Military Lawyers

When two or more service members are charged together and tried in a single court-martial, the proceeding is a joint or common trial. One accused may believe that being tried alongside a codefendant will unfairly taint the fact finder’s view of their own case. The remedy is a motion for severance, which asks the military judge to separate the accused so each is tried alone. The procedural standards for granting that relief are demanding, and they reflect a strong institutional preference for trying related matters together. Understanding which rule applies, what an accused must show, and how a denial is reviewed clarifies why severance is treated as an exceptional remedy.

The rules that govern joinder and severance

The Rules for Courts-Martial address joinder and severance in several related provisions. Rule for Courts-Martial 307 governs how charges and accused are referred and joined. Severance of accused is addressed under Rule for Courts-Martial 906(b)(9), while the closely related question of severing offenses charged against a single accused is addressed under Rule for Courts-Martial 906(b)(10). These provisions operate together, but the standards and the prejudice analysis are similar enough that the case law developed for severance of charges heavily informs how military judges evaluate severance of co-accused.

The manifest injustice standard

The governing threshold is strict. The rules permit severance only to prevent manifest injustice. This is a more restrictive standard than the analogous federal civilian rule, which allows severance on a broader showing of prejudice. The military standard reflects an institutional belief that court-martial members, who are selected for maturity, rank, and training, are better able than civilian jurors to compartmentalize evidence and to follow instructions limiting how they may use particular evidence. Because of that confidence in the fact finder, the moving accused must show something approaching a genuine inability to receive a fair trial, not merely some disadvantage from a joint setting.

The factors a military judge weighs

Military courts apply a three-factor analysis drawn from the severance case law to decide whether a denial would work a manifest injustice. The factors, articulated in cases such as United States v. Curtis and applied by the Court of Appeals for the Armed Forces, are whether the evidence of one matter would be admissible in a separate trial of the other, whether the military judge can give and did give an adequate limiting instruction, and whether the findings reflect an impermissible crossover, …

Yes. A written legal memorandum prepared by Trial Defense Service counsel or a respondent’s detailed or civilian defense counsel can be submitted to a Board of Inquiry as part of the respondent’s case, and doing so is a routine and accepted feature of officer elimination practice. A Board of Inquiry is an administrative proceeding, not a court-martial, and the respondent is entitled to present matters in extenuation and mitigation and to be represented by counsel who advocate on the respondent’s behalf. A counsel-authored memo fits squarely within that framework as argument and advocacy rather than as sworn testimony.

What a Board of Inquiry Is

A Board of Inquiry, often called a BOI or show-cause board, is the formal administrative hearing that determines whether a commissioned officer who has been required to show cause for retention should be separated and, if so, with what characterization of service. The board first decides, by a preponderance of the evidence, whether the alleged misconduct or basis occurred. If it finds the basis is supported, it then decides whether that basis warrants separation, and if separation is warranted, it recommends a characterization of service. Because the standard is preponderance and the consequences are career-ending, the respondent’s ability to present mitigation is central to the process.

The Respondent’s Right to Submit Matters and to Counsel

An officer facing elimination has layered response rights. The officer may submit a written rebuttal to the underlying allegations in an effort to have the action rescinded, may submit a resignation in lieu of elimination, and may request a personal appearance before the board with representation by counsel. The rights to counsel before a board of inquiry closely mirror those at a court-martial: the officer is entitled to detailed military counsel at no cost and may retain civilian counsel at personal expense, and both may participate. Trial Defense Service counsel commonly fill the detailed military counsel role for Army respondents.

Within that structure, counsel’s job is to marshal extenuation and mitigation: evidence explaining the circumstances of the conduct, evidence of the officer’s competence and value to the service, and reasons the board should recommend retention or a more favorable characterization. A written memorandum is one vehicle counsel use to organize and present that argument to the board.

How the Memo Functions Before the Board

It is important to understand what the memo is and is not. A counsel-authored legal memorandum is …

Article 104b of the Uniform Code of Military Justice, codified at 10 U.S.C. 904b, addresses unlawful enlistment, appointment, or separation. Under the 2019 Military Justice Act, effective January 1, 2019, this offense was renumbered from the former Article 84; current Article 84 (10 U.S.C. 884) now covers breach of medical quarantine, a separate offense. A frequent question for service members and recruiters is whether the offense turns on an intent to deceive, or whether mere negligence, such as a clerical mistake or a misread regulation, can support a conviction. The answer is grounded in the statute’s own language, which builds knowledge into the definition of the crime. This article explains what Article 104b requires, why negligence is not enough, and how the knowledge element shapes a defense.

What Article 104b prohibits

Article 104b reaches a person subject to the UCMJ who effects an enlistment or appointment in, or a separation from, the armed forces of a person who is known to that accused to be ineligible because the enlistment, appointment, or separation is prohibited by law, regulation, or order. In plain terms, the offense punishes the official who processes an enlistment, appointment, or separation that the official knows the law forbids for that particular person.

The conduct targeted by Article 104b is not the act of enlisting or separating in the abstract. It is the wrongful facilitation of that action for someone the accused understands to be ineligible. The maximum punishment for the offense can include a dishonorable discharge, total forfeiture of pay and allowances, and confinement, which reflects the seriousness with which the military treats the integrity of its accession and separation processes.

The knowledge element

The decisive feature of Article 104b is the word “known.” The person whose enlistment, appointment, or separation is effected must be known to the accused to be ineligible. This is a knowledge requirement, and it sits at the center of every Article 104b prosecution. The government must prove that the accused knew the action was unlawful at the time it was effected, not merely that the action turned out to be unlawful.

To secure a conviction, the prosecution generally must establish that the accused caused or procured an enlistment, appointment, or separation, that the action was in fact unlawful because the person was ineligible or the act was prohibited by law, regulation, or order, and that the accused knew of the unlawful nature …

Service members sometimes assume that once a civil restraining order or protective order is dissolved, expired, or lifted, it disappears from any consideration of their military future. That assumption is only partly correct. While the legal restrictions tied directly to an active order generally end when the order ends, the underlying conduct and the existence of the order can still surface in retention decisions. The military evaluates fitness for continued service through a broad lens, and a lifted order does not erase the record or the events that gave rise to it. Understanding the distinction between the legal effect of an active order and the career effect of the surrounding facts is critical.

Two Different Questions: Firearms Law and Military Retention

It helps to separate two issues that are often conflated. The first is whether federal firearms law prohibits possession of a firearm. The second is whether the military can decline to retain a service member.

On the firearms question, federal law treats active protective orders and qualifying convictions very differently. Under the framework associated with the Lautenberg Amendment, a person subject to a qualifying protective order that was issued after a hearing in which the person had an opportunity to participate, that restrains them from threatening an intimate partner or child, and that includes a credible threat finding or a prohibition on the use of force, may not possess a firearm while the order is in effect. The key phrase is “while the order is in effect.” When that protective order is lifted or expires, the firearms prohibition tied to the order itself generally ends. This is fundamentally different from a misdemeanor conviction for a crime of domestic violence, which triggers a firearms prohibition that does not end when an order is lifted.

For a service member whose duties require carrying a weapon, an active firearms prohibition can make them unable to perform essential functions, which has obvious career consequences. But once the order is lifted, that particular legal disability dissolves.

Retention Looks Beyond the Order Itself

The retention question is broader and more discretionary. Military separation and retention regulations allow the command to consider a service member’s overall conduct, judgment, and fitness. The fact that a civil court found cause to issue a restraining order, and the conduct that prompted it, can remain relevant even after the order is no longer active.

This is because retention decisions are …

When an official military record contains an adverse narrative that conflicts with what an evaluation report actually says, a service member naturally wants it removed. A military attorney can pursue removal, but not by simply demanding it. The military personnel system does not honor demands; it responds to properly filed requests for correction, supported by evidence, and routed through the boards and appeal processes that the services have established. Understanding which forum applies, what standard governs, and what an internal contradiction does and does not prove is the key to a realistic strategy.

There is no power to simply demand deletion

No attorney, however persuasive, can order a personnel office to strike a document from a record. The authority to change official records rests with specific bodies. For evaluation reports themselves, the services maintain evaluation appeal processes. For broader corrections, including removing or amending derogatory documents, the principal mechanism is the service Board for Correction of Military Records, which acts under 10 U.S.C. 1552. The attorney’s role is to assemble a compelling case and present it to the right body, not to dictate the outcome.

Match the document to the right forum

The first task is identifying what the adverse narrative is and where it lives. If the contested narrative is part of an officer or noncommissioned officer evaluation report, the service evaluation appeal system is the natural starting point. In the Army, for example, a substantive appeal of an evaluation report is generally filed within a set period from the report’s ending date and is adjudicated by the service review board, while administrative errors and certain claims may proceed differently. A commander’s inquiry can sometimes address a flawed report before it becomes final, although a commander cannot order a rating official to change a good-faith assessment.

If the adverse narrative lives in a different part of the record, such as a referred comment, a memorandum of reprimand filed in the permanent file, or a derogatory entry maintained outside the evaluation itself, the appropriate route may be a service-specific board for handling unfavorable information, or directly the Board for Correction of Military Records. When the time limits for an evaluation appeal have passed, the correction board is typically the final administrative remedy.

The governing standard is error or injustice

The correction boards do not remove documents simply because the member dislikes them. The boards correct a record where they find …

Article 86 of the Uniform Code of Military Justice, codified at 10 U.S.C. 886, is the provision most service members know simply as absence without leave. The article actually describes several distinct ways a member can be unlawfully absent, and one of them is being absent from the unit, organization, or place of duty where the member is required to be. People often assume that any time away from the workplace crosses the line. The legal threshold is narrower and more precise than that, and understanding it matters because the difference between a lawful absence and a chargeable one frequently comes down to authorization and knowledge.

The Statutory Language

Article 86 reaches any member of the armed forces who, without authority, fails to go to an appointed place of duty at the prescribed time, goes from that place, or absents themselves or remains absent from their unit, organization, or place of duty at which they are required to be at the prescribed time. The “absence from unit” theory is the third of these. It addresses the member who is supposed to be present with a unit or organization and is instead simply gone, as opposed to a member who fails to report to a single scheduled formation or appointment.

The Core Threshold: Absence Plus Lack of Authority

For the absence-from-unit theory, the government must establish two essential facts. The first is that the accused was actually absent from the unit, organization, or place of duty. The second, and most important, is that the absence was without proper authority. Authorization is the dividing line. A member on approved leave, on a valid pass, on temporary duty orders, or otherwise excused by someone empowered to grant that permission is not absent without leave, no matter how far away or how long the member is gone. The offense is not being away. The offense is being away without authority to be away.

This is why the threshold is not measured by distance or by how the absence looks on the surface. A member sitting at home with approved leave paperwork has not violated Article 86. A member who never left the local area but failed to remain with the unit when required, and who had no authorization to leave, can be charged. The presence or absence of valid authority controls.

The Knowledge Requirement

A second feature of the threshold concerns the member’s knowledge. …

Article 90 of the Uniform Code of Military Justice (UCMJ) punishes willful disobedience of a lawful command from a superior commissioned officer. The article takes on heightened significance in combat, where obedience to lawful orders can be the difference between mission success and disaster, and where the consequences of disobedience are at their most severe. This article explains how the elements of Article 90 operate, how combat conditions affect the analysis, and where the limits of the duty to obey lie.

The elements of willful disobedience

To convict under the disobedience clause of Article 90, the government must prove that the accused received a lawful command from a certain 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. Each element matters, and each can be contested.

A few features of these elements deserve emphasis. The command must be a specific order directed to the accused. A failure to follow general regulations, standing orders, or routine duties is handled under other provisions, not Article 90. And the disobedience must be willful, meaning an intentional defiance of authority. A member who tries to comply but fails, who misunderstands the order, or who is physically unable to carry it out has not willfully disobeyed.

What combat conditions change, and what they do not

Combat does not change the elements of Article 90, but it changes the stakes and the surrounding circumstances. The most consequential difference is in punishment. Article 90 provides that willful disobedience committed in time of war may be punished by death or such other punishment as a court-martial directs, while in peacetime the maximum excludes death. The reason is plain: disobedience under fire can endanger the entire unit and the mission, so the law treats wartime defiance as gravely as it treats any offense.

What combat does not do is suspend the requirement that the order be lawful, or relax the willfulness requirement. The chaos, fear, and physical strain of combat can be highly relevant to whether disobedience was truly willful. A member overwhelmed by the conditions, unable to hear or comprehend an order, or physically incapable of executing it may lack the intentional defiance that Article 90 requires. Combat conditions are therefore often central to the defense theory on the willfulness element.

The lawfulness of the order in combat

Every …

When a service member is placed in pretrial confinement, the Uniform Code of Military Justice and the Rules for Courts-Martial impose strict procedural steps that must be completed within fixed deadlines. When those steps are skipped, when the required reviews are not conducted, or when the supporting documentation is missing, several remedies become available. They range from administrative credit against any later sentence to release from confinement and, in serious cases, dismissal of charges. The specific remedy depends on which requirement was violated and how the violation affected the member.

The Procedural Requirements That Must Be Met

Pretrial confinement is governed primarily by Rule for Courts-Martial 305. After a member is confined, a neutral officer must review the confinement, and the rule sets time limits for that review, including a probable cause determination within 48 hours and a more searching reviewing officer’s decision within seven days. The decision to confine must rest on documented grounds, and the rule requires specific records and notice. When the paperwork that supports continued confinement is absent or the reviews are not performed on time, the member has not received what the rule guarantees.

RCM 305(k): Administrative Confinement Credit

The principal remedy for noncompliance with the relevant provisions of RCM 305 is administrative credit against the sentence. The remedy for noncompliance with the rule’s provisions is credit against the adjudged sentence for the confinement served as a result of the noncompliance, computed at the rate of one day of credit for each day of confinement served because of the violation. This credit is applied to any confinement later imposed at trial. Where the conditions of pretrial confinement involved an abuse of discretion or unusually harsh circumstances, the military judge may order additional credit beyond the day-for-day rate.

Release From Confinement

Credit is not the only remedy. Under RCM 305, a military judge must order an accused released from pretrial confinement in defined situations: where the reviewing officer’s decision was an abuse of discretion and the evidence was insufficient to justify continued confinement; where information not presented to the reviewing officer shows the member should be released; or where the 48-hour probable cause determination or the seven-day review were not complied with and the information before the judge does not establish sufficient grounds for continued confinement. In other words, missing or untimely reviews can lead not just to credit but to actual release when continued confinement …

A command-directed mental health evaluation can feel like an interrogation in disguise. A member is ordered to see a provider, asked detailed questions, and worries that anything said may travel back up the chain of command or into a misconduct file. The natural question is whether Article 31 of the UCMJ, the military’s right against compelled self-incrimination, lets a member stay silent during such an evaluation. The honest answer requires separating two different things: the duty to cooperate with a fitness assessment and the protection against using statements as criminal evidence.

What Article 31 actually protects

Article 31 of the UCMJ guards against compulsory self-incrimination. It is broader than the civilian Miranda framework in important ways. Article 31(b) requires that before someone subject to the UCMJ questions a member who is suspected of an offense, the questioner inform the member of the nature of the accusation, advise the member of the right to remain silent, and warn that any statement may be used as evidence against the member at trial. Courts have recognized that the military environment carries uniquely coercive pressures, which is why this privilege is closely guarded.

The key trigger is interrogation about suspected misconduct by someone acting in a law enforcement or disciplinary capacity. Article 31 is built around questioning aimed at gathering evidence of an offense.

Why an evaluation is not the same as an interrogation

A command-directed mental health evaluation has a different purpose. It is ordered to assess a member’s psychological fitness, safety, and ability to perform duties, not to build a criminal case. The clinician conducting it is generally acting in a treatment and assessment role, not as an agent of law enforcement collecting evidence of a crime. For that reason, the questions a provider asks to evaluate fitness usually do not amount to the kind of interrogation that triggers an Article 31 warning requirement.

This means a member ordinarily cannot refuse to participate in a properly ordered evaluation by simply asserting Article 31. Participation in the evaluation itself can be a lawful order, and refusing a lawful order carries its own consequences. The protection Article 31 offers is not a right to walk out of a fitness assessment.

The protection that does apply

What Article 31 does provide is protection on the back end. Statements a member makes during a genuine fitness evaluation, where the purpose is clinical assessment rather than criminal …

A service member who refuses a lawful order from a superior commissioned officer, and does so with abusive or contemptuous words, raises a layered legal question. Does the disrespectful language increase the punishment available under Article 90 of the Uniform Code of Military Justice, or is it a separate offense governed by a different article? Understanding the answer requires separating what Article 90 actually punishes from the related offense of disrespect, and recognizing the limits military law places on charging the same conduct more than once. This article walks through that analysis.

What Article 90 punishes

Article 90 covers willfully disobeying a superior commissioned officer, among related conduct. To convict, the government must prove that the accused received a lawful command from a certain 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 lawful command. Willful disobedience means an intentional defiance of authority, not mere forgetfulness or inability.

The order must be directed specifically to the subordinate. Violations of general regulations, standing orders, or previously established duties are not punishable under Article 90, although they may fall under Article 92. This precision matters because Article 90 is one of the most serious obedience offenses in the code, and its reach is limited to personal, lawful commands from a known superior commissioned officer.

The maximum punishment in time of peace for willful disobedience under Article 90 can include a dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement. For offenses committed on or after 27 December 2023, maximum punishments are also shaped by the sentencing parameters established under the Military Justice Act of 2016, which can affect the practical ceiling for a given case.

Disrespect is a distinct offense

Disrespectful language toward a superior commissioned officer is the subject of Article 89, not Article 90. Disrespect occurs when a service member acts, omits a proper action, or uses language that detracts from the respect due the authority and person of a superior commissioned officer. Disrespect by words can be conveyed through abusive epithets or other contemptuous or denunciatory language.

Because disrespect is its own offense under Article 89, abusive language is not an element of the Article 90 disobedience offense and does not, by itself, change the elements the government must prove for willful disobedience. The …