Military Lawyers

Article 97 of the Uniform Code of Military Justice, codified at 10 U.S.C. 897 and titled “Unlawful detention,” punishes any person subject to the Code who, except as provided by law, apprehends, arrests, or confines another person and does so by unlawfully exercising authority to restrain. The offense is built around an abuse of military restraint authority rather than the simple fact that someone was held. Because the article focuses on the unlawful exercise of authority, how long the unlawful restraint lasted does not change whether the offense occurred. Instead, duration functions as one of the circumstances a court-martial weighs when it decides how serious a particular violation is and what sentence to impose.

Duration Is a Sentencing Factor, Not an Element

The two elements of unlawful detention are that the accused apprehended, arrested, or confined a certain person, and that the accused did so by unlawfully exercising authority. Neither element references a minimum or maximum period of restraint. A detention that lasts only a few minutes can satisfy the elements just as fully as one that lasts days, provided the restraint was unlawful and against the will of the person held. For that reason, duration does not appear in the charge as something the prosecution must prove to a fixed threshold. It enters the case at sentencing, where the members or the military judge consider the full circumstances surrounding the offense to arrive at an appropriate punishment within the authorized maximum.

The Authorized Maximum and Where Duration Fits Within It

A conviction under Article 97 carries a maximum punishment that includes a dishonorable discharge, forfeiture of all pay and allowances, and confinement for three years. That ceiling is fixed regardless of how briefly or how long the victim was held. Duration matters because it helps the sentencing authority decide where, within the range from no punishment up to that maximum, a given case should fall. A prolonged unlawful confinement that deprived a service member of liberty for an extended period generally signals greater harm and a more aggravated abuse of authority than a brief, quickly corrected restraint. The sentencing authority is entitled to treat that difference as meaningful when it selects a sentence.

Why Longer Detention Tends to Aggravate the Offense

Several practical considerations explain why duration carries weight at sentencing. A longer unlawful detention usually reflects a more sustained disregard for the rules that govern lawful restraint, because …

A service member held in pretrial confinement is entitled to credit against any sentence to confinement that a court-martial later adjudges. Most of the time the credit is smaller than the sentence, so it simply shortens the time the member must serve. Occasionally the credit is larger than the confinement the court-martial imposes, or larger than the member realistically expects to receive. When that happens, the question becomes what the law does with the surplus. The answer is governed by the way military law calculates credit, the order in which excess credit is applied, and the recognition by appellate courts that an overage is not automatically a legal injury.

The credits that build up before trial

The starting point is Allen credit. Under United States v. Allen, 17 M.J. 126 (C.M.A. 1984), a service member receives day for day credit for time spent in pretrial confinement. Each day in confinement before trial reduces the adjudged confinement by a day.

Credit can also arise from restraint that is not formal confinement. Under United States v. Mason, 19 M.J. 274 (C.M.A. 1985), day for day credit may be given for pretrial restriction that is tantamount or equivalent to confinement, even without actual incarceration. So a member subjected to restriction so severe that it functioned like confinement may accrue credit as well.

Additional credit can come from violations of the rules governing pretrial confinement. Under Rule for Courts-Martial 305, a military judge has discretion to award extra credit for each day of pretrial confinement that involved an abuse of discretion or unusually harsh circumstances, and credit is also available for violations of Article 13, which forbids pretrial punishment. These sources can stack, so the total credit a member carries into sentencing sometimes grows well beyond the bare days actually spent confined.

How excess credit is applied

Because credits can exceed the adjudged confinement, military law specifies what happens to the leftover. Rule for Courts-Martial 305(k) sets the order. After the convening authority applies confinement credit to the adjudged confinement, any excess credit is applied against other parts of the sentence in a fixed sequence: first against hard labor without confinement, then against restriction, then against a fine, and then against forfeiture, in that order. The rule is explicit that credit shall not be applied against any other form of punishment beyond those listed. This means surplus confinement credit can erase or reduce certain …

For an enlisted separation based on unsatisfactory or substandard performance, an unrecorded verbal warning is usually not enough on its own, because the governing regulation requires documented counseling before the command may initiate the separation. A purely oral, unrecorded warning that left no trace in the member’s records is precisely what the counseling requirement was designed to prevent commands from relying on. Whether a verbal warning has any value at a separation board depends on whether it was reduced to writing and placed in the member’s counseling or personnel records.

The Counseling Requirement

Enlisted administrative separations are governed by Department of Defense Instruction 1332.14 and the implementing service regulations. For separations based on unsatisfactory performance, the instruction provides that separation processing may not be initiated until the member has been formally counseled concerning the deficiencies and has been afforded an opportunity to overcome them, as reflected in appropriate counseling or personnel records.

Two features of that rule are critical. First, the counseling must be formal and must address the specific deficiencies. Second, the counseling and the opportunity to improve must be reflected in records. The phrase “as reflected in appropriate counseling or personnel records” contemplates documentation. A warning that was spoken once and never written down does not, by itself, satisfy this prerequisite, because there is no record reflecting that the member was counseled and given a chance to correct course.

Why Documentation Matters at the Board

An administrative separation board is not a criminal trial, and its rules of evidence are relaxed compared with a court-martial. Boards may consider a wide range of materials, and they apply a preponderance-of-the-evidence standard rather than the beyond-a-reasonable-doubt standard. That flexibility means a board is not automatically barred from hearing testimony that a member was verbally warned at some point.

But relaxed evidentiary rules do not cure a missing procedural prerequisite. If the basis for separation is substandard performance and the command never documented the required counseling, the member can challenge whether the separation was properly initiated at all. The problem is not merely that a verbal warning is weak evidence; it is that the regulation conditions the entire process on documented counseling and an opportunity to improve. An unrecorded warning leaves the command unable to show it met that condition.

The Weight of Unrecorded Testimony

Even where a board is allowed to hear that a supervisor verbally warned the member, the practical …

Article 92 of the Uniform Code of Military Justice punishes the violation of lawful general orders and regulations, the failure to obey other lawful orders, and dereliction of duty. Not every directive a service member receives, and not every line in a regulation, can support a criminal charge under Article 92. Many administrative instructions are guidance, not commands, and guidance is not enforceable as a punitive offense. Understanding which instructions fall short of the enforcement criteria is essential, because charging advisory language as a crime is a recognized basis for dismissal.

The Difference Between Punitive and Administrative

The threshold concept is the distinction between punitive provisions and administrative or advisory provisions. A punitive provision is one written to impose a duty whose violation is itself a punishable offense. An administrative provision sets policy, describes procedures, allocates responsibilities, or offers advice on how to perform a function, without purporting to make noncompliance a crime. The Manual for Courts-Martial recognizes that regulations which merely furnish general guidelines or advice for conducting military functions are ordinarily not enforceable under Article 92. When a regulation simply tells personnel how things should generally be done, a deviation is an administrative or performance matter, not a criminal one.

Instructions That Lack Punitive Language

A general order or regulation can be enforced under Article 92(1) only if it was intended to be punitive. Many directives signal this with explicit punitive language stating that a violation may subject the offender to punishment under the UCMJ. The absence of such language is significant. If an instruction contains no statement putting personnel on notice that disobedience can result in punitive action, that omission can be a fatal defect, because it suggests the issuing authority did not intend the provision to create a criminal duty. Courts examine the text and purpose of the provision to determine whether it was meant to regulate conduct on pain of punishment or merely to guide it.

A common pitfall in practice is that a regulation contains both punitive and non-punitive subsections. The prosecution must charge the correct subsection. If the specific subsection cited supplies only guidance, it cannot support an Article 92(1) conviction even if a different part of the same regulation is properly punitive.

Instructions Not Properly Issued or Too Narrow in Scope

To be enforceable as a general order or regulation, the directive must come from an authority empowered to issue general orders, …

Article 92 of the Uniform Code of Military Justice punishes the violation of or failure to obey a lawful general order or regulation, the failure to obey other lawful orders, and dereliction of duty. It is one of the most frequently charged offenses in the military justice system. When a service member declines to comply with an order because doing so would violate a sincerely held religious belief, the Article 92 prosecution and the religious objection collide. How that conflict is litigated at court-martial turns on the lawfulness of the order, the protections of the Religious Freedom Restoration Act, and the way the defense frames the issue at trial.

The lawfulness of the order is the threshold question

An Article 92 conviction requires a lawful order. An order that is unlawful cannot support the charge, so the lawfulness inquiry is where many religious objection cases begin. Orders are presumed lawful, and the burden of overcoming that presumption rests on the accused, but the presumption is not absolute. If an order is unlawful because it cannot survive the statutory protections that govern religious exercise in the military, then a refusal to obey it is not punishable under Article 92. This is why litigating a religious objection is often litigating whether the order was lawful as applied to the member.

How the Religious Freedom Restoration Act enters the courtroom

The Religious Freedom Restoration Act applies to the federal government, and Congress made its application to the military explicit. Under that framework, when a government action substantially burdens a person’s exercise of religion, the government must show that the burden furthers a compelling governmental interest and that it does so through the least restrictive means available. This restored a demanding strict scrutiny standard that displaced the more deferential approach courts once took toward military commanders.

In an Article 92 case, this analysis proceeds in steps. The defense must first show that the order substantially burdens a sincerely held religious belief, not a mere preference. Sincerity and substantiality are genuine threshold hurdles. If the member meets that burden, the analysis shifts to the government, which must identify a compelling interest, often unit readiness, discipline, health, or safety, and must show that the order was the least restrictive means of achieving it. Where a religious accommodation could have served the government’s interest without forcing the member to choose between faith and compliance, the least restrictive …

A flag is an administrative hold that freezes favorable actions for a soldier. Used correctly, it keeps a soldier in place while a legitimate concern is resolved. Used as payback for a soldier who reported fraud, waste, pay irregularities, or administrative misconduct, it becomes an unlawful reprisal. Identifying retaliatory flagging means comparing the timing, basis, and handling of the flag against what the governing regulation actually authorizes, then testing the action against federal whistleblower protections.

What a flag is and when it is allowed

In the Army, flags are governed by Army Regulation 600-8-2, Suspension of Favorable Personnel Actions. A flag prevents execution of favorable actions such as promotion, awards, schooling, reassignment, and similar benefits, and it can hold a soldier in place. Flags fall into two categories. A nontransferable flag prevents the soldier from moving to another unit and covers matters such as adverse action and security violations. A transferable flag allows movement and covers matters such as fitness test failure or entry into a weight control program.

The regulation makes a flag mandatory when military or civilian authorities initiate an investigation or inquiry that may result in disciplinary or adverse administrative action. The key word is mandatory. A flag tied to a genuine, properly initiated investigation is required, not discretionary. That is the baseline against which a suspicious flag is measured.

Why reporting wrongdoing triggers legal protection

A soldier who reports financial or administrative wrongdoing through proper channels is engaging in protected activity under the Military Whistleblower Protection Act, codified at 10 U.S.C. 1034. That statute prohibits taking or threatening to take an unfavorable personnel action, or withholding a favorable one, as a reprisal for a protected communication. Communications to an Inspector General, to a member of Congress, and to others designated by regulation are protected. Because a flag withholds favorable personnel actions by design, an improperly motivated flag fits squarely within the conduct the statute forbids.

The indicators that separate a lawful flag from a reprisal

Identifying retaliation is a matter of evidence and inference, since a retaliating official rarely announces the motive. Several indicators recur.

The first is timing. A flag imposed shortly after a soldier files a complaint, especially within days or a few weeks, invites scrutiny. Investigators examine whether the official who imposed the flag knew about the protected disclosure before acting.

The second is the absence of a qualifying basis. AR 600-8-2 ties …

Article 89 of the Uniform Code of Military Justice, codified at 10 U.S.C. 889, makes it an offense to behave with disrespect toward a superior commissioned officer. A frequent question is whether a superior warrant officer is among the persons protected by this article. The answer depends on a precise distinction in military rank structure: whether the warrant officer in question holds a commission. Some warrant officers are commissioned and some are not, and that single fact determines whether Article 89 or a different article governs disrespect directed at them.

What Article 89 protects

Article 89 provides that any person subject to the Code who behaves with disrespect toward that person’s superior commissioned officer shall be punished as a court-martial may direct. The statute is built around two requirements. The victim must be a commissioned officer, and that officer must be superior in rank or command to the accused. The article also reaches assault and certain related conduct toward a superior commissioned officer in its broader statutory scheme.

Because the protected class is defined as “superior commissioned officer,” the threshold question for any warrant officer is whether that warrant officer is a commissioned officer. A superior commissioned officer is understood to mean any commissioned officer who is superior in rank or command to the accused, and that definition includes commissioned warrant officers. The phrase therefore turns on commissioned status, not merely on the title “warrant officer.”

The commissioned and non-commissioned warrant officer distinction

The United States military draws a clear line within the warrant officer ranks. The lowest warrant officer grade is appointed by warrant rather than by commission. In the Army, for example, a warrant officer one is appointed by warrant with authority derived from assignment level and position. By contrast, chief warrant officers in the grades above the lowest, beginning at the second warrant officer grade, are commissioned officers, holding their commissions from the President of the United States.

This distinction is the heart of the answer. A chief warrant officer who holds a commission is a commissioned officer. If that chief warrant officer is superior in rank or command to the accused, he or she is a superior commissioned officer and falls within the protection of Article 89. Disrespect toward such an officer can be charged under Article 89.

A warrant officer in the lowest, non-commissioned grade is in a different position. Because that warrant officer is …

Recruiting incentive programs put real money and real pressure into the enlistment process. Referral bonuses, enlistment incentives tied to particular applicants, and quotas create a temptation for recruiters to bend or break eligibility rules to get a candidate through the door. When a recruiter knowingly enlists someone who is not eligible, Article 104b of the Uniform Code of Military Justice is a primary charging tool. Whether a particular incentive fraud case fits Article 104b depends on what the recruiter actually did, because Article 104b targets a specific kind of misconduct: effecting an unlawful enlistment, appointment, or separation.

Note on renumbering: the offense of effecting an unlawful enlistment, appointment, or separation was historically Article 84. The 2019 Military Justice Act renumbered it as Article 104b (10 U.S.C. 904b), effective January 1, 2019. Current Article 84 (10 U.S.C. 884) addresses breach of medical quarantine and does not concern enlistment.

What Article 104b actually prohibits

Article 104b, UCMJ, codified at 10 U.S.C. section 904b, punishes any person subject to the Code who effects an enlistment or appointment in, or a separation from, the armed forces of any person who is known to that accused to be ineligible for the enlistment, appointment, or separation because it is prohibited by law, regulation, or order. The offense is sometimes described as effecting an unlawful enlistment.

The elements the government must prove beyond a reasonable doubt are that the accused effected the enlistment, appointment, or separation of a named person; that the person was ineligible for that action because it was prohibited by a law, regulation, or order; and that the accused knew of the ineligibility at the time. The heart of the offense is a recruiter or processing official knowingly pushing through a personnel action that the rules forbid.

How incentive fraud maps onto Article 104b

Incentive fraud comes in different shapes, and the fit with Article 104b depends on the specific conduct. The clearest Article 104b case is the recruiter who, to earn an incentive or meet a quota, enlists an applicant the recruiter knows is disqualified, for example by concealing a disqualifying medical condition, ignoring a failed entrance examination, accepting credentials the recruiter knows are false, or papering over a criminal history that bars enlistment. There the recruiter has effected an enlistment of a person known to be ineligible because of law, regulation, or order, which is exactly what Article 104b describes.

Not every …

Delay in a court-martial can have many sources. One that service members sometimes encounter is delay tied to a change in the convening authority, such as a change of command, a transfer of the case to a different command, or a dismissal and later repreferral of charges by a new authority. When such delay occurs, the central legal question is whether the accused was prejudiced. Establishing prejudice follows recognized frameworks that depend on whether the delay is before trial or after it.

The Framework Depends on the Stage

Speedy processing protections operate at different stages, and the legal test shifts accordingly. For pretrial delay, the military looks to the Sixth Amendment speedy trial right, the statutory protection of Article 10 of the UCMJ when the accused is in pretrial confinement, and the time limits in Rule for Courts-Martial 707. For post-trial and appellate delay, the analysis draws on the due process framework and the standards the Court of Appeals for the Armed Forces set out in United States v. Moreno. A change in convening authority can affect either stage, so the first step is identifying when the delay occurred.

The Four-Factor Balancing Test

Both pretrial and post-trial speedy processing claims rely on the balancing test the Supreme Court announced in Barker v. Wingo, 407 U.S. 514 (1972). That test weighs four factors. The first is the length of the delay. The second is the reasons for the delay. The third is whether the accused asserted the right to a speedy trial or timely review. The fourth is prejudice to the accused. No single factor is dispositive; the court weighs them together.

A change in convening authority bears most directly on the second factor, the reason for the delay. Delay caused by a legitimate, good-faith transition, such as a routine change of command or a proper transfer of the case, is treated more neutrally than delay caused by government negligence or by deliberate manipulation. Where the change in convening authority is used to gain a tactical advantage or to evade speedy trial obligations, the reason weighs heavily against the government.

Prejudice in the Pretrial Setting

For pretrial delay, prejudice is assessed in light of the interests the speedy trial right protects: preventing oppressive pretrial confinement, minimizing the anxiety and concern of the accused, and limiting the possibility that the defense will be impaired. Impairment of the defense is the most serious …

Article 96 of the Uniform Code of Military Justice, codified at 10 U.S.C. 896, makes it an offense for any person subject to the Code to release a prisoner committed to that person’s charge without proper authority, or to allow such a prisoner to escape through neglect or design. The statute also addresses drinking with a prisoner. A recurring question is whether the article reaches situations where the individual who was released had been placed in restraint not by a court-martial sentence, but as a result of nonjudicial punishment under Article 15. The answer turns on how the military defines a “prisoner” and on the breadth of the statutory language.

The statutory text is deliberately broad

The text of Article 96 punishes a person who “without proper authority, releases any prisoner committed to his charge.” Critically, the statute adds that the offense applies “whether or not the prisoner was committed in strict compliance with law.” That clause signals that Congress did not want the validity or formality of the underlying restraint to become a shield for a custodian who lets someone go without authority. The focus of the article is on the custodian’s conduct, not on the procedural pedigree of the confinement.

This matters for the nonjudicial punishment scenario. A service member who challenges an Article 96 charge by arguing that the person released was “only” under Article 15 restraint, rather than under a court-martial sentence, is likely to find that argument unpersuasive on its face. The article does not limit itself to prisoners serving adjudged sentences.

How the military defines a “prisoner”

The operative question is whether a person held as a result of nonjudicial punishment qualifies as a “prisoner committed to the charge” of the accused. In military practice, a prisoner is generally understood to be a person who is in confinement, in custody, or under the sentence of a court-martial. The definition is framed in the alternative. A person does not have to be serving a court-martial sentence to be a prisoner; being in confinement or custody is enough.

Nonjudicial punishment under Article 15 can include forms of restraint. Authorized punishments may include correctional custody, which is the physical restraint of a person during duty or nonduty hours and which can involve extra duties, fatigue duties, or hard labor. For members attached to or embarked on a vessel, confinement on bread and water or diminished rations for …