Military Lawyers

Service members sometimes try to bolster their credibility by pointing to a polygraph examination. In a typical scenario, the government has not arranged or requested any polygraph, so the accused obtains an examination privately, often through a civilian examiner, and then wants to introduce that examiner’s interpretation at trial to show truthfulness. The instinct is understandable. If an independent examiner concludes the accused showed no deception, why should the court-martial not hear it? The answer in the military justice system is clear and unfavorable to that instinct. A specific rule of evidence bars polygraph evidence in courts-martial, and it does so regardless of who conducted the examination or whether the government chose to pursue one.

Military Rule of Evidence 707 and its scope

The controlling authority is Military Rule of Evidence 707. The rule was enacted in 1991 and makes polygraph evidence categorically inadmissible in courts-martial. Its reach is deliberately broad. The rule bars three distinct categories of polygraph information from being admitted into evidence: the results of a polygraph examination, the opinion of the polygraph examiner, and any reference to an offer to take, a failure to take, or the taking of a polygraph examination.

Each of those categories matters to the third-party scenario. The “results” category bars the underlying charts and their scoring. The “opinion of the polygraph examiner” category is the one that directly forecloses a third-party interpretation, because an interpretation is exactly that, an examiner’s opinion about what the physiological data show. The third category sweeps in even the bare fact that an examination occurred, so an accused cannot circumvent the rule by alluding to a favorable test without offering the result itself. There is no exception in the rule for examinations arranged by the defense, conducted by a private or civilian examiner, or undertaken because the government declined to test. The identity of the examiner and the government’s posture toward testing are irrelevant to admissibility.

The government’s decision not to test changes nothing

A common misconception is that the government’s refusal to administer or request a polygraph somehow opens the door for the defense to offer its own. It does not. Military Rule of Evidence 707 is a flat prohibition that applies to the evidence itself, not to a particular party. Because the rule excludes the examiner’s opinion and any reference to the examination, a privately obtained, third-party interpretation falls squarely within the prohibition. The …

Combat is frightening, and the law knows it. Article 99 of the Uniform Code of Military Justice (UCMJ), misbehavior before the enemy, is one of the most serious offenses in military law, carrying potential capital punishment. It includes a clause punishing cowardly conduct. That raises an unsettling question for service members: can simply feeling afraid, or expressing that fear, or hesitating under fire, be prosecuted as a crime? The answer, properly understood, is no. Article 99 punishes certain misconduct, not emotion. The distinction between fear and cowardly conduct is the whole point.

What Article 99 actually prohibits

Article 99 enumerates nine distinct offenses committed before or in the presence of the enemy. These include running away, shamefully abandoning or surrendering a command, unit, place, or property, endangering the safety of a command or unit through disobedience, neglect, or intentional misconduct, casting away arms or ammunition, cowardly conduct, quitting one’s place of duty to plunder or pillage, causing false alarms, willfully failing to do one’s utmost to engage the enemy, and failing to afford practicable relief and assistance to allied troops in battle. Each of these describes an act or a failure to act, not a feeling. The article is built around conduct.

Fear is not a crime

The cowardly conduct clause is the one that worries service members, but its definition is narrow. Cowardice in the Article 99 sense means misbehavior motivated by fear. The key word is misbehavior. The offense is not the fear; it is the misconduct that fear produces. Fear itself, the natural apprehension that any rational person feels going into danger, is not punishable. The law expressly distinguishes the feeling of apprehension associated with combat, which is normal and not criminal, from an act of misconduct committed because of that fear.

This is a crucial protection. Soldiers, sailors, airmen, Marines, and Guardians are not expected to be fearless. They are expected to do their duty despite fear. A service member who is terrified but stays at the post, returns fire, and carries out orders has committed no offense, no matter how openly afraid. Expressing fear, saying you are scared, admitting you do not want to be there, is an emotional reality of combat and is not itself cowardly conduct.

Why hesitation alone does not establish the offense

Hesitation occupies a gray zone, but the law again focuses on conduct and intent rather than on a momentary …

Service members sometimes assume that an attempt charge cannot survive without physical evidence: no weapon, no contraband, no forensic trace tying them to the act. That assumption misunderstands how attempt liability works under the Uniform Code of Military Justice. An attempt under Article 80 can be referred to a court-martial even when no physical evidence supports it, because the offense is built on intent and conduct, and both can be proved through testimony, admissions, and circumstantial evidence rather than physical exhibits. Whether referral is proper turns on the legal standard for referral and the elements of attempt, not on the presence or absence of a tangible item.

The elements of attempt under Article 80

Article 80 defines an attempt as an act, done with specific intent to commit an offense under the code, amounting to more than mere preparation and tending, even though failing, to effect its commission. Courts break this into four elements: that the accused did a certain overt act; that the act was done with the specific intent to commit a certain offense; that the act amounted to more than mere preparation; and that the act apparently tended to effect the commission of the intended offense.

Two features of this structure are essential to the physical-evidence question. First, the heart of the offense is specific intent, a mental state. Second, the overt act need not itself be a completed crime, and it need not even be unlawful standing alone. The military applies a substantial-step analysis: the act must move beyond planning and toward execution. None of these elements requires a physical object to exist or be recovered.

How referral works and what standard it applies

Referral is the decision by a convening authority, on the advice of the staff judge advocate, to send charges to a court-martial for trial. The governing question at referral is whether there are reasonable grounds to believe that an offense was committed and that the accused committed it, and whether the specification alleges an offense. This is a probable-cause-style threshold, not proof beyond a reasonable doubt. The convening authority does not weigh the evidence the way a panel will at trial; the authority decides whether the matter should proceed.

Because the referral standard asks only whether there is a reasonable basis to believe an attempt occurred, the absence of physical evidence is not a legal bar. If the available evidence, even entirely …

Drug testing through urinalysis is a fixture of military life, and individual units often develop their own local procedures for scheduling, notifying, and collecting samples. A common question, especially after a positive result leads to disciplinary action, is whether a unit can adopt its own collection rules that depart from the service-wide standards. The answer is no in any way that matters legally. A unit may add operational detail to fit its mission, but it cannot lower, contradict, or supplant the binding collection and chain-of-custody requirements set by higher authority. A local policy that conflicts with service-wide standards does not override them, and a collection conducted in violation of those standards can undermine the admissibility and reliability of the result.

The Hierarchy of Authority

Military regulations operate in a hierarchy. Department of Defense issuances and service-level regulations establish the controlling framework for the drug testing program, including how specimens are collected, documented, and shielded from tampering. Subordinate commands can issue local policies, but those policies must operate within and consistent with the higher authority. A unit cannot use a local instruction to authorize a practice that the governing regulation forbids, nor can it dispense with a safeguard the regulation requires. Where a local policy conflicts with a service-wide standard, the higher standard controls.

This principle is not unique to drug testing. It reflects the basic structure of military regulation, in which lower-level guidance fills in details but cannot countermand the directives above it. In the urinalysis context, the practical effect is that local convenience can never justify abandoning a required protection.

Chain of Custody and Collection Integrity

The heart of the urinalysis program is chain of custody. Service-wide standards require that a specimen be tracked through a documented, unbroken chain from the moment of collection through receipt at the laboratory, typically recorded on a standardized specimen custody document. The governing issuances require standardized collection methods precisely because the reliability of the result depends on knowing that the sample tested is the sample provided, untampered and properly handled.

A unit-level policy that streamlines or relaxes these steps, for example by skipping required documentation, leaving specimens unsecured, or deviating from required observation and labeling procedures, does not become lawful merely because the command adopted it. Instead, the deviation becomes a vulnerability. Procedural errors in collection, labeling, or transport can compromise the integrity of the result, and a chain-of-custody gap can create serious …

Performance counseling can get tense. A service member who disagrees with a rating, a counseling statement, or a supervisor’s assessment may push back hard, and the exchange can grow heated. That raises a practical question: does Article 89 of the Uniform Code of Military Justice apply during evaluations or feedback sessions, or does the candor expected in those settings give a subordinate latitude to speak freely? The short answer is that Article 89 applies in an evaluation or feedback session just as it applies anywhere else. The setting does not suspend the prohibition on disrespect toward a superior commissioned officer. At the same time, the nature of these sessions shapes how the elements are evaluated, and not every forceful disagreement is disrespect.

Article 89 does not switch off in a counseling room

Article 89 prohibits behaving with disrespect toward a superior commissioned officer. The elements require that the accused used certain language or did certain acts to or concerning a certain commissioned officer; that the conduct was directed toward that officer; that the officer was the accused’s superior commissioned officer; that the accused knew of the superior relationship; and that, under the circumstances, the conduct was disrespectful.

None of those elements contains an exception for evaluations, feedback, or counseling. If anything, a feedback session is a setting where the superior relationship and the accused’s knowledge of it are obvious, because the officer is acting in a supervisory capacity and the subordinate knows it. A subordinate who responds to a rating officer with contempt, insolence, or open ridicule can be charged under Article 89 just as if the same conduct occurred on the parade field.

Disrespect by act and by omission

Evaluations are a setting where disrespect by act or omission, not just by spoken language, can arise. Article 89 recognizes disrespect through behavior as well as words. Conduct such as a marked display of disdain, insolence, or rudeness toward the officer, or a contemptuous refusal to engage, can be disrespectful. A subordinate who turns away, mocks the officer, or treats the counseling with open contempt may commit disrespect by act even without uttering a single contemptuous sentence.

This matters because feedback sessions invite reactions: a sneer, a dismissive gesture, or a refusal to acknowledge the officer. Where those acts cross into contempt or rudeness toward the superior, the article reaches them.

The line between disrespect and honest disagreement

The harder …

A positive urinalysis for an amphetamine such as Adderall or dextroamphetamine does not, by itself, establish a crime under the Uniform Code of Military Justice. Article 112a (10 U.S.C. 912a) punishes the wrongful use of a controlled substance, and the word “wrongful” carries real legal weight. A service member who can show that the amphetamine in the system came from a valid, current prescription used as directed has a recognized defense, because lawful use under proper medical authority is not wrongful. The practical question in most cases is not whether the drug was present but whether its presence was wrongful, and that distinction is where a defense is built.

Why “Wrongful” Is the Decisive Word

Under Article 112a, the government must prove both that the accused used the controlled substance and that the use was wrongful. The Manual for Courts-Martial defines wrongful use as use “without legal justification or authorization.” A prescription from a competent medical authority, taken consistent with the prescriber’s directions, supplies that justification. So when a panel sees an amphetamine on a lab report, the legal contest centers on authorization, dosage, and timing rather than the chemistry of the test.

This is also why the prescription itself is rarely the end of the analysis. Use becomes wrongful when the medication belonged to someone else, when the prescription had expired, or when the member took it in a manner inconsistent with the prescriber’s instructions. An expired prescription, for example, no longer provides legal authorization, and use after expiration can be treated as use without justification.

The Permissive Inference the Government Relies On

Military courts allow the factfinder to draw a permissive inference of knowing and wrongful use from a properly admitted positive test. The Court of Military Appeals recognized in United States v. Mance, 26 M.J. 244 (C.M.A. 1988), that the presence of a drug metabolite may permit the factfinder to infer that the accused knowingly used the substance. That inference is permissive, not mandatory, which means a panel may draw it but is never required to.

The inference also has limits. In United States v. Campbell, 50 M.J. 154 (C.A.A.F. 1999), supplemented on reconsideration, 52 M.J. 386 (C.A.A.F. 2000), the Court of Appeals for the Armed Forces tightened the foundation the government must lay before the inference is reliable, scrutinizing the scientific basis for concluding that a given concentration reflects knowing ingestion. For a prescription amphetamine case, …

In a court-martial, a witness whom the defense wants to call may refuse to testify by invoking the privilege against self-incrimination. The defense cannot make that witness talk on its own authority. Immunity, which removes the witness’s exposure so the privilege no longer applies, can only come from the right official under a defined set of standards. Rule for Courts-Martial 704 supplies those standards, and they differ in important ways from the rules that govern immunity for prosecution witnesses. Knowing who may grant immunity, what kind of immunity is available, and what a defense must show to force the issue is essential to understanding this area.

Who may grant immunity

Authority to grant immunity in the military is concentrated in the general court-martial convening authority. Only a general court-martial convening authority may issue a grant of immunity under the UCMJ and Rule for Courts-Martial 704, subject to service regulations and any limits the Secretary concerned imposes. A military judge does not personally immunize a witness. This concentration of authority reflects the view that immunity is a charging and disposition decision tied to the broader interests of justice and good order, which the convening authority is positioned to weigh.

The kind of immunity available

The immunity ordinarily granted in courts-martial is testimonial immunity, also called use and derivative use immunity. Testimonial immunity bars the Government from using the witness’s compelled testimony or statements, and any information directly or indirectly derived from them, against that witness in a later court-martial. It does not bar prosecution of the witness altogether. That broader protection, transactional immunity, prevents prosecution for the offenses about which the witness testifies and is far less common. The distinction matters because a witness granted only testimonial immunity can still be charged based on independent evidence, while the compelled testimony itself remains off limits.

The general rule for defense requests

When the defense wants a witness immunized, the ordinary path is to ask the convening authority to grant it. The convening authority retains broad discretion to decide whether immunity serves the interests of justice. There is no automatic right to have a favorable witness immunized simply because the testimony would help the defense. That discretion, however, is not unlimited, and Rule for Courts-Martial 704 builds in a safeguard against abuse.

When a military judge can intervene

If a defense request to immunize a witness is denied, the defense may move the …

When a service member faces involuntary administrative separation based on a positive urinalysis, one of the first questions a defense practitioner asks is whether the government can actually account for the sample from the moment it left the body until the laboratory reported a positive result. Chain-of-custody documentation is the paper trail that answers that question. Whether such forms are strictly mandatory, and what happens when they are missing or flawed, depends on the type of proceeding. An administrative separation board is not a court-martial, and the rules differ in ways that matter to the outcome.

The separation board is an administrative forum, not a criminal trial

An administrative separation board, sometimes called a board of inquiry for officers, exists to recommend whether a service member should be retained or separated and, if separated, with what characterization of service. It is governed by service regulations rather than the Rules for Courts-Martial. The Military Rules of Evidence that bind a court-martial do not formally control a separation board. As a result, hearsay, written statements, and investigative reports that a military judge might exclude at trial are routinely received by a board. The government’s burden is also lower. It must prove the basis for separation by a preponderance of the evidence, meaning more likely than not, rather than beyond a reasonable doubt.

Because the rules of evidence are relaxed, there is no rule that automatically excludes a urinalysis result simply because a chain-of-custody form is incomplete. In a strict sense, then, perfect chain-of-custody paperwork is not an absolute prerequisite to admitting the laboratory result before a board. The board may consider the evidence and weigh it.

Why the documentation still matters enormously

The fact that a board can consider imperfect evidence does not mean the documentation is irrelevant. It goes directly to the weight and reliability the board should assign to the result. A urinalysis report is only as trustworthy as the process that produced it. Department of Defense drug testing policy requires standardized collection, labeling, sealing, shipping, and laboratory accessioning procedures precisely so that the result can be tied to a specific person with confidence. The collection paperwork, the bottle-to-document number match, the observer’s role, and the laboratory accessioning records together form the litigation packet that supports the positive finding.

When that packet has gaps, the defense can argue that the government has not reliably connected the tested specimen to the …

Commanders routinely order fact-finding inquiries when something goes wrong in a unit. In the Army these are often conducted under AR 15-6; the other services have their equivalents, such as command-directed investigations. These inquiries produce reports, findings, and witness statements. When the same conduct later leads to a court-martial, the government may want to use the investigation as evidence. But a command investigation is built for administrative fact-finding, not for criminal prosecution, and several rules sharply limit how much of it can come into a court-martial. Knowing those limits is essential, because much of what an administrative inquiry gathers is inadmissible at trial.

Two different worlds: administrative inquiry versus criminal trial

The first thing to understand is the gap in purpose and procedure. A command investigation is a flexible, informal tool. The investigating officer can rely on hearsay, opinions, and informal interviews, and the standard for findings is far lower than the criminal burden of proof. A court-martial, by contrast, applies the Military Rules of Evidence (MRE) and requires proof beyond a reasonable doubt. Evidence that is perfectly acceptable in the administrative report frequently cannot satisfy the MRE. So the investigation that justified an administrative action does not automatically translate into admissible trial evidence.

The hearsay barrier and the public-records exclusion

The single biggest restriction is hearsay. A command investigation report is, at bottom, a collection of out-of-court statements and the investigating officer’s conclusions. Offered for the truth of what it asserts, the report is hearsay and is inadmissible under MRE 802 unless an exception applies.

The natural candidates are the records exceptions, but they fit poorly. MRE 803(6), the business-records exception, and MRE 803(8), the public-records exception, both require foundational reliability and were not designed to admit an adversarial fact-finding report wholesale. More pointedly, MRE 803(8) excludes, in a criminal case, matters observed by law-enforcement personnel and investigative findings of that kind, reflecting a judgment that prosecution-oriented investigative conclusions should not be admitted against an accused through a records exception. Courts also resist letting the government evade that exclusion by relabeling the same material as a business record under MRE 803(6). The practical result is that the report’s findings and conclusions usually cannot be admitted for their truth.

What this means at trial is that the government generally must prove its case through live witnesses, not by handing the panel the investigation. The witnesses interviewed during the inquiry can …

Security clearance eligibility is governed by a common set of national standards, most notably the adjudicative guidelines issued under Security Executive Agent Directive 4 (SEAD 4), which list the thirteen categories of concern, from financial considerations to personal conduct, that adjudicators weigh under the whole person concept. Because the substantive standards are uniform, people often assume the process for challenging a denial is uniform too. Within the Department of Defense it is not. The due process a person receives after an initial unfavorable determination depends significantly on whether the individual is a uniformed service member, a Department of Defense civilian employee, or a contractor employee working in the National Industrial Security Program. The sharpest divide is between contractor employees on one side and military members and civilian employees on the other, and the difference centers on the right to a hearing before an independent administrative judge.

The common starting point

For all categories, eligibility determinations within the Department of Defense are now centralized in the Defense Counterintelligence and Security Agency (DCSA), which makes the initial adjudicative decision. When the adjudicators conclude that granting or continuing eligibility is not clearly consistent with the national interest, the individual does not simply receive a bare denial. The person is issued a written notice, commonly a Statement of Reasons (SOR), that sets out the specific adjudicative guidelines and the underlying facts that gave rise to the concern. The SOR is the formal trigger for the appeal process, and from this common point the procedures diverge by category. Across all categories the individual has the opportunity to respond in writing to the allegations, and the central question is what additional process, if any, follows that written response.

Contractor employees: the DOHA hearing model

Contractor personnel in the National Industrial Security Program receive the most adversarial and court-like process, administered by the Defense Office of Hearings and Appeals (DOHA). After receiving the SOR, the contractor employee submits a written answer. The case can then proceed in one of two ways at the individual’s election. The individual may ask an administrative judge to decide the case on the written record, sometimes called the File of Relevant Material, or the individual may request a hearing before an administrative judge. The hearing is a genuine evidentiary proceeding. The individual may appear, be represented by counsel, present documents and witnesses, testify, and cross-examine the government’s witnesses, and the administrative judge …