Military Lawyers

The phrase “serious offense” carries real consequences in the enlisted separation system, but it also invites confusion because of the words around it. Strictly speaking, a punitive discharge is something only a court-martial can adjudge. What commands frequently pursue administratively is separation for commission of a serious offense, which is a distinct misconduct basis with its own definition. Understanding how the military defines a serious offense, and how that definition links back to what a court-martial could do, is the key to understanding when this basis is available and how severe the result can be.

First, separate the two tracks

Two different processes can end a service member’s career for misconduct. A court-martial can impose a punitive discharge, meaning a bad-conduct discharge or a dishonorable discharge, as part of a sentence after conviction. Those are the only two punitive discharges, and only a court-martial authorized to do so may impose them. The administrative system cannot adjudge a dishonorable discharge at all.

Administrative separation is the other track. It is a personnel action governed primarily by Department of Defense Instruction 1332.14 for enlisted members, implemented through each service’s regulations. Administrative separation does not impose a punitive discharge. Instead it ends service and assigns a characterization: honorable, general under honorable conditions, or under other than honorable conditions. The “serious offense” definition lives in this administrative track as one of the misconduct grounds for separation.

The definition of “serious offense”

Under the enlisted separation framework, commission of a serious offense is defined by reference to what a court-martial could do. A serious military or civilian offense is one for which a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial. In other words, the question is not how the command feels about the misconduct. The question is whether, if the same or a closely related offense were prosecuted at court-martial, the Manual for Courts-Martial would authorize a punitive discharge as a permissible punishment.

This is an elegant test because it ties the administrative concept of seriousness to an objective benchmark. The Manual for Courts-Martial sets out, offense by offense, the maximum punishments, including whether a bad-conduct or dishonorable discharge is authorized. If the offense at issue is one for which the Manual authorizes a punitive discharge, it qualifies as a serious offense for separation purposes, even though the administrative board itself cannot impose that …

When a command imposes nonjudicial punishment under Article 15 and then moves to administratively separate a member for the same misconduct, the member often feels punished twice. The instinct is understandable, but the legal analysis is narrow. Whether the second action counts as forbidden duplicative punishment depends on what each proceeding is and what it does. Most of the time, NJP followed by administrative separation is lawful, because only one of those proceedings is punishment in the legal sense. Identifying true duplication requires looking past how it feels and examining the nature of each action.

The starting point: NJP and separation are different kinds of action

Nonjudicial punishment under Article 15 of the Uniform Code of Military Justice is disciplinary. It is designed to punish minor misconduct, and it can impose extra duty, restriction, reduction in grade, forfeiture of pay, and similar sanctions.

Administrative separation is not punishment. It is a personnel action that ends the member’s service and assigns a characterization. The command’s stated purpose is to determine whether the member should remain in uniform, not to impose a penalty for an offense. Because separation is administrative rather than punitive, running it after an Article 15 does not stack two punishments on top of each other. The member receives one punishment, the NJP, and one personnel decision, the separation.

This distinction is the heart of the matter. The protections that bar genuine double punishment attach to punitive proceedings. They do not reach administrative consequences that flow from the same conduct.

Where the real double-punishment rule lives

The Uniform Code does contain a duplication concept, but it operates inside the disciplinary system. Article 15(f) addresses the relationship between nonjudicial punishment and trial by court-martial. It provides that the imposition and enforcement of 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. At the same time, the statute prevents a member who has been punished at NJP from being punished again at court-martial for the same minor offense; any punishment already imposed must be accounted for.

Notice what this rule governs. It governs the overlap between two punitive forums, NJP and court-martial. It does not mention administrative separation, because separation is not a competing punishment. So when a member asks whether NJP plus separation is duplicative, the Article 15(f) protection is …

A service member who submits a rebuttal to an officer or noncommissioned officer evaluation report expects that rebuttal to be considered and, where the rules require, included in the record. When a commenting official or processing authority refuses to attach or consider a properly submitted rebuttal, the question becomes whether counsel can act on the member’s behalf to seek a remedy. The short answer is yes. Military attorneys, both detailed defense counsel and retained civilian counsel admitted to practice before military authorities, are authorized to assist a service member in pursuing the established redress channels for evaluation disputes. What counsel cannot do is invent a remedy; the avenues are defined by service regulation and statute, and an attorney’s role is to select and properly invoke the correct one.

The evaluation system has its own appeal channel

Evaluation reports are governed by service-specific regulations rather than by the punitive articles of the Uniform Code of Military Justice. In the Army, for example, the Evaluation Reporting System regulation establishes the standards an evaluation must meet, including the requirement that reports be accurate, complete, and based on observed performance, and it prohibits unproven derogatory information. That same regulatory framework provides the appeal process a member uses to challenge an inaccurate report or a procedural failure such as the wrongful exclusion of a rebuttal.

Because the evaluation system contains its own appellate mechanism, the primary route for redress is an appeal to the human resources headquarters that maintains the evaluation. The member, assisted by counsel, must show that the report or its processing was substantively inaccurate or procedurally defective. A refusal to include a rebuttal that the regulation required to be attached is precisely the kind of procedural defect this channel is designed to correct. Counsel’s contribution is to frame the error, marshal the documentary proof that the rebuttal was timely and properly submitted, and articulate the regulatory basis for relief.

Where the Article 138 complaint fits and does not fit

Article 138, UCMJ, allows a member who believes a commanding officer has wronged them, and who has been refused redress on request, to file a complaint that must be forwarded and acted upon by superior authority. Counsel routinely help prepare and present these complaints. However, Article 138 has an important limitation: it generally does not reach matters that have their own dedicated appellate process. Evaluation reports fall into that category, so a dispute …

Article 138 of the Uniform Code of Military Justice gives any member who believes a commanding officer has wronged them a formal way to seek redress. An enlisted member can absolutely use it. Whether it is the right tool for unlawful command influence that surfaces during a trial is a different and more nuanced question. Article 138 is powerful for some grievances and ill-suited for others, and command influence affecting a court-martial usually belongs in the trial itself, not in a complaint of wrongs. Understanding the boundaries of the statute is what keeps a member from putting a serious claim in the wrong forum.

What Article 138 does

Article 138 allows a member who has been wronged by a commanding officer, and who has been refused redress on request, to complain to a superior commissioned officer. That superior forwards the complaint to the officer exercising general court-martial jurisdiction, who must examine the complaint and take proper measures for redressing the wrong. The mechanism exists so that abuses of command authority do not go unchecked simply because the person responsible is in the chain of command.

Eligibility is broad. The right runs to any member, which includes enlisted members of every grade. There is no requirement to be an officer, and there is no requirement to be facing court-martial. Commanders are prohibited from restricting the submission of a complaint and from retaliating against a member who files one.

What counts as a “wrong”

The statute reaches a wrong committed by the member’s commanding officer. Service regulations sharpen this into a usable definition. In the Army, for example, a wrong is generally a discretionary act or omission by a commanding officer, taken under color of federal military authority, that personally and adversely affects the complainant and that is in violation of law or regulation, beyond the legitimate authority of that commander, arbitrary, capricious, or an abuse of discretion, or materially unfair.

Two features of that definition matter for a command-influence claim. First, the wrong has to be attributable to the complainant’s commanding officer acting in that capacity. Second, it has to personally affect the complainant. A generalized concern about the fairness of the military justice system, or influence directed at someone else, does not fit.

The key limitation: Article 138 is not a substitute for trial and appellate remedies

Here is where unlawful command influence during a trial runs into trouble as …

Article 91 of the Uniform Code of Military Justice, 10 U.S.C. 891, addresses insubordinate conduct toward warrant officers, noncommissioned officers, and petty officers. Because the article covers several different kinds of misconduct against several different categories of victims, there is no single maximum punishment. Instead, the Manual for Courts-Martial sets a graduated schedule of maximum penalties keyed to the seriousness of the conduct and the rank of the officer involved. At a general court-martial, the most serious form of an Article 91 offense, the maximum punishment can reach a punitive discharge, total forfeitures, and several years of confinement. This explains how the ceilings are structured and why the answer depends on what was charged.

Why the Forum Matters

The maximum punishment for any UCMJ offense is capped by two things working together: the punishment ceiling set for that specific offense in the Manual for Courts-Martial, and the jurisdictional limits of the forum hearing the case. A general court-martial is the highest level of court-martial and can adjudge the full punishment authorized for an offense, including a punitive discharge and confinement up to the listed maximum. Lower forums, such as a special court-martial, carry their own jurisdictional caps that may be lower than the offense-specific maximum. Because a general court-martial has no jurisdictional cap below the offense maximum for these offenses, the controlling figure at a general court-martial is the maximum authorized for the particular Article 91 offense charged.

The Graduated Schedule of Maximums

The Manual sets escalating maximum punishments depending on which of the three Article 91 theories is charged and which category of officer is the victim. The three theories are striking or assaulting, willfully disobeying a lawful order, and contempt or disrespect.

Striking or Assaulting

The most severe penalties attach to striking or assaulting an officer in the execution of office. For striking or assaulting a warrant officer, the maximum punishment is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years. For striking or assaulting a superior noncommissioned or petty officer, the maximum is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for three years. For striking or assaulting another noncommissioned or petty officer, the maximum is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for one year. The five-year confinement ceiling for striking a warrant officer is the highest authorized under Article 91.

Willfully Disobeying a

…

Yes. A conspiracy charge under Article 81 of the Uniform Code of Military Justice can be maintained even when the planned offense is never attempted, never completed, and never causes any harm. Conspiracy is a separate and distinct crime that punishes the agreement to commit an offense together with an act taken to advance that agreement. The success or even the attempt of the planned offense is not an element. Understanding why requires looking closely at the two things Article 81 actually requires the government to prove.

The Two Core Elements of Article 81

Article 81 criminalizes an agreement between two or more persons to commit an offense under the UCMJ, coupled with an overt act by at least one of the conspirators to effect the object of that agreement. The first element is the meeting of the minds, the shared understanding to pursue a criminal objective. The second element is the overt act, a step taken after the agreement is formed that moves the plan beyond mere discussion. These two elements, the agreement and the overt act, are the heart of the offense.

Notably absent from that list is any requirement that the planned crime be carried out. The crime that the conspirators agreed to commit is often called the object offense, but the object offense does not have to be attempted, much less completed, for the conspiracy to be punishable.

Why Completion or Attempt Is Not Required

The reason conspiracy reaches conduct before the planned crime occurs is that the law treats the agreement itself as the danger. When two or more people combine to pursue a criminal goal, the combination creates a risk that the goal will be achieved and makes the participants more committed and more capable than a lone actor. Article 81 targets that combination. As a result, the offense applies even if the planned crime is never completed, fails, is abandoned, or is never executed. A conviction does not require completion of the underlying crime, harm to any person, or success of the plan.

This is also why conspiracy can be charged alongside, or instead of, the object offense. The agreement is a wrong in its own right, separate from whatever the conspirators ultimately did or did not do.

The Overt Act Does the Work of Showing Commitment

Because the planned crime need not be attempted, the overt act carries the burden of demonstrating …

Article 84 of the Uniform Code of Military Justice, codified at 10 U.S.C. 884, currently criminalizes breach of medical quarantine. A service member commits this offense when, after being ordered into medical quarantine by a person authorized to issue the order and with knowledge of the quarantine and its limits, the member goes beyond those limits before proper authority releases them. Because the offense turns on a known order, defined boundaries, and a physical breach of those boundaries, the investigative methods that surface a violation tend to focus on proving each of those facts rather than on the kind of forensic work associated with violent or financial crimes.

It is worth pausing on the article number itself. The Military Justice Act of 2016, which took effect in 2019, moved breach of medical quarantine out of the general article and gave it a dedicated provision at Article 84. The older offense that many service members associate with this number, unlawful enlistment, appointment, or separation, was renumbered to Article 104b. Anyone researching investigative practice should confirm which version of the statute applies to the conduct in question, because the elements and therefore the evidence differ entirely.

Establishing the existence and scope of the quarantine order

The first investigative task is documentary. Investigators and command legal advisors gather the written quarantine order, the medical authority’s directive, and any installation or unit memoranda that defined the geographic or behavioral limits the member was required to observe. Public health emergencies often generate layered guidance, so investigators trace the chain from the issuing medical or command authority down to the specific instruction given to the accused. The point is to show that a valid order existed and that its limits were clear enough to be violated.

Proving knowledge of the order and its limits

Article 84 requires that the accused knew of the quarantine and its limits. Investigators therefore collect proof of notification. This can include signed acknowledgment forms, counseling statements, briefing rosters, email or messaging records, and witness accounts from the personnel who delivered the quarantine instructions. Where a unit briefed members in formation or by video, attendance logs and recordings help establish that the accused received and understood the limits. Defense counsel scrutinize these same records, because a gap in the notification trail can defeat the knowledge element.

Documenting the physical breach

Because the violation is the act of going beyond the quarantine limits, …

Group chats have become the informal town square of military life, and they are also where careless words land service members in front of their command. A natural question follows: can a message sent in a group text actually support a charge under Article 89 of the Uniform Code of Military Justice? The answer is yes, in principle. Article 89 does not require that disrespect occur face to face, and a group text directed at or concerning a superior commissioned officer can satisfy the offense. Whether a particular message crosses the line depends on the content, the audience, and the surrounding circumstances, not on the medium itself.

What Article 89 prohibits

Article 89 makes it an offense to behave with disrespect toward a superior commissioned officer. The government must prove several elements: that the accused did or omitted certain acts, or used certain language, to or concerning a certain commissioned officer; that the behavior or language was directed toward that officer; that the officer was the accused’s superior commissioned officer; that the accused knew the officer was the accused’s superior commissioned officer; and that, under the circumstances, the behavior or language was disrespectful.

The phrase “to or concerning” is doing a lot of work here. Disrespect under Article 89 is not limited to words spoken directly to the officer. Language about the officer, communicated to others, can qualify. That is precisely why a group text is within the article’s reach.

Why presence is not required

A common misconception is that disrespect must happen in the officer’s presence. It does not. The Manual for Courts-Martial recognizes that disrespectful behavior may occur where the superior officer is absent. A group text, by definition, is communicated to the members of the chat rather than to the officer in person, yet that does not place it outside Article 89. If the message is disrespectful language to or concerning the accused’s superior commissioned officer, the fact that the officer never saw it in real time does not defeat the charge.

This is the same principle that allows charges based on remarks made to third parties. The disrespect is in the content and its direction, not in whether the target was standing in the room.

The private-conversation caveat

There is an important limit. The Manual cautions that, ordinarily, a service member should not be held accountable under Article 89 for what was said in a purely …

Not every missed formation is a deliberate decision to abandon duty. A service member might oversleep, misread a schedule, get caught in a genuine emergency, or simply forget where to be. Yet the same conduct, being absent from an appointed place of duty, can be charged under Article 86 of the Uniform Code of Military Justice (10 U.S.C. section 886). The pressing question for an accused is how military courts separate the member who chose to be absent from the member whose absence was an honest accident. The answer is more nuanced than many expect, because the structure of Article 86 does not require proof that the absence was intentional for the most common forms of the offense. The real dividing lines are knowledge, authority, and, for aggravated forms, specific intent.

Article 86 does not always require intent

The first thing to understand is that basic unauthorized absence under Article 86 is not a specific intent offense. The government generally does not have to prove that the member intended to be absent or intended to skip duty. It must prove that the member was absent from the appointed place without authority and, for the failure-to-go and going-from forms, that the member knew of the appointed time and place. This is why the framing of intentional versus accidental can be misleading. A member who carelessly forgets a formation can still be guilty of failing to go to an appointed place of duty, because the offense punishes the unauthorized absence itself, not a guilty purpose behind it. The honest mistake does not automatically excuse the absence; it must connect to an element the government actually has to prove.

Knowledge is the element that does real work

Because intent usually is not required, the element where accidental absences are most often defeated is knowledge. For the offenses of failure to go to an appointed place of duty and going from that place, the prosecution must prove the member actually knew of the appointed time and place. If the member genuinely never knew of the duty, never received the order or schedule, or was never properly informed, the knowledge element fails and there is no offense. This is where a truly accidental failure to report can find protection. A member who was never told about a formation cannot be convicted of failing to go to it. Importantly, knowledge can be proved by circumstantial evidence; …

Service members sometimes face charges for conduct that, in their unit, is widespread and rarely punished. When only one person is singled out, the defense instinct is to argue that the prosecution is unfair and should be thrown out. In the military justice system, that argument is framed as selective enforcement, or selective prosecution, and it is raised by a pretrial motion to dismiss. This article explains the legal standard, the procedural vehicle, and the practical hurdles, with attention to why minor infractions present particular difficulty.

The constitutional foundation

The doctrine rests on equal protection principles. A prosecution may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, including the exercise of a protected constitutional or statutory right. The mere fact that the command chose to enforce a rule against one person and not against others is not, by itself, unconstitutional. Commanders and prosecutors have broad discretion in deciding whether and whom to charge. The law presumes that discretion is exercised in good faith.

That presumption is what makes the claim hard. A defendant must overcome it with clear evidence. The selective enforcement claim is not about whether the accused is guilty; it is about whether the decision to charge this particular member was driven by an impermissible purpose rather than by legitimate disciplinary judgment.

The two elements: effect and intent

To succeed, the moving party generally must establish two things. The first is discriminatory effect: that others who were similarly situated, meaning they committed comparable infractions under comparable circumstances, were not charged. The second is discriminatory intent: that the decision to single out the accused was motivated by an impermissible factor such as race, religion, sex, or retaliation for protected activity like filing a complaint or exercising a legal right.

Both elements must be shown. Proving only that enforcement was uneven is not enough, because uneven enforcement is common and often reflects nothing more than resource limits, the visibility of a particular incident, or ordinary prosecutorial selection. Without evidence tying the selection to a forbidden motive, the claim fails.

Why minor infractions are especially hard to challenge

Minor UCMJ infractions create a distinctive evidentiary problem. By definition, minor matters are frequently handled informally, through corrective counseling, extra training, or nonjudicial punishment, and many are never formally documented at all. That makes it difficult to assemble a clean comparison group. The defense must …