Military Lawyers

Appeals from courts-martial move through a two-tier system. A service Court of Criminal Appeals reviews the case first, and the United States Court of Appeals for the Armed Forces sits above the service courts as the civilian appellate court for the military justice system. When a case raises an issue that reaches beyond the individual accused, outside organizations sometimes want to weigh in. The question is whether a service member association, advocacy group, or similar organization may file a friend-of-the-court brief in these appeals. The answer is generally yes, but only on the court’s terms, and the threshold issue of military unions deserves its own explanation.

A note on military “unions”

It is important to address the word “union” directly. United States law restricts labor organizing within the armed forces. Federal statute makes it unlawful for a member of the armed forces to enroll in or maintain membership in a military labor organization, and it bars such organizations from certain activities directed at the military. As a practical matter, the kind of collective-bargaining union common in civilian workplaces does not exist for active-duty service members in the way it does elsewhere. What does exist, and exists robustly, is a large ecosystem of service member associations, veterans organizations, professional and bar associations, and public-interest advocacy groups. These are the entities that, in practice, seek to participate as friends of the court. The amicus question therefore turns on the rules governing outside organizations generally, not on any special status for a labor union.

The two ways an amicus brief gets before a military appellate court

Both the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces have rules of practice that recognize amicus participation. Under those rules, an amicus brief may be filed in one of two ways. The court may invite the brief, or the prospective amicus may file a motion for leave and the court may grant it. There is no automatic right for an outside organization to inject itself into a court-martial appeal. Participation is by invitation or by permission.

The joint rules that govern the service appellate courts make this framework explicit. A brief of an amicus curiae may be filed by invitation of the court or by motion for leave granted by the court. The rules also signal that the privilege is not to be abused. An amicus brief that does not …

Under Article 90 of the Uniform Code of Military Justice, a service member is required to obey a lawful order from a superior commissioned officer, and a personal moral objection does not by itself make an order disobeyable. The defense that excuses disobedience is unlawfulness, not moral discomfort. An order that is lawful must be obeyed even if the member finds it distasteful, unwise, or morally troubling. An order that is unlawful need not be obeyed, and in some circumstances must not be. The crucial question, therefore, is not whether an order feels wrong but whether it is legally unlawful.

What Article 90 Requires

Article 90 punishes willfully disobeying a lawful command of a superior commissioned officer. To convict, the government must prove 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 the officer held that status, and that the accused willfully disobeyed the command. The word “lawful” in the first element is doing important work, because only lawful orders carry the force of Article 90.

Orders Are Presumed Lawful

Military law presumes that orders are lawful. A service member who chooses to disobey an order on the theory that it is unlawful does so at the member’s own risk, because the presumption places the practical burden on the member to be right. An order is lawful when it relates to a valid military purpose, is definite and specific enough to be obeyed, and does not conflict with the Constitution, statutes, or the lawful limits of the officer’s authority. Because of the presumption, a member cannot safely treat an order as optional merely because the member disagrees with it or questions its wisdom.

The Difference Between Unlawful and Morally Questionable

This is the heart of the matter. Article 90 does not recognize a defense of personal moral objection to an otherwise lawful order. If the order is lawful, the member’s private moral assessment does not relieve the duty to obey, and disobedience can be prosecuted. What the law does recognize is that an unlawful order is not protected by Article 90 at all. If a command directs the commission of a crime, exceeds the officer’s authority, serves no valid military purpose, or violates law or regulation, then it is not a lawful order, and willful disobedience of it is not an Article 90 offense.

The …

Few scenarios capture the friction between human error and military duty as cleanly as a service member who shows up at what they believe is the correct hour, only to discover the unit departed earlier because of a time zone difference they misunderstood. The member crossed a time zone, relied on the wrong clock, or was told the wrong local time, and the aircraft or ship was already gone. The natural question is whether that kind of honest confusion can excuse a charge of missing movement under Article 87 of the Uniform Code of Military Justice (10 U.S.C. section 887). The answer depends almost entirely on how the offense is defined, because Article 87 is built around two distinct mental states, and being misinformed about a time zone affects them very differently.

The structure of Article 87

Article 87 provides that any person subject to the Code who, through neglect or design, misses the movement of a ship, aircraft, or unit with which the person is required in the course of duty to move shall be punished as a court-martial may direct. To convict, the government must prove that the accused was required in the course of duty to move with the ship, aircraft, or unit; that the accused knew of the prospective movement; and that the accused missed the movement, and that the miss was through design or through neglect.

The phrase through design or through neglect is the heart of the analysis. Design means the member intended to miss the movement, a purposeful act. Neglect means the member failed to take the measures a reasonable person would have taken under the circumstances to be present, or acted without adequate regard for the likely consequences. A time zone misunderstanding is almost never about design. The member who misjudged the clock was trying to make the movement, not avoid it. So the real question is whether the confusion amounts to neglect.

Knowledge of the movement versus knowledge of the exact time

A common defense instinct is to argue the member did not know when to be there, but Article 87 does not require knowledge of the precise hour or even the exact date. It requires knowledge of the prospective movement. A member who knew the unit was deploying, knew it was leaving from a given location, and was responsible for being there generally cannot defeat the knowledge element merely by …

A common and reasonable assumption among service members is that once a commander imposes nonjudicial punishment (NJP) for an incident, the matter is closed and cannot be brought again. So it comes as a shock when the same conduct later shows up as a charge at a court-martial. The instinct is to call this double jeopardy. The reality under military law is more nuanced. Double jeopardy protections exist in the military, but they do not attach to NJP the way they attach to a trial. Understanding the line between the two is essential.

The double jeopardy rule in the military

Double jeopardy in the armed forces is governed both by the Fifth Amendment and by Article 44 of the Uniform Code of Military Justice (UCMJ), which codifies the protection against former jeopardy. Article 44 bars trying a person again for the same offense once a court-martial has reached a final judgment, whether acquittal or conviction. In other words, the protection is triggered by a judicial proceeding that places the accused in jeopardy.

The decisive point is that NJP, imposed under Article 15 of the UCMJ, is not a criminal trial. It is a disciplinary tool that a commander uses to address minor misconduct without resorting to court-martial. Because NJP is administrative and disciplinary rather than judicial, prior NJP for an act does not place the member in jeopardy in the constitutional sense. The defense of former jeopardy therefore does not extend to a prior Article 15 for the same act or omission.

Why Article 15 does not bar a later court-martial

Article 15 itself contemplates this outcome. The statute provides that imposing and enforcing nonjudicial punishment for an act or omission is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission. The structure reflects the design of NJP as a forum for minor offenses. When a commander imposes NJP and later information shows the offense was more serious than first understood, or a senior commander concludes the matter warrants judicial treatment, referral to court-martial remains available.

It is also worth noting that a member generally has the right to refuse NJP and demand trial by court-martial instead, except in limited circumstances such as being attached to or embarked on a vessel. The voluntary nature of accepting NJP further distinguishes it from the involuntary exposure of a criminal trial, …

Entrapment is one of the most misunderstood defenses in military justice. Service members often assume that if a government informant or an undercover agent first raised the idea of breaking the law, the case must be thrown out. The reality is more demanding. Military courts evaluate entrapment through a specific two-part framework, and the simple fact that an agent spoke first does not, by itself, end the analysis. Understanding how the defense actually works helps a service member and counsel decide whether it is realistically available.

The Legal Source of the Defense

Entrapment in the armed forces is governed by Rule for Courts-Martial 916(g) in the Manual for Courts-Martial. The rule states that it is a defense when the criminal design or suggestion to commit the offense originated in the government and the accused had no predisposition to commit the offense. The rule draws a clear line: merely affording someone an opportunity or facility to commit a crime is not entrapment. Entrapment exists only when the criminal conduct is the product of the creative activity of law enforcement officials rather than the independent will of the accused.

The Two Elements: Inducement and Predisposition

Courts-martial apply what is known as the subjective test for entrapment. Under this approach the focus is on the accused’s state of mind, not on whether the police behavior was distasteful in the abstract. The analysis has two components.

The first is government inducement. Defense counsel must point to some evidence that an agent of the government, including an undercover investigator or a cooperating informant, originated the suggestion to commit the crime. An undercover agent who proposes an illegal transaction has satisfied the threshold of raising the question, but proposing the idea is only the entry point to the defense, not the conclusion.

The second component is predisposition. The decisive question is whether the accused was already willing and ready to commit the offense before the government got involved. If the member was predisposed, the defense fails even though an agent spoke first. The Court of Military Appeals addressed this framework in United States v. Whittle, 34 M.J. 206 (C.M.A. 1992), which confirmed that the subjective standard governs and that predisposition is the controlling concern once inducement is raised.

How the Burden of Proof Shifts

The allocation of proof is a critical feature that surprises many people. The accused carries an initial burden to produce some evidence …

Intoxication appears in military sexual misconduct cases in two very different ways, and the legal standard changes depending on which way it arises. Alcohol may be cited as the reason a complainant could not consent, or it may be raised by the defense as bearing on the accused’s state of mind. Article 120 of the Uniform Code of Military Justice, codified at 10 U.S.C. 920, supplies the framework for both.

Intoxication does not equal absence of consent

The first principle is that drinking, by itself, does not erase consent. Under Article 120, consent means a freely given agreement to the conduct at issue by a competent person. A person can be intoxicated and still legally capable of agreeing. The government cannot prove a sexual assault simply by showing that the complainant had been drinking; it must show that the intoxication reached a level that took away the capacity to consent.

That level is defined by the statutory concept of being incapable of consenting. A person is incapable of consenting when, due to impairment, the person lacks the cognitive ability to appreciate the sexual conduct in question, or lacks the mental or physical ability to make or communicate a decision about whether to engage in that conduct. The dividing line is not whether the complainant was drunk but whether the complainant retained the ability to understand the situation and to make and express a choice.

The knowledge element

Capacity is only half of the analysis. When the theory is that the complainant was incapable of consenting because of intoxication, Article 120 also requires proof about the accused’s awareness. The government must prove that the accused knew, or reasonably should have known, that the other person was incapable of consenting due to impairment. This guards against convicting someone who genuinely and reasonably did not perceive the level of impairment. The factfinder weighs what the accused observed, the surrounding circumstances, and whether a reasonable person in the same position would have recognized the incapacity.

So in a typical contested case where both people had been drinking, the panel confronts two linked questions: was the complainant impaired to the point of being incapable of consenting, and did the accused know or have reason to know of that incapacity. Both must be answered against the accused beyond a reasonable doubt for a conviction on that theory.

Distinct theories of liability

Article 120 separates these theories. …

After a court-martial reaches findings of guilt, the case moves into the presentencing phase, where each side presents evidence about the appropriate punishment. Lawyers for both sides interview potential witnesses to prepare, asking about the accused’s character, the impact of the offense, rehabilitation potential, and similar matters. People being interviewed often expect that what they say will be kept private. The reality is more nuanced. The military does not recognize a general confidentiality privilege for witness interviews, but it enforces several specific protections that, together, guard sensitive information during this phase. Understanding which protections exist, and which do not, sets accurate expectations.

The starting point: no general “interview privilege”

There is no rule that makes a presentencing witness interview confidential simply because the witness wanted privacy. A person interviewed by counsel can generally be asked at trial about what the person knows, and a witness who testifies is subject to cross-examination. The protections the military provides come not from a blanket interview privilege but from specific privileges, procedural rules, and ethical duties that apply to particular kinds of information. Confidentiality is enforced through those targeted mechanisms rather than a single overarching rule.

Recognized evidentiary privileges that carry into presentencing

The Military Rules of Evidence (MRE) create privileges that protect certain confidential communications, and these continue to apply during sentencing. The most significant for witness interviews is MRE 513, the psychotherapist-patient privilege. It allows a patient to refuse to disclose, and to prevent others from disclosing, confidential communications made with a psychotherapist or an assistant for the purpose of diagnosis or treatment of a mental or emotional condition in a case arising under the Uniform Code of Military Justice. If a presentencing interview would require a witness to reveal such protected communications, the privilege can be invoked to keep them confidential, subject to the privilege’s recognized exceptions.

Other MRE privileges operate the same way, including the lawyer-client privilege and the husband-wife privileges. A witness interviewed about matters covered by one of these privileges can decline to disclose the privileged content, and the privilege is enforced by the military judge. These privileges, not a generic interview confidentiality, are the backbone of confidentiality protection.

Victim-related protections

Crime victims have specific protections that bear on presentencing interviews and testimony. Victims may decline certain interviews or insist that any interview by the opposing party occur only under conditions they are entitled to, and counsel must …

Helping a fellow service member avoid nonjudicial punishment is not, by itself, enough to make out a violation of Article 78 of the Uniform Code of Military Justice. Article 78, codified at 10 U.S.C. 878, defines the offense of accessory after the fact, and its elements do not map neatly onto the act of steering someone away from an Article 15 proceeding. Whether any liability exists depends on what the conduct actually was, what offense underlies it, and what the helper intended.

What Article 78 requires

Article 78 reaches a person who, knowing that an offense punishable by the UCMJ has been committed, receives, comforts, or assists the offender in order to hinder or prevent the offender’s apprehension, trial, or punishment. The recognized elements are that a UCMJ offense was committed by a certain person, that the accused knew that person had committed the offense, that the accused thereafter received, comforted, or assisted that offender, and that the accused did so for the purpose of hindering or preventing the offender’s apprehension, trial, or punishment.

Several features of this definition matter for the NJP question. The assistance must come after a completed offense; accessory liability attaches to acts taken once the underlying crime is finished. The helper must know that a UCMJ offense was actually committed. And the helper must act with the specific purpose of frustrating apprehension, trial, or punishment of the offender. Importantly, the explanation of the article makes clear that silence does not make one an accessory; mere failure to report an offense, standing alone, is not enough. The accessory must take an affirmative step to assist.

Why avoiding NJP does not fit cleanly

Nonjudicial punishment under Article 15 is a disciplinary tool, not the underlying misconduct. A member generally has the right to refuse NJP and demand trial by court-martial, and a commander always retains discretion over whether to offer NJP, drop the matter, or pursue other action. Helping someone “avoid NJP” can mean many different things, and most of them do not satisfy Article 78.

Advising a service member that he or she may turn down the Article 15 and elect trial by court-martial is lawful counsel about an existing right, not criminal assistance. Encouraging someone to submit matters in their own defense, to request a spokesperson, or to appeal an imposed punishment is participation in a lawful process. None of this hinders apprehension, trial, or …

Yes. A military judge has authority to enter a finding of not guilty on the judge’s own motion when the government’s evidence is legally insufficient to sustain a conviction. This authority comes from Rule for Courts-Martial (RCM) 917, found in the Manual for Courts-Martial. Understanding when and how this happens helps service members and their families follow what is occurring at trial and why a charge may fall away before the panel ever deliberates.

The Rule That Authorizes It

RCM 917 governs the motion for a finding of not guilty. The rule permits the defense to make such a motion, and it expressly allows the military judge to act on the judge’s own motion, which is what “sua sponte” means. The motion is ordinarily made after the government rests its case in chief, although it may be raised at the close of all the evidence as well.

The rule is not about whether the judge personally believes the accused is innocent. It is about a narrow legal test applied to the state of the evidence at a particular point in the trial.

The Legal Standard

Under RCM 917, a finding of not guilty must be entered only when there is no evidence that, together with all reasonable inferences and applicable presumptions, could reasonably tend to establish every essential element of the charged offense. In applying this standard, the military judge views the evidence in the light most favorable to the prosecution and does not weigh the credibility of witnesses.

This is a demanding standard for the accused to meet, and it is intentionally so. The question is not whether the evidence is strong or weak, or whether the judge would vote to convict. The question is whether there is any evidence at all on each element. If the government has presented some evidence on every element, the case proceeds to the fact-finder, even if that evidence is thin. If the government has failed to offer evidence on even one element, the charge cannot stand.

Why a Judge Would Act Without a Defense Motion

In most courts-martial, the defense raises the RCM 917 motion when it believes the government has fallen short. But the rule allows the judge to act independently because the judge has an ongoing duty to ensure the proceedings are lawful. If the judge recognizes that the prosecution has simply failed to put on evidence of an element, …

Service members sometimes find themselves disciplined for declining tasks that they believe have nothing to do with their military occupational specialty. A common question that follows is whether a military attorney can step in to represent them, and whether refusing duties outside one’s MOS is even a defensible position. The short answer is yes, a service member facing discipline in this situation can be represented by counsel, and the underlying legal questions about the lawfulness of the order and the scope of military duty are exactly the kind of issues a defense attorney is equipped to litigate.

The Right to Counsel in Military Discipline

Whether a member can obtain legal representation depends in part on the forum in which the discipline is imposed. If the matter proceeds to a court-martial, the service member has the right to be represented by detailed military defense counsel at no cost, and may also retain civilian counsel at their own expense or request a particular military counsel if reasonably available. Military defense organizations exist in each service specifically to provide this representation. Even outside the court-martial context, such as in nonjudicial punishment proceedings or administrative actions, members are generally entitled to consult with a military defense attorney before deciding how to respond, and counsel can advise on whether to accept or contest the action. So the premise of the question is sound: a military attorney can represent a service member penalized for declining duties, both in advising on the response and in contesting the matter through the appropriate process.

The Real Issue: Was the Order Lawful?

The strength of the member’s position usually turns less on the label of the task and more on whether the order to perform it was lawful. Under military law, orders are generally presumed to be lawful, and a member who disobeys an order does so at their peril. However, the presumption is not absolute. An order must relate to a valid military purpose, meaning it must be connected to military operations, duties, training, or discipline, including activities reasonably necessary to accomplish a military mission or to safeguard and promote morale, discipline, and the usefulness of the unit. An order that lacks any valid military purpose can be challenged as unlawful.

Duties Outside the MOS Are Often Still Lawful

A widespread misconception is that a service member may only be ordered to perform tasks that fall within the formal …