Military Lawyers

The short answer is no. A service member cannot be convicted of committing a substantive offense and also be convicted of being an accessory after the fact to that very same offense under Article 78 of the Uniform Code of Military Justice. The two roles are mutually exclusive as to a single crime, because the accessory-after-the-fact statute is built to punish a different person doing a different thing at a different time. Understanding why requires looking at how Article 78 relates to the law of principals under Article 77.

What Article 78 Punishes

Article 78 reaches any person subject to the code who, knowing that an offense punishable by the code has been committed, receives, comforts, or assists the offender in order to hinder or prevent the offender’s apprehension, trial, or punishment. The defining feature of the statute is timing. The assistance must come after the underlying offense is complete, and it must be given for the purpose of helping the offender escape justice. The accessory is, by definition, someone who was not a participant in the crime itself but who stepped in afterward to shield the wrongdoer.

What Article 77 Does Instead

Article 77, the law of principals, addresses the opposite situation. It provides that a person who commits an offense, or who aids, abets, counsels, commands, or procures its commission, or who causes an act to be done that would be an offense if directly performed, is punishable as a principal. In other words, someone who participates in the crime, including someone who helps bring it about, is treated as a principal and charged with the substantive offense itself, not as an accessory. The military does not use the label accessory before the fact; that conduct is folded into principal liability under Article 77.

Why the Same Person Cannot Be Both for the Same Offense

The reason a service member cannot be both the principal and an accessory after the fact to the same offense flows from the structure of the two articles. A principal is someone who committed or participated in the crime. An accessory after the fact is someone who, knowing another person committed the crime, helped that person evade justice afterward. The accessory must be a separate person from the offender, because the statute contemplates assistance rendered to the offender. A person cannot receive, comfort, or assist herself within the meaning of Article 78. For …

A positive drug test at a Military Entrance Processing Station, commonly called MEPS, is a serious setback for an aspiring service member. Many people who failed years ago and have since lived clean, responsible lives understandably wonder whether that single event still blocks them. The honest answer is that it can continue to matter, but its weight depends heavily on the branch, the substance involved, and the policies in force at the time you reapply. This article explains how the system treats an old MEPS drug test failure and what avenues may remain open.

What a MEPS Positive Test Means at the Time

A failed drug test at MEPS is part of the enlistment screening process rather than a court-martial or disciplinary action. Because the applicant has not yet entered service, the consequence is administrative. For most branches, a positive test results in being barred from continuing that application, usually accompanied by a waiting period before any reapplication will even be considered. That waiting period is frequently measured in months but can be longer depending on the branch and the circumstances.

The important point is that this is generally treated as a disqualification with the possibility of relief, not necessarily a permanent lifetime ban. Whether relief is available, and on what terms, is governed by branch recruiting policy.

Why the Passage of Time Helps but Does Not Erase the Record

When years have passed and there has been no recurrence of drug use, those facts work in your favor, but they do not automatically delete the disqualifying event. The military’s enlistment qualification standards treat prior drug involvement as a factor that can require a waiver. A waiver is a discretionary decision in which recruiting officials weigh the applicant’s whole record. A long, documented period of clean and responsible living, stable employment, and no further misconduct is exactly the kind of evidence that supports a favorable waiver decision. In other words, time and good conduct improve your chances of obtaining a waiver, but the disqualifying history still has to be disclosed and addressed rather than ignored.

The Substance Involved Can Change Everything

Policy distinguishes between substances, and that distinction can be decisive. The branches have at times treated a past marijuana involvement differently from harder drugs. For example, the Navy adjusted its approach so that a prior positive for marijuana would not necessarily bar enlistment, while making clear that a positive …

Article 78 of the Uniform Code of Military Justice, codified at 10 U.S.C. 878, makes it an offense to be an accessory after the fact. The question of whether fear of reprisal excuses such conduct comes up often, because the people who assist an offender after a crime are frequently subordinates, friends, or unit members who feel pressured by someone more powerful. The short answer is that fear of reprisal, standing alone, does not automatically defeat an Article 78 charge. Whether it matters depends on how it bears on the specific mental state the offense requires and on whether it rises to the level of a recognized defense such as duress. Understanding the elements is the only way to see why.

What Article 78 Actually Prohibits

Article 78 punishes a person who, knowing that an offense punishable by the UCMJ has been committed, receives, comforts, or assists the offender in order to hinder or prevent the offender’s apprehension, trial, or punishment. It is a separate offense from the underlying crime; the accessory is not charged as a participant in the original act but as someone who helped the offender afterward.

The elements the government must prove beyond a reasonable doubt are four. First, that another person committed an offense punishable under the UCMJ. Second, that the accused knew that person had committed that offense. Third, that thereafter the accused received, comforted, or assisted the offender. Fourth, that the accused did so for the purpose of hindering or preventing the apprehension, trial, or punishment of the offender. That last element is the key to the reprisal question, because it requires a specific purpose.

The Significance of the Specific Intent Element

Article 78 is a specific intent offense. It is not enough that the accused helped someone who turned out to be an offender; the help must have been given for the purpose of shielding that offender from justice. This intent requirement is where fear of reprisal can become legally relevant, but it cuts in a particular way. If a service member, terrified of retaliation, deliberately helps an offender escape detection precisely so the offender will not be caught, that member has acted with the very purpose Article 78 forbids. The fear explains the motive, but it does not erase the intent. Motive and intent are different things in criminal law. A person can have a sympathetic or frightened motive and still …

Desertion is one of the most serious absence offenses in military law, and it carries a high bar of proof. Because the offense turns on a specific state of mind, genuine confusion about deployment orders can be directly relevant to whether the charge holds. Miscommunication does not erase an absence, but it can undercut the intent that desertion requires, and that distinction is often decisive.

What desertion requires under Article 85

Article 85 of the Uniform Code of Military Justice defines desertion. Unlike a simple unauthorized absence, desertion is a specific intent offense. The most common theory requires the government to prove that the accused was absent without authority and that, at some point during the absence, the accused intended to remain away from the unit, organization, or place of duty permanently. Article 85 also reaches a member who quits the unit to avoid hazardous duty or to shirk important service, each of which carries its own intent requirement.

The key feature is intent. The government must prove the required mental state beyond a reasonable doubt. A member can be absent for a long time and still not be guilty of desertion if that specific intent is missing.

How desertion differs from unauthorized absence

Article 86 addresses absence without leave, which is a general intent offense. AWOL requires only that the absence was unauthorized; it does not require proof of intent to remain away permanently. Desertion adds the specific intent element on top of an unauthorized absence. The difference is not the length of the absence. Duration may be circumstantial evidence of intent, but a long absence does not automatically convert AWOL into desertion, and a short absence accompanied by clear evidence of permanent departure could support a desertion charge.

This structure is why the deployment-orders question matters. If the facts show an unauthorized absence but not the intent desertion requires, the proper charge may be AWOL rather than desertion, or the absence may be excused entirely.

Where miscommunication fits in

Because desertion depends on intent, genuine miscommunication about deployment orders can be relevant in two ways.

First, it can negate the intent to remain away permanently. The government infers intent from circumstantial evidence such as the length of the absence, disposal of military property, assumption of a new identity, and statements made to others. Evidence that the member was confused about when or where to report, was given conflicting …

Service members and counsel sometimes ask whether a scheme to obtain a reenlistment or selective retention bonus through deception could be charged under Article 104b of the Uniform Code of Military Justice, the provision that addresses effecting an unlawful enlistment, appointment, or separation. The honest answer is that this offense is almost always the wrong tool for bonus fraud. It targets a specific kind of personnel-status misconduct rather than the act of defrauding the government of money. Understanding why requires looking carefully at what the offense actually criminalizes and which articles are designed for financial fraud.

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 (10 U.S.C. 884) addresses breach of medical quarantine. The discussion below uses the current Article 104b designation.

What Article 104b actually covers

Under the current UCMJ, codified at 10 U.S.C. 904b, Article 104b is titled effecting unlawful enlistment, appointment, or separation. It punishes a person who knowingly causes or procures the unlawful enlistment, appointment, or separation of another person who is known to be ineligible because of some disqualification. In other words, Article 104b reaches the person who brings someone into the service, gives them an appointment, or separates them when that personnel action is itself unlawful and the accused knows it.

The offense has three core elements. The accused effected or procured an enlistment, appointment, or separation; that action was unlawful because the person involved lacked eligibility or proper authority existed; and the accused knew of the disqualifying or unlawful circumstance at the time. The focus is on the integrity of the personnel transaction, not on money obtained from the government.

Why bonus fraud usually does not fit Article 104b

A reenlistment bonus fraud scheme is, at its heart, a financial fraud. The wrongdoer obtains money from the government by deception, for example by misrepresenting eligibility for a specific bonus tier, falsifying qualifying skills or assignments, or claiming entitlement to a bonus the member is not owed. Nothing about that conduct necessarily involves making an enlistment or appointment unlawful. A member can lawfully reenlist and still lie about the facts that determine the size or existence of a bonus. Because Article 104b keys on the unlawfulness of the personnel action itself, a fraud that targets the …

A court-martial conviction can rest on strong evidence and still be set aside on appeal if the members were not correctly told what the government had to prove. The instructions on the elements of an offense are not a formality. They define the legal standard the panel applies to the facts, and a serious mistake in those instructions can undermine a conviction that otherwise looks sound.

Why the elements instruction matters so much

In a trial by members, the military judge instructs the panel before deliberations on the law that governs the case. Article 51 of the Uniform Code of Military Justice requires that the members be instructed on the elements of each offense. Rule for Courts-Martial 920 makes those instructions mandatory: the judge must instruct on the elements of every charged offense, the elements of any lesser included offense reasonably raised by the evidence, and any affirmative defense placed in issue.

The reason is straightforward. The members decide guilt by measuring the evidence against the elements. If the judge misstates an element, omits one, or fails to define a key term, the panel may convict on a legal theory that does not match the offense Congress defined. A verdict reached under the wrong standard is not the same as a verdict reached under the correct one, even if the underlying facts are the same.

When an instructional error can invalidate a conviction

An instructional error does not automatically void a conviction. Military appellate courts ask both whether there was error and whether that error caused harm. The general categories of instructional error include omitting a required element, misdescribing an element, failing to instruct on a lesser included offense raised by the evidence, and failing to give an affirmative defense instruction when the defense was reasonably raised.

Where the defense objected at trial, the appellate court reviews to determine whether the error was harmless. Where the defense did not object, the more demanding plain error standard applies. Under plain error, the appellant must show that there was error, that the error was plain or obvious, and that it materially prejudiced a substantial right. If the appellant carries that burden, relief can follow even though no objection was made below.

The role of objection and forfeiture

How the issue was preserved shapes the outcome. RCM 920 treats a failure to object to instructions as a forfeiture rather than a true waiver. …

Discovery in the military justice system is broad, and the defense has real leverage when the government fails to turn over what it must. The right to discovery rests on a statutory foundation and is implemented through detailed procedural rules, and those rules give the military judge a graduated set of tools to compel compliance and to remedy violations. Knowing which tool fits which situation is the heart of effective discovery practice.

The Source of the Right

Article 46 of the Uniform Code of Military Justice guarantees the trial counsel, the defense counsel, and the court-martial equal opportunity to obtain witnesses and other evidence. This statutory command of equal access is the engine behind military discovery, and it is implemented through the Rules for Courts-Martial governing disclosure and production. Because the right is statutory and unusually broad, military discovery is generally more generous than civilian criminal discovery, and a failure to honor it is a matter the military judge takes seriously.

The Disclosure and Production Framework

The Rules for Courts-Martial impose specific disclosure obligations on the government, including a continuing duty to disclose. They also establish the process for requesting the production of witnesses and evidence. When the defense has made a proper request and the government has not complied, the first step is usually to ask the military judge to order disclosure or production. A judicial order transforms a contested request into a binding directive, and noncompliance with that order opens the door to stronger remedies.

Moving to Compel and to Enforce

The primary tool is a motion to compel discovery. The defense identifies the requested material, shows that it is discoverable, and asks the judge to order the government to produce it. If the government claims the material is privileged, irrelevant, or beyond its possession, the judge resolves that dispute, sometimes after reviewing the material privately to decide what must be disclosed. Once the judge issues an order, the government must obey it, and a failure to do so is no longer a mere disagreement over the scope of discovery but a violation of a court order.

The Range of Remedies for Noncompliance

When a party fails to comply with a discovery obligation or order, the military judge has discretion to choose among several remedies. The judge may order the noncomplying party to permit the discovery, which is the most direct response and simply enforces the original duty. …

Article 96 of the Uniform Code of Military Justice, codified at 10 U.S.C. 896, addresses the release of a prisoner without proper authority, along with the related offense of unlawfully suffering a prisoner to escape and the offense of drinking with a prisoner. The most litigated of these is releasing a prisoner without proper authority. The phrase proper authority is the heart of the offense, and that is precisely where confusion about the chain of command can become decisive. When it is unclear who actually had the authority to order a prisoner’s release, the government’s ability to prove that the release was unauthorized can break down.

The elements of releasing a prisoner without proper authority

To convict under this theory of Article 96, the government must prove that a certain person was a prisoner held under military custody or control, that the accused released the prisoner or permitted the prisoner’s escape, and that the release or escape occurred without proper authority. The first two elements are usually factual and provable: the person’s status as a prisoner and the fact that a release occurred. The third element, the absence of proper authority, is the one most vulnerable to chain-of-command confusion.

Proper authority refers to the command or legal authorization required to change a prisoner’s custodial status. As a general matter, the authority to order a prisoner’s release rests at a relatively high level, often with the commander who convened the court-martial or the officer exercising general court-martial jurisdiction over the prisoner. The offense punishes a release that bypasses that authority.

Why authority is the pressure point

Because the offense requires proof that the release lacked proper authority, the government must be able to show two things clearly: who held the authority to authorize the release, and that the accused acted without it. Both of those depend on a coherent and ascertainable chain of command. If the structure of authority over the prisoner was genuinely unclear at the relevant time, the prosecution faces a real difficulty in proving that the accused’s action was unauthorized rather than within the apparent scope of someone’s authority.

This is what makes chain-of-command confusion significant. The offense is not about whether a release was wise or properly documented; it is about whether it was authorized. Confusion about who could authorize what goes directly to that element.

How confusion can undermine the unauthorized element

Several recurring scenarios illustrate …

Service members sometimes face allegations that they tried to arrange a sexual offense that never actually happened. A common scenario involves messages soliciting a meeting plus some concrete steps toward it, such as buying supplies, arranging transportation, or traveling to a location. The question is whether that combination can support a charge under Article 80 of the Uniform Code of Military Justice, the attempt statute. The short answer is that it can, but only if the conduct crosses the line from preparation into a genuine attempt, and the analysis turns on precise legal definitions rather than on how serious the underlying allegation sounds.

What Article 80 Requires

Article 80 punishes an act, done with specific intent to commit an offense under the code, that amounts to more than mere preparation and that tends, even if it fails, to bring about the commission of that offense. Three elements drive every attempt prosecution: the accused committed an overt act; the act was done with the specific intent to commit a particular underlying offense; and the act went beyond mere preparation, constituting a substantial step toward completing the offense. If found guilty, the accused generally faces the same maximum punishment as the completed offense, with limited exceptions.

The critical battleground is the line between preparation and a substantial step. Buying items, making plans, and even agreeing to meet can all be characterized as preparation. To support Article 80, the government must show conduct that moves toward execution in a way that strongly corroborates the criminal intent. Whether messages plus travel to a meeting point crosses that line is a fact-intensive question that courts evaluate case by case.

Why “Solicitation” Must Be Used Carefully Here

People often use the word solicitation loosely to mean asking or arranging. In military law the term has a specific home in Article 82. Since the changes that took effect on January 1, 2019, Article 82 punishes soliciting or advising another person to commit any offense under the code, and it separately addresses soliciting four enumerated offenses, desertion, mutiny, misbehavior before the enemy, or sedition, which carry enhanced punishment. Article 82 is its own offense, complete when the soliciting is done with intent that the offense be committed, and it is distinct from an Article 80 attempt. When prosecutors speak of solicitation in the sexual misconduct context, they may be describing communicative conduct, the messages and requests, that they …

Retirement is not a clean break that wipes the slate. When misconduct surfaces while a service member’s retirement is being processed, even if it was never charged at a court-martial or addressed through nonjudicial punishment, it can still affect the terms of retirement. The principal mechanism is the grade determination, and for officers this runs through a grade determination review board. These boards can consider credible evidence of misconduct that never resulted in formal charges, and they can lower the grade in which the member retires. The key point is that the standard they apply is not a criminal-conviction standard; it is a determination of whether the member served satisfactorily in the grade.

The question a board actually decides

When a member retires, the law generally entitles them to retire in the highest grade in which they served satisfactorily. The retirement-processing board’s task is to answer that satisfactory-service question. That framing is what allows uncharged misconduct to matter. The board is not deciding guilt of an offense; it is deciding whether service in a particular grade was satisfactory. Misconduct can render service unsatisfactory even though it was never prosecuted, because the satisfactory-service inquiry is broader than, and independent of, the criminal process.

The statutory and review framework for officers

For officers, retired-grade questions are governed by the retired-grade provisions of Title 10, including the grade-on-retirement rules and the conditional-grade authority. When an officer at or below the two-star level is under investigation for alleged misconduct or has an adverse personnel action pending at the time of retirement, the Secretary of the military department may conditionally determine the highest grade of satisfactory service and retire the officer in that conditional grade pending completion of the investigation or resolution of the action. This conditional-grade mechanism exists precisely so that late-surfacing misconduct can be sorted out without holding up the retirement indefinitely.

The substantive standard is equally important. If the Secretary determines that an officer committed misconduct in a lower grade, the Secretary may deem the officer not to have served satisfactorily in any grade equal to or higher than that lower grade for purposes of fixing the retirement grade. In other words, a finding that misconduct occurred at a given grade can cap the retirement grade at the last grade of satisfactory service below it. These determinations are made through the service’s officer grade determination process, often a grade determination review board, …