Military Lawyers

This question carries a common misconception that needs to be corrected before it can be answered accurately. Under the current Uniform Code of Military Justice, Article 90 no longer covers assault on a superior commissioned officer. As part of the reorganization of the punitive articles that took effect on January 1, 2019, the assault portion of the old Article 90 was moved to Article 89. Article 90 today addresses only the willful disobedience of a lawful command from a superior commissioned officer. So the precise answer depends on which version of the law applies to the conduct in question.

What Article 90 Covered Before 2019

For decades, Article 90 carried two distinct offenses against a superior commissioned officer: striking or assaulting the officer, and willfully disobeying that officer’s lawful command. Under that prior structure, the maximum punishment for striking or assaulting a superior commissioned officer who was in the execution of office, when the offense occurred in time of peace, was a dishonorable discharge, forfeiture of all pay and allowances, and confinement for ten years. In time of war, the statute authorized death as a maximum for the assault branch. The willful disobedience branch in time of peace carried a maximum of dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement for five years, with death authorized in time of war.

So if a charged assault on a superior commissioned officer arose from conduct before January 1, 2019, the older Article 90 framework applies, and the ten-year peacetime maximum for the assault branch is the relevant figure.

What Changed in 2019

The 2019 amendments separated the two offenses. The assault on a superior commissioned officer was relocated to Article 89, which had previously addressed only disrespect. Article 90 was left to govern willful disobedience of a superior commissioned officer’s lawful command. This was a structural reorganization rather than a wholesale change in the seriousness of the conduct. The relevant point for anyone researching a current case is that a charge for striking or assaulting a superior officer today is brought under Article 89, not Article 90.

The Current Maximum for Assault on a Superior Officer Under Article 89

Because the assault offense now lives in Article 89, that is where the maximum punishment is found. For assault on a superior commissioned officer who is in the execution of office, committed in time of …

When a service member’s eligibility for access to classified information is in question, the commander often has a view, and that view frequently reaches the people who decide. Yet security clearance adjudication is a distinct process with its own standards, decided by trained adjudicators rather than by the chain of command. Understanding how command recommendations matter requires seeing where they fit inside that process, what weight they carry, and what they cannot do.

The adjudicative framework

Eligibility for access to classified information is determined under a single set of national standards, the adjudicative guidelines set out in federal regulation and applied across the Department of Defense. There are thirteen guidelines, covering allegiance to the United States, foreign influence, foreign preference, sexual behavior, personal conduct, financial considerations, alcohol consumption, drug involvement, psychological conditions, criminal conduct, handling protected information, outside activities, and use of information technology. Each guideline lists conditions that may raise a security concern and conditions that may mitigate it.

Adjudicators apply these guidelines through the whole-person concept. That means weighing all available, reliable information about the individual, past and present, favorable and unfavorable, and considering factors such as the seriousness of the conduct, how recently it occurred, how frequently, the circumstances and motivation, and the likelihood that it will recur. The determination is a predictive judgment about future trustworthiness, not a reward or punishment for past behavior.

Where the command’s view enters

A command recommendation is one piece of reliable information that the whole-person analysis can take in. Commanders observe a member’s daily conduct, reliability, judgment, and response to counseling, and they often supply information that bears directly on guideline concerns. A commander’s input typically reaches the adjudicator in concrete forms: counseling records, performance evaluations, incident reports, statements describing the member’s duty performance and trustworthiness, and recommendations submitted in connection with a clearance action or an appeal.

That input can cut both ways. Favorable command information, documenting that a member has acknowledged a problem, completed treatment, maintained reliable performance, and is trusted with responsibility, supports mitigation under several guidelines. Unfavorable command information, documenting a pattern of poor judgment, rule violations, or untrustworthiness, supports the concern side of the analysis. Because the adjudicative standard explicitly invites consideration of motivation, recurrence, and rehabilitation, the kind of contextual knowledge a commander has is exactly the kind the guidelines value.

The limits of a command recommendation

What a command recommendation cannot do is …

Pretrial confinement credit is the day-for-day reduction a military accused receives against an adjudged sentence to confinement for time spent in lawful pretrial confinement before trial. The question of whether concurrent civilian and military confinement counts toward that credit turns on a single principle: credit is awarded for confinement that is fairly attributable to the military offense being tried, not for confinement that a service member is serving for an unrelated civilian matter. This article explains the basic credit, how civilian confinement fits in, and why concurrency by itself does not guarantee credit.

The foundation: day-for-day credit for pretrial confinement

The military justice system gives an accused administrative credit for time spent in pretrial confinement. This is commonly called Allen credit, after the case that established the day-for-day rule. The credit operates simply. For each day a service member spends in lawful pretrial confinement on the charges for which he is later convicted, one day is deducted from the approved sentence to confinement.

Allen credit is administrative and largely automatic when the confinement is tied to the offenses at trial. It is separate from additional credit that may be awarded for unlawful pretrial punishment under Article 13 of the Uniform Code of Military Justice or for violations of the procedural requirements of Rule for Courts-Martial 305, which governs pretrial confinement in the military. Those other credits address misconduct or procedural failures and are not the subject of ordinary pretrial confinement counting.

How civilian confinement can count

Time spent in a civilian jail can qualify for Allen credit. The key is the reason for the confinement. When a service member is held in a civilian facility because of the same conduct or charges that the military later prosecutes, that confinement is the functional equivalent of military pretrial confinement and is generally creditable day for day. The location of the confinement, civilian or military, is not the deciding factor. What matters is whether the confinement was for the offense for which the military sentence is ultimately imposed.

This is why the question of “concurrent civilian and military sentences” must be examined carefully. The phrase suggests two separate sets of charges. Credit analysis does not reward overlap in time alone. It asks what each period of confinement was for.

Why concurrency alone does not control

If a service member is confined in a civilian facility for a civilian offense that is unrelated to …

Defense counsel in a court-martial often need the underlying investigative file that Army CID, or its sister agencies NCIS and the Air Force OSI, compiled during the inquiry that led to charges. The file usually contains witness statements, agent notes, forensic reports, and leads that were never charged. Whether the defense can compel production of that material turns on the broad discovery rights in the Rules for Courts-Martial, reinforced by constitutional disclosure duties, and constrained by a handful of recognized limits.

Military discovery is unusually broad

Discovery in courts-martial is wider than in most civilian criminal systems. Rule for Courts-Martial (RCM) 701 obligates trial counsel to disclose, on defense request, papers and tangible objects within the possession, custody, or control of military authorities that are material to the preparation of the defense or that the government intends to use in its case-in-chief. The phrase possession, custody, or control is read disjunctively, which means the government cannot avoid disclosure merely by pointing out that the physical file sits in a CID office rather than in the trial counsel’s drawer. If military authorities have access to the material, it generally falls within the reach of the rule.

This breadth matters because CID is a military law enforcement organization. Its case file is in the constructive possession of the government for discovery purposes. A defense request that reasonably identifies the file or its components ordinarily reaches the investigative reports, the agent activity summaries, and the collected statements, subject to the limits discussed below.

The mechanism: request, then motion to compel

The practical sequence begins with a specific written discovery request to trial counsel. Counsel should describe the CID file and its components with enough particularity to put the government on notice, rather than asking generically for everything. If trial counsel declines to produce material, or produces only part of it, the defense files a motion to compel under RCM 701 and asks the military judge to order production.

RCM 701 gives the military judge express authority to regulate discovery, including the power to order disclosure, to issue protective orders, to inspect contested material in camera, and to impose sanctions for noncompliance. The judge can therefore review the disputed portions of the CID file privately and decide what must be turned over and on what terms. Sanctions for a government failure to disclose can include ordering production, granting a continuance, prohibiting the government from …

Service members convicted at a general court-martial often want to know whether their sentence will be reviewed automatically and whether that review can reduce the punishment. The military justice system does provide layers of post-trial review, and for many general court-martial cases a portion of that review happens automatically without the accused having to file anything. The phrase automatic sentence reduction review can be misleading, however, because the appellate process is not a mechanism that exists to shave time off a sentence on request. It is a review of the legality and, in qualifying cases, the appropriateness of the findings and sentence, and only some of that review is automatic and only some of it reaches the question of whether the sentence is too severe.

The Threshold for Automatic Appellate Review

The major change came with the reforms that took effect on January 1, 2019 as part of the broader overhaul of the Uniform Code of Military Justice. Before that date, Article 66 of the UCMJ provided automatic review by the service Court of Criminal Appeals whenever a sentence included death, a punitive discharge such as a bad-conduct discharge, dishonorable discharge, or dismissal, or confinement of one year or more. The 2019 reforms raised the confinement threshold. Automatic review under Article 66 is now reserved for cases in which the approved sentence includes death, a dishonorable discharge, a bad-conduct discharge, or a dismissal, or confinement for two years or more. As a result, not every general court-martial conviction triggers automatic appellate review. Whether it does depends on what the sentence actually includes.

Appeal on Request and Review by the Judge Advocate General

The reforms also created an additional path that is not automatic. An accused whose sentence includes confinement of more than six months but who does not meet the automatic review threshold may file an appeal to the Court of Criminal Appeals. For cases that are not eligible for review by the Court of Criminal Appeals, either automatically or upon a filed appeal, the system routes the case to review in the office of the Judge Advocate General under Article 69. In other words, general court-martial cases do not simply disappear without oversight. Either the Court of Criminal Appeals reviews them, automatically or on request depending on the sentence, or the Judge Advocate General’s office conducts a review. The form of review depends on the sentence and on whether …

Article 90 of the Uniform Code of Military Justice, in its post-2019 form, punishes any person subject to the code who willfully disobeys a lawful command of that person’s superior commissioned officer. Because the offense requires that the disobedience be willful, a difficult question arises when the accused was intoxicated when the order was given or refused. Did the alcohol or drugs negate the willfulness the offense demands, or does intoxication offer no shelter at all? Article 90 itself does not contain a special intoxication provision. Instead, the issue is resolved by general military law principles governing voluntary intoxication and the mental state an offense requires.

This article examines how intoxication interacts with the willfulness element of Article 90. It does not address intoxication as a standalone offense or incapacitation for duty, which are separate matters under other articles.

Willfulness Is the Element That Matters

The defining feature of Article 90 is that the disobedience must be willful. Willful disobedience means an intentional defiance of authority, a knowing refusal to comply with a lawful command, rather than a failure caused by misunderstanding, accident, or genuine inability. Because the offense is built on this deliberate state of mind, any factor that could affect the accused’s capacity to form that intent becomes relevant. Intoxication is potentially such a factor, but only in a limited way.

The analysis therefore is not whether the accused was drinking, but whether the accused, despite intoxication, still knowingly and intentionally refused a lawful command. Drunkenness that leaves a member fully capable of understanding an order and choosing to defy it does nothing to excuse the offense.

Voluntary Intoxication Is Not a General Defense

A foundational principle of military criminal law is that voluntary intoxication is not, by itself, a defense to crime. A member cannot escape responsibility merely by showing that he chose to become drunk and then misbehaved. For offenses that require only a general intent or knowledge, voluntary intoxication generally provides no defense at all, because the law will not let a person manufacture an excuse by voluntarily impairing himself.

Where voluntary intoxication can have any effect, it is narrow: it may be considered on the question of whether the accused actually formed a specific intent or particular state of mind that an offense requires. Even then, intoxication does not automatically negate intent. It is simply one piece of evidence a fact-finder may weigh in …

A General Officer Memorandum of Reprimand, or GOMOR, is one of the most consequential administrative actions a service member can face short of separation or court-martial. It is a formal written censure issued by a general officer, and depending on where it is filed it can effectively end a career. Because the stakes are high, the regulations build in procedural protections, and the central one is notice and an opportunity to respond before the reprimand is permanently filed. So a GOMOR that is filed without giving the member prior notification and a chance to rebut is procedurally defective, and the member has avenues to challenge it.

The core right: notice before filing

The governing framework in the Army is Army Regulation 600-37, which addresses unfavorable information and the filing of reprimands. The regulation gives the recipient of a proposed reprimand two basic due process rights before a permanent filing decision is made. First, the member is entitled to review the documentation that serves as the basis for the proposed filing, so the member can actually understand and meet the allegations. Second, the member is entitled to a reasonable amount of time to submit a written response before the filing decision is made.

These protections exist precisely so that filing does not happen in the dark. The imposing or filing authority is supposed to consider the member’s response before deciding whether to file the reprimand permanently in the official military personnel file, file it locally, or destroy it. A GOMOR that is filed permanently without ever giving the member that notice and chance to respond skips the step the regulation makes mandatory.

What proper notification looks like

In practice, proper handling means the member receives the reprimand and the supporting evidence, signs an acknowledgment of receipt, and is given the option to submit matters in response. The supporting documentation should be provided in a form the member can meaningfully use, largely unredacted, so the rebuttal can address the actual basis for the action. The member is then afforded a defined response window, commonly a short period of several days for active duty members, with different timeframes for reserve component members, and may request additional time when circumstances warrant.

The right to respond is broad. The member may submit a statement and evidence that denies, explains, extenuates, or mitigates the conduct, may attack the factual basis, may offer character references and performance …

Sometimes a service member refuses an order because they believe carrying it out will hurt someone, whether the member, a fellow service member, or a third party. Under Article 92 of the Uniform Code of Military Justice, which punishes failure to obey a lawful order or regulation, that belief can support a defense, but only under specific conditions. A sincere fear of harm is not, by itself, a free pass to disobey. The strength of the defense depends on whether the order was lawful, how serious and immediate the threatened harm was, and whether the member had any reasonable alternative. This article walks through the possibilities.

What Article 92 Requires

Article 92 covers several related offenses, including violating or failing to obey a lawful general order or regulation, failing to obey another lawful order, and dereliction in the performance of duties. A common thread across the order-based theories is that the order must be lawful. A core element the government must establish is the lawfulness of the order, and an order that is not lawful cannot support a conviction. Whether an order is lawful is a question for the military judge to decide, and if the judge finds the order unlawful, the affected charge should be dismissed.

That requirement is the doorway through which several harm-based defenses enter.

When the Belief Goes to the Lawfulness of the Order

The strongest version of the defense is not really a separate excuse at all. It is an attack on the order itself. Orders must have a valid military purpose and must not direct the commission of a crime or otherwise exceed the authority of the person giving them. An order that requires a member to commit an illegal act is not a lawful order, and disobeying it is not an offense. If a member reasonably understood that compliance would require harming someone unlawfully, that understanding may show the order was unlawful, which defeats the charge directly.

It is important to be precise here. The mere fact that an order is dangerous does not make it unlawful. Military duties are inherently hazardous, and members can lawfully be ordered into harm’s way. The defense based on unlawfulness applies when the order would require unlawful harm, not when it merely carries risk.

The Defense of Duress

A separate possibility is the defense of duress, sometimes called coercion. Military law recognizes that a member may have …

This question rests on a premise that the modern military justice system does not quite support, and untangling it requires separating three different actors and three different functions. Clemency advice to the convening authority comes from the staff judge advocate, not the military judge. The convening authority, a commander, decides whether to grant clemency. The military judge presides at trial and later enters the judgment, but the judge does not give clemency advice and does not sit as a reviewer who can override a defense objection to that advice. The accurate answer is therefore no, with an explanation of why the roles do not line up the way the question assumes.

Who advises on clemency

After a general or special court-martial that requires it, the staff judge advocate prepares a written recommendation to the convening authority under Rule for Courts-Martial 1106. This recommendation, often called the SJAR, assists the convening authority in deciding what action to take on the sentence. The recommendation is a legal-advisor function performed by the SJA, who is a judge advocate on the commander’s staff, not by the military judge who presided over the trial. In fact, the rules disqualify a person from acting as the SJA in a case in which that person earlier served as the military judge, which keeps the two roles separate by design.

Where the defense objection goes

The defense does have a right to be heard before the convening authority acts. The accused may submit matters under the post-trial rules, including matters in clemency and allegations of legal error, and the SJAR must be served on the defense so that counsel can respond. If the defense raises a legal error, the SJA must state whether corrective action should be taken, expressing agreement or disagreement with the defense position. If the SJA’s addendum introduces new matter, it must be served on the defense for further comment.

Crucially, the audience for these defense objections is the convening authority, advised by the SJA. The objection is a tool to influence the commander’s clemency decision and to preserve issues for appeal. It is not a motion presented to the military judge for a ruling, and the judge is not the official who resolves it.

The military judge does not override clemency advice

Because clemency advice is an executive and advisory function within the command, the military judge has no authority to override a defense …

The duty to report or not conceal a crime exists in military law, and in accessory cases the legal elements of the offense are the same for everyone subject to the Uniform Code of Military Justice. What changes with rank is not the definition of the offense but the surrounding duties, the expectations placed on the accused, and the practical exposure a senior member faces. So the honest answer is that the offense elements are enforced uniformly, while rank shapes the duties that can be charged and the way the conduct is judged.

The offenses at issue

Two offenses sit at the center of this question. The first is accessory after the fact under Article 78 of the UCMJ, codified at 10 U.S.C. 878. It punishes a person who, knowing an offense has been committed, receives, comforts, or assists the offender in order to hinder or prevent apprehension, trial, or punishment. The second is misprision of a serious offense, charged under Article 134. Its elements are that a serious offense was committed, that the accused knew it was committed, that the accused concealed it and failed to report it to civilian or military authorities, and that the concealment was wrongful.

Both offenses turn on knowledge plus an affirmative act. Accessory after the fact requires helping the offender. Misprision requires concealment, meaning some positive act to hide the crime, not mere silence alone. These definitions do not contain a rank variable. A private and a colonel are measured against the same elements.

Where rank actually enters the analysis

Rank does not change what accessory after the fact or misprision means, but it enters through a different door. Senior members carry duties that junior members may not, and a violation of those duties can be charged independently.

The clearest example is dereliction of duty. A leader who has a duty to act on knowledge of misconduct and willfully fails to do so can face a dereliction charge under the dereliction provisions of the UCMJ, separate from accessory or misprision. The higher the rank, the more likely the member holds a defined supervisory or command duty that the law recognizes. A commander who learns of a crime in the unit and buries it is not simply a bystander. That member may have an affirmative duty to act, and the failure can be charged as dereliction in addition to, or instead of, an accessory …