Military Lawyers

A Board of Inquiry, or BOI, is the formal administrative hearing through which the military decides whether a commissioned officer should be involuntarily separated. For officers, it is the equivalent of the administrative separation board that enlisted members receive, and it carries real protections, including the right to counsel, to present evidence, and to confront the basis for separation. When new evidence surfaces after a BOI has rendered its findings, officers and commands alike ask whether the board can simply be brought back to take another look. The answer is nuanced. There is no general right to reconvene a board merely because new information appears, but there are specific, limited circumstances in which a board can be reconvened, and there are other remedies when reconvening is not available. The framework here is set out in Department of Defense Instruction 1332.30, which governs commissioned officer administrative separations, together with the implementing service regulations.

What the Board Decides and the Weight of Its Decision

A Board of Inquiry hears the evidence, determines whether a preponderance of the evidence supports each alleged basis for separation, and, if a basis is established, recommends whether the officer should be retained or separated and, if separated, with what characterization of service. The board’s decision carries significant protective force for the officer. The separation authority may not direct separation when the board recommends retention, and it may not impose a characterization of service less favorable than the board recommended. This one-way protection is central to why reconvening is restricted: the rules are designed to prevent a favorable board result from being undone simply because someone later wishes to revisit it with additional material.

Reconvening a Defective Board Before Final Action

The clearest situation in which a board may be reconvened is when the board is defective and final action has not yet been taken. If the proceedings contained a procedural error, if the record is incomplete, or if the findings are ambiguous or fail to address a required question, the convening or separation authority may return the matter to the board for correction. In that posture the board can be reconvened to cure the defect, clarify its findings, or complete the record. This is fundamentally different from reopening a sound proceeding to consider fresh evidence. It is a mechanism for fixing a flawed process, and it is generally available only before the action becomes final.

Reconvening to

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Absence offenses under Article 86 of the Uniform Code of Military Justice (UCMJ) depend on a precise fact: the appointed time and place of duty that the service member is alleged to have missed. When a commander or other authority informally changes a departure time, such as a verbal adjustment to a report time or a last-minute shift in when a movement begins, that change can directly affect whether an Article 86 charge is valid. The reason is that the offense is built on the appointed time of duty, and if the appointed time was altered, the charge must match the actual obligation rather than an outdated one.

The appointed time of duty is an element

Article 86 covers several related failures, including failing to go to an appointed place of duty at the time prescribed and being absent from a place of duty without authority. In each case, the government must prove what the member’s appointed time and place of duty actually were and that the member, without authority, failed to be there at that time. The appointed time is therefore not a background detail; it is a fact the government must establish and the defense can contest.

The member must also have known, or reasonably should have known, of the appointed time and place. Knowledge of the duty obligation is required even though AWOL is a general-intent offense and does not require proof of an intent to remain away. This combination, an accurate appointed time plus the member’s knowledge of it, is where an informal change of departure time becomes legally significant.

How an informal change can change the obligation

Orders setting a time and place of duty can be given verbally as well as in writing, and they can be modified by competent authority. If a commander or someone with proper authority informally moves the departure time, the member’s actual obligation becomes the new time, not the original one. From that point, the relevant question for an Article 86 charge is whether the member failed to meet the revised obligation.

This can affect the validity of a charge in two ways. First, a charge that alleges the original time may simply be factually wrong if the obligation was changed; the member may not have been absent at all relative to the actual, revised time. Second, even if the member was late under the new time, the charging …

Breach of arrest and escape sound similar, and both involve a service member getting free of some restraint imposed by military authority. Under the Uniform Code of Military Justice they are distinct offenses with different elements, because they involve different kinds of restraint. Breach of arrest is a violation of a moral restraint, a set of limits the member has been ordered to observe. Escape is the casting off of a physical restraint, getting out of actual custody or confinement. The distinction turns on what the member breaks free from.

A note on the article number

Historically, resistance, breach of arrest, and escape were prosecuted under Article 95 of the UCMJ, and many references and older materials still describe the offense that way. The Military Justice Act of 2016 recodified and renumbered large portions of the code effective at the end of 2019. As part of that reorganization, the offenses of resistance, flight, breach of arrest, and escape were moved to Article 87a (10 U.S.C. 887a), and Article 95 in the current code now addresses offenses by a sentinel or lookout. The substance of breach of arrest and escape did not change in any way relevant to this discussion; only the article number did. A member or counsel researching these offenses today should look to Article 87a, while recognizing that the older Article 95 citation refers to the same body of law.

What “arrest” means in the military

The key to breach of arrest is understanding that military arrest is not what the word suggests in civilian life. Military arrest is a form of moral restraint, not physical custody. It is imposed by a notification, oral or written, ordering the member to remain within specified limits, such as a base, a building, or quarters, pending disposition of charges. No one is physically holding the member. The restraint is the order itself, and the member is trusted and required to comply with it.

Breach of arrest occurs when a person who has been placed in arrest goes beyond the limits of that arrest before being properly released. The recognized elements are that the accused was placed in arrest by a person authorized to do so, that the arrest was imposed by directing the accused to remain within certain limits, that the accused knew of the restraint, and that the accused went beyond those limits before being released. The offense is complete …

Standard operating procedures, commonly called SOPs, are the written routines that tell members of a unit how to do their jobs. They cover everything from weapons handling to vehicle maintenance to administrative processing. When a member departs from an SOP and something goes wrong, the command may want to discipline that member. A natural question follows: can violating an SOP be a punishable offense if the SOP was never formally published? The answer turns on how the SOP functions in the disciplinary framework and what the government would actually have to prove.

SOPs usually fit under Article 92

Most SOP-violation cases are analyzed under Article 92 of the Uniform Code of Military Justice. Article 92 contains three different offenses. The first is violation of a lawful general order or regulation. The second is failure to obey other lawful orders that the accused had a duty to obey. The third is dereliction of duty. Which of these applies has everything to do with whether and how the SOP was published, because the publication status affects the knowledge the government must prove.

The general order theory depends on formal issuance

A lawful general order or regulation carries a powerful advantage for the government: knowledge is presumed because such orders are widely published and broadly applicable. But that presumption is exactly why formal status matters. To rely on the general order theory, the directive generally must be a properly issued general order or regulation from an authority empowered to issue one, disseminated in the way such orders are normally promulgated.

A typical unit-level SOP that was never formally published as a general order usually does not qualify for this theory. The presumed-knowledge advantage flows from the formal, published nature of true general orders. An informal or unpublished SOP cannot borrow that presumption simply by being called an SOP. So if the directive was not formally issued and published as a general order, the government ordinarily cannot use the general order theory and its built-in presumption of knowledge.

The other-lawful-order theory requires actual knowledge

That does not end the inquiry. An unpublished SOP can still support a charge under the second theory, failure to obey other lawful orders, if it operated as an order the accused had a duty to obey. The catch is that this theory requires the government to prove the accused had actual knowledge of the requirement. Actual knowledge can be …

Being handed paperwork that proposes to end your military career, when you never asked to leave, is alarming. It is also one of the moments where knowing your rights matters most. Involuntary administrative separation in the United States armed forces is governed by Department of Defense Instruction 1332.14 for enlisted members and parallel rules for officers, along with each service’s implementing regulations. Those rules give a service member a defined set of procedural protections. Acting on them quickly, and in writing, can be the difference between staying in, leaving with a favorable characterization, or being separated under unfavorable conditions.

The right to notice of the basis and the evidence

An involuntary separation begins with formal notification. The member is entitled to be told the specific basis for the proposed separation, the least favorable characterization of service that could result, and the procedure that applies. Crucially, the member has the right to obtain copies of the documents that will be sent to the separation authority in support of the proposed separation. You cannot meaningfully respond to a case you have not seen, so this access to the supporting evidence is foundational. Read every document and confirm that the stated basis matches the regulation cited.

The right to consult counsel

A service member presented with separation paperwork has the right to consult with counsel within a reasonable time. Members are entitled to a free military defense attorney through the service defense organization, such as Trial Defense Service, Area Defense Counsel, or a Defense Service Office, and may also hire a civilian attorney at their own expense. Talking to counsel before signing anything is critical, because the paperwork often asks the member to acknowledge rights and elect or waive them, and some of those elections are difficult or impossible to undo.

The right to respond and submit matters in rebuttal

One of the most powerful rights is the opportunity to respond. The member may submit a written rebuttal and supporting matters to the separation authority. A well-prepared rebuttal is often the single best opportunity to stop the separation, to persuade the authority to suspend it, or to secure a fully Honorable characterization. The submission can include statements, records, character references, evidence of rehabilitation, medical or behavioral health documentation, and legal argument that the basis is not supported. This is the member’s chance to put the other side of the story in front of …

Defense teams in courts-martial often hire experts to help them understand technical evidence, evaluate the government’s forensic conclusions, or prepare cross-examination. A natural question follows: if the defense brings an expert into the case as a confidential adviser, can the government demand to see that expert’s notes and reports? In military practice, the answer turns on the difference between an expert who works behind the scenes as a consultant and an expert who is going to testify, and on how the work product doctrine is built into the rules that govern courts-martial.

Where Work Product Protection Comes From in the Military

The work product doctrine is expressly recognized in the Rules for Courts-Martial. RCM 701(f), titled “Information not subject to disclosure,” shields from disclosure or production the notes, memoranda, and similar working papers prepared by counsel and by counsel’s assistants and representatives. This protection is distinct from the attorney-client privilege found in Military Rule of Evidence 502. The attorney-client privilege protects confidential communications made to obtain legal services, while RCM 701(f) protects the work product that the legal team generates while developing the case. Both can apply to material connected with an expert, but they protect different things.

The phrase “assistants and representatives” is the key to the expert question. A consulting expert retained by the defense to assist counsel is generally treated as an extension of the defense team. The expert’s analysis, prepared at the direction of counsel to help build or test the defense, falls within the category of work product that RCM 701(f) is designed to keep out of the government’s hands.

The Consulting Expert Versus the Testifying Expert

The protection is strongest for a purely consulting expert. If the defense hires an expert solely to advise and that expert never takes the stand, the expert’s reports reflecting counsel’s strategy and mental impressions are ordinarily not discoverable. The military discovery framework rests on Article 46 of the UCMJ, which gives both sides an equal opportunity to obtain witnesses and evidence, but that equal-access principle does not require a party to hand over its own attorney’s confidential trial preparation.

The picture changes once an expert is designated to testify. When a witness will offer expert opinions at trial, the rules contemplate notice and disclosure of the substance of the expected testimony so the other side can prepare. At that point, the material the expert relied on and the …

The Article 32 preliminary hearing is a gateway to a general court-martial. It tests whether there is probable cause, whether the convening authority has jurisdiction, and whether the charges are in the proper form, and it gives the accused an early look at the government’s case. A common and important question is whether the government can add charges after that hearing concludes without holding a new one. The answer turns on a distinction the rules draw between minor and major changes, and on the constitutional purpose the hearing serves.

What the Hearing Is For

The Article 32 hearing is a preliminary hearing, not a trial. Its purposes include determining whether there is probable cause to believe an offense was committed and that the accused committed it, examining the convening authority’s jurisdiction, considering the form of the charges, and making a recommendation about disposition. Because the hearing examines the charges that were preferred, the question of whether new charges can be added afterward is really a question about whether those new charges have already received the consideration the hearing is meant to provide.

The Minor Versus Major Change Distinction

The governing principle comes from the rules on amending charges. A minor change is any alteration that does not add a party, an offense, or substantial matter not fairly included in the charges already preferred, and that is not likely to mislead the accused about the offenses charged. Minor changes can be made at any time before findings, without re-preferring or re-swearing the charges and without any need to return to the preliminary hearing. A major change, by contrast, is one that adds a new party, a new offense, or substantial matter not fairly included in what was already there.

When the government wants to add a wholly new charge, that is by definition a major change. Major changes generally cannot simply be made over objection without going back through the preferral process and, where the new matter has not been the subject of a preliminary hearing, without affording that hearing. The default rule, then, is that genuinely new charges require the protections the Article 32 process supplies before they can be referred to a general court-martial.

How New Charges Can Reach Trial Without a Second Full Hearing

Despite that default, there are recognized paths by which additional charges may join a case without a full reconvening of the original hearing. The …

A pass gives a service member temporary authorized absence from a place of duty, but it does not last forever. Every pass has a defined end, an expiration time by which the member must return or report. That expiration time is the pivot on which an absence without leave allegation under Article 86 often turns. As long as the member is within the bounds of the pass, the absence is authorized. The moment the pass expires and the member is not where required, the absence becomes unauthorized, and the clock that matters for Article 86 begins to run.

What Article 86 covers

Article 86 of the Uniform Code of Military Justice is the catch-all absence offense. In the Army and Air Force it is referred to as absence without leave, or AWOL; in the Navy, Marine Corps, and Coast Guard the equivalent is unauthorized absence, or UA. The article reaches any case, not covered by another article, in which a member, through the member’s own fault, is not at the place where required to be at the prescribed time. It encompasses several distinct theories: failure to go to an appointed place of duty at the prescribed time, going from the appointed place of duty without authority, and absence from the unit, organization, or place of duty at which the member is required to be.

A pass case typically implicates the third theory, absence from the unit or place of duty. The member was lawfully away on a pass, the authorization ended, and the member failed to return when the pass expired.

The expiration time defines when authorization ends

A pass is a grant of authorized absence for a fixed window. Its expiration time is the boundary of that authorization. Until the pass expires, the member is exactly where the member is permitted to be: away from duty with permission. There is no unauthorized absence while the pass is in effect.

When the expiration time passes and the member has not returned to or reported at the required place, the authorization is gone and the absence becomes unauthorized from that moment. The expiration time therefore serves as the precise starting point of the AWOL period. This matters because Article 86 penalties scale heavily with the duration of the absence. A short unauthorized absence carries far lighter maximum punishment than one that extends beyond thirty days, and an extended absence terminated by …

Desertion under Article 85 of the Uniform Code of Military Justice (UCMJ) is one of the most serious absence offenses in military law. Service members sometimes assume that an absence that begins while they are on a temporary duty (TDY) assignment is treated differently, perhaps as a lesser offense, because the member was already away from the home unit. That assumption is mistaken. Desertion can be charged when the absence occurs during a temporary duty assignment, because what makes an absence desertion is not where the member was supposed to be but the member’s intent and the nature of the unauthorized absence.

What Article 85 requires

Desertion is fundamentally an absence offense joined with a particular state of mind. The most common form is absence with the intent to remain away permanently. To prove that form, the government must establish that the accused was absent from a unit, organization, or place of duty; that the absence was without authority; that at some point during the absence the accused intended to remain away permanently; and that the accused remained absent for the period alleged. When the absence is ended by apprehension rather than voluntary return, that fact is also alleged and proved.

Two other theories of desertion exist. One is quitting a unit or organization with intent to avoid hazardous duty or to shirk important service. The other applies to enlistment-related desertion. The most frequently litigated theory, however, is absence with intent to remain away permanently, and that is the framework most relevant to an absence that begins during TDY.

A place of duty includes a temporary duty location

The phrase place of duty in Article 85 is broad. A member’s place of duty is wherever the member is required to be by competent authority, and that includes a temporary duty location, a school, a training site, or any other assignment to which the member has been ordered. When a member is on TDY, the TDY site or the duties associated with it constitute the member’s place of duty for the duration of the assignment. Leaving that assignment without authority is just as much an unauthorized absence as leaving the home station would be.

For this reason, the TDY context does not insulate the member. If a member assigned to a temporary duty location departs without authority and forms the intent to remain away permanently, the elements of desertion can be …

Disobedience does not always come in the form of a spoken “no.” A service member might stand still, walk away, shake the head, or simply fail to move when ordered. The question is whether these nonverbal responses can violate Article 90 of the Uniform Code of Military Justice the same way an open verbal refusal would. The answer is that Article 90 focuses on the fact of willful disobedience, not the words used to express it, so nonverbal conduct can violate the article, but the manner of refusal still matters to proof and to how the charge is framed.

What Article 90 Covers After the 2019 Restructuring

Article 90 addresses willfully disobeying a lawful command of a superior commissioned officer. Following changes that took effect on January 1, 2019, under the Military Justice Act of 2016, Article 90 was revised, and the assault-on-a-superior-officer conduct that the article once also covered was reorganized. The disobedience portion remains a serious punitive offense.

To convict under the willful-disobedience theory, the government must prove that the person giving the command was a commissioned officer; that the officer was superior to the accused in rank or command authority; that the accused knew the person was a superior commissioned officer; that the officer gave a lawful command directed to the accused; and that the accused willfully disobeyed that command. Nothing in these elements requires that the disobedience be spoken.

Why the Form of Refusal Does Not Control

The core of the offense is willful disobedience, meaning an intentional defiance of authority. A service member who understands a lawful order and intentionally declines to obey it disobeys whether the refusal is announced or simply carried out through conduct. Refusing by silence and inaction, turning and walking away, or gesturing refusal can all reflect the same intentional defiance that a verbal “I won’t” reflects. The law looks at the choice to defy, not at the communication channel.

This is why nonverbal refusals are, in principle, treated equally: they can satisfy the willful-disobedience element. A deliberate failure to perform a clear, lawful order that demands action is the classic example. If an officer orders a service member to perform a specific task and the member, understanding the order, simply does not do it, the inaction can constitute disobedience.

Where the Form of Refusal Matters in Practice

Although the law does not privilege verbal refusals, the form of the response …