Military Lawyers

Technical manuals govern a great deal of military work, from maintaining aircraft to handling munitions to operating equipment. When a service member disregards a safety protocol set out in such a manual and something goes wrong, a common question is whether that lapse can be charged under Article 92 of the Uniform Code of Military Justice. The answer is that it can, but only if the protocol and the conduct fit the specific structure of the offense.

The three offenses inside Article 92

Article 92 is not a single offense. It covers three distinct ways of failing to comply with directives. The first is violating or failing to obey a lawful general order or regulation. The second is failing to obey another lawful order that the accused had a duty to obey. The third is dereliction in the performance of duties. A technical-manual safety protocol can implicate any of these, but the elements differ, and which one applies depends on the nature of the protocol and how it was imposed.

Treating the protocol as an order or regulation

If a safety protocol carries the force of a general order or regulation, a violation can be charged under the first theory. For that theory, the government must show that a lawful general order or regulation existed, that the accused had a duty to obey it, and that the accused violated or failed to obey it. Knowledge of the order is generally not a separate element for a properly published general order, because such orders are presumed known.

A technical manual provision does not automatically qualify as a general order or regulation. Whether it does depends on its source and how it was promulgated. A protocol that is incorporated into or mandated by a general regulation, or that a competent authority has made binding through a general order, can supply the basis for this theory. A bare manual entry, standing alone, may instead be enforced through the order or dereliction theories rather than as a general regulation.

Treating the protocol as a lawful order to obey

A safety protocol can also reach a member through a specific lawful order. If a supervisor directs a member to follow the manual’s safety steps, or if the protocol is incorporated into a lawful order the member had a duty to obey, the second theory applies. There the government must prove that a lawful order was …

Conspiracy in military law punishes the agreement to commit a crime, not just the crime itself. A recurring question is what happens when a single agreement contemplates more than one offense. If two service members agree on a plan that involves several crimes, is that several conspiracies or one? The answer matters for how the conduct is charged and for the punishment that can follow, and military law has a clear rule about it.

The elements of conspiracy under Article 81

Article 81 of the Uniform Code of Military Justice defines conspiracy as an agreement between two or more persons to commit an offense under the code, combined with an overt act by one of the conspirators to effect the object of the agreement. To prove conspiracy, the government must establish an agreement between two or more persons, the intent to commit a criminal offense, and an overt act in furtherance of the conspiracy. The overt act may be performed by any conspirator and need not itself be illegal; it must simply show that the agreement was alive and being acted upon.

The defining feature is the agreement. The offense exists to punish the joining of minds to pursue a criminal objective, which is why the agreement, rather than the eventual crime, is the heart of the offense.

One agreement, multiple objects: a single conspiracy

Because the agreement is the core of the offense, a single agreement to commit several crimes is one conspiracy, not several. When co-conspirators reach one understanding that contemplates multiple criminal objectives, the law treats that as a single conspiracy with multiple objects. Military case law illustrates this directly: where an accused agreed to a plan that encompassed both check forgery and larceny, the conduct was understood as a single conspiracy reaching both objectives rather than two separate conspiracies. The reasoning follows from the nature of the offense: the law targets the agreement, and there was one agreement.

This rule has practical importance. The government cannot ordinarily multiply a single agreement into several conspiracy charges simply because the agreement aimed at several crimes. Doing so would punish one agreement multiple times, which the single-conspiracy principle is designed to prevent.

When there is more than one agreement

The single-conspiracy rule depends on there being one agreement. If the evidence shows distinct, separate agreements, even among the same people, there can be more than one conspiracy. The key …

When a court-martial draws heavy media coverage, the central worry is whether the panel members can decide the case on the evidence rather than on what they read or heard before trial. Voir dire is the questioning of prospective members that lets the parties expose bias. In high-publicity cases, the defense often wants expansive questioning, while the military judge must balance that interest against the need to keep the inquiry focused and orderly. Understanding where the judge draws those lines helps a service member and counsel prepare a realistic strategy.

The Military Judge Controls the Scope, Not the Existence, of Voir Dire

Under Rule for Courts-Martial 912, the parties have a right to question members, but the nature and scope of that questioning rests within the sound discretion of the military judge. The judge may conduct the initial questioning, require counsel to submit proposed questions in advance, and disallow questions that are argumentative, repetitive, or designed to extract a commitment to a particular result rather than to reveal bias. This means the right to voir dire is firm, while the manner of exercising it is flexible and supervised.

That discretion is not unlimited. Voir dire is critical to the fairness of a court-martial, and a member’s failure to answer a material question honestly can undermine the accused’s right to an impartial panel. So while a judge may streamline questioning, the judge cannot cut it off in a way that prevents the defense from developing a colorable claim of bias.

Publicity Exposure Is a Proper Subject, but Pure Recall Is Not Disqualifying

In a case with broad pretrial publicity, the judge will generally permit questioning into what members have seen, read, or heard, and whether that exposure formed any fixed opinion. The key legal point is that mere exposure to publicity does not automatically disqualify a member. The question is whether the member can set aside outside information and decide the case solely on the evidence presented in the courtroom. Judges routinely allow questions probing the depth of exposure and the firmness of any opinion, but may limit repetitive questioning once a member has clearly stated an ability to remain impartial.

Judges often manage publicity-related voir dire through practical tools: questioning members individually and outside the presence of others to avoid one member’s exposure contaminating the rest, and using written questionnaires to identify members who consumed significant coverage. These methods narrow …

When an officer or senior enlisted member is required to show cause for retention, the file the board reviews often contains negative evaluations alongside letters of support. A frequent question is whether a strong endorsement from a civilian supervisor, for example from a detail, fellowship, joint assignment, or off-duty role, can overcome poor military evaluations. The realistic answer is that a civilian letter can carry real weight and sometimes tips the result, but it operates within a board process that gives military performance records particular significance, so its impact depends on relevance, credibility, and how directly it addresses the board’s concerns.

How a Retention Board Decides

A board of inquiry or administrative separation board does not apply the strict rules used in a criminal trial. There are no formal rules of evidence, and the board may consider any relevant and material information it finds probative, including written statements, evaluations, and letters. The board first decides, by a preponderance of the evidence, whether the alleged basis for separation is supported, meaning more likely than not. If it is, the board then weighs whether the member should be retained or separated, and if separated, what service characterization is warranted. A letter of support is most powerful at this second stage, where the board exercises judgment about the member’s overall value and potential.

Because the board weighs evidence freely rather than applying admissibility rules, the question is never whether a civilian letter is allowed; it almost always is. The question is how much persuasive force it carries against the negative evaluations.

Why Military Evaluations Carry Distinct Weight

Negative military evaluations are formal documents prepared by raters within the chain of command, who observed the member performing military duties under military standards. Boards understand evaluations as the service’s own considered judgment, and they tend to give that judgment substantial weight, especially when several evaluations show a consistent pattern. A single civilian letter, however glowing, does not automatically erase a documented record of substandard military performance or misconduct, because the board is asked specifically about fitness for continued military service.

This does not mean evaluations are conclusive. Boards have discretion, and they can and do decide that the negative record is outweighed by other evidence, mitigating circumstances, or signs of strong potential. The key is that the supporting evidence must speak to what the board actually cares about.

What Makes a Civilian Letter Persuasive

A …

When a security clearance is revoked because adjudicators relied on information that actually belongs to someone else, the situation is frustrating but correctable. Mistaken identity revocations usually trace back to a database error, a shared or similar name, a transposed Social Security number, or a record that mixed two people together during a continuous evaluation or periodic reinvestigation. Because the underlying derogatory information is not yours, the central task is to prove that fact cleanly and force the record to be corrected, then to restore your eligibility. The path is procedural, and following the correct sequence matters far more than the strength of any single argument.

Read the revocation notice and identify the deadline

The process begins with the document that triggered everything. After an unfavorable decision, you should receive a written notice. For most Department of Defense personnel and contractors, the governing framework is Security Executive Agent Directive 4 (SEAD 4), which sets out the thirteen adjudicative guidelines, along with the due-process protections built into the DoD personnel security program. The notice will identify which guideline was cited and will tell you the time limits for responding. Those windows are short and unforgiving, so the first step is simply to calendar every deadline and avoid losing the case on timing alone.

Gather proof that the derogatory information is not yours

Mistaken identity cases are won with documents, not adjectives. Pull together everything that distinguishes you from the person whose record was attached to yours. Useful evidence includes a certified copy of your birth certificate, your full legal name history, your correct Social Security number, prior background investigation records, court records showing the cited matter does not appear under your identity, and any agency correspondence acknowledging a data error. If a criminal charge, debt, or foreign contact was attributed to you in error, obtain the original source record showing the true subject’s identifiers. The goal is a side-by-side comparison that makes the error obvious to a reader who has never met you.

Use the response and appeal channels in order

Security clearance adjudication offers a structured set of opportunities to be heard, and you generally must use them in sequence. After a Statement of Reasons or an unfavorable preliminary determination, you typically have the right to respond in writing, to request a hearing before an administrative judge, and, if the decision still goes against you, to appeal. For contractor personnel, …

Screenshots of emails and messages appear constantly in military administrative and disciplinary matters. A commander may rely on a captured image of an email to support nonjudicial punishment, or a separation file may include screenshots offered to prove misconduct. Service members frequently ask whether such images are admissible when they lack metadata, the underlying header and routing data that shows who sent a message, when, and from where. The practical answer is that in boards of inquiry and in nonjudicial punishment, screenshots without metadata are generally not barred from consideration, because the strict rules that govern admissibility at trial do not apply, but the absence of metadata is a powerful argument about how much weight the evidence deserves.

Different Forums, Different Evidentiary Rules

The first thing to understand is that admissibility means something different outside a court-martial. The Military Rules of Evidence, including the authentication requirements that would force a party at trial to establish that an email is genuine, govern courts-martial. They do not govern boards of inquiry, administrative separation boards, or nonjudicial punishment proceedings.

A board of inquiry is not bound by the rules of evidence and may receive any relevant and material information it considers to have probative value. Hearsay, uncorroborated reports, and documents that could never come in at trial are routinely considered. Likewise, in nonjudicial punishment under Article 15, the strict Military Rules of Evidence do not apply, and the commander has broad latitude to consider information, including screenshots, written statements, and other material that would face authentication hurdles in a courtroom.

Because of this, the threshold question in a BOI or NJP is not whether a metadata-free screenshot is technically admissible, since it almost always can be considered, but whether the decision-maker should credit it and how much.

Why Missing Metadata Still Matters

Even though the rules of evidence do not exclude it, a screenshot without metadata raises genuine reliability concerns that a board or commander is entitled, and well advised, to weigh. Metadata is what ordinarily ties a message to a sender, a recipient, a time, and an account. Without it, a screenshot is just an image of text that can be edited, fabricated, mislabeled, taken out of sequence, or attributed to the wrong person. The image alone does not prove who wrote the message or that it is complete and unaltered.

This is why the practical strategy in administrative and NJP settings …

Reservists sometimes assume that failing to show up for initial training is a low-stakes administrative problem. Usually it is. But under the right conditions it can rise to desertion under Article 85 of the Uniform Code of Military Justice. The difference between an administrative headache and a serious felony-level offense turns on duty status, on orders, and above all on intent. Understanding where the line falls is essential for any reservist who has missed, or is thinking about missing, an initial training obligation.

Start with status: the UCMJ has to attach

The UCMJ applies to members on active duty, and reserve component members generally become fully subject to it when they are in a federal duty status, such as active duty or inactive duty training. A reservist who has not yet entered a covered status is primarily in the administrative world of unsatisfactory participation rather than the punitive world of Articles 85 and 86. So the first question is always whether the member was in or obligated to be in a status that brings the punitive articles to bear. Missing drills or initial training while a civilian-status reservist is handled very differently from refusing to obey a valid order to report for active duty.

The administrative track: unsatisfactory participation

For reservists, the ordinary consequence of failing to attend training is unsatisfactory participation, an administrative matter. Department of Defense guidance, including DoD Instruction 1215.13, and service regulations define this in terms of unexcused absences. A member of the Selected Reserve who accumulates more than nine unexcused absences from scheduled inactive duty training within a twelve-month period, or who fails to perform required active duty for training, can be declared an unsatisfactory participant. The typical responses are administrative: counseling, reassignment to the Individual Ready Reserve, an administrative separation, or, for a member who has not fulfilled the statutory military service obligation, involuntary orders to active duty under authority such as 10 U.S.C. 12303. These discharges are usually characterized as Honorable or General. This is not desertion.

The punitive track: when failure to report becomes AWOL

The picture changes when a reservist receives valid orders to active duty and refuses or fails to report. Once a member is properly ordered to active duty and does not appear, the absence is treated like that of any active duty member, and the conduct can be charged as absence without leave under Article 86. AWOL is …

Service members and counsel often see charge sheets that list both Article 86 and Article 92 arising out of what looks like a single episode of absence. The question is whether the government may charge them together, or “concurrently,” for the same conduct. The answer is that it can, but with an important qualification: the two articles must address genuinely distinct conduct or distinct legal theories, and the government may not stack them in a way that punishes the same act twice or that piles on charges unreasonably. The analysis turns on the elements of each offense and on the military’s doctrines of multiplicity and unreasonable multiplication of charges.

What each article covers

Article 86, UCMJ, codified at 10 U.S.C. section 886, is the absence-offenses provision. It punishes failing to go to or leaving an appointed place of duty, going from one’s unit or organization without authority, and absenting oneself from one’s unit, organization, or place of duty at which one is required to be. Its gravamen is unauthorized absence.

Article 92, UCMJ, codified at 10 U.S.C. section 892, punishes failure to obey orders or regulations. It reaches violation of a lawful general order or regulation, failure to obey a lawful order issued by a member of the armed forces, and dereliction in the performance of duties. Its gravamen is disobedience or dereliction with respect to a specific order, regulation, or duty.

Because the two articles protect different interests, being where you are required to be versus obeying lawful orders, they can apply to different aspects of a single course of conduct.

When concurrent charging is proper

Concurrent charging is appropriate when the facts genuinely implicate both offenses through separate acts or separate legal theories. Consider a member who receives a specific lawful order to report to a particular formation at a particular time, fails to obey that order, and is also absent from the unit without authority during the same general period. The disobedience of the specific order can support an Article 92 specification, while the broader unauthorized absence can support an Article 86 specification. Each charge is aimed at a distinct wrong, and the proof of one is not simply the proof of the other.

Prosecutors also sometimes charge in the alternative, pleading different theories so that the panel can convict on the theory the evidence supports. This is a recognized practice when the facts are open to …

When the government offers an official order bearing a digital signature into evidence at a court-martial, the document does not speak for itself. Before a panel can consider it, the proponent must satisfy the authentication requirements of the Military Rules of Evidence. The same logic that governs an ink signature on paper applies to a cryptographic signature on an electronic file, but the proof looks different because the signature is data rather than a pen stroke.

The Threshold Requirement of Authentication

Military Rule of Evidence 901 sets the basic standard. To authenticate an item, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. This is a relatively low bar. The military judge does not decide that the order is genuine; the judge decides only whether a reasonable panel could find it genuine. Once that showing is made, the document goes to the members, and the defense remains free to argue that the signature is forged, altered, or unreliable. Authentication is a preliminary question of admissibility, not a final determination of weight.

How a Digital Signature Can Be Authenticated Under Rule 901

Rule 901 lists illustrations of how authentication may be accomplished, and several of them fit electronic orders well. Testimony from a witness with knowledge can establish that the document is what it is claimed to be, such as a custodian explaining how the order was created and stored within the official system. Distinctive characteristics, taken together with the circumstances, can also authenticate an item; an order that carries the correct format, routing data, identifiers, and metadata associated with the issuing authority may be authenticated by those features.

The rule also recognizes evidence describing a process or system and showing that it produces an accurate result. For a digital signature, this means testimony or records explaining the cryptographic process, the chain of trust for the certificate used, and the controls that show the signature was applied by the named signer and that the document has not been altered since signing. A witness familiar with the issuing system can describe how access is controlled, how the signature is bound to the document, and how any later tampering would be detectable.

Self-Authentication and Certified Electronic Records

Some electronic evidence can be admitted without live testimony. Rule 902 identifies categories of self-authenticating evidence. Certified domestic records of a regularly conducted activity may …

A Board of Inquiry (BOI) is the administrative board that hears an officer elimination case and makes findings and a recommendation about whether the officer should be retained or separated. After the board completes its work, the case moves up through reviewing and separation authorities for final action. Officers sometimes ask whether the board’s findings can be undone when later command actions appear to contradict what the panel recommended. The answer depends on which direction the contradiction runs, because the separation authority’s power to depart from a board’s recommendation is limited and asymmetric. A recommendation to retain receives strong protection, while a recommendation to separate can be moderated but not made harsher.

The board’s role and the chain of review

A BOI does not have the final say on its own. The board makes findings on whether the alleged basis for elimination is supported, whether that basis warrants separation, and what characterization of service is appropriate. Those findings and recommendations are then forwarded to the separation authority, and in some cases to a higher authority such as the service Secretary, for review and final decision. The board’s work is a recommendation within a larger process, not a self-executing judgment.

This structure is the reason the question of contradictory command action arises. Because the recommendation passes to a separation authority, that authority’s action can align with or diverge from the board. The rules governing how far the authority may diverge are what determine whether the board’s findings remain effective.

A recommendation to retain is strongly protected

The most important limitation protects officers whom the board recommends retaining. A separation authority generally may not direct that an officer be discharged when the board has recommended retention. In that sense, a favorable board recommendation is binding in the officer’s favor and is not something a commander can simply override by later action. If a post-board command action attempted to separate an officer the board voted to retain, that action would conflict with the governing rules and would be subject to challenge.

Where a higher authority believes a retention recommendation is wrong, the path is not a unilateral reversal at the command level. Review authority typically rests with the service Secretary, who may examine whether the retention recommendation is clearly contrary to the substantial weight of the evidence and whether retention would harm the service. Even then, the process is constrained and must follow …