Military Lawyers

When charges alleging improper prescribing are dropped against a military dental officer, retention is possible but never automatic. The dropping of criminal or disciplinary charges resolves only one track of jeopardy. A commissioned dental officer faces several overlapping systems, and a favorable outcome in one does not bind the others. Understanding how those systems interact is the key to predicting whether the officer keeps the uniform.

What “charges dropped” actually settles

If charges were preferred under the Uniform Code of Military Justice and then withdrawn, or if a commander’s inquiry closed without imposing nonjudicial punishment, the officer has not been found culpable. There is no conviction, no finding of guilt, and no punitive record from that proceeding. That matters, because many adverse consequences are triggered only by an actual adverse finding. It does not, however, mean the underlying allegation has been declared baseless. Withdrawal can happen for many reasons, including evidentiary weakness, witness availability, or a command decision to handle the matter administratively rather than judicially.

Administrative separation runs on a different standard

The most important point for any officer is that administrative separation is independent of the criminal process. A commissioned officer can be required to “show cause” for retention before a Board of Inquiry even when no court-martial conviction exists. These boards, sometimes called show-cause or elimination boards, decide retention questions using a preponderance of the evidence standard, which is far lower than the criminal standard of proof beyond a reasonable doubt. A board composed of senior officers reviews whether a preponderance of the evidence supports each allegation and whether that conduct warrants separation. Because of this lower threshold, a dental officer whose charges were dropped can still be referred to a Board of Inquiry, and the board can recommend separation if it finds the conduct occurred.

The role of the Board of Inquiry

A Board of Inquiry is a formal administrative hearing convened to determine whether an officer should be retained or separated and, if separated, with what characterization of service. The officer is entitled to counsel, to present evidence and witnesses, and to challenge the government’s case. For a dental officer, the dropping of charges is powerful evidence to bring before the board. Counsel can argue that the command itself declined to pursue the matter, that the evidence was insufficient, and that retention serves the needs of the service. The board is not required to separate; …

Separation for a pattern of misconduct is one of the more common administrative actions a service member faces, and it is also one of the more contestable. The phrase implies repetition and seriousness, yet commands sometimes assemble a handful of small, unrelated incidents and label the collection a pattern. Whether that label holds up depends on what the governing regulation actually requires and on how the evidence is weighed. The short answer is that genuinely isolated and minor incidents are usually weak support for a pattern-of-misconduct separation, and the regulations themselves give the defense room to say so.

What a pattern of misconduct means

In the Army, enlisted administrative separations are governed by Army Regulation 635-200, and the other services use parallel instructions. Under that framework, a pattern of misconduct generally refers to discreditable involvement with civil or military authorities, or conduct prejudicial to good order and discipline, that violates accepted standards of personal conduct reflected in the UCMJ, regulations, civil law, and the customs of the service. The key word is pattern. The basis contemplates a course of conduct, not a single lapse, which is why a true pattern usually rests on multiple, connected, and meaningful incidents rather than scattered trivial ones.

Isolated and minor incidents carry little weight

The regulatory scheme directly undercuts the use of trivial or stale events. Isolated incidents and events that are remote in time normally have little probative value in deciding whether separation is warranted. The separation authority may disregard isolated incidents of minor misconduct when, viewed as a whole, the member’s service record is good. This language gives counsel a concrete argument: if the cited events are few, unrelated, minor, or old, they do not establish the kind of sustained, discreditable course of conduct the basis was designed to capture. A board can be asked to find that what the command calls a pattern is really a collection of unremarkable incidents that any reasonable record might contain.

Counseling and rehabilitation are prerequisites

A pattern-of-misconduct separation also carries a procedural safeguard that a serious-offense separation does not. Before a member can be separated for a pattern of misconduct, or for unsatisfactory performance, the chain of command must ensure the member received adequate formal counseling and a genuine opportunity to rehabilitate. This requirement exists precisely because these bases target conduct the service believes can be corrected. If the command skipped counseling, issued it after …

Delay in moving an appeal forward is a recognized concern in the military justice and administrative systems, but whether it can undo an executed separation depends heavily on which appeal is involved, what kind of delay occurred, and whether the delay actually harmed the service member. Delay alone is rarely a magic key. The law looks at the reasons for the delay and its effects, not simply the calendar.

First, identify which appeal is delayed

The phrase “processing an appeal” can mean very different things in the military. Three contexts matter most. The first is appellate review of a court-martial conviction. The second is an appeal of nonjudicial punishment to the next superior authority. The third is administrative review or appeal connected to a separation action, such as a rebuttal or a request for relief from a correction board. Each has its own timeline and its own remedy for delay, so the answer turns on correctly identifying the track.

Post-trial and appellate delay after a court-martial

For court-martial appeals, delay is taken seriously. The Court of Appeals for the Armed Forces, in United States v. Moreno, established presumptions of unreasonable delay at certain processing milestones, including lengthy gaps before docketing and before an appellate decision issues. When delay is presumptively unreasonable, courts apply the four-factor framework drawn from Barker v. Wingo: the length of the delay, the reasons for it, whether the service member asserted the right to timely review, and whether the delay caused prejudice. Appellate courts also have authority to grant relief for unreasonable post-trial delay even without specific prejudice, to protect the integrity of the system.

It is important to note that Congress amended the post-trial process in late 2022, eliminating the convening authority’s traditional “action,” so the old bright-line presumptions no longer map cleanly onto current practice. Appellate courts now assess the facial reasonableness of delay case by case. The remedy for excessive delay in this setting is usually sentence relief or, in rare cases, dismissal, rather than automatic reversal of an unrelated separation.

Nonjudicial punishment appeals

When the appeal is from nonjudicial punishment, the regulations expect prompt action. The superior authority is generally directed to act expeditiously, often within a few days. If a command sits on such an appeal, that delay can support a request that any pending consequences be held in abeyance until the appeal is resolved. The cleaner argument is that an …

Service members sometimes assume that any sharp word aimed at someone wearing more rank can become a charge of disrespect toward a superior commissioned officer. That assumption misreads Article 89 of the Uniform Code of Military Justice, codified at 10 U.S.C. 889. Rank disparity is part of the picture, but it does not by itself make the article apply. Article 89 turns on a defined relationship between the accused and the officer, on conduct that qualifies as disrespect, and, for the assault branch of the statute, on the officer’s official function at the time. Examining each requirement shows why a difference in grade is necessary but not sufficient.

What Article 89 actually prohibits

The current statute has two parts. The first punishes any person subject to the code who behaves with disrespect toward that person’s superior commissioned officer. The second punishes striking that officer, or drawing or lifting a weapon, or offering violence against the officer while the officer is in the execution of office. This article focuses on the disrespect branch, because that is where the rank question most often arises. The phrase that controls the analysis is “superior commissioned officer.” The disrespect must be directed at someone who holds that specific status relative to the accused, not merely at someone who outranks the accused in the abstract.

Why higher rank is not automatically “superior commissioned officer”

The Manual for Courts-Martial defines the relationship with care, and the definition does not equate seniority with superiority for purposes of this article. When the accused and the officer are in the same armed force, the officer is a superior commissioned officer of the accused when superior in rank or in command. The Manual then adds a critical limitation: the officer is not a superior commissioned officer of the accused if the officer is inferior in command, even though superior in rank. That single clause defeats the idea that rank disparity alone triggers the article. A lieutenant who outranks no one in the accused’s chain, but who is senior in grade, can still fall outside the protected status if that officer is junior in command to the accused. Seniority in grade and superiority for Article 89 purposes are related but not identical concepts.

The cross-service wrinkle

The picture changes when the accused and the officer serve in different armed forces. There, the Manual treats the officer as a superior commissioned officer when …

A service member who does not come back on time from approved leave is in an unauthorized absence the moment the leave expires. Whether that absence can be charged as desertion under Article 85 of the Uniform Code of Military Justice, rather than the lesser offense of absence without leave under Article 86, depends almost entirely on one thing: the member’s intent. Desertion can be charged in the failure-to-return situation, but only if the government can prove a specific intent that ordinary lateness does not supply. This article explains the distinction.

Desertion and AWOL Are Different Offenses

Both desertion and AWOL begin with the same factual core: an absence from a unit, organization, or place of duty without proper authority. When leave ends and the member has not returned, the unauthorized absence has begun. By itself, however, that absence is AWOL under Article 86. It does not automatically become desertion.

Desertion under Article 85 requires more. The defining feature is the member’s state of mind. The most common form of desertion requires the government to prove, beyond a reasonable doubt, that the member absented themselves from their unit, organization, or place of duty; that the absence was without authority; and, critically, that at some point during the absence the member intended to remain away permanently. A related form of desertion involves intent to avoid hazardous duty or to shirk important service. The intent element is what separates desertion from a simple unauthorized absence.

The Intent to Remain Away Permanently

The intent to remain away permanently is the heart of a desertion charge arising from a failure to return from leave. Several features of this element are important.

First, the intent does not have to exist at the moment the leave expired. The member may have intended to return when they left on leave, and the absence may have begun innocently. The law looks for whether, at some time during the absence, the member formed the intent to remain away permanently. A person who initially overstays by accident but later decides never to return can, on those facts, fall within the offense.

Second, the intent must genuinely be to stay away permanently, not merely to be late, to avoid a particular unpleasant event, or to take extra time before returning. An intent to come back eventually, even after a long delay, is not an intent to remain away permanently.

Third, because …

When a command destroys, loses, or fails to preserve evidence before a court-martial begins, the accused is not without recourse. Military law treats access to evidence as a structural fairness guarantee, and the trial judiciary has a graduated set of tools to repair the damage. Understanding those tools, and the standards that trigger each one, is essential for any service member who suspects that potentially helpful material disappeared while it was within the government’s control.

The Right That Destruction Threatens

Article 46 of the Uniform Code of Military Justice gives trial counsel, defense counsel, and the court-martial an equal opportunity to obtain witnesses and other evidence. That guarantee is implemented through Rule for Courts-Martial 701, the broad military discovery rule. Because the defense has an equal right of access, the government carries a duty to use good faith and due diligence to preserve evidence and make it available to the accused. When command action defeats that access by destroying records, recordings, physical items, or other proof, it implicates both the statutory equal-access principle and, in constitutional terms, the due process obligations recognized in Supreme Court doctrine on preservation of evidence.

A Key Difference From Civilian Practice

In the civilian constitutional framework, an accused generally must show that the government acted in bad faith to obtain relief for the loss of potentially useful evidence. Military discovery practice is more protective. Under Rule for Courts-Martial 701 and Article 46, a remedy may be available even when the government was merely negligent and not acting in bad faith, because the focus is on restoring the equal opportunity to obtain evidence rather than on punishing misconduct. This means a service member may seek relief based on the prejudice caused by the loss, not only on proof of an improper motive.

Adverse Inference Instructions

One of the most established remedies is the adverse inference. The Court of Appeals for the Armed Forces recognized in United States v. Ellis, 57 M.J. 375 (C.A.A.F. 2002), that an adverse inference instruction can be an appropriate curative measure when the government improperly destroys or loses evidence. Under that approach, the military judge may draw, or may permit the panel members to draw, an inference that the missing evidence would have been unfavorable to the government. This remedy is well suited to situations where the destroyed item might have helped the defense test the prosecution’s proof or support an alternative …

The armed forces run on more than written rules. Long-standing customs, unwritten expectations, and traditions of the service shape daily conduct in ways no regulation fully captures. A recurring question for service members facing discipline is whether those informal customs can become the basis for criminal liability under Article 92 of the Uniform Code of Military Justice even when they were never written down as an order or regulation. The answer is nuanced. A custom of the service can support a charge under Article 92, but only under specific conditions and with important limits that protect the accused.

The Three Theories Under Article 92

Article 92 actually contains three distinct offenses, and it helps to keep them separate. The first is violation of a lawful general order or regulation. The second is failure to obey any other lawful order. The third is dereliction in the performance of duties. Customs of the service rarely fit the first two theories, which depend on the existence of an actual order or written regulation. The custom question almost always arises under the third theory, dereliction of duty.

Dereliction of duty requires the government to prove that the accused had certain duties, that the accused knew or reasonably should have known of those duties, and that the accused was willfully derelict or derelict through neglect or culpable inefficiency in performing them. The key word is duties. The law recognizes that a duty can arise not only from a written regulation but also from a lawful order, from the responsibilities of a position, or from a custom of the service.

When a Custom Becomes an Enforceable Duty

This is where customs and traditions enter the picture. A duty under the dereliction theory can be imposed by custom of the service, meaning a practice so well established and uniformly observed that members of the force understand it as a binding expectation. In that sense, an unwritten custom can in principle ground a dereliction charge without any formal regulation behind it.

But not every tradition rises to that level, and the law draws careful boundaries. A custom must be long continued, certain and uniform, compulsory rather than merely optional, and consistent with law. A practice that is merely common, convenient, or occasionally followed does not qualify. A custom that conflicts with statute, regulation, or higher orders is not enforceable at all, because no custom can override the written …

After a finding of guilt at a court-martial, the proceeding moves to sentencing, where the accused has a meaningful opportunity to present matters in extenuation and mitigation. Financial hardship is a common theme an accused may wish to raise, whether to explain the circumstances that led to the offense or to ask for leniency because of the impact a sentence would have on the member’s family and finances. The right to present such matters is broad, but it is not unlimited. Several rules and practical realities constrain how, and how persuasively, financial hardship can be presented as mitigation.

The sentencing framework that allows mitigation

The presentencing procedure is governed by Rule for Courts-Martial (RCM) 1001. Under that rule, both sides present information relevant to sentencing. The government may offer matters in aggravation and the accused’s service record, and the defense may present matters in extenuation and mitigation. Extenuation explains the circumstances surrounding the offense, while mitigation includes matters that may lessen the punishment or support a recommendation for clemency. The accused also has a recognized right to make an unsworn statement and a broad ability during allocution to bring aspects of personal life before the sentencing authority. Financial hardship can fit within both extenuation and mitigation, which is why it is frequently raised.

The first limitation: relevance

The most basic constraint is relevance. Matters offered in mitigation remain subject to the rules of evidence and procedure, including the requirement that evidence be relevant under Military Rule of Evidence (MRE) 402. Financial hardship must have a logical connection to the sentencing decision to be admissible as evidence. Hardship that genuinely bears on the accused’s character, rehabilitative potential, the circumstances of the offense, or the appropriate severity of punishment is relevant. Generalized complaints about money that have no tie to the offense or to a recognized sentencing consideration can be excluded as irrelevant. The accused cannot simply assert financial difficulty in the abstract and expect it to carry weight as evidence.

The second limitation: the balancing rule

Even relevant evidence can be limited under MRE 403, which allows the military judge to exclude evidence when its probative value is substantially outweighed by dangers such as unfair prejudice, confusion, or undue delay or waste of time. Applied to financial hardship, this means a judge can rein in cumulative or marginally useful financial testimony, or evidence that would turn the sentencing hearing into a …

Nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. section 815, is the military’s tool for handling minor misconduct without a court-martial. A commander hears the case, decides whether the member committed the offense, and imposes punishment such as extra duty, restriction, reduction in grade, or forfeiture of pay. Because the process is fast and informal, mistakes happen, including situations where a service member did not have the chance to present favorable or mitigating information before punishment was imposed. Military attorneys can and do pursue relief in that situation. The vehicle is usually called an appeal or a request to set aside the punishment, and the law expressly provides for both.

Article 15 is designed to be challenged

Nonjudicial punishment is not meant to be final the moment a commander signs the form. The statute and the implementing service regulations, such as Army Regulation 27-10 for the Army, build in review. A service member who considers the punishment unjust or disproportionate to the offense may appeal to the next superior authority. That appeal is the primary avenue when something went wrong in the proceeding, including a failure to consider available mitigating evidence.

A military attorney, whether a defense counsel or a legal assistance attorney, can assist with that appeal. In fact, members typically have the right to consult with counsel during the Article 15 process, and counsel routinely helps prepare appeals and supporting submissions. So the answer to whether a military attorney is allowed to request relief is yes. The system contemplates counsel participation, and the request is a recognized part of the process rather than an extraordinary measure.

The appeal and the right to submit mitigating matters

The appeal is the natural place to raise a lack of access to mitigating evidence. A member is not required to state reasons for an appeal, but may do so, and the usual grounds are that the member is not guilty on the evidence, that the punishment is excessive, or that some portion of the punishment should be mitigated or suspended. Crucially, the member may attach documents for the superior authority to consider. That is exactly how mitigating evidence that was not before the original commander gets into the record.

So when an attorney argues that an Article 15 was decided without favorable evidence, the attorney can submit that evidence with the appeal: character …

Article 87 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. 887, punishes missing movement. The offense reaches a service member who, through neglect or design, misses the movement of a ship, aircraft, or unit with which the member is required in the course of duty to move. When a unit deploys or relocates and a member is not present, commanders frequently look to Article 87. A natural defense question follows: if the orders contained a clerical mistake, can that error defeat the charge? The answer depends on which element of the offense the error touches, because Article 87 is built on specific proof requirements, and a paperwork slip is only a defense if it negates one of them.

The elements the government must prove

To convict under Article 87, the prosecution generally must establish three things. First, the accused was required, in the course of duty, to move with a ship, aircraft, or unit. Second, the accused knew of the prospective movement. Third, the accused missed the movement through design or through neglect. Each element is independent, and the government bears the burden on all of them beyond a reasonable doubt. A clerical error becomes meaningful only when it undercuts one of these elements rather than merely showing that paperwork was imperfect.

How a clerical error can negate the knowledge element

The element most often affected by a paperwork mistake is knowledge. Article 87 requires that the accused actually knew of the prospective movement. Knowledge can be proven by direct evidence, such as a verbal briefing, or by circumstantial evidence, such as participation in pre-deployment events. If the only notification a member received was a written order, and that order misstated the date, time, or reporting location because of a clerical error, the defense can argue the member did not have accurate knowledge of the actual movement. A member who reported at the time the erroneous order specified, only to learn the unit had already departed at a different time, has a genuine argument that the knowledge element was not satisfied as to the real movement.

This is not an automatic defense. If the member knew of the correct movement details through other channels, the error in one document does not erase that knowledge. Commands often communicate movement information through multiple means, including formations, briefings, and electronic notifications. A single typo in one order rarely defeats …