Military Lawyers

In a court-martial involving sexual offenses, the defense often wants access to the complainant’s mental health and medical records, hoping they contain information bearing on credibility, bias, or an alternative explanation for the allegation. Military law does not allow either side to simply demand those records. Instead, a layered framework of evidentiary privilege, narrow exceptions, and judicial gatekeeping governs whether, and how much of, a protected record can be disclosed.

The governing privilege

The central rule is Military Rule of Evidence (MRE) 513, the psychotherapist-patient privilege. It protects confidential communications made by a patient to a psychotherapist or assistant for the purpose of diagnosis or treatment of a mental or emotional condition. The privilege belongs to the patient, which in a sexual offense case is frequently the complainant. Because the privilege protects communications, it is the patient’s disclosures to the provider, rather than every fact in a file, that lie at the core of the protection.

It is important to distinguish MRE 513 from ordinary physical medical records. Routine medical treatment records, lab results, and similar documents are not automatically covered by the psychotherapist-patient privilege, although they may be protected by other rules and by privacy regulations such as those implementing the Health Insurance Portability and Accountability Act. Counsel must identify which protections actually apply to a given record rather than assuming a single blanket privilege.

The narrowing of the privilege over time

MRE 513 has grown stronger for patients over the years. In particular, a National Defense Authorization Act amendment removed the former exception that allowed disclosure when “constitutionally required.” Defense practitioners have criticized this change because it eliminated an explicit textual hook for arguing that an accused’s fair-trial and confrontation rights compel access. The constitutional rights themselves still exist, but the rule no longer lists a standalone constitutional exception, which makes the path to disclosure narrower and more contested.

The enumerated exceptions

The rule lists specific situations in which the privilege does not apply. These include, among others, circumstances where the patient is dead, where disclosure is required by federal law, where there is an imminent threat of harm, where the communication concerns child abuse or neglect under certain conditions, and where the privilege is used to conceal a crime or fraud. A party seeking records must tie its request to a recognized exception rather than relying on a general claim that the records might be helpful.

The

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A Board of Inquiry is an adversarial administrative process that determines whether a commissioned officer is retained or separated. Officers sometimes ask whether they can simply withdraw from the proceeding to avoid the time, stress, and risk of an unfavorable result. The accurate answer is that an officer cannot unilaterally walk away from a pending elimination action with no consequences, but there is a recognized voluntary alternative to a board, and whether it carries prejudice depends entirely on the terms. Understanding the difference between abandoning a board and resolving the underlying elimination action is essential.

Withdrawing from the board is not the same as ending the action

An officer placed in elimination or show cause status faces an action initiated by the service, not a proceeding the officer started. Declining to participate does not make the underlying elimination action disappear. If an officer refuses to engage, the board can generally proceed without meaningful input from the officer, which is the worst of both worlds: the officer loses the chance to contest the allegations and present matters in favor of retention while the separation process moves forward. So in the sense of unilaterally quitting with no effect, an officer cannot withdraw from a Board of Inquiry without prejudice.

The voluntary alternative: resignation in lieu of elimination

The real option officers are usually thinking about is voluntarily resolving the elimination action rather than going through the board. The services provide for resignation in lieu of elimination, sometimes called resignation in lieu of further administrative processing. By submitting such a request, an officer offers to tender a resignation instead of contesting the matter before a board. If approved by the appropriate Secretary or designated authority, this resolves the action without a board hearing.

This route is voluntary, but it is not free of consequences, and it is not a clean withdrawal. The officer is generally required to acknowledge that performance was substandard, and where the basis involves misconduct, to admit the misconduct. The resignation, once submitted, typically can be withdrawn by the officer only with the permission of the approving authority, so an officer should treat the submission as a serious and largely irreversible step.

What “without prejudice” really means here

The phrase “without legal prejudice” is best understood as a question about the characterization of service and the collateral effects of separation, because that is what determines the lasting impact on the …

Dereliction of duty is charged under Article 92 of the Uniform Code of Military Justice, which addresses, among other things, a service member’s failure to perform a known duty. A recurring defense question is what happens when the command never put the relevant expectations in writing. If a member is accused of being derelict in a duty that was never reduced to a written order, regulation, or standard, does the absence of written guidance defeat the charge? The answer turns on how the elements of dereliction are evaluated, and in particular on the knowledge element, which becomes the focal point whenever the duty’s existence and communication are in question.

The Elements of Dereliction of Duty

To sustain a dereliction of duty allegation, the government must prove three things. First, that the accused had a certain duty. Second, that the accused knew of the duty or reasonably should have known of it. Third, that the accused was derelict in performing that duty through willfulness, neglect, or culpable inefficiency. Each element is essential, and the absence of any one of them defeats the charge. The first two elements, the existence of the duty and the member’s knowledge of it, are where the lack of written expectations matters most. The third element addresses how the member failed, while the first two address whether there was a duty the member was bound to know and perform.

A Duty Need Not Be in Writing

The threshold point is that a duty under Article 92 does not have to come from a written document. A duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or the custom of the service. This means that the absence of written expectations is not automatically fatal to a dereliction allegation. A duty can arise from an oral order, from established practice in a unit, or from the customary obligations of a particular position. A service member cannot necessarily escape a dereliction charge simply by pointing out that no one handed them a written standard, because the source of the duty may be unwritten yet still genuine. The government can attempt to prove the duty through testimony about orders given, practices followed, or the inherent responsibilities of the member’s role.

Why Knowledge Becomes the Central Issue

Although a duty need not be written, the government must still prove that the accused knew of the duty or reasonably …

Before a case can be referred to a general court-martial, the military justice system requires a preliminary hearing under Article 32 of the Uniform Code of Military Justice, codified at 10 U.S.C. 832. At the center of that hearing is the preliminary hearing officer, often abbreviated PHO. Understanding what this officer does, and what the probable cause finding means, helps explain why the Article 32 hearing matters and what it is not.

A Screening Function, Not a Trial

The Article 32 preliminary hearing is a screening step. It is not a trial, and the preliminary hearing officer is not a judge who decides guilt. The reforms that took effect on January 1, 2019, arising from the National Defense Authorization Act for Fiscal Year 2016 and implemented through changes to Rule for Courts-Martial 405, refined the hearing into a focused probable cause and disposition inquiry rather than the broad discovery vehicle it had been in earlier years.

The preliminary hearing officer presides over the hearing, considers the evidence the parties present, and prepares a written report with findings and a recommendation. The officer’s conclusions are advisory. The convening authority retains the decision whether to refer charges, and is not bound to follow the preliminary hearing officer’s recommendation.

The Specific Questions the Officer Must Answer

By rule, the preliminary hearing officer addresses a defined set of questions. The officer determines whether each specification alleges an offense under the UCMJ. The officer determines whether there is probable cause to believe that the accused committed the offense or offenses charged. The officer considers whether the convening authority has court-martial jurisdiction over the accused and over the offense. Finally, the officer makes a recommendation as to the disposition that should be made of the case.

This structure keeps the hearing tied to its limited purpose. The officer is not deciding whether the accused is guilty beyond a reasonable doubt, nor weighing the case as a panel ultimately would at trial. The officer is screening the charges for legal sufficiency and a basic evidentiary foundation, and then advising the chain of command on what to do next.

What Probable Cause Means Here

Probable cause is a comparatively low threshold. In the Article 32 context, it means there are reasonable grounds to believe both that an offense occurred and that the accused committed it. The standard does not require proof to a near certainty or even a …

A temporary psychological diagnosis can play a meaningful role in a pending discharge action, but its effect depends heavily on the type of separation, the basis the command has cited, and how the diagnosis connects to the conduct or performance at issue. A short-term condition does not automatically stop a separation. It can, however, reshape the legal posture of the case, change the procedural protections that apply, and supply mitigation that a separation authority or board must weigh before deciding to discharge a service member.

How a temporary diagnosis differs from a permanent one

Military separation policy treats mental health conditions in different ways depending on whether they amount to a disability. Conditions that interfere with duty but do not rise to the level of a physical disability are often processed under a “condition, not a disability” framework. Adjustment disorders are a common example. By definition an adjustment disorder is a short-term reaction to an identifiable stressor that is expected to improve, which is why a diagnosis labeled as temporary may still be the stated reason a command moves toward separation rather than a reason to keep the member.

This matters because a temporary diagnosis can cut in two directions. It may be the basis the command uses to separate, or it may be evidence the member presents to explain conduct and argue against discharge. The same clinical finding can be both the trigger and the defense, which is why the framing of the case is so important.

When a diagnosis supports mitigation

Where a member faces administrative separation for misconduct or substandard performance, a temporary psychological diagnosis is most useful as mitigation and extenuation. It can help explain why behavior occurred, support a request for a more favorable characterization of service, or argue that retention and treatment are more appropriate than discharge. Mitigation does not require proving that the condition excused the conduct. It requires showing the separation authority that the full context, including a treatable mental health condition, weighs against the harshest outcome.

For enlisted members processed because of a mental health condition, Department of Defense policy builds in protections that can also serve as mitigation arguments. Under the enlisted administrative separation framework, processing for a condition not constituting a disability generally cannot begin until the member has been counseled in writing about the condition and given an opportunity to overcome the identified deficiencies. A member can argue …

Military accessions run on eligibility rules. Recruits with disqualifying histories, including certain felony convictions, can sometimes enter the armed forces only after a formal waiver in which a responsible official certifies the facts and approves the exception. When a recruiter, processing official, or other person submits a moral waiver that conceals or misstates a known felony in order to get an otherwise ineligible applicant into uniform, the conduct can expose that person to prosecution under Article 104b of the Uniform Code of Military Justice. Whether Article 104b fits a particular case depends on exactly what the article forbids and on who did what.

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 prohibits

Article 104b makes it an offense for any person subject to the code to effect an enlistment or appointment in, or a separation from, the armed forces of a person who is known to that actor to be ineligible for the enlistment, appointment, or separation because it is prohibited by law, regulation, or order. Three features of that text drive the analysis. The offense targets the person who brings about the personnel action, not the recruit. It requires knowledge that the person is ineligible. And the ineligibility must arise from a law, regulation, or order.

This is a different offense from the one that punishes the applicant. Fraudulent enlistment by the recruit, the person who lies to get in, is charged under the article governing fraudulent enlistment, appointment, and separation, which the 2019 Military Justice Act renumbered as Article 104a effective January 1, 2019. Article 104b instead reaches the official or other person who, knowing the applicant cannot lawfully be brought in, effects the enlistment anyway. A false moral waiver is one of the clearest ways to commit that offense, because the waiver is the very mechanism by which the ineligible person is moved into the service.

Mapping a false moral waiver onto the elements

Consider an official who knows that an applicant has a felony conviction that disqualifies the applicant absent a properly approved waiver, and who submits a waiver packet that conceals the conviction or falsely represents the facts so that the applicant is …

Article 96 of the Uniform Code of Military Justice, codified at 10 U.S.C. 896 and titled “Release of prisoner without authority; drinking with prisoner,” makes it an offense for a person subject to the Code to release a prisoner without proper authority, or to allow a prisoner to escape through neglect or design. The natural question is whether this article reaches the release of a civilian who is being held under military jurisdiction, as opposed to a uniformed service member in confinement. The short answer is that Article 96 can apply, but only when specific conditions are met. The decisive issues are whether the person released was a “prisoner” under the accused’s custody or control and whether the release lacked proper authority. The civilian status of the detainee does not, by itself, take the situation outside the article.

What Article 96 Actually Prohibits

The article targets the breakdown of lawful custody. For the offense of releasing a prisoner without proper authority, the prosecution must establish that a certain person was a prisoner in the custody or control of the accused, that the accused released or permitted the escape of that prisoner, and that the release or escape occurred without proper authority. “Release” refers to the removal of restraint by the custodian, under circumstances that signal to the person held that they are no longer in legal custody. The wrong addressed by Article 96 is the custodian’s act of cutting short a lawful detention without the authority to do so, thereby defeating the purpose of the confinement and undermining good order in the custodial system.

The Central Question Is Custody, Not Uniform

Article 96 speaks in terms of a “prisoner” rather than limiting itself to members of the armed forces. What matters is the existence of a custodial relationship that the accused was responsible for maintaining. If a civilian is lawfully held under military jurisdiction, for example in a situation where military authorities have a recognized basis to detain that person, the civilian can be a prisoner within the meaning of the article for purposes of the custodian’s duties. The accused’s obligation is to maintain the lawful restraint until properly relieved of it. When the accused removes that restraint without authority, the offense can be made out regardless of whether the detainee wears a uniform. The focus is on the integrity of lawful custody, and the status of the detainee is …

Anyone researching false swearing in the military often arrives at Article 131 of the Uniform Code of Military Justice, because Article 131 is the statute most associated with lying under oath. It is important to be precise about what Article 131 actually covers, because the offense it defines is perjury, and false swearing is a separate, related offense housed elsewhere in the Code. Answering what elements support a false swearing conviction therefore requires explaining both the Article 131 perjury offense and the distinct false swearing offense, and showing exactly how the two differ. Getting the statutory home right matters, because the elements, and the available defenses, are not the same.

Article 131 defines perjury, not false swearing

Article 131 of the UCMJ is the perjury statute. It punishes a person who, in a judicial proceeding or in a course of justice, willfully and corruptly gives false testimony, under a lawful oath or in a form allowed by law to be substituted for an oath, that is material to the issue or matter of inquiry. It also reaches false statements subscribed under penalty of perjury as permitted by federal law where the statement is material.

The elements of perjury under Article 131 are, in substance: that the accused took an oath or affirmation, or made a declaration under penalty of perjury, in a judicial proceeding or course of justice; that the oath was administered or authorized in a matter in which an oath was required or authorized by law; that, upon that oath or in that declaration, the accused willfully gave or subscribed certain testimony or a statement; that the testimony or statement was false; that the accused did not believe it to be true; and that the false matter was material to the issue or matter of inquiry. Two features stand out. Perjury requires a judicial proceeding or course of justice, and it requires materiality, meaning the falsehood must have the capacity to affect the matter under inquiry.

False swearing is a distinct offense

False swearing is closely related to perjury but is a separate offense under the Code, and under the current organization of the UCMJ it is addressed in Article 107b rather than Article 131. The practical significance is that false swearing reaches false statements made under oath outside the narrower setting that perjury requires. False swearing does not require that the false statement be made in a …

A frequent defense to a disobedience charge is simple: the accused says the order never reached them. A message got lost, a directive was passed down a broken chain, an email went unread, or a verbal instruction never made it to the right person. Whether Article 92 of the Uniform Code of Military Justice can still be charged in that situation depends on which type of Article 92 offense the government is pursuing, because the knowledge requirement is not the same across the article.

Article 92 contains three different offenses

Article 92 is often spoken of as a single charge, but it actually covers three distinct offenses. The first is violation of or failure to obey a lawful general order or regulation. The second is failure to obey other lawful orders that the accused had a duty to obey. The third is dereliction in the performance of duties. Each has its own elements, and the claim of never receiving the order plays out very differently across the three.

General orders: knowledge is presumed

For a lawful general order or regulation, the government does not have to prove that the accused had actual knowledge of the order. Knowledge is effectively presumed because general orders and regulations are widely published and apply broadly across a command or service. The theory is that members are charged with knowing the standing rules that govern everyone, and a person cannot escape responsibility by claiming they personally never read a published regulation.

This means a claim of communication breakdown is a weak defense to a general order charge. If the order in question is a properly issued general order or regulation, the accused’s individual ignorance of it generally does not defeat the charge. The elements are simply that a lawful general order was in effect and that the accused violated or failed to obey it.

Other lawful orders: actual knowledge is required

The picture changes for the second type of offense, failure to obey other lawful orders. Here, knowledge is an element. The government must prove that the accused had actual knowledge of the order they are charged with disobeying. This is precisely where a communication breakdown defense has real force. If the order was an individual directive rather than a published general order, and the accused genuinely never received it, the government may be unable to prove the required knowledge.

So the answer to whether …

Anonymous complaints arrive through many channels in the military, from hotlines to unsigned letters to tips passed up the chain of command. A natural worry for a service member is whether such a complaint, with no name attached, can lead to a formal administrative discharge board. The short answer is that an anonymous complaint can set the process in motion, but it cannot by itself separate anyone. A complaint is a starting point; a board decision rests on evidence and procedure.

A complaint is not a discharge

It helps to separate the trigger from the outcome. Administrative separation is initiated by the unit commander, who notifies the service member that separation is being considered based on a specific basis, usually misconduct, and identifies the characterization of service being recommended. An anonymous complaint may be what prompts a commander to look into a matter, but the commander, not the complainant, decides whether to initiate separation. The complaint is information; the action is a command decision built on what the investigation actually shows.

What an anonymous complaint usually triggers first

In most cases, an anonymous complaint leads to an inquiry rather than directly to a board. Commands typically assess the credibility and specificity of the allegation and gather facts before any separation step. If the allegation is vague, unsupported, or not corroborated, it may go no further. If the inquiry develops independent evidence of a separation basis, the command may then proceed to the notification stage that begins the administrative separation process. The anonymous origin of the tip does not control that path; the developed evidence does.

When a board is required

Not every administrative separation involves a board. Under the governing separation rules, a service member generally becomes entitled to have the case heard by an administrative separation board when the member has enough total service, commonly more than six years, or when the command is recommending an other-than-honorable characterization. When that entitlement applies, the member can require the case to be presented to a board rather than processed through the simpler notification procedure alone.

The board is a formal proceeding. For enlisted cases, it is composed of officers and senior noncommissioned officers; officer separation boards are composed of officers senior in rank to the respondent. The board answers, by a preponderance of the evidence, whether the alleged basis occurred, whether it warrants separation, and what characterization of service to recommend. …