Military Lawyers

Article 90 of the Uniform Code of Military Justice is one of the offenses that most clearly reflects the military’s reliance on the chain of command. Historically it reached two kinds of conduct against a superior commissioned officer: striking or otherwise assaulting that officer, and willfully disobeying that officer’s lawful command. The Military Justice Act of 2016, effective January 1, 2019, restructured the section so that current Article 90 covers only willful disobedience of a superior commissioned officer’s lawful command, while the assault offense against a superior commissioned officer was moved into Article 89. Because many cases and discussions still describe the older two-branch structure, the questions and answers below address both the disobedience offense that defines Article 90 today and the assault conduct now charged under Article 89. Anyone researching a specific case should confirm which version of the Code applied at the time of the alleged conduct. This is general legal education and not legal advice.

1. What does Article 90 cover?

As currently codified at 10 U.S.C. section 890, Article 90 punishes a service member who willfully disobeys a lawful command of a superior commissioned officer. Before the 2019 restructuring, the same article also punished striking or assaulting a superior commissioned officer while that officer was in the execution of office; that assault conduct is now charged under Article 89.

2. Why does the military treat this so seriously?

Armed forces depend on the prompt obedience of lawful orders and on the physical safety of those in command. An assault on a superior officer or a flat refusal to obey strikes at the discipline that allows a military unit to function, which is why the maximum penalties are severe.

3. What are the elements of the assault offense (now under Article 89)?

For striking or assaulting a superior commissioned officer, which is now charged under Article 89, the government must prove that the accused struck, drew or lifted up a weapon against, or otherwise offered violence to a certain officer; that the officer was a superior commissioned officer of the accused; that the accused knew the person was a superior commissioned officer; and that the officer was then in the execution of office.

4. What are the elements of the disobedience branch?

For willful disobedience, the government must prove that the accused received a lawful command from a certain officer; that the officer was a superior commissioned …

Desertion is one of the oldest and most serious offenses in military law, and under the Uniform Code of Military Justice it is set out in Article 85, codified at 10 U.S.C. 885. What separates desertion from the lesser offense of absence without leave is intent. Being absent without authority is a crime under Article 86, but desertion requires proof that the service member intended to abandon the service or to avoid important obligations of it. That added element of intent is what elevates desertion to the gravest category of absence offenses, one that in time of war can carry the death penalty.

What the Article Covers

Article 85 covers several related ways of abandoning military service. The most familiar is absence with the intent to remain away permanently. The article also reaches a service member who leaves or remains absent with the intent to avoid hazardous duty or to shirk important service, and it covers a member who quits a unit or organization with intent to avoid hazardous duty or to shirk important service. A further provision addresses enlisting or accepting an appointment in an armed force without disclosing a prior unterminated enlistment or obligation, sometimes called fraudulent or improper separation from one’s existing service. The common thread across all of these is a purpose to escape the duties of military service rather than a mere unauthorized absence.

The Elements

For desertion with intent to remain away permanently, the government must prove four elements. First, that the accused absented himself or herself from the unit, organization, or place of duty. Second, that the absence was without authority. Third, that the accused, at the time the absence began or at some point during the absence, intended to remain away permanently. And fourth, that the accused remained absent until the date alleged. The intent need not exist at the moment the absence began; it is enough that the accused formed the intent to stay away permanently at any point during the absence.

For desertion to avoid hazardous duty or to shirk important service, the government must prove the unauthorized absence or the quitting of the unit, together with the specific intent to avoid a particular hazardous duty or to shirk important service that the accused knew about. This form does not require an intent to leave the service forever; it requires an intent to dodge a specific significant obligation.

The Critical

…

Article 96 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. section 896, addresses misconduct by those entrusted with custody of prisoners. The current statutory heading is “Release of prisoner without authority; drinking with prisoner,” and the article was reorganized into subsections during the 2019 revisions while retaining its number as Article 96. This guide focuses on the offense named in the title, releasing a prisoner without authority, while explaining how it fits within the broader article. It covers the statutory framework, the elements, the key definitions of “prisoner” and “release,” related conduct addressed by the same article, defenses, and punishment.

The statutory framework

Article 96 gathers several related forms of misconduct connected to the custody of prisoners. The provision addresses, on the one hand, conduct that improperly ends or allows the escape from lawful custody, and on the other hand, the separate misconduct of unlawfully drinking alcoholic beverages with a prisoner. The reorganization into subsections did not change the core offenses; it clarified their structure.

The offense at issue here, releasing a prisoner without proper authority, is one of three closely related forms of custodial misconduct historically grouped under this article: releasing a prisoner without proper authority, allowing a prisoner to escape through neglect, and allowing a prisoner to escape through design. The release offense and the escape offenses are distinct, and the difference between them matters a great deal at trial and at sentencing.

The elements of releasing a prisoner without authority

To convict an accused of releasing a prisoner without proper authority, the government must prove beyond a reasonable doubt that a certain person was a prisoner, that the accused released that prisoner, and that the accused had no authority to do so.

Each element rests on a defined term, and the definitions do the real work in these cases.

Who is a “prisoner”

For purposes of Article 96, a prisoner is a person who is in confinement or custody pursuant to the proper exercise of authority, including a person under sentence, in pretrial confinement, or otherwise lawfully held. The status of the person held matters because the offense protects the integrity of lawful confinement and custody. If the person was not, in fact, a prisoner in this sense, the offense does not apply. The status of the individual as a prisoner at the time of the release is therefore a threshold question.

What

…

Special duty status is a category of military assignment that brings with it both heightened responsibility and, often, additional pay, privileges, or career advantage. Flying status, recruiting duty, drill instructor or recruit training duty, certain personnel reliability positions, special operations assignments, and similar billets all fall under the broad umbrella of special duty. When a commander revokes that status, the consequences for a service member can be significant, touching pay, promotion potential, and reputation. Service members frequently ask whether a military attorney can help them resist a revocation they believe is unjust. The answer is yes, but the way an attorney helps depends heavily on the nature of the revocation and the channels available to contest it.

Understanding Special Duty Status and Its Revocation

Special duty assignments are governed by service-specific regulations rather than by a single provision of the Uniform Code of Military Justice. Each status, whether it is aviation service, special program duty, or another designated assignment, comes with its own eligibility criteria, qualification requirements, and grounds for removal. Removal can flow from a loss of qualification, a medical condition, a security clearance issue, a failure to meet performance standards, or command judgment that the member is no longer suitable for the position.

Revocation is generally a discretionary command and administrative action, not a punishment imposed by a court. That distinction matters. Because revocation is administrative, it does not carry the trial rights that attach to a court-martial. But it is still subject to the governing regulations, to general standards of lawfulness and fairness, and to the requirement that command discretion be exercised within authority and not arbitrarily. A revocation that ignores the applicable regulation, rests on a factual error, follows improper procedure, or is retaliatory or otherwise unlawful can be challenged.

How a Revocation Can Be Unjust

A revocation of special duty status may be unjust in several distinct ways. It may be procedurally defective, meaning the command failed to follow the steps the governing regulation requires, such as notice, an opportunity to respond, or a required evaluation. It may be factually unsupported, resting on inaccurate or incomplete information about the member’s qualifications or conduct. It may exceed the command’s authority or misapply the controlling regulation. It may be arbitrary, capricious, or an abuse of discretion. And it may be retaliatory, imposed because the member made a protected communication such as an inspector general complaint or a …

Article 89 of the Uniform Code of Military Justice protects the authority and standing of commissioned officers from disrespectful words and conduct by their subordinates. It is one of the offenses that has no direct equivalent in civilian criminal law, because civilian society does not punish rudeness toward a supervisor as a crime. In the armed forces, however, the chain of command depends on respect being maintained even when a service member disagrees with a superior. The questions and answers below explain how the offense is defined, what the government must prove, what defenses exist, and how the article was reshaped by the Military Justice Act of 2016, which took effect on January 1, 2019.

Understanding the Offense

1. What does Article 89 actually prohibit?

Article 89 prohibits a person subject to the Code from behaving with disrespect toward a superior commissioned officer. The offense can be committed through words, through actions, or through a combination of both. The conduct does not have to occur during a formal duty event; it only has to be directed at an officer who holds a superior position relative to the accused.

2. Where is Article 89 found in the law?

The article is codified at 10 U.S.C. 889. The supporting definitions, sample specifications, and maximum punishments appear in the Manual for Courts-Martial, which is the executive-branch document that implements the statute.

3. Did the 2019 changes affect Article 89?

Yes. The Military Justice Act of 2016, effective January 1, 2019, restructured the section. The disrespect offense remains, but a separate assault offense against a superior commissioned officer was consolidated into the same statutory section. Earlier versions of the Code treated some of this conduct under neighboring articles. Anyone researching an older case should confirm which version of the Code applied at the time of the alleged conduct.

4. What are the elements of disrespect under Article 89?

The government must prove that the accused did or said certain things; that the conduct or language was directed toward, or was within the sight or hearing of, a certain commissioned officer; that the officer was the superior commissioned officer of the accused; that the accused knew the officer was a superior commissioned officer; and that the behavior or language was disrespectful toward that officer.

5. What does “disrespectful” mean in this context?

The Manual describes disrespect as behavior that detracts from the respect due to …

Article 80 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. section 880, makes it a crime to attempt to commit an offense under the UCMJ even when the intended offense is never completed. It is one of the most important provisions in military criminal law because it applies across the entire code. Almost any UCMJ offense can be charged as an attempt, which makes Article 80 a constant presence in courts-martial. This guide explains the statute, the elements, the difference between preparation and a punishable attempt, the defenses, and how attempts are punished.

The statutory text

Article 80 has three subsections.

Subsection (a) defines the offense: “An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing to effect its commission, is an attempt to commit that offense.”

Subsection (b) sets the punishment rule: “Any person subject to this chapter who attempts to commit any offense punishable by this chapter shall be punished as a court-martial may direct, unless otherwise specifically prescribed.”

Subsection (c) addresses a recurring evidentiary point: “Any person subject to this chapter may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.”

The article was retained as Article 80 through the 2019 reorganization of the UCMJ, so the number and the text remain current.

The elements

To convict of an attempt, the government must prove four elements beyond a reasonable doubt.

First, that the accused did a certain overt act. There must be an actual act, not merely a thought, plan, or desire.

Second, that the act was done with the specific intent to commit a certain offense under the UCMJ. The accused must have intended to commit a particular completed offense.

Third, that the act amounted to more than mere preparation. The act must move beyond getting ready and toward actually carrying out the offense.

Fourth, that the act apparently tended to effect the commission of the intended offense. The act must be one that, in the ordinary course of events, would have resulted in the offense had it not been interrupted or otherwise failed.

The intended offense supplies the rest of the picture. To attempt a specific crime, the accused must intend the elements of that crime. Attempt cannot be built on an offense that itself requires …

Article 87 of the Uniform Code of Military Justice, codified at 10 U.S.C. 887, addresses a specific and operationally serious form of misconduct: failing to move with a ship, aircraft, or unit when required to do so. While it shares some surface similarity with absence offenses, missing movement is treated as its own crime because of the direct harm it does to military operations. When a unit deploys or a vessel sails, the absence of a single service member can leave a gap in a crew, a team, or a mission, and the law responds accordingly.

What the Article Covers

Article 87 punishes a person who, through neglect or design, misses the movement of a ship, aircraft, or unit with which the person is required to move. The offense focuses on movement that has operational significance. The classic examples are a sailor who fails to be aboard when the ship gets underway, an airman who is not present when an aircraft departs, or a soldier who is not with the unit when it deploys. The crime is not simply about being absent; it is about being absent at the precise moment when the service member’s presence was needed for the unit to move as planned.

This operational focus is what separates Article 87 from Article 86, which covers unauthorized absence more generally. A service member can be absent without leave and never miss a movement, and a service member can miss a movement even in situations where a general absence charge might be hard to sustain. Article 87 exists because missing a movement strikes directly at readiness and mission accomplishment.

The Elements

To convict under Article 87, the government must prove four elements. First, that the accused was required to move with a ship, aircraft, or unit. Second, that the accused knew of the prospective movement. Third, that the accused missed the movement. And fourth, that the accused missed the movement through design or through neglect. Knowledge of the scheduled movement is essential; a service member who genuinely did not know about it has a strong argument against conviction. The fourth element, the accused’s state of mind, determines both whether the offense is made out and how severely it can be punished.

Design Versus Neglect

The distinction between design and neglect is the heart of Article 87. Design means the movement was missed intentionally, reflecting a specific purpose to miss …

When a service member is apprehended or pulled aside for questioning, the instinct to explain is powerful. Most people believe that if they just tell their side, the misunderstanding will clear up and they can go home. In the military justice system, this instinct is often a costly mistake. Service members enjoy some of the strongest self-incrimination protections in American law, but those protections only help if they are used. This article explains the legal protections that apply, why early statements are so dangerous, and how the unique pressures of the chain of command can lead a service member to talk when silence would serve them far better.

The Legal Protections That Apply

Service members are protected by both the Constitution and a statute that goes beyond what civilians receive. The Fifth Amendment privilege against self-incrimination applies to military members, just as it does to civilians. On top of that, Article 31 of the Uniform Code of Military Justice, codified at 10 U.S.C. 831, provides a self-incrimination protection that is in some respects broader than the civilian Miranda rule.

Article 31(b) requires that before a service member suspected of an offense is questioned, the person doing the questioning must inform the suspect of the nature of the accusation, advise that the suspect does not have to make any statement regarding the offense, and warn that any statement made may be used as evidence against the suspect in a trial by court-martial. There are several important features of this protection.

First, Article 31 warnings can be required even when the suspect is not in custody. The civilian Miranda rule generally attaches only during custodial interrogation, but the military requirement to advise a suspect of Article 31 rights can apply outside custody, in a much wider range of questioning. Second, Article 31 requires that the suspect be told the nature of the accusation, something Miranda does not require. Third, this protection predates Miranda; Article 31 was in force years before the Supreme Court decided Miranda v. Arizona in 1966.

Article 31 does not, by its own terms, include the Miranda-style advice of a right to counsel. However, separate military case law and the Constitution provide that a service member subjected to custodial interrogation is entitled to be advised of the right to counsel, and a service member always has the right to ask for a lawyer and to refuse to answer questions …

Article 97 of the Uniform Code of Military Justice (UCMJ) addresses a problem that is easy to overlook in a system built around authority and obedience: the abuse of the power to take another person into custody. Codified at 10 U.S.C. section 897, the article punishes the misuse of the very authority that the armed forces depend on to apprehend, arrest, or confine. It is one of the shorter punitive articles, but its application reaches into command decisions, military police work, and the everyday exercise of authority over subordinates.

This guide explains what Article 97 covers, what the government must prove to obtain a conviction, how the offense differs from civilian false imprisonment, the defenses that commonly arise, and what is at stake at sentencing.

The statutory text

Article 97 reads in full: “Any person subject to this chapter who, except as provided by law, apprehends, arrests, or confines any person shall be punished as a court-martial may direct.” The offense was retained as Article 97 through the 2019 reorganization of the UCMJ, so the article number and the substance remain current.

The statute is deceptively simple. The criminal conduct is apprehending, arresting, or confining a person. The qualifying phrase “except as provided by law” carries the weight, because nearly every act of taking custody in the military is, in fact, provided for by law. The offense lies in stepping outside that lawful authority.

What the three verbs mean

The article reaches three distinct acts, and they are not interchangeable.

Apprehension is the military term for taking a person into custody. It is the functional equivalent of a civilian arrest and is governed by Rule for Courts-Martial (R.C.M.) 302. Apprehension is accomplished by clearly notifying the person that they are being taken into custody.

Arrest, in the military sense, is a form of moral restraint imposed by order. Under R.C.M. 304, arrest directs a person to remain within specified limits. It is restraint by order rather than by physical confinement.

Confinement is physical restraint, governed by R.C.M. 305. It is the most severe form of pretrial restraint and ordinarily requires a probable cause determination and review by a neutral officer within set time limits.

Each verb describes a recognized mechanism of military restraint. Article 97 criminalizes the use of any of them without the legal authority to do so.

The elements the government must prove

To convict under Article 97, …

The United States and Italy both maintain separate bodies of law for their armed forces, but the two systems were built on different premises and operate in strikingly different ways. The American system centers on a single, comprehensive code administered through courts-martial that the military itself convenes. The Italian system rests on a specialized military penal code enforced through standing military tribunals that are part of the ordinary judiciary and that, in peacetime, handle a deliberately narrow slice of offenses. Comparing them clarifies how each country answers the same underlying question: how should a democracy discipline its soldiers without abandoning the protections of ordinary justice.

The American framework: one code, military courts

In the United States, military law for active members of all the armed forces is consolidated in the Uniform Code of Military Justice, or UCMJ, enacted by Congress and codified in Title 10 of the United States Code. The UCMJ is broad. It contains both purely military offenses, such as desertion, absence without leave, and disrespect toward a superior, and offenses that mirror civilian crimes, such as larceny, assault, and murder, all of which a service member can be tried for under military jurisdiction.

The UCMJ is implemented through the Manual for Courts-Martial, a presidential document that supplies the Rules for Courts-Martial and the Military Rules of Evidence. Cases are tried by courts-martial, which come in three types under Article 16: summary, special, and general, escalating in the severity of punishment they can impose. A general court-martial, used for the most serious offenses, consists of a military judge and a panel of members, with the accused entitled to elect trial by military judge alone. Following reforms enacted in the 2016 Military Justice Act and reflected in the 2019 edition of the Manual, the panel size for a general court-martial is fixed by statute and the rules governing voting and sentencing were substantially modernized.

Two features define the American system. First, it is administered by the military itself: commanders convene courts-martial, and military judges and lawyers run them. Second, it provides a complete appellate ladder inside the military, from the service Courts of Criminal Appeals up to the Court of Appeals for the Armed Forces, a civilian court, with discretionary review available at the Supreme Court of the United States. The system follows the service member essentially wherever they are in the world.

The Italian framework: a military penal

…