Military Lawyers

After a court-martial adjudges a sentence, the case enters a post-trial phase in which a staff judge advocate (SJA) advises the convening authority. A natural worry for a convicted member is whether that legal adviser can tilt the outcome against them, effectively lobbying for a harsher result behind the scenes. The honest answer is layered. The SJA has a defined and proper advisory role in post-trial processing, and giving that advice is exactly what the office is supposed to do. At the same time, the law draws firm lines around how that influence may be exercised, and crossing those lines can invalidate the action. The 2019 reforms to the military justice system also reshaped what the convening authority may do after trial, which changes the practical stakes of SJA advice.

The SJA’s legitimate post-trial role

Under Rule for Courts-Martial (RCM) 1106, before the convening authority acts in qualifying cases, the SJA prepares a written recommendation. The recommendation is meant to be concise and to assist the convening authority in deciding what post-trial action to take. Providing this advice is not improper influence; it is the SJA’s assigned function. The convening authority is entitled to legal advice, and the SJA is the officer who supplies it.

The SJA may also submit an addendum under RCM 1106. An important safeguard attaches here: if the addendum contains new matter, it must be served on the defense so the accused has a chance to respond. This service requirement exists precisely because the SJA’s communications to the convening authority can affect the outcome, and the accused is entitled to see and rebut adverse new information rather than have it reach the convening authority unanswered.

The accused’s parallel right to be heard

The post-trial process is built to be adversarial in a limited sense. While the SJA advises the convening authority, the accused has an independent right to submit matters for consideration. Under RCM 1105 and 1106, the accused may submit clemency matters and other materials that reasonably tend to affect the convening authority’s decision on the findings or the sentence. The convening authority must consider the accused’s submission alongside the SJA’s recommendation.

This balance is the system’s answer to the influence question. The SJA is allowed to recommend, but the accused is allowed to respond, and the decision-maker must weigh both. When new adverse matter appears in an SJA addendum without being served on the …

Article 97 of the Uniform Code of Military Justice punishes unlawful detention. The article reaches a person who, having authority to do so, unlawfully apprehends, arrests, or confines another. Placing a service member in a locked room and cutting off communication can fall within this prohibition, but whether it actually constitutes unlawful detention depends on who imposed the restraint, whether it was truly against the member’s will, and whether the person had a reasonable belief that the restraint was lawful. The locked door and the isolation are facts that matter, but they do not by themselves complete the offense.

What Article 97 requires

To prove unlawful detention, the government must establish two things. First, that the accused apprehended, arrested, or confined a particular person. Second, that the accused unlawfully exercised authority to do so. The article speaks in the language of military restraint. Apprehension means placing restrictions on another’s freedom. Arrest means imposing restraint through verbal or written orders directing the person to remain within specified limits. Confinement means physical restraint of a person under guard or in a cell or similar facility designed for that purpose. Locking someone in a room can amount to confinement in this sense, because it physically restrains the person and prevents departure.

Two further requirements shape the offense. The restraint must have been against the will of the person restrained. And the prosecution must show that the accused did not have a reasonable belief that imposing the restraint was lawful. The use of force is not required. A person can be unlawfully detained without any physical struggle if their freedom of movement is purposefully and wrongfully restricted.

Who can commit the offense

Article 97 is not a general false imprisonment statute. It prohibits improper acts by those whom the UCMJ authorizes to arrest, apprehend, or confine others. It does not apply to private acts of false imprisonment, nor to the restraint of another’s movement by a person who has no such authority under the code. This is an important limit. The article targets the abuse of a power that the military system grants to certain members, typically those in positions of command or law enforcement responsibility. If the person who locked the door had no UCMJ authority to detain at all, the conduct may be a different offense, but it is not the abuse of detention authority that Article 97 addresses.

When a locked

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This question hides a trap that catches many people who assume that being connected to a murder erases all time limits. Article 78 of the Uniform Code of Military Justice punishes the accessory after the fact, not the murderer. Because the accessory is charged with a separate offense, the limitation period for that charge is the ordinary one, even when the underlying crime is murder. The murder’s lack of a time limit does not transfer to the person charged under Article 78.

What Article 78 actually charges

Article 78, codified at 10 U.S.C. 878, makes it an offense for a person subject to the UCMJ, knowing that an offense punishable under the code has been committed, to receive, comfort, or assist the offender in order to hinder or prevent the offender’s apprehension, trial, or punishment. The accessory after the fact did not commit the underlying offense. The accessory’s wrong is helping the offender escape justice after the fact. That distinction is the whole answer to the limitations question.

A person charged under Article 78 is not charged with murder. They are charged with assisting a murderer. The two are legally different offenses, carry different elements, and are punished differently.

The general limitation rule in the military

The statute of limitations for courts-martial is set by Article 43 of the UCMJ, codified at 10 U.S.C. 843. The general rule is that a person may not be tried by court-martial for an offense committed more than five years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command. Five years is the default period for ordinary offenses.

Article 43 then creates exceptions. Certain offenses may be tried and punished at any time, with no limitation period at all. Those include absence without leave or missing movement in time of war, murder, rape and sexual assault offenses including rape of a child, and any other offense punishable by death. The no limitation rule is tied to the specific offense charged, not to the facts that surround it.

Why the murder exception does not reach the Article 78 charge

The exemption from the statute of limitations attaches to the charge of murder itself. A person tried for murder faces no limitation period. But the accessory after the fact is not tried for murder. The accessory is tried under Article 78 for the separate offense of helping …

A missing movement charge under Article 87 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. 887, often raises the question whether the accused failed to move with a ship, aircraft, or unit on purpose or merely through carelessness. Prosecutors sometimes want to introduce the accused’s earlier misconduct to argue a “pattern” of avoiding duty. Whether that evidence comes in depends entirely on how it is offered. Military law forbids using prior misconduct to show that the accused is the kind of person who would miss a movement, but it allows that evidence for certain limited, non-propensity purposes.

The elements that frame the inquiry

To convict under Article 87, the government must prove that the accused was required in the course of duty to move with a ship, aircraft, or unit; that the accused knew of the prospective movement; and that the accused missed the movement through design or neglect. “Design” means a specific intent to miss the movement, while “neglect” means a culpable failure to take the reasonable measures necessary to be present. The mental state is therefore the contested issue in many cases, and that is exactly where prior misconduct evidence becomes tempting for the prosecution.

The general bar on propensity evidence

Military Rule of Evidence (MRE) 404(b) controls. It provides that evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with that character. In plain terms, the government cannot offer earlier instances of skipping formations or avoiding deployments to argue that the accused has a bad character and therefore probably missed this movement on purpose. Using prior acts to show a propensity to miss movements is precisely what the rule prohibits, and “pattern” framed as character is not a lawful purpose.

The permissible non-propensity purposes

The same rule lists purposes for which prior acts may be admissible, including proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. This is where the genuine line is drawn. If prior conduct is relevant to the accused’s intent or to rebut a claim of accident or mistake, rather than to brand the accused as a habitual shirker, it may be admissible. For example, evidence that the accused previously took deliberate steps to avoid a known movement could be relevant to …

Nonjudicial punishment under Article 15 of the Uniform Code of Military Justice gives commanders a tool to address minor misconduct without a court-martial. Once a commander imposes punishment, the question often arises whether anything can still be changed, and by whom. The answer is that a commander retains meaningful authority to soften or undo punishment even after it has begun or been fully carried out, but that authority is limited and runs in only one direction. A commander can reduce or erase punishment. A commander cannot increase it.

The Statutory Source of Authority

Article 15 itself provides the foundation. The statute authorizes the officer who imposed the punishment, or a successor in command, to suspend, mitigate, remit, or set aside the punishment. This authority exists in addition to, and separate from, the service member’s right to appeal. The appeal is the service member’s remedy; the post-imposition authority described here is a power the command exercises on its own initiative or in response to a request. Each service implements the statute through its own regulation, such as the Army’s AR 27-10, but the underlying authority traces back to Article 15.

Four Distinct Actions

It helps to keep the four available actions separate, because they apply at different stages and produce different results.

Suspension holds a punishment in abeyance for a set period. If the service member commits no further misconduct during the probationary window, the suspended portion is automatically remitted at the end of the period. Suspension is most useful before a punishment has been fully executed, and it functions like a second chance conditioned on good behavior.

Mitigation reduces the quantity or changes the quality of a punishment to a less severe form. Reducing a forfeiture of pay, shortening a period of extra duty, or converting one authorized punishment to a lesser authorized punishment are examples. Mitigation is appropriate when later good conduct merits relief or when the original punishment proves disproportionate.

Remission cancels the unexecuted portion of a punishment. Because remission operates on what has not yet been carried out, its practical reach narrows as more of the punishment is completed.

Setting aside is the most complete form of relief. It voids the punishment, or a stated part of it, and restores any rights, privileges, or property affected. Unlike remission, setting aside can reach punishment that has already been executed, including restoring forfeited pay or a lost grade.

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Conspiracy is one of the oldest tools in criminal law, allowing the government to punish people who agree to commit a crime even before the crime itself is carried out. In the military, conspiracy is governed by Article 81 of the UCMJ, while civilian conspiracy is governed by federal and state statutes. The two share a common core but differ in some important details. Understanding both the similarities and the differences helps explain how a service member can be charged with conspiracy and what the government must prove.

The Elements of Conspiracy Under Article 81

Article 81 criminalizes the knowing and voluntary agreement to commit a specific offense under the UCMJ. To obtain a conviction, the prosecution must prove three things. First, that there was an agreement between two or more persons to commit an offense. Second, that the accused entered into that agreement with the intent to commit the offense. Third, that, while the agreement was in effect, at least one of the conspirators performed an overt act in furtherance of the conspiracy.

Two features of Article 81 deserve emphasis. The overt act does not have to be committed by the accused personally. It is enough that any one of the co-conspirators performed an overt act in furtherance of the plan. In addition, the overt act does not itself have to be illegal. A perfectly lawful act, such as buying a tool or making a phone call, can satisfy the requirement so long as it is clearly connected to carrying out the agreed offense and is meant to further the conspiracy.

The offense focuses on the agreement. Because conspiracy punishes the unlawful agreement itself, the planned crime never has to be completed. Even if the conspirators are caught before they finish, or even attempt, the underlying offense, the conspiracy is complete once the agreement exists and one overt act is taken.

How This Compares to Civilian Conspiracy Law

Civilian conspiracy law shares the same basic structure: an agreement to commit a crime, the intent to achieve the criminal objective, and, in many jurisdictions, an overt act. The general federal conspiracy statute, for instance, requires an agreement and an overt act by one of the conspirators. In that respect, Article 81 and typical civilian conspiracy statutes line up closely. Both punish the agreement rather than waiting for the substantive crime, both require criminal intent, and both commonly require some overt …

Article 89 of the Uniform Code of Military Justice criminalizes disrespect toward a superior commissioned officer. Most people picture disrespect as words: a profane remark, a contemptuous comment, an insult. But disrespect can also be communicated without speaking at all, through facial expression, gesture, posture, or demeanor. So-called facial disrespect, an eye roll, a sneer, a smirk, a look of open contempt directed at a superior officer, can in principle support an Article 89 charge. The difficult question is evidentiary: what does the government have to prove, and how, to convict on conduct that is by nature ambiguous and silent.

What Article 89 requires

Article 89, UCMJ, codified at 10 U.S.C. section 889, addresses disrespect toward, and assault of, a superior commissioned officer. For the disrespect offense, the prosecution must prove beyond a reasonable doubt that the accused did or omitted certain acts, or used certain language, to or concerning a certain commissioned officer; that the officer was the superior commissioned officer of the accused; that the accused then knew that the officer was the accused’s superior commissioned officer; and that, under the circumstances, the behavior or language was disrespectful to that officer.

The statute is not limited to words. Disrespect may be shown by acts as well as language. The governing description of the offense recognizes that disrespect by acts can include neglecting the customary salute or showing a marked disdain, indifference, insolence, impertinence, undue familiarity, or other rudeness toward the superior officer. A facial expression that communicates marked disdain or contempt falls within this category of conduct.

The threshold: more than attitude, and tied to the officer

The evidentiary threshold for facial disrespect is the same beyond-a-reasonable-doubt standard that governs every element, but applying it to a facial expression raises distinctive proof problems. The government must establish several things from the evidence.

First, there must be conduct, an observable expression or gesture, not merely an inference about the accused’s inner state. A panel cannot convict on the theory that the accused must have felt contemptuous. There must be proof of an outward act that observers perceived.

Second, the conduct must have been directed to or concerning the superior officer. A scowl unconnected to the officer, or an expression prompted by something unrelated, does not satisfy the offense. The expression must be shown to have been aimed at, or to have concerned, the officer in question.

Third, the conduct …

Article 88 of the Uniform Code of Military Justice punishes a commissioned officer who uses contemptuous words against certain high officials, including the President, the Vice President, Congress, the Secretary of Defense, a Secretary of a military department, the Secretary of Homeland Security, and the Governor or legislature of any State, Commonwealth, or possession in which the officer is on duty or present. Article 133 punishes conduct unbecoming an officer. The FY2022 National Defense Authorization Act struck the words “and a gentleman,” so the offense is now phrased without that gendered language. Because contemptuous remarks by an officer can both insult a protected official and discredit the officer’s standing, prosecutors sometimes ask whether the same words can support both charges. The answer is that they often can be charged together, but whether both convictions can stand depends on multiplicity analysis.

Two articles aimed at related but distinct harms

Article 88 is narrow and specific. It applies only to commissioned officers, it reaches only contemptuous words, and it protects only an enumerated list of officials. It is immaterial whether the words are spoken in an official or a private capacity. The gravamen is the contemptuous expression directed at one of the named offices.

Article 133 is broader. It has two elements: that the officer, cadet, or midshipman did or omitted to do a certain act, and that under the circumstances the act or omission constituted conduct unbecoming an officer. The article does not list specific acts. It allows courts-martial to evaluate, case by case, whether behavior in either an official or a private capacity dishonored or disgraced the officer and seriously detracted from standing as an officer. The two articles therefore overlap in scope but protect different interests. Article 88 protects the dignity of specific civilian and government offices and the principle of civilian control. Article 133 protects the integrity of the officer corps.

Why charging both is common

Prosecutors frequently pair Article 133 with another charge when the same conduct both completes a specific offense and independently reflects poorly on the officer’s character. Article 88 often functions as one component of a larger charge sheet rather than as a lone count. When an officer makes contemptuous statements about a protected official, the government may charge the Article 88 offense for the specific contemptuous words and an Article 133 offense to capture the broader proposition that such conduct disgraces the officer. …

Nonjudicial punishment under Article 15 of the Uniform Code of Military Justice gives commanders a tool to address minor misconduct without a court-martial. But not every alleged infraction reflects genuine wrongdoing. During operations, orders, standard operating procedures, and policy guidance can be ambiguous, contradictory, or rapidly changing. When a soldier is offered or imposed an Article 15 for conduct that flowed from documented policy confusion, a military attorney can play a decisive role. This article explains how counsel supports a soldier in that specific situation, where the existence of conflicting or unclear guidance is itself part of the record.

Why the right to refuse changes everything

The starting point for any Article 15 defense is the soldier’s procedural rights. In almost all cases, a soldier who is not attached to or embarked on a vessel has the right to refuse nonjudicial punishment and demand trial by court-martial. This is a core protection, and it reframes the entire negotiation. If a soldier turns down the Article 15, the commander must either drop the matter or refer it to a court-martial, where the government bears the much higher burden of proving guilt beyond a reasonable doubt and where formal rules of evidence apply.

A military attorney’s first task is to counsel the soldier on whether to accept the Article 15 or refuse it. This decision is strategic and depends heavily on the strength of the policy-confusion defense. Where the documented confusion makes it genuinely unclear that the soldier violated any valid order, the threat of a court-martial may be hollow, because the government may not want to commit resources to proving a charge that rests on contradictory guidance. Counsel evaluates that calculus and advises accordingly. The attorney also makes sure the soldier understands that refusing the Article 15 carries risk if the command does pursue a court-martial.

Building the policy-confusion defense

The heart of this kind of case is the documented confusion itself. A skilled military attorney treats that documentation as evidence and develops it systematically.

Counsel gathers the operative orders, fragmentary orders, standard operating procedures, policy memoranda, and any written guidance that governed the soldier’s conduct during the relevant operation. Where two sources conflict, or where guidance changed without clear communication to the soldier, that conflict becomes the foundation of the defense. The attorney organizes the timeline to show what the soldier knew, when the soldier knew it, and what a …

Article 89 of the Uniform Code of Military Justice punishes disrespect toward a superior commissioned officer. A natural intuition is that the offense should be graded by the distance between the offender and the officer, so that a junior enlisted member who disrespects a general has committed something worse than a captain who disrespects a major. That intuition is understandable, but it does not match how Article 89 is built. Proximity of rank, the size of the gap between the accused and the officer, is not an element of the offense and does not set the maximum punishment. What the article cares about is the relationship of superiority, not how wide the rank gap is. Proximity of rank can become relevant only as one ordinary sentencing consideration, not as a measure that the law uses to grade the offense.

What Article 89 actually requires

Article 89 makes it an offense to behave with disrespect toward one’s superior commissioned officer. The government must prove that the accused did or said something disrespectful directed toward a specific commissioned officer, that the officer was the accused’s superior commissioned officer, that the accused knew the officer was the accused’s superior commissioned officer, and that under the circumstances the behavior or language was disrespectful. Notably, the officer need not be in the execution of office at the time of the disrespect for the offense to apply.

The element that does the work is the superior commissioned officer relationship. The offense is not disrespect toward any higher-ranking person measured by how much higher. It is disrespect toward a person who stands in the defined relationship of superiority to the accused. Either the relationship exists or it does not, and the analysis is categorical rather than a matter of degree.

How superiority is defined, and why it is not about proximity

The definition of superior commissioned officer turns on rank and command, not on the magnitude of the rank difference. When the accused and the officer are in the same armed force, the officer is the accused’s superior commissioned officer when the officer is superior in rank or in command. There is an important qualification: an officer who is superior in rank but inferior in command to the accused is not the accused’s superior commissioned officer. That rule shows that the offense depends on the structure of the relationship rather than on rank distance, because a higher-ranking …