Military Lawyers

It is more common than many service members expect: one urinalysis comes back positive, a later sample comes back negative, and the member assumes the conflict cancels itself out. During an administrative separation based on a positive drug test, inconsistent results across multiple tests do not resolve themselves automatically. They become a question of evidence and weight that the separation authority and any administrative board must work through. Understanding how that process treats conflicting results helps a member respond effectively rather than rely on a mistaken assumption.

The administrative framework

Enlisted administrative separations are governed by Department of Defense Instruction 1332.14, with parallel guidance for officers in DoD Instruction 1332.30 and service-specific regulations layered on top. The technical procedures for the drug testing program itself are set out in DoD Instruction 1010.16. A separation based on drug abuse is processed as misconduct, and depending on the member’s length of service and the characterization at issue, the member may be entitled to have the matter heard by an administrative separation board.

The crucial point is that an administrative separation is not a criminal trial. The board or separation authority decides whether the misconduct is supported by a preponderance of the evidence, meaning more likely than not, rather than beyond a reasonable doubt. The focus is on whether the member should be retained or separated and how any discharge should be characterized, not on assigning criminal guilt. That lower standard shapes how inconsistent results are weighed.

Why a later negative does not erase an earlier positive

The single most important concept for a member facing conflicting tests is that the so-called retest is usually not what it sounds like. After a positive result, a command frequently collects a second specimen and labels it a retest. In most cases this is not a re-examination of the original sample. It is an entirely new urinalysis of a fresh specimen collected days or weeks later.

That distinction matters because detection windows for many drugs are measured in days, not weeks. By the time the command receives the first positive and directs a second collection, the substance that drove the original result may no longer be present even if use actually occurred. A negative on the later sample is therefore consistent with simply no further use after the first event. It does not, standing alone, prove that the first laboratory result was wrong, and it typically …

When an officer is notified that a Board of Inquiry will consider eliminating the officer from service, the notification identifies the reasons and the factual basis for the proposed separation. If the language in that notification is inconsistent, describing the conduct as poor judgment in one place and as misconduct in another, the officer naturally asks whether that inconsistency can be a basis to attack an adverse result. The answer is nuanced. The terminology matters a great deal substantively, but whether an inconsistency becomes a viable appellate ground depends on whether it caused real prejudice to the officer’s ability to defend.

Why the Words Are Not Interchangeable

The distinction between poor judgment and misconduct is not cosmetic. In the framework governing officer eliminations, the reasons for separation fall into categories such as substandard performance of duty, misconduct or moral or professional dereliction, and derogatory information. Each category carries different proof and different consequences. Poor judgment tends to sound in substandard performance, while misconduct describes a more serious failing that can support a less favorable characterization of service. The category alleged shapes what the board must find and what range of recommendations is available. Because of this, the words chosen in the notification define the case the officer must meet.

The Function of the Notification

The notification exists to give the officer fair notice of the basis for the proposed elimination so that the officer can prepare a defense, gather evidence, secure counsel, and decide how to respond. This notice function is the heart of the procedural protection. An officer is entitled to know what conduct is at issue, under what theory it is being characterized, and what outcome is being sought. When the notification is clear and consistent, the officer can tailor a defense to the specific allegation. When it is internally inconsistent, the officer may be left uncertain whether he is defending against a performance shortfall or a misconduct allegation, which are met with different evidence and argument.

When Inconsistent Terminology Becomes a Real Problem

Inconsistent terminology is most likely to support a challenge when it actually impairs the officer’s ability to prepare and present a defense, or when the board’s recommendation rests on a basis the officer was never fairly told he had to answer. If the notification alleged poor judgment, the officer prepared to rebut a performance characterization, and the board then found and acted on misconduct …

Article 93 of the Uniform Code of Military Justice (UCMJ) makes it an offense for a person subject to the code to be cruel toward, oppress, or maltreat any person subject to the accused’s orders. The idea of “abuse of authority” is woven into this offense, because Article 93 is fundamentally about a superior misusing a position of authority against a subordinate. When such a case reaches a court-martial panel, the military judge gives instructions that translate the statutory language into the specific findings the panel must make. Those instructions, drawn from the standardized pattern instructions in the military judges’ benchbook, define the elements, supply the meaning of cruelty, oppression, and maltreatment, and set the objective standard the panel must apply.

What Article 93 prohibits

The offense centers on the abuse of a superior-subordinate relationship. The statute reaches conduct that is cruel, oppressive, or maltreating directed at a person who is subject to the accused’s orders. The phrase “subject to the orders of” is read broadly. It includes not only those in the accused’s direct chain of command but also others who are required to obey the accused’s lawful orders because of the accused’s rank, position, or assignment. This breadth is what makes the offense about the misuse of authority rather than mere interpersonal conflict between equals.

Because the offense punishes the abuse of a position over a subordinate, the instructions focus the panel on both the existence of that authority relationship and the abusive character of the conduct directed downward within it.

The elements the judge instructs on

A military judge instructs the panel that, to convict, the government must prove beyond a reasonable doubt that a certain person was subject to the orders of the accused and that the accused was cruel toward, oppressed, or maltreated that person. The instruction makes clear that the victim’s status as someone subject to the accused’s orders is itself an element the government must establish, not an assumption.

The pattern instruction also addresses the accused’s awareness. A well-constructed instruction tells the panel that the government must prove the accused knew that the alleged victim was subject to the accused’s orders and that the accused knew he or she made the statements or engaged in the conduct at issue. This ties the offense to the accused’s knowing exercise of the authority relationship, while keeping the ultimate test of whether the conduct was abusive …

A Board of Inquiry (BOI) is the administrative separation hearing used to decide whether an officer should be involuntarily separated, and it can be a tense process. When the preparation feels hostile, service members often ask whether they can obtain a “protective order” against the command that is building the case against them. The short answer is that the military protective order most people have in mind is not designed for this situation, and a member generally cannot use it to restrain a commander from pursuing a separation action. There are, however, real protections and remedies that fit the problem, and understanding the difference matters.

What a military protective order actually is

A military protective order (MPO) is an order issued by a commander, not against one. It is a command tool, documented on DD Form 2873, that a unit commander uses to direct a service member under that commander’s authority to stay away from or refrain from contact with another person, typically in domestic-abuse or interpersonal-safety situations. The defining features are that the commander issues it, the commander decides whether to issue it, and it runs against a subordinate. A service member cannot petition the command to issue an MPO against the command itself, because that is not the instrument’s function. It exists to protect people from harm, not to halt an administrative proceeding.

For protection against a civilian, a service member may seek a civilian protective order from a state court, and the military will generally recognize and enforce a valid civilian order. But a civilian court has no authority to enjoin a military command from conducting a Board of Inquiry. Personnel and separation decisions are committed to the military departments, and courts are very reluctant to interfere with them before the administrative process has run its course.

Why “hostile” preparation is not, by itself, a basis for an order

A Board of Inquiry is by nature adversarial. The command identifies the basis for separation, gathers documents and statements, and presents its case to a panel, while the respondent answers it. The fact that the command is actively building and presenting a case is not misconduct. So the feeling of hostility, standing alone, does not give rise to a right to stop the proceeding. What the law protects against is not a vigorous case but an unlawful, abusive, retaliatory, or procedurally unfair one. The remedies below are aimed …

Block leave is a stretch of time, often tied to holidays or the period after a deployment or major training event, when a command authorizes large portions of a unit to take leave together. It is leave, not liberty, and it is governed by the same leave rules that apply at any other time. The fact that an absence overlaps a block leave window does not change the basic legal question: was the member where the member was required to be, when required, with proper authorization. Understanding how unauthorized absence is treated during block leave starts with understanding what block leave actually authorizes.

Block leave is authorized leave with a defined end

When a member takes leave during a block leave period, that leave is charged and has a specific return date and time. The member is expected to sign back in or report at the prescribed time. Block leave does not suspend accountability. It is simply a coordinated way of scheduling leave so that a large group is away at once and the unit can stand down. Because it has a fixed end point, failing to return on time is treated like any other failure to return from authorized leave.

The governing offense: Article 86

Unauthorized absence is charged under Article 86 of the Uniform Code of Military Justice. Article 86 covers several forms of absence, including failure to go to an appointed place of duty, leaving the place of duty without authority, and absence without leave from the unit, organization, or place of duty. In the Army and Air Force this is commonly called AWOL, while the Navy and Marine Corps refer to it as unauthorized absence. The article is a catch-all for cases where a member is, through the member’s own fault, not where required at the prescribed time.

In the block leave context, the most common theory is failure to return at the expiration of leave. When the authorized leave ends, the member is again required to be present. Staying away beyond that point without authority begins an unauthorized absence that runs until the absence is terminated.

The knowledge and fault requirements

Article 86 includes a fault and knowledge component. The government must show that the member, through the member’s own fault, was absent without authority. For a failure to return from leave, that generally means the member knew when the leave ended and the duty …

Problems in the enlistment process come in two very different forms, and the military treats them accordingly. On one side is recruitment fraud, deliberate deception used to get a person into the service who should not have been enlisted, or to obtain a benefit through lies. On the other side is administrative mismanagement, the errors, omissions, and poor guidance that creep into a paperwork-heavy process even when no one set out to deceive. The line between them is intent. Fraud requires a knowing, deliberate falsehood; mismanagement does not. Sorting one from the other determines whether a matter becomes a criminal case, an administrative action, or simply a corrected record.

The criminal benchmark: fraudulent enlistment

The core criminal offense in this area is fraudulent enlistment, appointment, or separation. After the 2019 recodification of the Uniform Code of Military Justice it is found at Article 104a; it was historically known as Article 83, and older sources still cite it that way. The offense targets a person who procures his or her own enlistment or appointment by knowingly false representation or deliberate concealment of a disqualifying fact, and who then receives pay or allowances under that enlistment.

The defining feature is intentional deception. The government must show that the false statement or concealment was knowing and that it concerned a fact that mattered to the enlistment decision, such as a disqualifying medical condition, a criminal history, or prior service problems that were hidden. Honest mistakes, confusion, and misunderstanding are not crimes, because the article requires intentional deception rather than mere inaccuracy. This is the bright line the military uses: did the person knowingly lie or hide a material fact, or did the wrong information enter the file some other way?

Why so much recruitment trouble is not fraud

In practice, a great deal of what looks like recruitment fraud is actually administrative mismanagement. Recruiters operate under pressure and sometimes fail to explain medical waivers, background check requirements, or disclosure obligations properly. An applicant may not understand what must be disclosed, may rely on a recruiter’s incorrect assurance, or may answer a confusing question wrong without any intent to deceive. The misinformation in these cases stems from poor guidance, recruiter error, or processing mistakes rather than from the applicant’s deliberate falsehood.

Because of this, court-martial prosecutions for fraudulent enlistment are relatively rare. They tend to arise only when the deception is clear, the concealed …

An Officer Evaluation Report can shape a career for years. When an OER contains adverse comments tied to misconduct that was never proven, the harm is compounded: the officer is marked down for an allegation that has not been substantiated through any formal process. Army evaluation policy actually anticipates this problem and limits what an evaluator may write about unresolved matters. Knowing those limits, and the avenues available to correct a report that violates them, gives an officer a realistic path to relief. The discussion below focuses on the Army system, which is governed primarily by Army Regulation 623-3, though the other services have parallel evaluation and correction processes.

The Core Rule: No Unproven Derogatory Information

The most important principle is that an evaluation report is not the place to litigate unresolved allegations. Under AR 623-3, remarks in an OER must not refer to unproven derogatory information or to incomplete investigations. Derogatory findings must be substantiated and processed to completion before they may be included in an evaluation. In other words, an evaluator cannot mark an officer down for misconduct that is still under investigation or that was alleged but never established. If an OER contains comments based on an allegation that was pending, dropped, or unsubstantiated, the report violates the regulation, and that violation is the foundation of a challenge.

Identifying the Defect

Before choosing a remedy, the officer should pin down exactly why the comment is improper. There are several common defects. The comment may reference an investigation that was open at the time of the report. It may rest on an allegation that was later found unsubstantiated. It may describe conduct as established when no adjudication ever occurred. Or it may include derogatory material without the procedural safeguards the regulation requires, such as proper referral so the officer had an opportunity to respond. Each of these is a regulatory error, and a clear statement of which rule was broken makes every later step stronger.

Responding at the Referral Stage

The first opportunity to push back often comes before the report is even filed. When an OER contains certain adverse or derogatory entries, it must be referred to the rated officer, who is then given the chance to submit comments. This referral process is a procedural protection, and the officer’s response becomes part of the record. An officer who receives a referred report should use that response to …

Commands direct service members into counseling for many reasons. There is performance counseling, financial counseling, family advocacy programs, substance abuse treatment, and command-directed mental health evaluations. When a member refuses to take part, the question quickly becomes whether that refusal is simply a personnel matter or whether it can support a criminal charge for disobeying a lawful order. The answer depends on how the direction was framed, whether it qualifies as a lawful order, and the nature of the counseling involved.

The charging framework

Refusal to obey a direction from proper authority is generally addressed under Article 92 of the Uniform Code of Military Justice, which covers failure to obey a lawful general order or regulation and failure to obey other lawful orders. In some situations a direct personal command from a superior commissioned officer could implicate Article 90. The common thread across these provisions is that there must be a genuine order, it must be lawful, and the accused must have had the required knowledge and duty to obey it.

So the threshold question is not whether counseling was labeled “mandatory.” It is whether the member was actually given an order to participate that meets the legal requirements of a lawful order.

When an order to attend counseling is lawful

For an order to support a disobedience charge, it must come from someone with authority, be directed to the member, and relate to a military purpose. Military purpose is read broadly to include activities reasonably necessary to accomplish the mission and to safeguard the morale, discipline, and effectiveness of the unit. Directing a member into financial counseling after repeated financial problems, into a substance abuse program after a related incident, or into performance counseling tied to duty deficiencies will usually have a clear military purpose.

Orders are presumed lawful, and a member who disobeys does so at his own peril. If the member believes the order is unlawful, the lawfulness is judged later under the appropriate legal standard, and the burden is on the member to overcome the presumption. That means refusing counseling on a hunch that the order is improper is risky, because the presumption favors the command.

Where the lawfulness limit bites

Not every counseling direction is enforceable as a criminal order. Some forms of counseling carry their own legal protections. The clearest example involves mental health and treatment. A general direction to attend a command-directed mental …

Service members weighing whether to pursue a pretrial agreement often hesitate for one reason: they worry that anything they say while bargaining could come back to haunt them if the deal collapses. That concern is understandable, but military law builds in substantial protection for the negotiating process. As a general rule, statements made in the course of genuine plea discussions cannot be used against an accused at a later court-martial when those discussions break down. The protection is not absolute, however, and understanding its edges matters before any member sits down at the bargaining table.

The rule that shields plea discussions

The governing authority is Military Rule of Evidence 410, which addresses pleas, plea discussions, and related statements. Under that rule, a guilty plea later withdrawn, an offer to plead guilty that is rejected or withdrawn, and statements made during plea discussions that do not result in a guilty plea are generally inadmissible against the accused who made them. The purpose is straightforward. If every word spoken in a failed negotiation could be repurposed as trial evidence, almost no one would negotiate candidly, and the entire system of pretrial agreements would seize up.

In the military, the relevant discussions are those held with the convening authority, the staff judge advocate, trial counsel, or other counsel for the government. A pretrial agreement in the armed forces is typically a written deal in which the accused offers to plead guilty in exchange for a limit on the sentence the convening authority will approve, so the negotiating partners on the government side are command and prosecution actors rather than a single prosecutor as in civilian practice.

The military rule reaches further than its civilian counterpart

One feature that distinguishes the military approach is breadth. Military Rule of Evidence 410 has been read more expansively than Federal Rule of Evidence 410. The military version reaches statements made in connection with a request for administrative disposition in lieu of court-martial, not only formal plea bargaining over pending charges. Courts have also declined to confine the rule’s protection strictly to statements about the specific offenses then before the court. The animating policy is to encourage the free flow of information during the resolution process, and the rule is interpreted with that policy in mind.

This breadth has practical consequences. A member who, while seeking a Chapter discharge or another administrative alternative, makes admissions about the underlying …

Commanders carry real authority over the administrative fate of the troops they lead, including the power to initiate and endorse separation actions. With that authority comes exposure. When a commander signs off on a separation package that turns out to be unauthorized, whether because it skipped required procedures, rested on false information, or exceeded the commander’s lawful power, the question of personal criminal liability can arise. The answer is not automatic. Liability depends on what the commander knew, what the commander intended, and how the failure occurred. A signature alone does not equal a crime, but several articles of the Uniform Code of Military Justice can apply when the circumstances are serious enough.

A mistake is not by itself a crime

The starting point is that administrative errors, even consequential ones, are not inherently criminal. Separation processing is complex, regulations are dense, and reasonable officers can misread a requirement or rely in good faith on the work of subordinates and the legal review provided by their servicing judge advocate. An honest mistake, a misunderstanding of a regulation, or a defensible judgment call that later proves wrong does not establish criminal liability. Military criminal law generally requires a culpable mental state, and ordinary negligence in paperwork rarely rises to that level. So the threshold question is always whether the commander’s conduct involved something more than error.

Dereliction of duty under Article 92

The most likely vehicle for criminal exposure is Article 92, which includes dereliction in the performance of duties. To prove dereliction, the government must establish that the accused had certain duties, that the accused knew or reasonably should have known of those duties, and that the accused was derelict in performing them either willfully or through neglect or culpable inefficiency.

Applied to a separation package, a commander has a duty to ensure that actions taken under his or her authority comply with governing regulations such as the Department of Defense separation instructions and the relevant service policies. A commander who knew the separation was not authorized and signed anyway, or who consciously disregarded clear procedural requirements, could be derelict willfully. A commander whose handling reflected culpable inefficiency, a serious failure well below the standard expected, might be derelict through neglect. The mental-state element is what separates a chargeable dereliction from a mere mistake. Article 92 also reaches failure to obey a lawful general order or regulation, so a commander …