Military Lawyers

When a service member is tried for an attempt under Article 80 of the Uniform Code of Military Justice, the military judge must instruct the panel on a set of elements and concepts that differ in important ways from the instructions for a completed offense. An attempt is its own crime, with its own mental and physical requirements, and the members cannot reach a sound verdict unless the judge explains those requirements precisely. The instructions are the framework the panel uses to decide whether conduct that fell short of the completed crime nonetheless crossed the line into criminal attempt.

The Elements the Judge Must Define

The core of any attempt instruction is the statement of the four elements, each of which the government must prove beyond a reasonable doubt. The judge must tell the members that the government must prove, first, that the accused did a certain overt act; second, that the act was done with the specific intent to commit a certain offense under the code; third, that the act amounted to more than mere preparation; and fourth, that the act apparently tended to effect the commission of the intended offense. The judge tailors these elements to the specific underlying offense charged, naming the crime the accused is alleged to have attempted so the members understand exactly what the intent was directed toward.

The Specific Intent Instruction

Among these, the specific intent element demands the most careful explanation. The judge must instruct that an attempt requires more than a general criminal state of mind. The accused must have acted with the specific intent to commit the particular underlying offense. Recklessness, negligence, or a generalized willingness to break the law does not satisfy this element. The members must be told that they have to find a conscious purpose to bring about the completion of the named offense. Because some underlying offenses do not themselves require specific intent, this instruction is essential; the attempt elevates the required mental state, and the panel must understand that even where the completed crime might be proved by a lesser mens rea, the attempt cannot.

Distinguishing Mere Preparation From a Criminal Attempt

The judge must explain the line between preparation and attempt, which is often the central factual dispute. The instruction makes clear that mere preparation, such as devising a plan or acquiring the means to commit the offense, is not enough. The overt act …

Administrative separation boards and boards of inquiry are supposed to weigh all relevant evidence, including medical and behavioral health input that explains why a service member acted as they did. Sometimes a member presents documented evidence that a toxic command climate, harassment, or operational stress contributed to the conduct at issue, only to watch the board disregard it. When that happens, the member is not out of options. Recourse exists, but it runs in stages, and the strongest path depends on whether the board has already returned a result.

What “medical input about command environment stressors” usually means

This kind of evidence typically takes the form of behavioral health records, a provider’s written opinion, a diagnosis such as post-traumatic stress or an adjustment disorder, or a clinical explanation connecting the member’s conduct to an environment marked by hostility, fear of reprisal, or sustained stress. It is mitigation and sometimes causation evidence. It does not necessarily excuse the conduct, but it bears directly on characterization of service, on whether separation is warranted, and on the equities the board must weigh. Department of Defense guidance has specifically directed correction boards to give liberal consideration to mental health conditions, sexual assault, and sexual harassment when evaluating discharges, which signals that this evidence is meant to carry weight, not to be brushed aside.

Preserve the record at the board itself

The first and most important step happens before any appeal: build a clean record. A defense attorney ensures the medical evidence is formally submitted, marked, and made part of the proceedings, and that any objection to its exclusion is stated on the record. Members facing separation have the right to consult counsel, to obtain the documents supporting the proposed separation, and, when entitled to a board, to present evidence and witnesses. If a board refuses to consider properly submitted medical input or excludes a qualified provider’s statement, that refusal becomes the error a later authority can review. A vague record that does not show what was offered and rejected gives an appellate body nothing to correct.

Rebuttal and submission to the separation authority

After a board makes a recommendation, the case goes to the separation authority. Even when the board has discounted the medical evidence, the member can submit matters to that authority urging a different result, such as retention, a suspended separation, or a more favorable characterization. This is often the most efficient …

A flag, formally the suspension of favorable personnel actions, freezes promotions, awards, schooling, reassignment, and other favorable actions while a soldier is under a cloud. When a commander imposes a flag because an informal command investigation is underway, the soldier often wants it lifted quickly, because the consequences accumulate over time. Reversing or removing such a flag is possible, but it depends heavily on understanding why the flag exists and what kind of showing actually moves a commander or higher authority to remove it.

Why an Investigation Triggers a Flag

Under the Army’s policy on suspension of favorable personnel actions, a flag is generally mandatory when an investigation or inquiry that may result in disciplinary or adverse administrative action is initiated against a soldier. The flag is not itself a punishment and is not a finding of wrongdoing. It is an administrative hold designed to prevent the soldier from receiving favorable actions while the soldier’s status is unresolved. Because the trigger is the existence of the investigation, the flag’s continued validity is tied to the continued pendency of that investigation, not to any conclusion that the soldier did anything wrong.

The Central Point: A Flag Tracks the Investigation’s Status

The most important thing to understand is that an investigation-based flag is meant to last only as long as the investigative basis lasts. Policy directs that a flag be removed promptly after the final disposition of the matter that prompted it. This means the single most powerful piece of evidence to reverse such a flag is proof that the underlying basis no longer exists. If the investigation has concluded, if it resulted in no founded misconduct, or if the matter has otherwise been finally resolved, the flag is supposed to come off within a short window. The evidence that reverses the flag is, in the ordinary case, evidence about the status and outcome of the investigation.

Evidence That the Investigation Has Closed or Found Nothing

The cleanest path to removal is documentation that the inquiry has reached final disposition. This can include the investigating officer’s report or its approval, a memorandum from the appointing or approving authority closing the matter, or a decision declining to take disciplinary or adverse administrative action. When the result is that the allegations were unfounded or that no action will be taken, that determination is the evidence that supports lifting the flag. The soldier or counsel …

A positive urinalysis is serious, but it does not automatically dictate the character of a service member’s discharge. The type of separation a member ultimately receives depends on the kind of proceeding used, the member’s overall record, and the discretion exercised by commanders and separation authorities. An honorable characterization remains possible in some cases, even after a confirmed positive test, although the outcome is far from guaranteed and the odds vary with the facts.

How a positive test leads to separation

The military drug-testing program relies on the inspection authority that allows commanders to order random urinalysis, with confirmed positives processed through a forensic laboratory. A confirmed positive can support both punitive and administrative action. On the punitive side, wrongful use of a controlled substance is charged under Article 112a of the Uniform Code of Military Justice. On the administrative side, a positive test commonly triggers a separation board or notification process for misconduct or drug abuse. The route chosen shapes everything that follows, because a court-martial conviction carries different consequences than an administrative discharge.

Characterization is decided separately from the violation

The fact of a violation and the characterization of service are two different questions. Administrative separations can result in an honorable, general under honorable conditions, or other than honorable characterization. The separation authority weighs the member’s entire record, including the nature and seriousness of the misconduct, length and quality of service, awards, performance evaluations, and any mitigating circumstances. A single positive test by an otherwise strong performer is evaluated differently from repeated misconduct. Because characterization turns on the whole record rather than the single event, an honorable discharge is legally available even when separation is based on a drug offense.

When an honorable outcome is more realistic

Several factors improve the chance of an honorable characterization. A long record of superior performance, the absence of other misconduct, strong evidence of rehabilitation, and credible questions about the reliability or context of the test can all push a board toward leniency. Some members test positive after legitimate prescriptions, inadvertent exposure, or chain-of-custody problems, and where the defense raises a genuine doubt, a board may decline to separate at all or may recommend the most favorable characterization. The strength of the member’s mitigation case is often the single biggest variable.

The role of the administrative separation board

When a member has enough years of service or faces a potentially stigmatizing discharge, …

In the military justice system, charges move through defined stages. Preferral is the formal act of swearing to charges against an accused. Referral is the later decision by a convening authority to send those charges to a particular court-martial for trial. The period between preferral and referral can sometimes stretch out, and an accused may argue that the delay was excessive. How that delay is evaluated depends on which legal protection the accused invokes, because the military recognizes several distinct speedy-trial guarantees, each with its own trigger and its own test.

The relevant time markers

Several events anchor the speedy-trial analysis. Preferral starts certain clocks. Pretrial restraint, such as arrest or pretrial confinement, triggers a different and more demanding protection. Arraignment is the point at which the accused is brought to trial for one of the rule-based timing requirements. Because the protections key off different events, the period between preferral and referral may matter under one rule and be largely irrelevant under another. Counsel evaluating delay must therefore identify which protection applies before measuring the time.

Rule for Courts-Martial 707: the 120-day rule

The most concrete protection is the timing rule in Rule for Courts-Martial 707. It requires that an accused be brought to trial within 120 days. For purposes of this rule, the accused is brought to trial at arraignment, and the clock generally runs from preferral of charges or the imposition of pretrial restraint, whichever event triggers it. Delay between preferral and referral therefore counts toward the 120-day total, because referral and arraignment ordinarily occur within that running period.

The rule also has built-in mechanics for handling dismissal and re-preferral. If charges are dismissed and later re-preferred, a new 120-day period generally begins from the date of re-preferral. Certain periods of delay may be excluded from the count when properly approved, which is why the raw calendar time between preferral and referral does not always equal the time that counts against the government under the rule. When the 120-day requirement is violated without adequate justification, the remedy can be dismissal of the affected charges.

Article 10: the reasonable-diligence standard

A separate and more exacting protection comes from Article 10 of the UCMJ, but it applies only in cases where the accused has been placed in arrest or pretrial confinement. Article 10 requires the government to take immediate steps to inform the accused of the charges and to try …

Article 92 of the Uniform Code of Military Justice, codified at 10 U.S.C. 892, is one of the most frequently charged offenses in the military justice system. It actually contains several distinct theories of liability, and the one that draws the most confusion is the first: violation of a lawful general order or regulation. The reason this clause matters so much is that it carries a feature found almost nowhere else in criminal law. The government does not have to prove that the accused knew the order existed. Understanding exactly what the prosecution must establish, and what it does not have to establish, is the starting point for any serious defense.

The Three Elements the Government Must Prove

To convict a service member of violating a lawful general order or regulation, trial counsel must prove three elements beyond a reasonable doubt. First, that there was in effect a certain lawful general order or regulation. Second, that the accused had a duty to obey it. Third, that the accused violated or failed to obey the order or regulation.

That short list hides a great deal of work. Each element invites a separate line of attack, and a failure of proof on any one of them defeats the charge.

What Qualifies as a “General” Order or Regulation

Not every directive is a general order. The term has a specific meaning. A general order or regulation is one that applies generally to an armed force and is properly published by a senior authority such as a service secretary, a combatant commander, a general or flag officer in command, or another officer designated by the service with authority to issue binding general orders. A squad leader telling one soldier to clean a weapon is issuing an “other lawful order,” which falls under a different clause of Article 92 and carries its own knowledge requirement. The distinction is not academic. Because the general order clause removes the knowledge element, charging documents and military judges scrutinize whether the directive truly qualifies as general.

The Order Must Be Lawful

The first element requires that the order be lawful. An order is presumed lawful, and the accused bears the initial burden of raising the question, but the lawfulness of the order remains an interpretive matter for the military judge rather than a factual question for the panel. An order is not lawful if it conflicts with the Constitution, …

Article 90 of the Uniform Code of Military Justice is one of the most serious obedience offenses in the military justice system. It covers a service member who willfully disobeys a lawful command of a superior commissioned officer. The word “willfully” is doing heavy work in that sentence. It sets a demanding mental state that the government must prove, and it separates Article 90 from lesser obedience offenses where a lower level of fault is enough.

What “willful” means in this context

Willful disobedience under Article 90 means an intentional defiance of authority. The accused must have understood that a command was given and then chosen not to obey it. This is a higher standard than negligence or carelessness. A service member who tries to comply but fails, who misunderstands what the order required, or who is physically unable to carry it out has not willfully disobeyed. The offense targets a deliberate refusal, not an imperfect or mistaken attempt to perform.

That focus on deliberate refusal is the heart of the offense. The conduct the statute punishes is the conscious decision to set the order aside. If the accused’s failure to comply came from confusion, accident, or inability, the willful element is missing, even though some duty went unperformed.

The knowledge components

Willfulness in this setting has more than one moving part. The government must establish that the accused received a command, knew it came from a superior commissioned officer, and then intentionally refused to obey. Knowledge of the officer’s status matters because Article 90 specifically protects the authority of a superior commissioned officer. The accused must have actually known, at the time the command was given, that the person issuing it held that status. Without that knowledge, the conduct may fall under a different article rather than Article 90.

The command itself must be a personal, direct order to the accused, and it must be lawful. Routine standing rules and general regulations are addressed under other provisions. Article 90 contemplates a specific command from a particular officer to a particular service member.

How willful disobedience differs from related offenses

Comparing Article 90 to its neighbors shows why the mental state is so important. Article 91 addresses willful disobedience and related conduct toward warrant officers, noncommissioned officers, and petty officers. Article 92 addresses failure to obey lawful general orders or other lawful orders and includes dereliction of duty, which can …

This question contains a premise that needs correction before it can be answered accurately. There is no separate or special category of military judge, and no distinct selection process, for hearings about contractor misconduct in classified programs. Military judges are detailed to courts-martial through one uniform process set by statute and regulation, regardless of whether a case touches a classified program. More fundamentally, civilian contractors are usually not subject to courts-martial at all, except in narrow circumstances. So the honest answer addresses two things: when a contractor can even be brought before a military judge, and how that judge is selected through the ordinary process.

When can a contractor face a court-martial at all

The threshold issue is jurisdiction. Courts-martial exist to try persons subject to the Uniform Code of Military Justice (UCMJ). Civilian contractors are generally not subject to the UCMJ. The exception is Article 2(a)(10), which extends UCMJ jurisdiction to persons serving with or accompanying an armed force in the field during a declared war or a contingency operation. This is a narrow provision. It requires that the person be in the field, meaning connected to actual operations, and it depends on the existence of a declared war or a qualifying contingency operation. A contractor working on a classified program in a routine setting, rather than accompanying forces in the field during such operations, would typically fall outside court-martial jurisdiction.

Even where Article 2(a)(10) might apply, the government does not freely prosecute contractors by court-martial. Federal policy generally favors prosecuting contractor misconduct in civilian federal court, often under the Military Extraterritorial Jurisdiction Act, with the Department of Justice taking the lead. Court-martial jurisdiction over a civilian is reserved for situations of genuine military necessity where the interests of justice support it, and such cases involve high-level review before charges proceed. The classified nature of the program does not expand this jurisdiction; classification affects how evidence is handled, not whether a military court has power over the person.

There is no special judge-selection track for classified cases

Assuming a matter does properly reach a court-martial, the selection of the presiding military judge follows the same rules that apply to any court-martial. There is no special panel of judges designated for classified programs and no separate appointment mechanism triggered by the sensitivity of the subject. Military judges are commissioned officers who are members of the bar, are certified as qualified …

The military encourages service members to seek help for alcohol and drug problems, and to make that encouragement meaningful it limits how voluntary treatment can be used against the member. When a service member’s participation in rehabilitation was voluntary and not previously disclosed to the command, substance abuse allegations are handled under a framework built around the limited use policy. That policy protects certain self-disclosed information and treatment-related facts from being used in disciplinary or separation proceedings, but the protection has clear boundaries. Understanding how allegations are handled in this situation means understanding what the limited use policy covers, what it does not, and how it interacts with other evidence.

The purpose of the limited use policy

Each service operates a substance abuse program and a corresponding limited use policy. The underlying purpose is straightforward: to encourage members to identify their own problems and seek treatment by promising that voluntary, good-faith help-seeking will not automatically become the basis for punishment. The policy creates a protected lane for self-referral while preserving the command’s ability to address genuine safety and readiness concerns. Without such a protection, members would have a strong incentive to hide problems rather than treat them, which would undermine both individual welfare and unit readiness.

This is why a voluntary and undisclosed entry into rehabilitation is treated differently from a problem that surfaces through a positive drug test, an arrest, or an investigation. The manner in which the substance issue came to light largely controls how it can be used.

What the protection generally covers

When a member voluntarily self-refers and enters treatment before the command has independent, credible knowledge of the misconduct, the limited use policy generally protects certain categories of information from being used against the member in action under the UCMJ or as the sole basis for a less-than-honorable separation. The protected categories typically include the member’s voluntary admissions of prior personal drug or alcohol use made as part of entering and participating in treatment, and the results of certain treatment-related testing tied to the rehabilitation program. In other words, the act of seeking help and the disclosures that are part of that process are shielded so that the member’s candor is not turned into the evidence used to punish them.

A related consequence concerns separation characterization. Where a member who self-referred is nonetheless processed for separation, the protection generally limits the characterization so that the …

The relationship between state Stolen Valor laws and the First Amendment was reshaped by the Supreme Court decision in United States v. Alvarez, 567 U.S. 709 (2012). That ruling did not technically address a state statute. It struck down the original federal Stolen Valor Act of 2005. But its reasoning set the constitutional boundary that every state law in this area now has to respect. Understanding the intersection means understanding what Alvarez actually held and what it left open.

What Alvarez decided

Xavier Alvarez, a local water district board member in California, falsely claimed at a public meeting that he was a retired Marine who had received the Medal of Honor. None of it was true. He was prosecuted under the federal Stolen Valor Act of 2005, which made it a crime to falsely claim receipt of military decorations. A divided Supreme Court held the Act unconstitutional under the First Amendment. The plurality treated the statute as a content-based restriction on speech and applied exacting scrutiny. The fatal flaw was breadth: the law punished a false statement made at any time, in any place, to any person, regardless of whether the lie caused any harm or was made to obtain anything. The Court rejected the idea that false statements, standing alone, fall outside First Amendment protection.

The line the case drew

Alvarez does not give anyone a constitutional right to deceive for gain. The controlling opinions emphasized that the government can regulate false speech tied to a legally cognizable harm, such as fraud, perjury, false statements to government officials, or impersonation of an officer. The constitutional defect was punishing the bare lie itself, disconnected from any tangible injury or material benefit. That distinction is the hinge on which every post-Alvarez statute turns: a law that targets pure false speech is suspect, while a law that targets fraud or material gain stands on firmer ground.

How Congress responded

After Alvarez, Congress enacted the Stolen Valor Act of 2013. The revised federal law did not criminalize the lie by itself. Instead it made it an offense to fraudulently claim to have received certain military honors with the intent to obtain money, property, or another tangible benefit. By attaching the prohibition to fraudulent intent and material gain, the 2013 statute was written to fit within the space Alvarez left open. That same drafting strategy is the template states are expected to follow.

Where

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