Military Lawyers

Disobeying an order is one of the most serious charges a service member can face, prosecuted under articles such as Article 90 of the UCMJ for willfully disobeying a superior commissioned officer and Article 92 for failure to obey a lawful order or regulation. A recurring and difficult question is what happens when the accused refused or failed to comply because he believed the order was unlawful. The available defenses turn on a crucial distinction in military law: an order that is actually unlawful is one thing, while a sincere but mistaken belief that a lawful order was unlawful is another. Both situations matter, but they lead to different defenses.

The Presumption That Orders Are Lawful

Military law begins with a presumption that orders are lawful. An order is presumed lawful and is disobeyed at the subordinate’s peril. This presumption exists because the armed forces cannot function if every service member could second-guess every instruction. To remain within the presumption, an order must relate to military duty and must not conflict with the statutory or constitutional rights of the person receiving it. A lawful order must also be reasonably specific and must not be issued merely to harass or humiliate. The presumption is strong, but it is not absolute.

The Strongest Defense: The Order Actually Was Unlawful

The most direct defense is to show that the order was, in fact, unlawful. Unlawfulness is a complete defense to a charge under Article 90 or Article 92, because there is no offense in refusing to obey an order the law itself does not require you to follow. An order can be unlawful for several reasons. It may direct the commission of a crime. It may conflict with the Constitution or a federal statute. It may invade the recipient’s statutory or constitutional rights. It may be unrelated to any military duty, or it may be so vague or overbroad that it cannot stand. Orders given solely to harass or humiliate also fall outside the scope of lawful authority.

A particularly clear category is the manifestly unlawful order. Service members are not only permitted but required to refuse orders that are clearly illegal on their face, such as an order to commit an atrocity that violates the law of armed conflict. When the order falls into this category, refusing it is not misconduct at all. If the defense can establish actual unlawfulness, the prosecution’s …

Yes, service members retain speedy trial protections when charges are dismissed and later refiled, but the way those protections operate depends on which protection applies and on the difference between dismissal and withdrawal. The military speedy trial framework was built precisely so that the government cannot evade its obligations by manipulating the timeline through dismissal and repreferral. Understanding the moving parts shows where a refiled charge stands.

Three overlapping speedy trial protections

Military members enjoy speedy trial rights from more than one source. The first is Rule for Courts-Martial 707, the rule based 120 day clock. The second is Article 10 of the Uniform Code of Military Justice, which requires reasonable diligence in bringing to trial a member who is under arrest or in pretrial confinement. The third is the Sixth Amendment right to a speedy trial, which applies to courts-martial as a constitutional floor. Each operates on its own terms, and a refiled charge has to be evaluated under all three.

How RCM 707 handles dismissal and repreferral

RCM 707 sets a 120 day period within which the accused must be brought to trial. The question of what happens when charges are dismissed and refiled turns on a critical distinction that the rule and the case law draw between dismissal and withdrawal.

When the accused is not under pretrial restraint and charges are dismissed, a new 120 day period begins on the date the charges are repreferred. In other words, a true dismissal restarts the clock at zero for the refiled charges. By contrast, if charges are merely withdrawn rather than dismissed, the speedy trial clock continues to run rather than restarting. The military courts treated this distinction directly in United States v. Weatherspoon, 39 M.J. 762 (A.C.M.R. 1994), which recognized that a withdrawal does not toll the clock the way a dismissal does.

This is where members and counsel must look closely. A label that says dismissal does not automatically restart the clock if the action was functionally a withdrawal, and courts examine the substance of what the government did. If the government dismisses charges only to refile them as a tactic, the protections are designed to expose that and prevent the maneuver from buying open ended delay.

Why Article 10 is not erased by a restart

RCM 707 is not the only protection, and a restarted 120 day clock does not wipe out Article 10. Article 10 …

A positive urinalysis is one of the most consequential events in a military career. It can lead to court-martial under Article 112a, to nonjudicial punishment, and, separately from any criminal process, to administrative separation. Many service members assume that if they can point to procedural problems with the test, a chain-of-custody gap, a collection irregularity, a documentation error, the result cannot lead to discharge. The reality is more complicated. A positive urinalysis alone can result in discharge even when the soldier raises procedural objections, because administrative separation operates under different rules and a lower standard than a criminal trial. Procedural challenges matter, but they do not automatically defeat separation.

Two different tracks: criminal and administrative

The first thing to understand is that a positive urinalysis can move along two separate tracks, and they have different standards.

The criminal track is prosecution under Article 112a, UCMJ, codified at 10 U.S.C. section 912a, for wrongful use of a controlled substance. There the government must prove the offense beyond a reasonable doubt, including that the use was both knowing and wrongful. A properly documented urinalysis, supported by chain-of-custody evidence and expert testimony, can give rise to a permissive inference that the use was knowing and wrongful, but the panel is free to reject that inference, and procedural defects can undermine the reliability of the result and the government’s proof.

The administrative track is separation processing initiated by the command, often for misconduct or for drug abuse, under each service’s separation regulations. This is not a criminal proceeding. Its purpose is to determine whether the member should be retained or separated, and its standard of proof is a preponderance of the evidence, meaning more likely than not, not beyond a reasonable doubt. A member can be administratively separated even without a court-martial conviction, and even when criminal charges are never brought or are unsuccessful.

Why a positive test alone can support discharge

Because the administrative standard is preponderance of the evidence, a single positive urinalysis can be enough to support separation. The separation authority is asking whether it is more likely than not that the member used a controlled substance, and a positive test that the board or separation authority finds reliable can satisfy that lower standard. This is why members are sometimes surprised to be separated after a result that would not, or did not, produce a criminal conviction. The two systems are …

Most people assume that retirement ends a service member’s exposure to military justice. For many retirees that assumption is wrong. Under the Uniform Code of Military Justice, certain categories of retirees remain subject to court-martial jurisdiction, and that jurisdiction can reach offenses committed after retirement, not only misconduct that occurred while on active duty. The limits on this power come from the statute itself, which defines who is subject to the code, and from the Constitution, which sets the outer boundary of what Congress may do. Both layers matter, and the constitutional layer remains contested.

The statutory grant: who is subject under Article 2

Jurisdiction begins with Article 2 of the UCMJ, which lists the categories of persons subject to the code. Two categories matter most for retirees. Article 2(a)(4) makes retired members of a regular component of the armed forces who are entitled to pay subject to the code. Article 2(a)(6) makes members of the Fleet Reserve and Fleet Marine Corps Reserve subject to the code. The common thread is a continuing formal status in the armed forces accompanied by entitlement to retired pay.

The practical consequence is that a retired regular who is entitled to retired pay does not shed UCMJ jurisdiction at retirement. That status carries a continuing relationship with the armed forces, including a duty to obey orders and potential recall to active duty, and it is that ongoing relationship, not the timing of the misconduct, that supplies jurisdiction. Because the jurisdiction flows from status rather than from the act, it can reach offenses the retiree commits after leaving active service, so long as the retiree held the qualifying status at the time of the offense.

Not every retiree falls within these categories. Reserve component retirees who are not entitled to retired pay, and who do not occupy a status like the Fleet Reserve, generally are not subject to the code in the same way. The line drawn by Article 2 is therefore the first and most important jurisdictional limit: the retiree must fit one of the statutory categories, which in practice means a retired regular entitled to pay or a member of the Fleet Reserve or Fleet Marine Corps Reserve.

Post-retirement offenses are within reach

Because the jurisdiction is grounded in continuing status, the offense need not have occurred during active service. A retired regular entitled to pay who commits an offense after retirement can …

Administrative discharge boards, also called administrative separation boards, decide whether a service member should be involuntarily separated and, if so, how that service should be characterized. Much of the evidence these boards consider comes not from the people directly involved but from third parties, meaning witnesses who observed events, supervisors who can speak to performance, or individuals who heard about an incident secondhand. How a board weighs this third-party testimony is governed by a set of principles that differ significantly from those that apply in a court-martial. Understanding those principles helps service members and counsel anticipate how a board will treat the statements offered against, or in favor of, a member.

A Relaxed Evidentiary Environment

The most important feature of the administrative board setting is that it does not apply the strict procedural and evidentiary rules used in courts-martial. The formal rules of evidence that govern criminal trials are largely set aside. As a result, the board can receive a wide range of material, including written statements, summaries of interviews, and testimony from people who did not personally witness the events at issue. Hearsay, which would face significant restrictions in a criminal trial, is admissible before an administrative board. This relaxed environment means that third-party testimonial evidence comes in freely. The board’s task is not to decide whether such evidence is technically admissible but to decide how much weight it deserves.

Weight Rather Than Admissibility

Because admissibility is rarely the obstacle, the entire contest over third-party evidence centers on weight. A board is free to consider a statement and then give it little or no significance if the source is unreliable, if the statement is vague, or if it is contradicted by stronger evidence. Conversely, the board may give substantial weight to credible, detailed, firsthand testimony. This shift from admissibility to weight is the defining characteristic of how boards handle third-party evidence. A piece of testimony that a court-martial might exclude entirely is instead admitted by the board and then evaluated for what it is worth. Effective advocacy before a board therefore focuses less on keeping evidence out and more on shaping how the board values it.

Factors That Drive the Weight Assigned

Several considerations influence how heavily a board relies on a particular piece of third-party testimony. The witness’s basis of knowledge matters greatly, so testimony from someone who personally observed the conduct generally carries more weight than an …

Military law recognizes attempted desertion as a chargeable offense, which means a service member can face prosecution even when they never actually leave and are stopped before departure. The treatment of such a case turns on two demanding requirements borrowed from the law of attempts and the law of desertion. The government must prove a specific intent that desertion, not just absence, was intended, and it must prove that the member took a real step toward that crime rather than merely thinking about it or making early preparations. Both pieces are hard to establish when the member never got out the door.

Desertion and attempt come from two articles

Desertion is defined in Article 85 of the Uniform Code of Military Justice. The defining feature of desertion, as opposed to a lesser absence offense, is the intent to remain away permanently. A member who is absent without authority but means to come back has committed a different, lesser offense. Desertion requires that permanent intent.

Attempt is governed by Article 80. An attempt requires a specific intent to commit the underlying offense and an overt act that amounts to more than mere preparation, a substantial step toward the crime that would have resulted in its commission but for some intervening circumstance. When the member is stopped before leaving, the case is necessarily an attempt case under Article 80 pointed at the desertion defined in Article 85.

The intent requirement is the heart of the case

To convict for attempted desertion, the government must prove the specific intent to desert, which means the intent to remain away from the unit permanently. This is not the same as proving an intent to be briefly absent or to skip a duty. Desertion is a specific intent crime, and if the government cannot prove that the member intended to stay away for good, the desertion theory fails, even if some lesser misconduct can be shown.

Military law gives the government some flexibility on when that intent must exist in a completed desertion, recognizing that the intent to remain away permanently need not arise at the very inception of the absence and can form at some point during it. But in a stopped before departure case there is no absence period during which intent could have developed. The member never left. That puts the full weight on proving that the permanent intent already existed at the …

Service members sometimes assume that if civilian prosecutors drop criminal charges, any related military administrative separation must also fall away, especially when those charges are dropped after the separation action has already been formally initiated. That assumption is usually wrong. Administrative separation and civilian prosecution are two distinct processes governed by different rules and different standards of proof. The dismissal of civilian charges can certainly help a service member’s case, but it rarely halts a separation action by itself. Understanding why requires looking at how the two systems relate and what actually triggers, or stops, a separation board.

Two Separate Systems With Different Standards

A civilian criminal prosecution must prove guilt beyond a reasonable doubt, the highest standard in American law. Military administrative separation operates on a far lower standard. The command need only show, by a preponderance of the evidence, that the basis for separation is more likely than not true. Because of that gap, conduct that cannot be proven to a criminal jury can still support an administrative separation. When civilian prosecutors drop charges, they may be doing so for reasons that have nothing to do with whether the underlying conduct occurred, such as resource constraints, a victim’s reluctance to testify, evidentiary suppression issues, or a plea arrangement on other matters. None of those reasons necessarily defeats the command’s ability to meet the lower administrative standard.

What “Post-Preferral” Means in This Context

The phrase post-preferral describes charges that were formally brought and then later dropped. In the civilian system, this is the equivalent of charges being filed and then dismissed before or during prosecution. The timing matters to a service member emotionally, because it can feel as though the matter is fully resolved once charges are withdrawn. Legally, however, the separation authority is not bound by the prosecutor’s decision. The command can rely on the same underlying facts, police reports, witness statements, and other evidence, to support separation regardless of whether the civilian case proceeded to judgment. The dropping of charges removes the criminal jeopardy but does not erase the evidence or the command’s independent authority to act.

When Separation Generally Cannot Continue

There is a narrow situation in which the result of a criminal proceeding effectively blocks separation for the same alleged misconduct. If a service member is tried by a court and found not guilty, the command generally cannot then pursue administrative separation for that same …

Service members are sometimes pushed toward administrative separation on the strength of incidents that, in reality, were minor. A small safety lapse can be reframed as a pattern of dangerous misconduct, or an isolated mistake can be characterized as a serious deficiency warranting discharge. When that happens, a military defense attorney has meaningful ways to contest the case. The process for administrative separation is different from a court-martial, and understanding those differences is the key to mounting an effective challenge to exaggerated allegations.

Administrative Separation Is Not a Criminal Trial

Administrative separation proceedings determine whether a service member should be involuntarily discharged and, if so, with what characterization of service. They are not criminal prosecutions, and the protections differ. The burden of proof is lower than in a court-martial. Rather than proof beyond a reasonable doubt, the government need only establish the basis for separation by a preponderance of the evidence, meaning it is more likely than not that the alleged misconduct or deficiency occurred and warrants separation. The board is asking whether there is more than a fifty percent chance that the government has it right.

This lower standard cuts both ways. It makes separation easier to justify than a criminal conviction, but it also means the defense can prevail simply by showing that the government has not crossed even that fifty percent line, or that the conduct, properly understood, does not support the characterization the command is seeking.

The Right to Challenge the Government’s Case

A respondent facing a separation board is not a passive observer. The service member, through counsel, has the right to present evidence, to call and question witnesses, and to challenge the government’s evidence. Because the evidentiary rules at a board are relaxed compared to a court-martial, an effective defense has to be aggressive in holding the government to its burden. The defense does not simply respond; it actively tests whether the government has proved what it claims.

When the underlying incidents are minor but have been exaggerated, this right to challenge is exactly where the attorney goes to work.

Disputing the Factual Basis

The first and most powerful line of attack is the factual basis for separation. If the government cannot prove that the misconduct actually occurred as alleged, the board must find in the service member’s favor. A military attorney examines whether the incident really happened the way the command describes, whether …

The salute is one of the oldest customs of military service, and failing to render it can carry real consequences. Service members sometimes worry that a missed or refused salute could become a charge under Article 90 of the Uniform Code of Military Justice, willful disobedience of a superior commissioned officer, which is a serious offense. The accurate answer requires separating two different things: failing to salute as a matter of custom and courtesy, which is generally not an Article 90 offense, and refusing to comply with a direct, personal order to salute, which can be. Whether failure to salute escalates into Article 90 depends almost entirely on whether a specific lawful command was given and willfully disobeyed.

Where a missed salute normally falls

By default, neglecting the customary salute is treated as a form of disrespect, not as disobedience of a command. The offense of disrespect toward a superior commissioned officer is Article 89, UCMJ, codified at 10 U.S.C. section 889, which reaches behavior that detracts from the respect due the authority and person of a superior officer. Disrespect can be shown by acts as well as words, and neglecting the customary salute is recognized as one of the acts that can constitute disrespect, alongside marked disdain, insolence, or other rudeness. So an ordinary failure or refusal to salute, without more, is most naturally analyzed under Article 89, or in some circumstances under provisions addressing dereliction or disorders, rather than under Article 90.

This distinction matters because Article 89 and Article 90 punish different wrongs. Article 89 addresses disrespect toward the officer. Article 90 addresses willful disobedience of a lawful command from the officer. A salute that is simply not rendered, even pointedly, is conduct toward the officer; it is not, by itself, the disobedience of a command.

What Article 90 actually requires

Article 90, UCMJ, codified at 10 U.S.C. section 890, punishes a person subject to the Code who willfully disobeys a lawful command of the person’s superior commissioned officer. The government must prove beyond a reasonable doubt that the accused received a lawful command from a superior commissioned officer; that the officer was the accused’s superior commissioned officer; that the accused knew the officer held that status; and that the accused willfully disobeyed the command. The defining feature is a personal command, a specific order directed to the accused, that the accused then deliberately refuses to obey.…

Article 89 of the Uniform Code of Military Justice is best known for prohibiting disrespect toward a superior commissioned officer. After the Military Justice Act of 2016 took effect, however, Article 89 was restructured so that it now reaches both disrespect and certain assaultive conduct against a superior commissioned officer. So the short answer is that Article 89 can apply during a physical altercation with a superior officer, but only when specific conditions are met, and it is not the only article a prosecutor might use. Whether Article 89 fits a given altercation depends on who the officer is to the accused, what the officer was doing at the time, and the nature of the physical conduct.

Two Prongs in One Article

Article 89 contains a disrespect component and an assault component. The disrespect component covers behavior or language that detracts from the respect due a superior commissioned officer. This can be verbal, such as contemptuous words, or it can be conduct, such as a sneer, a gesture, or a refusal to acknowledge the officer. Disrespect does not require any touching.

The assault component is the part that becomes relevant in a physical altercation. It covers striking a superior commissioned officer, drawing or lifting up a weapon against that officer, or otherwise offering violence to the officer while the officer is in the execution of office. “Strikes” reaches any offensive touching, however slight. “Offering violence” reaches threatening physical conduct even where no contact lands. The breadth of these terms means that a shove, a punch, a raised fist, or brandishing an object can all fall within the assault prong if the surrounding elements are satisfied.

The Elements That Must Line Up

For the assault prong of Article 89 to apply to an altercation, the government must prove several distinct facts. The person assaulted must be a commissioned officer. That officer must be superior in rank or command to the accused. The accused must have known that the person was a superior commissioned officer. And, critically, the officer must have been in the execution of office at the time of the conduct.

That last requirement, execution of office, is frequently the dividing line. An officer is in the execution of office while performing duties related to military service. If a superior officer is acting in a private capacity, well removed from any official function, the conduct may fall outside Article 89’s …