Military Lawyers

Maltreatment of a civilian subordinate can violate Article 93 of the Uniform Code of Military Justice. The statute does not limit its protection to uniformed personnel. It reaches cruelty, oppression, or maltreatment of any person subject to the orders of the accused, and that phrase has long been understood to include people who are required to obey the accused’s lawful orders even if they are not themselves subject to the UCMJ. A civilian who works under a military member’s lawful authority can therefore fall within Article 93’s protection, provided the relationship and the conduct satisfy the article’s elements.

What Article 93 Prohibits

Article 93 states that any person subject to the UCMJ who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct. The offense exists to punish abuse of authority. Its essence is the misuse of a position of command or supervision to treat a subordinate cruelly or oppressively. Because the harm Article 93 addresses is the abuse of the superior-subordinate relationship itself, the article focuses on whether the victim was subject to the accused’s orders rather than on the victim’s formal status.

The Two Core Elements

Article 93 has two elements. First, that a certain person was subject to the orders of the accused. Second, that the accused was cruel toward, or oppressed, or maltreated that person. The first element defines the protected relationship, and the second defines the prohibited conduct. Both must be present. A civilian-subordinate case turns first on establishing that the civilian was subject to the accused’s orders, and then on showing that the treatment crossed the line into cruelty, oppression, or maltreatment.

Why “Subject to His Orders” Includes Some Civilians

The decisive phrase is subject to his orders. This language has been interpreted to mean not only persons under the direct or immediate command of the accused, but all persons who, by reason of some duty, are required to obey the lawful orders of the accused, regardless of whether they are in the accused’s direct chain of command. Critically, those required to follow the accused’s lawful orders may or may not themselves be subject to the UCMJ. That interpretation is what allows Article 93 to extend to civilians. A civilian employee, contractor, or other person who, because of some duty, is required to obey the lawful orders of a military …

Conspiracy under Article 81 of the Uniform Code of Military Justice is sometimes misunderstood as a charge that punishes nothing more than talk or agreement. In fact, the offense requires something beyond the agreement itself. An overt act is a required element, and the government must prove that an overt act was committed before it can obtain a conspiracy conviction. This article explains what that requirement means, why it exists, and how it shapes both prosecution and defense.

The Two Elements of Article 81 Conspiracy

To convict an accused of conspiracy under Article 81, the government must prove two elements beyond a reasonable doubt. First, that the accused entered into an agreement with one or more persons to commit an offense under the code. Second, that while the agreement continued to exist and while the accused remained a party to it, the accused or at least one of the co-conspirators performed an overt act for the purpose of bringing about the object of the conspiracy.

The overt act is a separate, independent element. It is not enough to prove a meeting of the minds to commit a crime. The agreement alone, without an act to advance it, does not complete the offense. That is the direct answer to the question: yes, overt action is required for a conspiracy conviction under the UCMJ.

What Counts as an Overt Act

The overt act requirement is easier to satisfy than many people expect, because of how broadly the act may be characterized. The overt act does not have to be illegal in itself. An act that is entirely lawful on its own can qualify, so long as it is done for the purpose of carrying out the conspiracy and is clearly connected to bringing about its object. Buying an ordinary item, making a phone call, traveling to a location, or any number of innocuous steps can constitute the overt act if it is a step taken to further the unlawful agreement.

The act may occur during or after the formation of the agreement, but it must take place while the agreement still exists and while the accused remains a party to it. The act does not have to be performed by the accused personally. An overt act by any one of the co-conspirators, done to further the conspiracy, satisfies the element for all members who were party to the agreement at the time.…

Military attorneys, the judge advocates who serve as uniformed lawyers, are subject to the same assignment and personnel systems as other officers, and like any officer they sometimes encounter unfavorable assignment or transfer decisions. When a requested transfer is rejected and the rejection appears to rest solely on a supervisor’s subjective, personal assessment rather than on documented, legitimate criteria, the natural question is whether the affected attorney is permitted to dispute it. The answer is yes. A judge advocate, like any service member, has recognized avenues to contest an adverse personnel decision, including a transfer denial that seems grounded only in one supervisor’s personal opinion. What is generally not available is a guaranteed right to a particular assignment, because assignments are made according to the needs of the service. The realistic goal of a dispute is usually to correct an improper or unsupported decision or to create a record, not to compel a specific transfer.

Assignments are discretionary, but discretion has limits

Officer assignments, including those of judge advocates, are made based on the needs of the service, the needs of the legal corps, and, where possible, the preferences of the officer. Because assignment authority is broad and discretionary, no officer is entitled to a particular posting on demand. That discretion, however, is not unlimited. A personnel decision can be challenged when it is unsupported, when it violates a law or regulation, when it exceeds the decision-maker’s authority, or when it is arbitrary, capricious, or an abuse of discretion. A transfer rejection that rests solely on a supervisor’s personal assessment, untethered to any legitimate, documented basis, is exactly the kind of decision that these standards are designed to scrutinize.

The phrase “based solely on a supervisor’s personal assessment” is significant. A supervisor’s professional judgment is a normal and proper input into assignment decisions. The concern arises when a denial appears to have no foundation beyond that one person’s subjective view, with no supporting facts, no governing criterion, and no review. That is the kind of decision a service member is entitled to question.

Article 138 complaint of wrongs

One direct avenue is a complaint under Article 138 of the UCMJ, codified at 10 U.S.C. 938. Article 138 allows any member of the armed forces who believes that he or she has been wronged by a commanding officer to seek redress. A “wrong” for this purpose includes a discretionary act or …

Yes. Military attorneys can and do review command memoranda, and when a memo uses unrelated unit performance as a stated rationale for action against an individual, that review becomes especially important. The reason is that such reasoning can raise questions about whether a decision rests on a proper, individualized basis or whether it reflects improper influence. This article explains how that review fits into military justice and administrative practice.

Where legal review of command documents comes from

Commanders rely on legal advisors for a range of decisions. In the court-martial process, a convening authority works with a staff judge advocate, and Article 34 of the UCMJ requires advice from the staff judge advocate before certain charges may be referred to a general court-martial. That advice examines whether the charges are warranted by the evidence and whether the convening authority has jurisdiction, among other things. Outside the court-martial setting, military attorneys also review administrative actions, nonjudicial punishment paperwork, separation packages, and the memoranda commanders use to document and justify decisions.

When a command memo states a rationale, the rationale itself is part of what counsel evaluates. A memo that justifies action against one service member by pointing to the performance of an unrelated unit invites scrutiny because the stated basis does not obviously connect to that individual’s conduct. Counsel can flag the disconnect, ask whether the real basis is documented, and advise the command on whether the reasoning is legally sound.

The unlawful command influence concern

The most serious legal problem that unrelated-unit reasoning can implicate is unlawful command influence. Article 37 of the UCMJ, codified at 10 U.S.C. 837, is the statutory prohibition. It bars a convening authority or other commanding officer from censuring, reprimanding, or admonishing a court-martial or its members, military judge, or counsel with respect to findings, sentence, or the exercise of judicial functions. It also prohibits any person subject to the UCMJ from attempting to coerce or, by unauthorized means, influence the action of a court-martial or the action of a convening, approving, or reviewing authority with respect to judicial acts.

Courts recognize two forms of the problem: actual unlawful command influence and the appearance of unlawful command influence. The populations most often affected are subordinate commanders, potential panel members, and potential witnesses. A memo that imports a unit’s general performance into an individual decision, or that signals a desired outcome based on factors unrelated to …

A dismissed civilian charge does not close the question of security clearance eligibility. Many service members and contractors assume that when a prosecutor drops a case, declines to file, or a court dismisses a sexual offense charge, the matter disappears for clearance purposes. It does not. Federal adjudicators evaluate eligibility for access to classified information under a framework that looks at conduct, judgment, and reliability rather than at the criminal outcome alone. Understanding how that framework treats a dismissal helps service members prepare honestly and respond effectively.

The governing standard

Eligibility decisions are made under Security Executive Agent Directive 4 (SEAD 4), which sets out the National Security Adjudicative Guidelines used across the executive branch. The same guidelines are reflected in regulation at 32 C.F.R. Part 147. Two guidelines are most relevant to a sexual offense allegation: Guideline D, which addresses sexual behavior, and Guideline J, which addresses criminal conduct. A single set of facts can implicate both guidelines at once.

The most important feature of this framework is that it focuses on conduct, not conviction. Guideline J expressly states that a security concern can arise from criminal conduct regardless of whether the individual was formally charged, prosecuted, or convicted. A dismissal therefore removes the criminal penalty but does not remove the conduct from the adjudicator’s view. The directive treats adjudication as predictive rather than punitive. The question is not whether the government could have proven guilt beyond a reasonable doubt, but whether the underlying behavior raises a doubt about future trustworthiness with sensitive information.

Why a dismissal is not the end of the inquiry

Civilian charges are dismissed for many reasons. A prosecutor may decline because a witness becomes unavailable, because of a procedural defect, because the office prioritizes other cases, or as part of a negotiated resolution. Some of these reasons say little about whether the alleged conduct occurred. Because the adjudicative standard is lower than the criminal standard and rests on the whole record, an adjudicator may consider police reports, witness statements, the individual’s own admissions, and other evidence that never reached a courtroom.

That said, the manner of dismissal matters. A dismissal with prejudice on the merits, a finding that the complaint was unfounded, or evidence that the allegation was fabricated all weigh in the individual’s favor. A dismissal for reasons unrelated to the truth of the allegation carries less mitigating weight.

How the whole-person concept

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Article 87, UCMJ, criminalizes missing the movement of a ship, aircraft, or unit with which a service member is required, in the course of duty, to move. The statute reaches conduct committed either through design, meaning the member deliberately missed the movement, or through neglect, meaning the member failed to exercise the care a reasonable person would have used. To win a conviction, the prosecution must prove that a specific movement was scheduled, that the accused was required to move with it, that the accused knew of the expected movement, and that the accused missed it. Documentary records such as travel vouchers, orders, and itineraries are often central to proving those elements, which is why their admissibility comes up so frequently in these cases.

Why these documents matter to the elements

Each Article 87 element invites documentary proof. A movement order, manifest, or itinerary tends to establish that a movement was actually scheduled and when it was supposed to occur. Travel orders and assignment documents tend to establish that the accused was required to be part of that movement. Records showing that the itinerary was issued to the member, that the member acknowledged it, or that the member processed a travel voucher tied to the trip can help establish the member’s knowledge of the movement, which is an essential element the government must prove. Because of this, the defense and the prosecution often fight over whether these papers come into evidence and, if so, what they actually prove.

Admissibility runs through relevance, authentication, and hearsay

Courts-martial apply the Military Rules of Evidence, which closely track the Federal Rules of Evidence. A travel voucher or itinerary must clear three basic hurdles before a panel may consider it.

The first hurdle is relevance. The document must make a fact of consequence more or less probable. An itinerary showing a departure time, or a voucher reflecting the member’s planned travel, is plainly relevant to whether a movement existed, when it occurred, and whether the member knew about it.

The second hurdle is authentication. The proponent must offer enough evidence to support a finding that the document is what it claims to be. This can be done through a witness with knowledge, through the document’s own distinctive characteristics, or, in the case of records of a regularly conducted activity, through a custodian or a qualifying certification.

The third hurdle is hearsay. A travel voucher …

A Sailor whose security clearance is being revoked often wants to know where the appeal goes, and whether anything changes after separation from the Navy. The name that frequently comes up is the Defense Office of Hearings and Appeals (DOHA). The relationship between a Sailor and DOHA is more nuanced than it first appears, because DOHA’s role differs depending on whether the person is a military member, a federal civilian employee, or a contractor. Understanding that distinction is the key to answering whether a post-discharge appeal to DOHA is possible.

Who DOHA is and what it does

DOHA is an administrative component within the Department of Defense that adjudicates security clearance matters. It is best known for running the industrial security clearance program, which covers contractor personnel working on classified contracts. For that population, a DOHA administrative judge can hold a hearing and issue a decision, and an applicant who loses can take the matter to the DOHA Appeal Board. DOHA’s published decisions overwhelmingly arise from this industrial, or contractor, side of its work.

How a Sailor’s clearance case is handled

For active duty military members, including Sailors, the path is not identical to the contractor path. When a clearance issue arises for a service member, the determination is made within the Department of Defense personnel security system, and the member is given an opportunity to respond. A hearing before a DOHA administrative judge is part of the process for service members, but with an important difference: in the military and federal employee context, the administrative judge issues a recommendation rather than a final ruling. The final decision rests with a Personnel Security Appeals Board (PSAB) for the member’s department. In other words, for a Sailor, DOHA can be involved as the body that holds a hearing and makes a recommendation, while the ultimate appellate authority is the PSAB.

This is a meaningful structural point. The contractor model lets the person appeal an administrative judge’s decision to the DOHA Appeal Board. The service member model routes the case through DOHA for a recommended decision and then to the PSAB for final action. A Sailor is generally in the second model while serving.

The effect of discharge

The harder question is what happens after the Sailor separates. A clearance and its associated due process exist to govern access to classified information tied to a current role. Once a person is discharged, …

When an enlisted member is accused of off-duty conduct that the command says reflects poorly on the member’s military character, the burden of proof the government must meet depends entirely on the forum. The military uses different processes for different kinds of action, and each carries its own standard. The same off-duty behavior could be addressed through a court-martial, through nonjudicial punishment, or through an administrative separation, and the burden ranges from the highest standard in the law to a much lower one. Understanding which forum is in play is the first step to understanding what the government has to prove.

Off-duty conduct is reachable, but reach is not the same as proof

It is well established that off-duty conduct can be the subject of military action. Under Article 134 of the UCMJ, the general article, conduct that is prejudicial to good order and discipline or that is service-discrediting can be charged even when it occurs off base or while the member is not on duty. Prejudicial conduct is conduct with a direct and palpable effect on the unit or the chain of command, while service-discrediting conduct is conduct that would cause a reasonable member of the public to think less of the armed forces. The fact that behavior happened off duty does not place it beyond reach. But whether the conduct can be acted upon is a separate question from how strong the government’s proof must be, and the burden varies by forum.

At court-martial: beyond a reasonable doubt

If the off-duty conduct is charged as a criminal offense at a court-martial, the burden is the highest the law recognizes: proof beyond a reasonable doubt. For an Article 134 charge, the government must prove every element beyond a reasonable doubt, including not only that the member engaged in the conduct but also that it was prejudicial to good order and discipline or service-discrediting. The law is careful here. Not every improper act is criminal merely because one could imagine some remote effect on the service. The prejudice to good order and discipline must be reasonably direct and palpable, and that connection, like every other element, must be proven beyond a reasonable doubt. So a court-martial accusation built around the member’s “military character” still demands the full criminal burden on each element.

At nonjudicial punishment: a commander’s determination

If the command handles the off-duty conduct through nonjudicial punishment under Article …

Surveillance video can be powerful evidence in a court-martial, and disputes over when the government turns it over to the defense are common. When trial counsel produces surveillance footage late, the defense naturally asks whether the remedy is exclusion of all of that video evidence. The short answer is that exclusion is possible but is not automatic. Military law treats exclusion as a strong remedy reserved for situations where the circumstances justify it after a careful inquiry. This article explains the discovery obligations involved, the range of remedies, and why blanket exclusion is the exception rather than the rule.

The Government’s Disclosure Obligations

Discovery in courts-martial is governed primarily by the Rules for Courts-Martial, which impose broad disclosure duties on trial counsel. The government generally must disclose evidence within its possession, custody, or control that the defense is entitled to, including evidence it intends to use and evidence favorable to the accused. Surveillance video can fall into more than one category. It may be evidence the prosecution intends to introduce, in which case timely disclosure is required so the defense can prepare. It may also contain material that is favorable to the accused, which triggers the constitutional disclosure obligations recognized in military practice, often discussed under the Brady line of authority. Favorable evidence includes both exculpatory material and material useful for impeachment.

These obligations are continuing. If the government learns of additional discoverable video as the case develops, the duty to disclose continues throughout the proceedings. A failure to look diligently for evidence in the right places can itself be a disclosure failure, because the burden to find and produce material evidence rests on the prosecution.

Remedies the Military Judge May Consider

When the defense shows a discovery violation, the Rules for Courts-Martial give the military judge a menu of remedies and broad discretion to fashion an appropriate one. The judge may order the government to permit discovery, grant a continuance to give the defense time to absorb the late material, prohibit the government from introducing the evidence it failed to timely disclose, or enter any other order that is just under the circumstances. Exclusion of the video is one option on this list, but it sits alongside less drastic measures.

The guiding principle is that the remedy should fit the violation. Courts favor remedies that cure the prejudice to the accused while preserving the truth-seeking function of the trial. …

Service members assigned to sensitive billets often hold their positions only as long as they remain eligible under a layered system of suitability and access requirements. When a member is pulled from a position, decertified from a special program, or denied continued access to classified information, the underlying paperwork sometimes rests in part on negative comments attributed to unnamed colleagues. The question many members ask is whether counsel can actually push back when the disqualifying decision cites anonymous team feedback rather than a documented, attributable event. The honest answer is that meaningful challenges exist, but they run through administrative and security channels rather than through the rules of a criminal trial, and the procedural rights are narrower than many people expect.

Why anonymous input shows up in the first place

Performance-based disqualifications usually arise outside the court-martial system. They appear in personnel actions, fitness or evaluation disputes, suitability reviews, and security eligibility adjudications. In the security eligibility context, the governing standard for federal access decisions is Security Executive Agent Directive 4 (SEAD 4), which sets out the national adjudicative guidelines. Those guidelines expressly recognize that unfavorable information provided by associates, coworkers, neighbors, and other acquaintances can raise a security concern. In other words, the framework anticipates that some adverse information will come from people who are interviewed during a background investigation and whose identities are not always disclosed to the subject. That is a feature of the system, not an accident, and it shapes how a challenge has to be framed.

The decision rests on the whole record, not one comment

A practical first line of attack is to attack the weight of the anonymous input rather than demanding the speaker’s name. Adjudicative decisions are supposed to rest on the whole-person concept and the entire record, weighing the seriousness, recency, frequency, and reliability of the information. An attorney can argue that vague, uncorroborated, or stale comments deserve little weight, that they conflict with documented evaluations, awards, and objective performance metrics, and that the favorable record outweighs an unsourced criticism. Because the government must articulate a rational basis tied to a recognized guideline, an attorney can also test whether the cited feedback actually maps onto a disqualifying condition or is simply a personality dispute dressed up as a security or suitability concern.

The hearing process and its limits

For contractor and many DoD security eligibility cases, the formal vehicle is a …