Military Lawyers

A court-martial panel performs the function a jury performs in a civilian trial, but it is assembled differently. The convening authority selects the members, the members are part of the same military community as the parties, and each side ordinarily has only a single peremptory challenge. Those features make the process for removing biased members especially important, and military law recognizes two distinct grounds for removal: actual bias and implied bias. Implied bias is the more subtle of the two, and the criteria that govern it are designed to protect not only the fairness of the trial but the public’s confidence that the trial was fair. Understanding those criteria explains why a member who insists he can be impartial must sometimes be removed anyway.

The source of the rule

The authority to remove members for cause comes from Rule for Courts-Martial 912(f). It lists specific disqualifying circumstances and then includes a catchall, RCM 912(f)(1)(N), which requires that a member be excused whenever it appears that the member should not sit in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality. That catchall is the home of both actual and implied bias. The military judge rules on challenges for cause, and the judge’s handling of implied-bias challenges is central to whether a conviction will survive appeal.

Implied bias is different from actual bias

Actual bias asks a subjective question: does this particular member harbor a state of mind that will prevent the member from deciding the case fairly on the evidence and the instructions? It is assessed through the eyes of the military judge or the members, and it can turn on whether the judge believes a member’s assurance of impartiality.

Implied bias asks a different, objective question. It is bias attributed to a member as a matter of law because of the member’s situation, relationships, or circumstances, regardless of whether the member is in fact prejudiced and regardless of how sincerely the member promises to be fair. The controlling inquiry, drawn from the line of cases beginning with United States v. Clay, is whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high. Because the standard is objective and is measured through the eyes of the public, a member’s personal sincerity does not resolve it. A member can be …

A “flag,” formally a suspension of favorable personnel actions, is the Army’s mechanism for freezing a soldier’s promotions, awards, schooling, reenlistment, and other favorable actions while a question about the soldier’s status is resolved. The governing authority is Army Regulation 600-8-2. Flags are common and often routine, but they carry real career consequences. A particularly frustrating scenario is when a soldier voluntarily comes forward to report his or her own misconduct, only to be flagged as a result. This article explains how a soldier can dispute a flag in that situation and what relief may realistically be available.

Understand what a flag is and is not

A flag is an administrative status, not a punishment. Under AR 600-8-2, a flag suspends favorable personnel actions such as promotion, favorable awards, certain assignments, attendance at military schooling, and reenlistment or extension. It can be initiated for a range of reasons, including adverse actions, substantiated or alleged misconduct under investigation, performance deficiencies, failure to meet fitness standards, and other circumstances affecting good order and discipline. A flag can remain in effect for the duration of an investigation or disciplinary action and is intended to be removed once the underlying matter is resolved.

The most important conceptual point for a soldier who self-reported is this: a flag is not a finding that the soldier did anything wrong. It is a hold. Because of that, disputing a flag is usually less about proving innocence and more about challenging whether the flag is properly grounded, properly documented, and properly maintained under the regulation.

Get the flag in writing and verify it was done correctly

AR 600-8-2 requires that the soldier be notified of the flag and be provided a copy. The first step in any dispute is to obtain that documentation and confirm the basics. The soldier should identify the type of flag, the stated reason, the effective date, and the initiating authority. Procedural defects are a legitimate and frequently overlooked basis for challenge. If the soldier was never properly notified, if the flag was not recorded correctly, or if it was initiated by someone without authority to do so, those defects can support a request for removal or correction.

The regulation also imposes review and timeliness expectations. Flags are supposed to be reviewed periodically and removed promptly when the reason for them ends. A flag that lingers after the underlying matter has been resolved, or …

In a court-martial, the members or the military judge decide the sentence based on evidence and argument that the rules permit. A recurring question is whether a commander’s view that a particular punishment should be imposed can be placed before the sentencing authority. The short answer is no. A command endorsement of a specific punishment is not proper sentencing evidence, and inviting the sentencing authority to follow a commander’s wishes runs directly into the prohibition on unlawful command influence.

What sentencing evidence is supposed to cover

Sentencing in a court-martial is governed by Rule for Courts-Martial 1001. The presentencing procedure allows the prosecution to offer evidence in aggravation and allows the defense to offer matters in extenuation and mitigation. Evidence in aggravation includes the financial, social, psychological, and medical impact on a victim and evidence of significant adverse impact on the mission, discipline, or efficiency of the command that results directly and immediately from the offense. Matters in extenuation explain the circumstances surrounding the offense, and matters in mitigation present personal factors about the accused that lessen punishment, such as a record for efficiency, fidelity, and courage.

Notice what this framework is about. It is about the offense, its consequences, and the accused as a person. It is not a vehicle for opinions about what the sentence ought to be. Evidence in aggravation is subject to the Military Rules of Evidence, so a witness must testify under oath and be open to cross-examination, and the military judge must screen the evidence for unfair prejudice under Military Rule of Evidence 403.

Why a command endorsement of punishment is improper

A commander’s endorsement that the accused should receive a stiff sentence is opinion about the outcome, not factual information about the offense or the accused. It does not fit the categories of aggravation, extenuation, or mitigation. More importantly, it implicates the structural protection against unlawful command influence.

Article 37 of the Uniform Code of Military Justice prohibits a convening authority or any commanding officer from censuring, reprimanding, or admonishing a court-martial or its members, the military judge, or counsel with respect to the findings or sentence. The reason is plain. Court members are subordinate to commanders in the ordinary military hierarchy, and a known command preference about the sentence can pressure them to conform rather than to judge independently. Allowing a command endorsement of punishment into sentencing would import exactly the influence …

Military criminal investigative organizations, including the Army’s Criminal Investigation Division, the Naval Criminal Investigative Service, the Air Force Office of Special Investigations, and the Coast Guard Investigative Service, are tasked with collecting evidence, interviewing witnesses, and determining whether charges should move forward under the Uniform Code of Military Justice. Their authority is real but it is not boundless. When agents reach beyond the limits of their jurisdiction or authority during evidence gathering, several protections come into play. These protections do not all work the same way, and understanding them requires distinguishing constitutional limits, regulatory limits, and the remedies that flow from each.

The constitutional floor applies to military agents

The most durable protection is the Fourth Amendment, which guards against unreasonable searches and seizures. Military members retain Fourth Amendment protection, and that protection constrains investigators regardless of which agency they serve. A search or seizure conducted without a proper legal basis, such as a valid search authorization, consent, or a recognized exception, is unreasonable and unlawful. The Supreme Court has reinforced this in the digital context, requiring a warrant before law enforcement searches the data on a seized cell phone, a rule that applies to military investigators as it does to civilian police.

When agents act outside their jurisdiction, the constitutional question is often whether they had lawful authority to conduct the search or seizure at all. Authority to search military property and personnel typically flows from a commander or a military magistrate with jurisdiction over the place or person. If agents act in a location, or against a person or property, over which they have no authority and obtain no proper authorization from someone who does, the search can be constitutionally defective.

Military Rule of Evidence 311 and the suppression remedy

The principal courtroom protection is Military Rule of Evidence 311, which governs the suppression of evidence obtained through unlawful searches and seizures. Under that rule, evidence obtained from an unlawful or nonconsensual search may be inadmissible. This is the military counterpart to the civilian exclusionary rule, and it is the mechanism through which a service member challenges evidence gathered by agents who exceeded their authority.

Two practical points about suppression deserve emphasis. First, suppression is not automatic. It requires the defense to litigate the issue, usually through a timely pretrial motion, and to develop the facts at a suppression hearing. The accused must ordinarily raise the unlawful search …

A service member who is suspected of an offense or facing pending charges often worries about whether the command can keep them from talking to a lawyer. The right to counsel is a cornerstone of military justice, and while a command has broad authority over duty and conduct, that authority does not extend to cutting a member off from legal advice. Restricting access to counsel is generally unlawful, and certain interference can violate statutory and constitutional rights.

The Right to Counsel Attaches Early

Two sources establish the right to counsel in the military. Article 31 of the UCMJ protects a suspect during questioning. Once a person is suspected of an offense, Article 31(b) requires that, before any interrogation, the questioner inform the suspect of the nature of the accusation, of the right to remain silent, and that any statement may be used as evidence. A suspect has the right to consult with counsel before deciding whether to answer questions and to have counsel present during questioning, including military counsel at no expense to the member.

Article 27 of the UCMJ governs the detailing of defense counsel for courts-martial. The right to counsel under the military system spans the pretrial, trial, and post-trial stages. Congress has provided that an accused is entitled to detailed military defense counsel, to military counsel of the accused’s own selection if reasonably available, and to civilian counsel at the accused’s own expense.

The practical effect is that the right to legal advice arises well before charges are formally referred. A suspect being questioned, or a member who anticipates charges, can seek counsel, and the command may not lawfully prevent that.

Why Restricting Access Is Unlawful

A command cannot lawfully order a member not to contact a defense attorney, nor can it block a suspect from consulting counsel before deciding whether to make a statement. Doing so would undercut the Article 31 protections that exist precisely to safeguard the member during the vulnerable pre-charge period. An order that forbids a member from seeking legal advice would be difficult to justify as serving a valid military purpose and would intrude on a protected right.

The protection is especially strong once an attorney-client relationship has formed. Military appellate courts have recognized that once an attorney-client relationship is established, the accused is entitled to keep that relationship absent demonstrated good cause to sever it. When government actions frustrate the continuation …

Recruiting and accessions operations run through chains of command. A station commander, an operations officer, or a senior leader oversees the recruiters and processing personnel who actually move applicants into the armed forces. When a subordinate effects an unlawful enlistment, the natural question is whether the leader who was supposed to be watching shares criminal liability under Article 104b of the Uniform Code of Military Justice. The answer turns on a principle that surprises people who assume military rank brings automatic responsibility for what subordinates do: Article 104b is a knowledge offense, and the UCMJ does not impose vicarious criminal liability simply because of a supervisory position.

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 addresses breach of medical quarantine and does not concern enlistment.

What Article 104b requires, and who it reaches

Article 104b punishes any person subject to the code who effects an enlistment or appointment in, or a separation from, the armed forces of a person known to that actor to be ineligible because the action is prohibited by law, regulation, or order. The actor must personally effect the prohibited action and must personally know of the ineligibility. The article is written around the individual who brings the unlawful enlistment about, not around the office that person occupies.

That framing has a direct consequence for commanders. A leader does not commit Article 104b merely because a subordinate, somewhere down the chain, processed an ineligible applicant. The leader is not the enlistee, and the leader is not automatically the person who effected the prohibited enlistment just because the leader sat above the recruiter who did. To reach a commander under Article 104b itself, the government must show that the commander personally effected the unlawful enlistment and personally knew the applicant was ineligible. If a commander directed the unlawful enlistment, knowingly approved it, or personally pushed the ineligible applicant through, the commander can be liable as a direct actor. Mere supervisory distance is not enough.

Why there is no automatic command liability

Military criminal law does not adopt a respondeat superior theory under which a supervisor is guilty of a subordinate’s crime by virtue of rank. Criminal responsibility in the UCMJ attaches to conduct and mental state, not to the …

Article 96 of the Uniform Code of Military Justice makes it an offense for a custodian to release a prisoner without proper authority. A guard or escort who lets a prisoner go faces the obvious question: was the release authorized? Often the only thing the custodian can point to is a spoken instruction from a superior. Whether a verbal order is sufficient to justify the release turns on what Article 96 actually requires, which is proper authority, and on whether the person giving the order in fact possessed that authority. A verbal order can be sufficient, but only when it comes from someone empowered to authorize the release.

What Article 96 prohibits

To prove a release offense under Article 96, the government must establish that a person was a prisoner in the custody or control of the accused, that the accused released that prisoner or permitted the prisoner’s escape, and that the release occurred without proper authority. Release in this context means the custodian removed the restraint, under circumstances showing the prisoner that confinement or custody had ended. The pivotal element for the present question is the third one: the release must have been without proper authority. If proper authority existed, no offense occurred.

Authority, not formality, is the test

Article 96 does not require that authorization be written. The statute speaks of proper authority, not of a particular document or form. A spoken directive can satisfy that element, just as a written one can. The form of the order is not what matters; the source of the order is. The question is whether the individual who told the custodian to release the prisoner actually had the power to authorize that release under the regulations and command structure governing the confinement.

This means a verbal order from a superior is sufficient when, and only when, the superior is someone with authority over the prisoner’s custody, such as the commander, confinement authority, or other official empowered by regulation to direct releases. If that person tells the custodian to release the prisoner, the custodian who complies has acted with proper authority, even though nothing was written down. The release is then authorized and Article 96 is not violated.

When a verbal order is not enough

A verbal order does not justify the release if the person who gave it lacked authority over the disposition of the prisoner. Rank alone does not equal …

Authorized leave is a privilege that lets service members step away from duty, but it does not suspend military jurisdiction. A member on leave remains subject to the Uniform Code of Military Justice, and that includes Article 86, which governs absence without leave. The plain answer is yes: a member who fails to return from leave at the scheduled time can be charged under Article 86, because the unauthorized portion of the absence begins the moment the authorized leave ends. The more useful questions are how this form of the offense works, what the government must prove, and when a late return is excused.

How leave fits into Article 86

Article 86 punishes several forms of unauthorized absence, including going from or remaining absent from one’s unit, organization, or place of duty without authority. Leave is, by definition, an authorized absence for a defined period. While the leave period runs, the member’s absence is authorized and lawful. The legal character of the absence changes at the expiration of leave. When the authorized period ends and the member has not returned or otherwise extended the authorization, the absence becomes unauthorized, and an Article 86 offense begins to run from that point.

In this sense, failing to return from leave on time is simply one factual route into Article 86. The offense is not committed during the leave itself, but at and after the moment the leave was supposed to end.

What the government must prove

For a failure-to-return absence, the government must establish that the accused was absent from the unit, organization, or place of duty, that the absence was without proper authority, and that it began on a certain date and continued until termination. The expiration of leave provides the start date: the absence becomes unauthorized when the authorized leave ends.

Article 86 in its basic form is a general-intent offense. Specific intent, such as an intent to remain away permanently, is not an element of ordinary unauthorized absence. That means the government does not have to prove the member intended to desert or to stay away for good. It is enough that the member, without authority, was absent past the end of leave. Specific intent becomes relevant only for certain aggravated forms of absence or for the separate offense of desertion, which is not the same as a simple failure to return on time.

The critical defense: inability to

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A service member whose reenlistment is blocked because a security clearance is about to lapse, has been suspended, or is under review faces a frustrating intersection of two separate systems: the personnel rules that govern reenlistment and the security adjudication rules that govern clearances. A military attorney can challenge such a denial, but the path runs through several different forums, and the strongest argument depends on exactly why the clearance is in jeopardy and how the command has tied that to the reenlistment decision.

Why a clearance affects reenlistment

For many service members, a security clearance is a prerequisite for their military occupational specialty or rating. If the clearance is suspended, expiring without renewal, or being revoked, the member may no longer be qualified for that job. The command may then decline reenlistment in that specialty, require reclassification into a field that does not need a clearance, or move toward involuntary separation. Understanding which of these the command is actually doing is the first step, because each triggers different rights and different ways to challenge the action.

Separating the clearance issue from the reenlistment issue

A military attorney typically attacks the problem on two fronts. The first is the clearance itself. The second is the personnel action built on top of it. Conflating the two is a common mistake, because the clearance process and the reenlistment process have distinct procedures, decision makers, and timelines.

On the clearance side, the key distinction is between suspension and revocation. A suspension is an interim measure pending a decision to reinstate or revoke, and there is generally no separate appeal of a suspension because it is not a final adverse determination. A revocation, by contrast, requires due process. The government must issue a statement of reasons, and the member is entitled to respond, to present evidence, and to a hearing before an administrative judge whose recommendation goes to the agency’s appeal authority. Eligibility is adjudicated under the thirteen guidelines established by Security Executive Agent Directive 4. A military attorney can challenge a revocation by responding to the statement of reasons, raising mitigating conditions under those guidelines, and litigating the hearing and appeal.

A clearance that is merely expiring is different again. Expiration usually reflects a reinvestigation that has not been completed rather than a finding of disqualifying conduct. Counsel can press the command and the adjudicating authority on whether the member was timely submitted …

A service member who has already received nonjudicial punishment (NJP) under Article 15 for being late or missing duty, and who then faces a court-martial for a new Article 86 offense, naturally worries about how that earlier discipline will affect the new case. The impact depends entirely on the relationship between the prior NJP and the new charge. In some situations the earlier punishment limits what the government can do. In others it can be used against the member, but generally only after conviction, during sentencing, and under specific rules. Sorting out which scenario applies is the key to understanding the prior NJP’s effect.

First question: same act or a different act?

The controlling distinction is whether the prior NJP punished the very same act or omission that underlies the new Article 86 charge, or whether it punished a separate, earlier instance of misconduct.

If the prior NJP and the new court-martial charge arise from the same act or omission, the law restricts double punishment. The accused cannot be punished twice at NJP and at court-martial for the identical offense. In that situation, the fact that NJP was already imposed for the same act becomes a matter the accused may raise in mitigation, and the accused controls whether the court-martial learns of it.

If, instead, the prior NJP punished an earlier, distinct attendance failure and the court-martial charges a new and separate Article 86 violation, there is no double-punishment bar. The earlier NJP is simply part of the member’s disciplinary history and may affect the new case in the ways described below. Most repeat-attendance scenarios fall into this second category, because each unauthorized absence or failure to go is a separate offense.

The prior NJP usually does not come in during findings

During the findings phase of an Article 86 court-martial, the government must prove the elements of the charged absence: that the member, without authority, failed to go to or remained absent from an appointed place of duty, and, where required, knew of the duty. A prior NJP for a different attendance lapse is generally not admissible during findings to suggest the accused is the kind of person who skips duty. That would be forbidden propensity reasoning under the character-evidence rules. Only in narrow circumstances, such as proving knowledge or absence of mistake under a non-propensity theory, could prior conduct potentially be offered on the merits, and even then …