Military Lawyers

Article 88 of the Uniform Code of Military Justice, codified at 10 U.S.C. 888, makes it an offense for a commissioned officer to use contemptuous words against certain high officials. Like most offenses under the UCMJ, a violation of Article 88 is subject to a statute of limitations, and that limitations period is supplied not by Article 88 itself but by Article 43, the UCMJ’s general statute-of-limitations provision. Understanding how Article 43 operates is essential to knowing how long the government has to bring an Article 88 charge.

The offense Article 88 defines

Article 88 applies only to commissioned officers. It prohibits an officer from using contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which the officer is on duty or present. The offense requires that the accused was a commissioned officer, that the accused used contemptuous words against one of the named officials or bodies, that the words came to the knowledge of someone other than the accused, and that the words were contemptuous either in themselves or in light of the circumstances. The maximum punishment includes dismissal, forfeiture of all pay and allowances, and confinement for up to one year.

Article 88 is one of the more narrowly applicable punitive articles, but a prosecution under it is still bound by the same timing rules that apply to ordinary UCMJ offenses.

The five-year limitations period under Article 43

Because Article 88 is not among the small set of offenses that carry no limitations period, it falls under the general rule in Article 43. That rule provides that a person may not be tried by court-martial for most offenses if the offense was committed more than five years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command. In other words, the limitations period for an Article 88 violation is five years.

Two features of that rule deserve emphasis. First, the trigger that stops the clock is the receipt of sworn charges by the summary court-martial convening authority, not the date of trial or arraignment. The government does not have to complete a court-martial within five years; it must get sworn charges into the hands of the proper authority within that window. Second, the …

An Article 15 proceeding moves quickly, and the most consequential decisions often have to be made within a short window. Because of that compressed timeline, when a service member talks to a lawyer can be as important as what the lawyer says. Early legal consultation does not change the rules of nonjudicial punishment, but it changes how well a member can use those rules, and that often shapes the outcome.

What Article 15 is and the choices it presents

Article 15 of the Uniform Code of Military Justice allows a commander to impose nonjudicial punishment for minor offenses without a court-martial. The member is notified of the contemplated punishment and then faces a critical decision: accept the Article 15 proceeding or, in most circumstances, refuse it and demand trial by court-martial. The principal exception is for members attached to or embarked on a vessel, who generally cannot turn down nonjudicial punishment. That accept-or-refuse decision is the central strategic choice, and it must be made before the punishment is announced.

The right to consult counsel before deciding

The ability to consult counsel before deciding varies by service, which is one reason timing matters. In the Army, a member generally has the right to consult with defense counsel, including civilian counsel at the member’s own expense, before deciding whether to accept nonjudicial punishment, except in a summarized proceeding. In the Navy, Marine Corps, and Coast Guard, there is not the same formal right to consult counsel before an Article 15, though commands commonly encourage consultation when time and operations permit. Knowing which rule applies, and acting within the time available, is itself a product of early consultation.

Why timing changes the strategic calculus

Early consultation matters because the most important decision, whether to accept the Article 15 or demand a court-martial, has to be made on a short clock and cannot be revisited once punishment is announced. A member who consults counsel early has time to weigh that decision with a clear picture of the trade-offs. Refusing nonjudicial punishment does not guarantee a court-martial; the command must then decide whether to refer charges, drop the matter, or pursue another disposition, and a case can be dropped for insufficient evidence. A member who understands these possibilities early can make a reasoned choice rather than a rushed one.

By contrast, a member who waits often loses options. Once the punishment is announced, the right …

Yes. A veteran who receives a new medical diagnosis, particularly a mental health condition that existed during service but was not recognized at the time, can ask the military review boards to reconsider the characterization of a discharge. This is one of the most important developments in discharge review over the past decade. A diagnosis such as post-traumatic stress disorder, traumatic brain injury, or a condition connected to military sexual trauma can support a request to upgrade a discharge that was originally characterized as less than honorable, and the boards are now directed to give such conditions special weight.

The Two Boards That Review Discharges

There are two principal forums. The first is the Discharge Review Board, or DRB, which exists in each service to review the characterization and reason for discharge. The DRB generally cannot review discharges that resulted from a general court-martial, and it has a time limit measured from the date of discharge for certain types of review. The second is the Board for Correction of Military Records, known as the BCMR in most services and the Board for Correction of Naval Records in the Navy and Marine Corps. The correction boards have broader authority to correct any military record to remedy an error or injustice, and they remain available after the DRB’s window has passed. A new medical diagnosis can be presented to either forum depending on the veteran’s circumstances and timing.

Why a New Diagnosis Matters: Liberal Consideration

The reason a later diagnosis is so significant is a series of Department of Defense policy memoranda that direct the boards to apply liberal consideration to discharge upgrade requests involving mental health conditions. The Hagel memorandum first established that boards should give special consideration to PTSD and related conditions. The Kurta memorandum, issued in 2017 by the Under Secretary of Defense for Personnel and Readiness, expanded that guidance and clarified how PTSD, TBI, military sexual trauma, and other mental health conditions should be evaluated. The Wilkie memorandum, issued in 2018, emphasized fairness and directed boards to consider clemency and a veteran’s rehabilitation.

Under liberal consideration, the board must ask whether a mental health condition or experience such as MST may have mitigated the misconduct that led to the discharge, and whether that mitigation outweighs the misconduct. A diagnosis that was unavailable or unrecognized at the time of discharge is exactly the kind of evidence these memoranda were …

A recurring battleground in Article 92 litigation is whether a particular regulation can support a criminal conviction at all. Article 92 of the Uniform Code of Military Justice, found at 10 U.S.C. 892, allows prosecution for violating a lawful general order or regulation. But not every regulation a service member breaks is enforceable through a court-martial. Many regulations are administrative or guidance documents meant to organize work, not to define crimes. Courts therefore ask a threshold question: is the regulation punitive? If it is not, a violation cannot be the basis for an Article 92 conviction, no matter how clearly the member breached it.

Why the Punitive Question Exists

The military issues an enormous volume of regulations covering everything from uniform standards to safety procedures to administrative reporting. If every one of these could be charged as a crime, ordinary administrative failings would become criminal offenses. To prevent that, military law distinguishes between regulations that merely guide conduct and those that are intended to be enforced by criminal sanction. A regulation is punitive only if it was designed to impose criminal liability for its violation. When a regulation is purely administrative or advisory, the proper response to a breach is administrative or corrective action, not court-martial.

Looking First at the Text and Intent of the Regulation

The most direct way a regulation signals that it is punitive is by saying so. Many service regulations contain an express statement that violations are punishable under the UCMJ, often identifying Article 92 specifically. Such language is strong evidence that the issuing authority intended the regulation to be enforceable by court-martial. Conversely, when a regulation contains no punitive language and reads as guidance or policy, courts are far less willing to treat it as a basis for criminal liability. The inquiry begins with whether the drafting authority manifested an intent to regulate conduct in a way that carries criminal consequences, rather than simply to direct or advise.

The Castillo Framework

The leading modern analysis comes from United States v. Castillo, 74 M.J. 160, decided by the Court of Appeals for the Armed Forces. Castillo drew on the framework the Supreme Court has used to separate regulatory measures from punishment, identifying a set of considerations courts weigh. These include whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding …

Unauthorized absence by a reservist who has been ordered to active duty is governed by Article 86 of the Uniform Code of Military Justice, codified at 10 U.S.C. 886. But the threshold issue for a mobilized reservist is not really the elements of the offense. It is jurisdiction. Whether a reservist who fails to report can be tried by court-martial under the UCMJ depends almost entirely on the reservist’s duty status at the moment the absence occurs. This article walks through how that status determines exposure and how an absence is then handled once jurisdiction attaches.

Status is the gateway question

Reservists are not always subject to the UCMJ. A member of the Army National Guard or Air National Guard performing routine drilling duty is ordinarily in a state status under Title 32 of the U.S. Code rather than federal active duty under Title 10. In that posture, the federal UCMJ generally does not reach the member, and discipline for failing to show up is a matter for the individual state’s military code. The picture changes when the member is mobilized.

Once a reservist is ordered to active duty under Title 10, the member becomes subject to the UCMJ. The key point for a failure-to-report case is timing. A reservist called to active duty under Title 10 is subject to the UCMJ from the date the orders direct the member to report for duty, and an absence on or after that date can be punished under the UCMJ. That principle is what allows the government to prosecute a mobilized reservist who never shows up: the orders fix the date the member was required to report, and the obligation to be present attaches as of that date.

The Article 86 framework once jurisdiction attaches

Article 86 describes several forms of unauthorized absence, including failing to go to an appointed place of duty at the prescribed time, leaving that place, and absenting oneself from the unit or place of duty where the member is required to be. A reservist who fails to report for mobilization typically fits the failure-to-go theory or the broader absence-from-unit theory, depending on the facts and how the absence is framed.

For a failure-to-go specification, the government must prove three elements. First, that a competent authority appointed a certain time and place of duty for the accused. For a mobilized reservist, the activation orders supply both the time …

When a permanent change of station (PCS) move is held up, the service member usually wants to know why, and a military attorney advising that member may want a clear statement of the legal authority for the hold. The practical question is whether the attorney can “demand” a legal basis. The realistic answer is that an attorney can and should request and challenge the basis for a withheld PCS, and the system contains specific mechanisms that effectively require the command to ground the hold in a recognized authority and to document it. The word “demand” overstates the attorney’s unilateral power, but the substance, forcing the command to identify and justify the basis, is well supported.

Why PCS orders get withheld: the flag

In the Army, the usual reason a PCS is held is a suspension of favorable personnel actions, commonly called a “flag,” governed by Army Regulation 600-8-2. A flag is an administrative tool that places a soldier in an unfavorable status and blocks favorable actions such as promotion, awards, schooling, reenlistment, and reassignment, including PCS, while the underlying issue is pending. Common triggers include an ongoing investigation, adverse action, or failure to meet a standard. The other services use comparable administrative-hold mechanisms for similar reasons.

The key feature of the flag is that it is administrative, not punitive. The regulation expressly treats a flag as a tool to prevent favorable actions during an unfavorable status, not as a form of punishment. That distinction is the foundation for any challenge: because the hold must rest on a proper administrative basis, the command can be required to identify that basis.

The documentation requirement gives the attorney leverage

A flag is not supposed to be informal or unexplained. Under the governing regulation, the action is documented on the prescribed form, and the soldier is to be provided a copy of the report initiating, and later removing, the flag. There are also timeliness and review requirements, including periodic review of whether the flag should continue. These requirements mean the command is already obligated to record the basis and notify the soldier.

This is where the attorney’s role becomes concrete. Rather than “demanding” in a vacuum, the attorney can insist on the documentation the regulation already requires: the initiating report, the stated reason, the date, and confirmation that the flag is being reviewed and remains valid. If the command cannot produce a documented, regulation-compliant …

It can be. A service member who is physically on base but fails to report to a specifically appointed place of duty at the required time can be charged under Article 86 of the Uniform Code of Military Justice (UCMJ). People often assume that being absent without leave means leaving the installation entirely, but Article 86 is broader than that. One of its forms, commonly called failure to go to an appointed place of duty or failure to repair, does not require leaving the base at all. Remaining on the installation while skipping the place you were ordered to be can still be an offense.

Article 86 covers more than running away

Article 86 is titled absence without leave, and it actually defines several related offenses. The most familiar is being absent from a unit, organization, or place of duty without authority, which is what most people picture when they hear AWOL. But the same article also reaches a member who, without authority, fails to go to an appointed place of duty at the time prescribed, and a member who leaves that place after arriving. These offenses are distinct from desertion, which requires an intent to remain away permanently, and from missing movement, which involves missing the departure of a ship, aircraft, or unit. Article 86 does not require any intent to stay away forever and does not require leaving military jurisdiction.

That distinction is what makes the on-base scenario chargeable. The offense is defined by the relationship between the member and a specific duty location at a specific time, not by the member’s physical distance from the gate.

What the government must prove

For a failure to go to an appointed place of duty, the elements are straightforward. First, a competent authority appointed a certain time and place of duty for the member. Second, the member knew of that time and place. Third, the member, without authority, failed to go to the appointed place of duty at the time prescribed. If those three things are established, the offense is complete even though the member never left the installation.

The knowledge element is important. The member must have actually known of the appointed time and place. A duty roster, a formation order, an appointment notice, or a direct instruction from a supervisor can establish that the member was informed. If the member genuinely did not know of the requirement, that …

Article 90 of the Uniform Code of Military Justice, codified at 10 U.S.C. 890, punishes a service member who assaults or willfully disobeys a superior commissioned officer. The word that drives the entire analysis is willfully. Article 90 is not a strict-liability offense and it does not punish mere failure to follow an order. The government must prove a particular mental state, and it must do so to the highest standard the law recognizes. This article explains exactly what the prosecution must establish about the accused’s intent and why that burden separates Article 90 from lesser disobedience offenses.

The willful disobedience theory and its elements

For the disobedience theory of Article 90, the government must prove several elements beyond a reasonable doubt: that a superior commissioned officer gave the accused a lawful command; that the accused knew the person giving the command was a commissioned officer; that the accused had a duty to obey the command; and that the accused willfully disobeyed it. The intent question lives in that final element. The disobedience must be willful, meaning an intentional defiance of authority.

The meaning of willful and why it is exacting

Willfulness in this context means the accused intentionally refused to comply with a known, lawful order. It is a deliberate setting aside of authority, not a slip or an oversight. Crucially, the law draws a sharp line between intentional defiance and noncompliance that results from heedlessness, remissness, or forgetfulness. A member who fails to carry out an order because he forgot, was careless, or simply did not get around to it has not willfully disobeyed within the meaning of Article 90. That conduct may violate Article 92, which addresses failure to obey orders and dereliction of duty and which can be proven through negligence, but it does not satisfy Article 90.

This distinction is the practical heart of the intent burden. The government cannot win an Article 90 disobedience case merely by showing that the order went unfulfilled. It must show that the accused understood the order and chose to defy it.

Proof beyond a reasonable doubt

Like every element of every offense at a court-martial, the willfulness element must be established beyond a reasonable doubt. The government bears that burden entirely; the accused is presumed innocent and has no obligation to prove that the disobedience was accidental or negligent. If the members are left with a reasonable doubt …

Yes. At a special court-martial, a military judge not only can but must reject a guilty plea that the record does not support. A guilty plea in the military justice system is never a rubber stamp. Before the judge may accept it, the law requires a searching inquiry on the record, and if that inquiry shows the plea is uninformed, involuntary, or factually unsupported, the judge is obligated to refuse it and enter a plea of not guilty. This rule applies at special courts-martial just as it does at general courts-martial.

The statutory foundation

The starting point is Article 45 of the Uniform Code of Military Justice (UCMJ). Article 45 directs that when an accused after arraignment makes an irregular pleading, or sets up matter inconsistent with the plea, or seems not to understand the effect of a guilty plea, or pleads guilty improvidently or through lack of understanding of its meaning and effect, a plea of not guilty shall be entered and the court shall proceed as though the accused had pleaded not guilty. In other words, the statute itself tells the judge to disregard a defective guilty plea.

This is a meaningful protection. A civilian defendant who pleads guilty ordinarily admits the offense and waives trial. The military system imposes an extra safeguard by requiring the judge to test the plea against the facts before accepting it, regardless of how eager the accused may be to plead.

What the record must show

The procedural mechanics live in Rule for Courts-Martial (RCM) 910. Under that rule, the military judge must inform the accused of the elements of each offense, ensure the accused understands the rights being given up, confirm the plea is voluntary and not the product of improper pressure, and establish a factual basis for the plea. The factual-basis requirement comes from longstanding military case law, most notably United States v. Care, which held that the record must reflect that the judge questioned the accused personally about what the accused did or did not do and what the accused intended, so that the judge can determine whether the conduct actually constitutes the charged offense.

The questioning portion is often called the providence inquiry. It is not enough for the accused to say the word guilty. The accused must describe the underlying conduct in the accused’s own words, and that description must line up with the legal elements. If …

Officers facing involuntary separation are sometimes told that their case will be decided on the written record, a packet submitted to a board or to the separation authority without any live hearing. The officer then wants to know whether he can insist on standing before a Board of Inquiry in person rather than having his fate decided on paper alone. The answer depends on the officer’s status and the basis for separation, but for most officers who have qualified service or who face the most serious consequences, the right to a hearing before a board, including the right to appear and be heard, is a core protection that cannot be reduced to a packet-only review over the officer’s objection.

The Difference Between a Board Hearing and a Packet

A packet-only review and a Board of Inquiry are not the same thing. A packet review is an administrative process in which a decision maker considers documents, an officer’s written rebuttal, supporting statements, and the service record, and then decides. A Board of Inquiry is a formal hearing before a panel of officers at which the respondent is present, represented by counsel, and able to participate. The distinction matters because the protections that attach to a live board are far greater than those available in a paper process, and the question of whether an officer can demand the board is really a question of whether the officer is entitled to that fuller procedure.

When the Right to a Board Hearing Attaches

The governing regulations on officer eliminations grant a right to a Board of Inquiry in defined circumstances, most prominently when an officer has reached a threshold of commissioned service or when the proposed action carries serious consequences such as separation under conditions that may be other than honorable. An officer who is entitled to a board cannot be eliminated solely on a packet if the officer requests the board. In that situation, the officer’s demand for a hearing must be honored, and the case proceeds to a live proceeding rather than a paper decision. The right to the board is precisely the right not to have the matter resolved on documents alone.

What Appearing Before the Board Includes

When an officer is entitled to and elects a Board of Inquiry, the right is not merely to have a board exist somewhere; it is a right to participate meaningfully. The respondent has …