Military Lawyers

Article 80 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. 880, makes it an offense to attempt to commit an offense under the Code. An attempt is an act, done with the specific intent to commit a particular offense, that amounts to more than mere preparation and tends, even if it fails, to effect the commission of that offense. A service member charged with an attempt naturally asks whether changing course and withdrawing before completing the crime is a defense. The answer is a qualified yes. Withdrawal, more precisely described in military law as voluntary abandonment, can be a valid defense to an Article 80 attempt, but only when it is both genuinely voluntary and complete. It does not undo an attempt that has already been fully made for the wrong reasons.

The elements that define an attempt

To understand when withdrawal helps, it helps to see what the government must prove. An Article 80 attempt has four elements: that the accused did a certain overt act; that the act was done with the specific intent to commit a certain offense under the Code; that the act amounted to more than mere preparation; and that the act apparently tended to effect the commission of the intended offense. Two features matter for the withdrawal question. First, attempt requires specific intent, so the accused must have actually intended to commit the target crime. Second, the act must cross the line from mere preparation to a step that tends toward completion. The voluntary abandonment defense interacts with both of these features.

Voluntary abandonment as a defense

Military law recognizes voluntary abandonment as a defense to the crime of attempt. The idea is that the law extends a measure of leniency to a person who, after taking steps toward a crime, genuinely thinks better of it and turns away before the crime is done. But the defense is hedged with strict conditions, because it is meant to reward a true change of heart, not a tactical retreat.

For the defense to apply, the abandonment must be voluntary, meaning it springs from the accused’s own decision rather than from outside forces. It must be complete, meaning the accused fully gives up the criminal purpose rather than merely pausing it. And it must reflect a genuine renunciation, a decision rooted in the accused’s own sense that the conduct was wrong, rather than …

Several offenses under the Uniform Code of Military Justice require proof that the accused acted with the intent to commit some further, underlying offense. Attempt under Article 80, conspiracy under Article 81, burglary and housebreaking under Article 129, and similar charges all hinge on a mental state directed at a separate crime. When the accused denies having that purpose, the government cannot read the accused’s mind. Instead, the law allows the fact finder to evaluate intent through inference from the surrounding circumstances, while the accused remains free to offer an innocent explanation. Understanding how that evaluation works is critical, because intent is frequently the most contested element in these cases.

Why a Denial Does Not End the Inquiry

A defendant’s denial of purpose does not, by itself, defeat the charge. Intent is a state of mind, and direct admissions are rare. The military justice system, like civilian criminal practice, has long recognized that the trier of fact may infer a person’s intent from conduct, words, and the circumstances in which the conduct occurred. A panel is not required to accept the accused’s claim of innocent purpose any more than it is required to accept any other piece of testimony. It weighs that denial against the rest of the evidence and decides what the accused actually intended.

The Burden Stays With the Government

Even though intent may be inferred, the burden of proof never shifts to the accused. The government must prove beyond a reasonable doubt that the accused harbored the specific intent to commit the underlying offense. A denial of purpose simply joins the issue. It does not create a presumption against the accused, and it does not relieve the prosecution of proving the mental element through legally sufficient evidence. If the proof of intent leaves a reasonable doubt, the accused must be acquitted of the charge that depends on that intent.

Circumstantial Evidence and the Inference of Intent

Because purpose is rarely announced, fact finders evaluate it largely through circumstantial evidence. Several categories of proof commonly bear on intent.

Conduct and preparatory acts are central. What the accused did, how those acts fit together, and whether they point toward a particular objective can support an inference of intent. Acquiring tools or means associated with a specific offense, taking steps that have no innocent purpose, or moving toward a target in a way that aligns with the charged crime can …

A Board of Inquiry, also called a show cause board or officer elimination board, is the formal administrative hearing that decides whether a commissioned officer should be retained in service or involuntarily separated. When an officer arrives at a board carrying a prior nonjudicial punishment, the past misconduct is already on the table. The central question often shifts from whether something happened to whether the officer’s misconduct warrants the loss of a career. Demonstrating rehabilitation potential becomes the heart of the case for retention. This article explains how an officer builds and presents that showing.

Understanding What the Board Actually Decides

A Board of Inquiry generally addresses a sequence of questions. First, is there a factual basis for the proposed elimination, meaning did the alleged misconduct or substandard performance occur. Second, if a basis exists, does it warrant separation, or should the officer be retained. Third, if separation is recommended, what should the service characterization be, and for retirement-eligible officers, what grade.

A prior nonjudicial punishment frequently supplies the factual basis for the first question. It is important to understand that the board is not bound to treat a past punishment as automatically warranting elimination. Even where a basis is conceded or established, the members must independently decide the second question of whether retention or separation is appropriate. That second question is where rehabilitation potential lives, and it is often where a retention case is genuinely won.

Confronting the Prior NJP Directly

Officers and counsel generally do better confronting a prior nonjudicial punishment head-on than pretending it did not happen. Acknowledging the misconduct, accepting responsibility where appropriate, and showing genuine understanding of why the conduct fell short conveys maturity and credibility to the board. Defensiveness or minimization tends to undercut a rehabilitation argument, because rehabilitation begins with insight.

At the same time, counsel can examine the prior punishment critically. The board members must still be satisfied that the underlying conduct meets the relevant standard, and they are not required to accept a prior finding as the final word on either the facts or their significance. Where the circumstances of the earlier punishment are mitigating, where the conduct was isolated, or where the record is incomplete, those points can be developed without appearing to dodge accountability.

Evidence That Demonstrates Rehabilitation Potential

Rehabilitation potential is shown through concrete, documented evidence rather than assertions. Several categories carry weight.

Sustained performance after the misconduct …

A service member who once gathered strong character statements naturally wonders whether those same statements can be presented again at a later, unrelated nonjudicial punishment proceeding. The practical answer is yes, a member generally may submit prior written character statements at an NJP hearing, because the NJP setting is informal and admits a wide range of evidence. But “can be reused” and “should be reused” are different questions, and the value of recycled statements depends heavily on whether they speak to the member as the member stands today.

How NJP handles evidence

Nonjudicial punishment, known as an Article 15, captain’s mast, or office hours depending on the service, is a commander’s tool for addressing minor misconduct without a court-martial. It is deliberately informal. The strict rules of evidence that govern courts-martial do not apply. A member may present live witnesses where feasible, and where a live witness cannot appear, written statements and documents may be offered. This flexibility is exactly why prior written character statements can come in: there is no evidentiary bar that excludes them simply because they were written for an earlier matter.

What character statements are meant to do

Character evidence at NJP serves to show that the member is a good service member who is unlikely to have committed the alleged misconduct, or, if some misconduct occurred, that the member is worthy of rehabilitation and a light disposition. A statement attesting to the member’s reliability, duty performance, and integrity supports both arguments. Because NJP is as much about the appropriate disposition as about the underlying facts, character evidence can influence whether the commander imposes punishment at all and, if so, how severe it is.

The case for reusing prior statements

There are legitimate reasons to reuse earlier statements. If the prior statements were written by credible people who know the member well, they may still accurately describe the member’s character. Reusing them can be efficient, and it can spare the member the awkwardness of asking the same supervisors and peers to write yet another letter. For a member with a consistent record over time, a well-written prior statement may capture qualities that have not changed.

The serious limitations to keep in mind

Reuse carries real risks that counsel will weigh. The first is relevance and timing. A statement written for an unrelated earlier matter may not address the current allegation or the member’s conduct in the …

Joining a foreign military can amount to desertion under Article 85 of the Uniform Code of Military Justice, but it is not automatic. Article 85 defines several distinct forms of desertion, and one of them specifically addresses enlistment or appointment in a foreign armed force. Whether a particular service member is guilty depends on which theory the government pursues and whether the facts satisfy that theory’s elements. This question turns on the precise language of the statute rather than on the general assumption that wearing another nation’s uniform is treason or desertion in itself.

The Forms of Desertion Under Article 85

Article 85 recognizes more than one way to commit desertion. The most familiar form is absence without authority from one’s unit, organization, or place of duty with the intent to remain away permanently. A second form is quitting one’s unit or place of duty with intent to avoid hazardous duty or to shirk important service. A third form, the one directly relevant here, addresses a service member who, without being regularly separated from one of the armed forces, enlists or accepts an appointment in the same or another armed force, or enters any foreign armed service except when authorized by the United States. Recognizing these separate theories is important, because joining a foreign military can be charged under more than one of them depending on the facts.

The Foreign Enlistment Theory

The clearest path to liability is the statutory clause that covers entering a foreign armed service. Under that theory, a service member who has not been regularly separated from the United States armed forces and who enters a foreign armed service without United States authorization commits desertion. The gravamen is that the member, while still legally obligated to the United States military, takes up service with another nation’s forces without permission. This theory does not require the government to prove a separate intent to remain permanently away in the way the basic absence theory does, because the conduct of entering the foreign service while still bound to the United States is itself the prohibited act. The critical questions are whether the member was still a member of the United States armed forces, whether the member actually entered a foreign armed service, and whether that entry was authorized by the United States.

The Authorization Exception

The statute carves out an exception for service entered into when authorized by the …

When a service member has an open legal grievance and a performance flag lands on top of it, the situation feels like retaliation and a denial of due process at once. Military attorneys can and do challenge such flags, but the mechanism is usually a rebuttal, removal request, or correction-board action rather than a conventional “appeal.” Understanding what a flag is, and what it is not, is the starting point for getting it lifted.

What a flag actually is

In the Army, a flag is a Suspension of Favorable Personnel Actions, governed by Army Regulation 600-8-2. A flag is an administrative tool, not a punishment. It freezes favorable actions such as promotions, awards, schooling, reassignment, and similar benefits while a matter is pending. Other services use comparable holds. Because a flag is administrative, it does not require a finding of guilt, and it is often imposed automatically the moment certain triggers occur.

Some flags are mandatory. The regulation requires commanders to flag a soldier when investigations or adverse actions are initiated, including the preferral of court-martial charges or the initiation of Article 15 proceedings. Other flags, often called adverse-action or commander’s-investigation flags, are tied to an ongoing inquiry. The key feature is that a flag is meant to be temporary and tied to a pending matter.

Why a flag during an unresolved grievance raises concern

A performance-based flag imposed while the member has an open legal grievance, such as an Inspector General complaint, an equal-opportunity complaint, or a pending appeal, naturally raises the question of motive. Two issues arise. The first is whether the flag is legitimate, meaning it is tied to a genuine and properly documented basis. The second is whether it is retaliatory, meaning it was imposed because of the protected activity rather than because of any real performance concern. Military attorneys attack flags on both fronts.

The first move: rebuttal and request for removal

The most direct response is to challenge the flag through command channels. The member, assisted by counsel, can submit a rebuttal contesting the factual basis and request removal. The governing regulation is clear that a flag should be removed when the underlying investigation results in no adverse findings, and it can be removed earlier if circumstances change or the basis no longer supports the hold. Counsel will press the command to articulate the specific authorized basis for the flag, because a flag that …

Article 78 of the Uniform Code of Military Justice (10 U.S.C. 878) punishes the accessory after the fact: a person who, knowing that someone has committed an offense, assists that offender for the purpose of hindering or preventing apprehension, trial, or punishment. The crime is built around concealment and protection of an offender. Command-directed reporting points in the opposite direction. When a service member reports misconduct as required, the act of reporting tends to negate the very elements that define an accessory. Understanding how reporting interacts with Article 78 requires looking closely at what the offense demands and at how disclosure undermines the prosecution’s proof.

The elements of accessory after the fact

To convict under Article 78, the government must prove four things beyond a reasonable doubt. First, that an offense punishable under the UCMJ was committed by a certain person. Second, that the accused knew that this person had committed the offense. Third, that the accused thereafter received, comforted, or assisted the offender. And fourth, that the accused did so for the purpose of hindering or preventing the apprehension, trial, or punishment of the offender. The fourth element, the specific purpose to shield the offender from justice, is the heart of the offense and the element most directly affected by reporting.

Two boundaries the statute already draws

Article 78 contains two built-in limits that are essential to this question. The first is that mere silence is not enough. Failing to report an offense does not, by itself, make a person an accessory after the fact. An accessory must take some affirmative step to assist the offender; passive nondisclosure is not the active assistance the statute requires. The second limit is that the assistance must be given with the purpose of hindering or preventing the offender’s apprehension, trial, or punishment. Helping someone for some other reason, without that protective purpose, does not satisfy the offense.

These two boundaries explain why reporting is so significant. The crime requires both an affirmative act of assistance and a purpose to obstruct justice. Conduct aimed at bringing the offense to the attention of authorities is the opposite of concealment and tends to defeat both the assistance element and the purpose element.

How command-directed reporting cuts against the elements

Members of the armed forces operate within a web of reporting obligations. Commands direct the reporting of misconduct, and various regulations and policies require members to …

The short answer is that an Article 90 offense can technically be referred to a summary court-martial in limited circumstances, but doing so is unusual and is constrained by who can be tried at that forum and by how little punishment a summary court can impose. Article 90 of the Uniform Code of Military Justice (10 U.S.C. 890) punishes willfully disobeying a lawful command of a superior commissioned officer, and it is one of the most serious obedience offenses in the code. The summary court-martial, by contrast, is the lowest of the three court-martial forums and is designed for minor misconduct. The tension between the gravity of an Article 90 charge and the limited reach of a summary court is what makes referral both possible in theory and uncommon in practice.

What Article 90 requires

To convict under Article 90, the government must prove beyond a reasonable doubt that the accused received a lawful command from a commissioned officer, that the officer was the accused’s superior commissioned officer, that the accused knew the officer held that status, and that the accused willfully disobeyed the command. The disobedience must be willful, meaning an intentional defiance rather than a misunderstanding, an inability to comply, or mere negligence. Only a commissioned officer can be the victim of an Article 90 violation; disobedience toward a warrant officer or a noncommissioned officer falls under different articles.

The summary court-martial and its statutory limits

The jurisdiction of a summary court-martial is set by Article 20 of the UCMJ (10 U.S.C. 820). Two limits in that article control the analysis. First, a summary court-martial may try only enlisted members. It has no jurisdiction over commissioned officers, cadets, aviation cadets, or midshipmen. Second, a summary court may try a person only for noncapital offenses, and the punishment it may adjudge is sharply capped.

The punishment ceiling is the heart of the issue. A summary court-martial cannot impose death, a dishonorable discharge, a bad-conduct discharge, dismissal of an officer, or confinement for more than one month. It is further limited in the duration of hard labor without confinement and restriction, and it cannot order forfeiture of more than two-thirds of one month’s pay. These caps are far below the maximum punishment authorized for a willful violation of Article 90, which in time of peace can include a dishonorable discharge, total forfeitures, reduction to the lowest enlisted grade, and confinement …

Military drug cases frequently rest on a urinalysis result, and the integrity of that result depends on a tightly regulated collection and chain-of-custody process. When something goes wrong at collection, two very different legal problems can be in play, and they are often confused. One is unlawful command influence, the prohibited interference with the justice process that Article 37 of the Uniform Code of Military Justice forbids. The other is a defect in the collection or chain of custody that goes to the admissibility and reliability of the test. Whether improper command involvement during a urinalysis can lead to dismissal depends on which problem is actually present. Dismissal is possible, but it is reserved for the most serious situations and is not the usual remedy for a flawed sample.

Two distinct problems that look similar

Article 37 prohibits unlawful command influence, which is interference by a convening authority or commander with the fairness of the court-martial process. Classic examples include pressuring witnesses, dictating outcomes, or discouraging people from testifying or assisting the defense. Unlawful command influence has long been described as the mortal enemy of military justice precisely because it strikes at the legitimacy of the proceeding itself.

A urinalysis collection problem is usually something else. If a commander or noncommissioned officer running the collection cut corners, failed to maintain direct observation, left samples unsecured, or broke the documented chain of custody, that is a defect in the evidence. It bears on whether the sample is reliable and whether the result is admissible, not necessarily on whether the court-martial process has been corrupted by command interference. The two can overlap, but they are analyzed differently and carry different remedies.

When the collection problem is really command influence

Improper command involvement during collection rises to unlawful command influence when the command’s conduct interferes with the justice process rather than merely with the sample. Suppose a commander orders the collection process to be manipulated to manufacture or alter evidence, pressures the urinalysis observer or program coordinator to shade their account of what happened, or discourages those people from cooperating with the defense or testifying truthfully about collection irregularities. That kind of conduct reaches Article 37, because it is an attempt to influence the evidence and witnesses that the fact-finder will rely on.

The framework for litigating unlawful command influence is well established. The defense carries the initial burden of raising the issue …

A Board of Inquiry finding that an officer did not commit the alleged misconduct resolves that specific elimination action in the officer’s favor. The officer is retained, and the command cannot use that same board action to separate the officer. But a favorable finding is not a permanent shield that binds every future career decision. Its binding effect is real but bounded: it conclusively ends the proceeding that produced it, while later decisions can still consider related facts, new evidence, or different issues. Understanding the limits of that protection is essential for any officer who has prevailed at a board.

What a Board of Inquiry decides

A Board of Inquiry, often called a BOI, is the formal hearing that decides whether an officer who has been required to show cause for retention should be retained or separated. It is an administrative proceeding, not a criminal trial. The board applies a preponderance of the evidence standard, meaning it asks whether the alleged basis for separation is more likely than not true. If the board finds that the government has not proved by a preponderance that the alleged misconduct occurred, there is no basis for separation arising from that action, and the officer is retained.

That finding is a formal record of the board’s conclusion on the specific allegations before it. It is the officer’s strongest documentary protection against the precise grounds that were litigated.

What “binding” actually means here

The favorable finding is binding in the sense that it disposes of that elimination action. The same command cannot simply disregard the board result and separate the officer on the identical allegations the board rejected. The whole purpose of giving officers a board is to provide a fair, on-the-record determination, and that determination governs the outcome of the proceeding that generated it. In that narrow but important sense, the finding controls.

It does not, however, function like a criminal acquittal that bars all future inquiry. Administrative proceedings do not carry double jeopardy protection, and a favorable board finding is not a judgment that erases the underlying facts from the officer’s record or forbids any future consideration of related matters. It is a determination on specific allegations under a specific standard at a specific time.

Why future decisions are not automatically bound

Several features of the personnel system explain why a clean board does not control everything that follows.

First, different decisions ask …