense. Running away under Article 99 means an unauthorized departure from one’s place of duty made to avoid actual or impending combat with the enemy. What matters is the act of leaving the fight and the purpose behind it.

This is precisely where Article 99 differs from desertion under Article 85. Desertion requires an intent to remain away permanently or to avoid hazardous duty or important service. Article 99 carries no such permanence requirement. A service member can run away within the meaning of Article 99 and intend all along to come back, or in fact come back, and still be liable. The offense is complete the moment the member leaves the position with the purpose of avoiding combat. Surviving the battle and regrouping afterward does not undo that completed conduct.

The presence of the enemy, not the outcome, defines the offense

Article 99 applies to conduct committed before or in the presence of the enemy. That phrase describes a tactical situation, one in which the enemy is engaged or hostile contact is imminent, not necessarily ongoing pitched battle. Whether the unit ultimately prevailed, …

Article 78 of the Uniform Code of Military Justice punishes the accessory after the fact. The statute reaches any person subject to the code who, knowing that an offense punishable under the code has been committed, receives, comforts, or assists the offender in order to hinder or prevent that offender’s apprehension, trial, or punishment. These cases become especially painful when the offender is a family member. A spouse who lets a deserting partner stay at home, or a service member who drives a sibling away from investigators, can find themselves charged not for the underlying crime but for helping afterward. The good news for the defense is that the elements of Article 78 are demanding, and several of them are difficult for the government to prove when the only motive was family loyalty.

The elements the government must prove

To convict, the prosecution must establish four things. First, that another person actually committed an offense punishable under the code. Second, that the accused knew that person had committed the offense. Third, that the accused thereafter received, comforted, or assisted that offender. Fourth, and most important, that the accused did so for the purpose of hindering or preventing the offender’s apprehension, trial, or punishment. Each element is a separate point of attack.

Attacking knowledge of the underlying offense

Article 78 requires actual knowledge that a specific offense was committed. General suspicion is not enough, and neither is a vague sense that a relative is in trouble. A spouse who knows only that a partner failed to report to a new duty station may not know whether the absence is authorized, the result of a misunderstanding, or a punishable offense. If the accused did not actually know that a crime had been committed, the second element fails. Because families often operate on incomplete information and assume the best about one another, the knowledge element is frequently the weakest part of the government’s case.

Challenging intent to hinder apprehension or punishment

The decisive element is purpose. The accused must have acted with the specific intent to hinder or prevent apprehension, trial, or punishment. Assistance given for some other reason does not satisfy the statute, even if it has the incidental effect of making the offender harder to find. This is where familial loyalty cuts in the accused’s favor. Providing a family member with food, shelter, money, or emotional support is ordinary family conduct. …

Sharing a screenshot, retweeting a post, or forwarding someone else’s message feels passive. You did not write the words. Yet under the Uniform Code of Military Justice, the act of amplifying contemptuous or improper speech can expose a service member to discipline even when the original author is a civilian or a stranger. The analysis does not turn on who first typed the words. It turns on what your conduct communicates and what effect it has on the military.

Why “I only shared it” is not a complete defense

Military criminal law generally cares about conduct and its consequences, not the technical authorship of a sentence. When you repost, you are choosing to publish that content to your own audience. Depending on the framing, that choice can be read as endorsement, adoption, or distribution. Commanders and prosecutors look at the surrounding context: any caption you added, the audience you sent it to, whether you identified yourself as a service member, and whether the content targets the chain of command, a protected official, or another member.

A bare repost with no comment is harder to prosecute than a repost with an approving caption, but neither is automatically safe. The government must still prove the elements of whatever offense it charges, and the closer your involvement looks to adopting the message as your own, the stronger that case becomes.

Article 88 is narrow and probably does not apply

Article 88 of the UCMJ criminalizes contemptuous words against certain officials, including the President, the Vice President, Congress, the Secretary of Defense, a Secretary of a military department, and the governor or legislature of a state where the member is on duty. Two limits matter here. First, Article 88 applies only to commissioned officers. An enlisted member cannot be charged under it. Second, the article speaks of using contemptuous words. Whether merely resharing another person’s words counts as the accused “using” them is a real question, and the safer reading is that a passive share by an officer would more likely be approached through a different theory if charged at all.

So while an officer who reposts contemptuous statements about a protected official should be aware of Article 88, the article’s narrow scope means it is rarely the cleanest fit for a sharing scenario.

Where liability for sharing actually tends to land

For most reposting cases, the government turns to other provisions.

Article 89 …

Social media has become a standard source of evidence in courts-martial, and a recurring question is whether a service member’s posts, profiles, and messages can be used to prove character under Military Rule of Evidence 405. The short answer is that MRE 405 does not authorize a party to dump screenshots of someone’s account into the record as proof of character. MRE 405 governs the form character evidence may take, and that form is generally reputation or opinion testimony, not a collection of online posts. Understanding why requires separating the question of when character evidence is allowed from the question of how it may be proven.

What MRE 405 Actually Controls

MRE 405 is a methods rule. It assumes that character evidence has already been deemed admissible under another rule, such as the rules that allow an accused to offer a pertinent trait or that allow character evidence when character is an element of an offense or defense. MRE 405 then tells the parties how that character may be proven.

It allows two ordinary methods. Character may be proven by testimony about a person’s reputation in the relevant community, or by a witness’s opinion of that person’s character. On cross-examination of such a character witness, the court may allow inquiry into relevant specific instances of the person’s conduct. MRE 405 also recognizes a narrow third path: when a person’s character or trait is an essential element of a charge, claim, or defense, that character may be proven by specific instances of conduct. The Military Rule mirrors its federal counterpart in this structure.

The key point is that the default methods are reputation and opinion. Specific instances of conduct are tightly cabined: they appear on cross-examination of a character witness, or in the rare case where character itself is an element.

Why Social Media Posts Are “Specific Instances”

A social media account is, by its nature, a record of specific things a person said and did. A post celebrating misconduct, a hostile message, or a photograph depicting behavior is a specific instance of conduct, not a statement of the person’s reputation or a witness’s holistic opinion of the person’s character.

This classification is what limits the role of social media under MRE 405. Because the rule confines proof of character by specific instances to cases where character is an essential element, a party generally cannot introduce a stack of posts to …

Article 89 of the UCMJ punishes disrespect toward a superior commissioned officer, and among the lighter sanctions a command can impose for such conduct is a reprimand. A reprimand sounds minor next to confinement or a punitive discharge, and many service members assume it is a slap on the wrist that quietly disappears. In reality, a reprimand connected to an Article 89 violation can carry real career consequences, including effects on promotion eligibility. Whether it does depends on how the reprimand was imposed, where it is filed, and how promotion authorities treat it.

What Article 89 covers and how a reprimand fits

Article 89, codified at 10 U.S.C. section 889, addresses behaving with disrespect toward one’s superior commissioned officer. The current article also addresses assault on a superior commissioned officer, but the disrespect branch is the one most often resolved short of a court-martial. The officer generally must be superior in rank or in the accused’s chain of command, and the disrespect must relate to the officer’s official capacity.

Disrespect can be handled in several ways. A commander may proceed to court-martial, impose nonjudicial punishment under Article 15, or address the conduct administratively. A reprimand can arise in any of these settings: as a punishment adjudged at a court-martial, as a component of nonjudicial punishment, or as a purely administrative measure such as a letter of reprimand. The forum matters, because it controls where the reprimand is filed and therefore who sees it.

Why filing location is decisive

The career impact of a reprimand turns largely on whether it lands in the service member’s permanent official personnel file, the record that promotion selection boards review. A reprimand that is filed permanently, in the performance portion of the official record, will be visible to a board and can weigh heavily against selection. A reprimand filed locally or in a restricted portion of the record that boards do not see has far less practical effect on promotion.

For nonjudicial punishment, the imposing commander often decides the filing determination, and that decision can hinge on the member’s grade and the seriousness of the conduct. A reprimand directed for local filing may be removed or destroyed after a set period and may never reach a selection board. The same reprimand directed to the permanent file becomes a long-term part of the member’s documented history. For administrative letters of reprimand, a filing decision by the …

Service members preparing for a court-martial or related military hearing frequently ask what they should wear. The question is not trivial. Appearance at trial carries meaning in the military justice system, and the default expectation differs sharply from a civilian courtroom, where a defendant typically appears in civilian clothing. Understanding the rule, and the limited room for exceptions, helps a member and counsel make a deliberate choice rather than an accidental one.

The default expectation is the uniform

In the military justice system, the expectation is that an accused appears at trial in the appropriate military uniform. This reflects the principle that a court-martial is a formal, dignified military proceeding and that an accused, who remains a service member throughout, both has the right and bears the obligation to present a proper military appearance. The uniform is the standard attire for the accused, for counsel who are service members, for witnesses in many cases, and for the court itself.

The governing framework is found in the Rules for Courts-Martial, supplemented by service-specific rules of practice that each service court issues. Those rules generally specify the uniform to be worn and direct that participants maintain a good military appearance. The presiding military judge sets and enforces these standards for the courtroom.

The military judge controls courtroom attire and may grant exceptions

While the uniform is the default, the rule is not absolute. The military judge has discretion to authorize exceptions to the required uniform and attire. In exercising that discretion, the judge weighs the importance of conducting a formal and dignified proceeding against other competing interests. That balancing is the key concept. A request to depart from the standard uniform must give the judge a reason that outweighs the strong interest in the formality and uniformity of the proceeding.

Recognized reasons for an exception can include practical and humane considerations. A member in pretrial confinement may not have ready access to a serviceable dress uniform. A member who has been separated from the service before trial, or whose physical condition makes wearing the prescribed uniform difficult, may have a legitimate basis to appear in alternative attire. The judge may also authorize wear of a less formal duty uniform rather than the dress uniform when circumstances warrant. These determinations are made case by case.

Why an accused might want, or not want, to wear the uniform

The uniform question is partly legal …

Yes, within limits. A commissioned officer is not required to ignore disrespect from a subordinate, and responding directly is a normal part of leadership. The officer may correct, counsel, and initiate appropriate disciplinary measures. What the officer may not do is retaliate physically, demean or abuse the subordinate, or use the response as cover for mistreatment. The line runs between legitimate corrective authority and conduct that itself violates the Uniform Code of Military Justice. Knowing where that line sits protects both the officer’s authority and the officer’s own record.

The subordinate’s conduct: how the UCMJ frames disrespect

Disrespect toward a superior is itself an offense. Under Article 89, a service member who behaves with disrespect toward a superior commissioned officer can be punished, where the conduct or language detracts from the respect due the authority and person of that superior. A parallel provision, Article 91, addresses insubordinate or disrespectful conduct by enlisted members and warrant officers toward warrant officers, noncommissioned officers, and petty officers in the execution of their office.

This framing matters because it establishes that the system already provides a formal route for addressing disrespect. The officer who is the target of disrespect is, in effect, the victim of a potential offense, and the proper response channels that conduct into the disciplinary system rather than into a personal confrontation that escalates.

Legitimate ways an officer may respond

A commissioned officer has broad authority to respond directly to disrespect through proper means. On-the-spot correction is appropriate and expected; an officer can immediately address the behavior, direct the subordinate to stop, and make clear that the conduct is unacceptable. Beyond the moment, the officer can counsel the subordinate, document the incident, and recommend or initiate administrative or disciplinary action.

Where the officer has the authority, or can refer the matter to someone who does, the toolbox includes counseling statements, adverse evaluations where warranted, nonjudicial punishment, and referral for court-martial in serious cases. Imposing legitimate duties, holding the subordinate to standards, and enforcing discipline are core functions of command, and doing so does not become misconduct simply because the subordinate experiences it as harsh. Necessary and proper duties, even hard or unpleasant ones, are not mistreatment.

The key feature of all these responses is that they operate through recognized authority and process. The officer is acting as a leader exercising the discipline system, not as an individual settling a personal affront.…