Military Lawyers

A service member who pleads guilty at a general or special court-martial may later want to take that plea back. The rules treat a request to withdraw very differently depending on when it is made. The narrowest and most difficult window is the one this question asks about: after the military judge has announced the sentence but before the post-trial process is complete. Understanding how that window works requires separating two ideas that often get blurred together, the timing of the withdrawal request and the modern role of the convening authority.

The governing rule and its timing test

Withdrawal of a plea is governed by Rule for Courts-Martial (RCM) 910, the same rule that controls how pleas are entered and accepted. RCM 910 draws a clear line at the moment sentence is announced. Before the sentence is announced, a military judge may permit an accused to withdraw a guilty plea for any fair and just reason, a relatively forgiving standard. Once the sentence has been announced, the standard tightens considerably. After announcement of sentence, the accused may withdraw the plea only upon a showing that withdrawal is necessary to correct a manifest injustice.

That phrase, manifest injustice, is the heart of the matter for the period described in the question. The request is being made after the sentence is adjudged, so the lenient pre-sentence standard no longer applies. The accused carries the burden of persuading the military judge that allowing the plea to stand would work a manifest injustice, for example because the plea was not knowing or voluntary, because the factual basis for the plea collapsed, or because a material term of the plea agreement cannot be fulfilled.

Why the convening authority no longer “approves” the sentence

The way this question is phrased reflects the old military justice system, and the answer has changed in an important way. Under the rules that applied before the 2019 Military Justice Act, the convening authority took formal action to approve, disapprove, or reduce the sentence, and that action was a meaningful checkpoint. The Military Justice Act of 2016, which took effect on January 1, 2019, fundamentally altered that structure.

Under the current framework built on Article 53a and Article 60a of the Uniform Code of Military Justice, the convening authority no longer approves the sentence in the traditional sense. Once a military judge accepts a plea agreement, the agreement binds the parties …

A common worry among service members facing a charge under Article 90 of the Uniform Code of Military Justice is whether the setting in which the order was given changes anything. If an officer issued a command in front of other people rather than privately, does that affect whether the charge holds up? The short answer is that the public or private setting of the order is not an element of the offense. What matters is whether the legal elements of willful disobedience are satisfied. The setting can have practical and evidentiary significance, but it does not by itself make the charge valid or invalid.

What Article 90 requires

Article 90 addresses, among other things, willfully disobeying a superior commissioned officer. The elements of that offense are that the accused received a lawful command from a certain commissioned officer, that the officer was the superior commissioned officer of the accused, that the accused then knew the officer was the accused’s superior commissioned officer, and that the accused willfully disobeyed the lawful command. Nowhere in these elements is there a requirement that the order be given in private, or in public, or in front of witnesses. The location and audience are simply not part of what the government must prove.

Why the setting is not an element

Because the elements focus on the existence of a lawful command, the relationship between the officer and the accused, the accused’s knowledge of that relationship, and willful disobedience, the validity of the charge rises or falls on those points. An order delivered privately can support a valid charge if all elements are met, and an order delivered in front of an entire formation can support a valid charge for the same reason. Conversely, an order given in public does not become valid under Article 90 if, for example, it was not lawful or was not willfully disobeyed. The setting changes neither the elements nor whether they are satisfied.

The order must be directed to the subordinate

One requirement that is sometimes confused with the public-versus-private question is the requirement that the order be directed specifically to the subordinate. Article 90 targets the willful disobedience of a personal command. Violations of general regulations, standing orders, or routine directives, or the failure to perform previously established duties, are not punishable under Article 90 and are instead handled under other articles. An order broadcast generally to a …

Fraternization cases get more complicated when the two people involved belong to different branches of the armed forces. The conduct is typically charged under Article 134 of the Uniform Code of Military Justice, the general article, but each service defines and enforces fraternization through its own customs and regulations. When an alleged relationship crosses service lines, those differences open several distinct defenses that would not exist in a single-service case. This article surveys the realistic defenses available, with attention to the issues unique to joint-service allegations.

The Elements the Government Must Prove

Because the defenses track the elements, it helps to start with what the prosecution must establish. The traditional Article 134 fraternization offense requires that the accused was a commissioned or warrant officer, that the accused fraternized on terms of military equality with one or more enlisted members in a particular manner, that the accused knew the person was an enlisted member, that the fraternization violated the custom of the accused’s service that officers will not fraternize with enlisted members on terms of military equality, and that under the circumstances the conduct was prejudicial to good order and discipline or service-discrediting. The final element, the terminal element of Article 134, must be proven, not assumed. Service-specific regulations such as the Army’s AR 600-20, the Navy’s instruction governing fraternization, and the Air Force’s relevant instruction further define prohibited relationships and may be charged separately under Article 92 when they create a punitive standard.

The Custom Element Is the Heart of a Joint-Service Defense

The element most affected by a joint-service allegation is the requirement that the conduct violated the custom of the accused’s service. Customs regarding fraternization are not identical across the branches. What one service treats as a clear violation of custom another may regulate differently or define by different boundaries. When the two members belong to different services, the defense can attack whether the alleged relationship actually violated the custom of the accused’s own service, as opposed to some general or assumed military norm.

This matters because the accused is measured against the custom of the accused’s service, and the relationship is between people whose services may treat the conduct differently. The defense can argue that the government has not proven a violation of the specific, recognized custom that binds the accused, particularly where the contact occurred in a joint environment in which lines of authority and the …

Attempt cases are difficult precisely because the underlying offense never happened. Under Article 80 of the Uniform Code of Military Justice, an attempt is an act done with the specific intent to commit an offense, amounting to more than mere preparation and tending, even though failing, to effect the commission of that offense. For investigators and the legal officers who advise them, the challenge is to identify the facts that establish probable cause for an attempt, where the central questions are what the suspect intended and how far toward completion he had gone. The investigative indicators that matter are the ones that speak to those two elements: specific intent and a substantial step beyond preparation.

The two elements that probable cause must reach

Probable cause for any offense requires reliable facts sufficient to support a reasonable belief that the offense was committed and that the suspect committed it. For an attempt, that means the facts must support two distinct conclusions. First, that the suspect specifically intended to commit a particular underlying offense. Attempt is a specific-intent crime, so a vague sense that the suspect was up to no good is not enough; the intended offense must be identifiable. Second, that the suspect took an overt act that was more than mere preparation, a substantial step that tended toward the commission of that offense. An investigation that gathers evidence on only one of these elements leaves the probable cause incomplete.

Because the crime was never completed, almost all of this proof is circumstantial. Intent in particular is nearly always shown through circumstantial evidence, so investigators look for facts from which a reasonable person could infer the suspect’s purpose and his progress toward carrying it out.

Indicators of specific intent

The first cluster of indicators concerns the suspect’s state of mind. Direct expressions of intent are the strongest: messages, recordings, statements to others, or admissions in which the suspect describes what he meant to do. Communications often supply this, including texts, chats, emails, or social-media messages that state or strongly imply a plan to commit the offense.

Where there is no direct statement, investigators assemble circumstantial indicators of intent. These include conduct that has no plausible innocent explanation, acquisition of items uniquely suited to the intended offense, research or reconnaissance directed at a specific target, and a sequence of steps that fit together only as movement toward a particular crime. The recognized …

A service member who files an appeal of a disciplinary action on time has a reasonable expectation that the appeal will move forward. When a command refuses to process it, the situation raises both procedural and substantive concerns. The consequences depend heavily on what kind of disciplinary action is involved, because the appeal mechanism for nonjudicial punishment is different from the appellate process that follows a court-martial conviction.

First, identify the type of disciplinary action

The phrase disciplinary action covers several distinct processes, and each has its own appeal route. Nonjudicial punishment under Article 15 of the Uniform Code of Military Justice has an administrative appeal to the next superior authority. A court-martial conviction has a formal post-trial and appellate process governed by statute. Administrative actions such as reprimands or adverse evaluations have their own rebuttal and correction procedures. Because the right being asserted differs by category, the consequence of a command failing to act differs as well. The first step is always to pin down exactly what was appealed.

Nonjudicial punishment appeals

For nonjudicial punishment, the service member generally has the right to appeal to a superior authority, and the appeal is supposed to be forwarded and acted upon. If a command sits on a timely NJP appeal or refuses to forward it, that conduct undermines a right built into the process. The remedy is usually administrative escalation. A service member can press the chain of command, seek help from a legal assistance or defense attorney, and use the complaint mechanisms discussed below to compel action. The failure does not erase the appeal right; it creates a basis to demand that the right be honored.

Court-martial appeals are largely protected by statute

Court-martial appeals are far more insulated from command interference, because the process is set by law rather than left to the command. After trial, a convicted member may submit matters to the convening authority within the period allowed, typically ten days after service of the record and the staff judge advocate’s recommendation, with a possible extension. Following the convening authority’s action and entry of judgment, qualifying cases proceed to a service Court of Criminal Appeals.

Recent changes have broadened access to appellate review. Under the expansion of Article 66 in the Fiscal Year 2023 National Defense Authorization Act, convictions by court-martial, including summary courts-martial, became subject to judicial review, and an accused who wishes to appeal generally …

Article 93 of the Uniform Code of Military Justice (10 U.S.C. 893) makes it a crime for a service member to be cruel toward, or to oppress or maltreat, any person subject to that member’s orders. The offense is fundamentally about the abuse of military authority. It does not require physical violence, broken bones, or even any provable harm to the victim. What it targets is the misuse of the power that rank and position confer over subordinates. Because the words cruelty, oppression, and maltreatment are broad, military courts have developed a framework for deciding which behaviors actually fall within the statute and which do not, and that framework centers on two ideas: who the victim was in relation to the accused, and an objective evaluation of the conduct itself.

The two elements the government must prove

A maltreatment charge under Article 93 has two elements, and both must be proven beyond a reasonable doubt. First, the government must show that a certain person was subject to the orders of the accused. Second, it must show that the accused was cruel toward, oppressed, or maltreated that person. The first element defines the relationship that gives the offense its meaning, and the second defines the prohibited conduct.

Who counts as a person subject to the accused’s orders

The protected class is broader than it first appears. A person subject to the accused’s orders is not limited to those in the accused’s direct chain of command. It includes anyone who, because of some duty, is required to obey the lawful orders of the accused, even if that person is not formally a subordinate in the same unit. This is why the offense reaches relationships such as a recruiter and a recruit, a drill instructor and a trainee, or a senior member temporarily placed in charge of others. If the accused held authority that the victim was obligated to obey, the relationship element is satisfied. If no such authority existed, Article 93 does not apply, and the conduct, if criminal at all, must be charged under some other article.

What kinds of behavior qualify as maltreatment

Maltreatment can take many forms. It need not be physical. Verbal abuse, humiliation, degrading treatment, and the assignment of punishments or tasks for the purpose of tormenting rather than training can all constitute maltreatment. Sexual harassment of a subordinate has been recognized as a form of maltreatment …

Article 81 of the Uniform Code of Military Justice (10 U.S.C. 881) defines the offense of conspiracy. A common question among service members is whether a conspiracy charge can stand when the people involved come from different branches of the armed forces, for example when a soldier, a sailor, and an airman are alleged to have agreed to commit an offense together. The short answer is yes. The Code applies to members of all the armed forces, and the conspiracy offense does not require that every participant belong to the same service or even that every participant be subject to military law at all.

What Article 81 requires

Conspiracy under Article 81 has two core elements. First, the accused must have entered into an agreement with one or more persons to commit an offense under the Code. Second, 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 must have performed an overt act for the purpose of bringing about the object of the conspiracy.

The agreement need not be formal. No particular words or written terms are required, only a common understanding to accomplish the unlawful object. That understanding can be proven through circumstantial evidence, including reasonable inferences drawn from how the parties behaved. The overt act does not have to be a crime by itself; it simply has to be a step taken to carry out the agreed plan. Because the heart of the offense is the unlawful agreement, the identity and service affiliation of each participant is not part of what the prosecution must prove about the agreement itself.

Why different branches do not defeat the charge

The Uniform Code of Military Justice is exactly that, uniform, and it applies across the Army, Navy, Marine Corps, Air Force, Space Force, and Coast Guard. A member of any of these services is a person subject to the Code. So when participants come from different branches, each of them remains individually subject to the same conspiracy statute. A soldier who agrees with a sailor to commit larceny of government property, where one of them then takes an overt step toward that theft, has satisfied the elements of Article 81 regardless of the sailor’s separate uniform.

It is important to understand that conspiracy is charged against each accused individually. The government does not prosecute a single …

An officer approaching retirement expects a predictable transition: an effective date, a retired grade, and retired pay calculated from that grade. When an allegation of misconduct or another adverse personnel action is open at the time of retirement, that predictability disappears. Federal law gives the services specific tools to hold a retirement open, to set a conditional grade, and to adjust the final retired grade once the matter is resolved. Knowing how those tools work is essential for any officer facing this situation.

The grade an officer retires in is not automatic

A common misunderstanding is that an officer always retires in the grade currently held. In reality, retirement in a particular grade requires satisfactory service in that grade. Under Title 10 of the United States Code, the law on regular commissioned officers in section 1370 ties the retired grade to satisfactory service and imposes service-in-grade requirements. For higher grades, an officer generally must have served satisfactorily in that grade for a required period before retiring in it.

Because the retired grade drives retired pay, the question of whether service in a grade was satisfactory is the central issue when misconduct is alleged. The system is designed so that an officer does not lock in a higher grade, and the pension that comes with it, while a serious question about that officer’s conduct remains unanswered.

How a pending matter delays or conditions the retirement

Section 1370 expressly addresses officers who are under investigation for alleged misconduct or who have a pending adverse personnel action at the time of retirement. For officers at or below the two-star level, the law allows the service secretary to make a conditional determination of the highest permanent grade in which the officer served satisfactorily, and to retire the officer in that conditional grade while the investigation or personnel action is completed.

The statute also restricts shortcuts for higher grades. For an officer who would retire in a grade above colonel, or above captain in the Navy, the service-in-grade requirement may not be reduced or waived while the officer is under investigation for misconduct or while an adverse personnel action is pending. In other words, the usual flexibility to waive time-in-grade is suspended precisely when a cloud hangs over the officer’s service.

The practical effect is that the officer may be retired on a conditional basis, or the effective processing may be slowed, while the service …

In any Article 94 mutiny prosecution, intent is the element that the government most often struggles to prove. Article 94 of the Uniform Code of Military Justice (10 U.S.C. 894) requires that the accused act with the intent to usurp or override lawful military authority. That mental state is what elevates collective insubordination into the capital-eligible crime of mutiny. This article focuses narrowly on the evidentiary burden surrounding that intent: what standard of proof applies, what the prosecution actually has to establish, and how intent may be proven when no one ever announces a plan to seize control. The defining feature of this question is the proof of a state of mind, which is a distinct problem from simply describing what mutiny is.

The governing standard of proof

The starting point is the universal criminal standard. The government must prove every element of an Article 94 offense beyond a reasonable doubt. There is no lesser standard for intent. The prosecution does not have to merely suggest that the accused might have intended to override authority; it must persuade the fact finder, to the level of moral certainty that the reasonable-doubt standard demands, that the accused actually harbored that intent. If the evidence leaves a reasonable doubt about the accused’s purpose, the intent element fails and the mutiny charge cannot stand, even if the underlying refusal or disturbance is undisputed.

What the intent element actually requires

To understand the burden, one has to be precise about what intent must be proven. The accused must have intended to usurp or to override lawful military authority. Usurp means to seize and to hold by force or without right. Override means to set aside or supersede. So the government is not merely proving that the accused disliked an order or even that the accused disobeyed. It must prove a specific aim directed at the authority itself: a purpose to wrongfully seize that authority or to nullify the power of those lawfully exercising it. This is a specific intent, and general unhappiness, individual defiance, or a desire to avoid a particular task does not satisfy it.

This matters for the burden because it narrows what counts as relevant evidence. The prosecution must connect the accused’s conduct to a purpose aimed at the command’s authority, not just to the immediate order. Evidence that shows reluctance, fear, or personal objection, without more, does not carry the government’s …

Desertion under Article 85 of the Uniform Code of Military Justice, codified at 10 U.S.C. 885, turns almost entirely on a service member’s intent during an unauthorized absence. When a member leaves intending to commit a civilian crime, two separate legal systems become relevant, and the analysis splits into a military question about the absence and a civilian question about the intended crime. Understanding how desertion is treated in that situation means seeing how the intent to commit a civilian offense interacts with the specific intent that Article 85 requires.

What Article 85 Requires

Desertion is a specific-intent offense, which is what separates it from the lesser offense of unauthorized absence under Article 86. The most commonly charged form of desertion requires that the accused absented themselves from their unit, organization, or place of duty without authority, that at the time the absence began or at some point during the absence the accused intended to remain away permanently, and that the absence continued until a date alleged. The intent to remain away permanently does not have to exist at the moment of departure. It is enough that the intent arose at some time during the absence.

A second form of desertion involves quitting one’s unit or place of duty with intent to avoid hazardous duty or to shirk important service, where the duty was in fact hazardous or the service important and the accused knew of the requirement. A third form addresses enlisting or accepting appointment in another armed force without disclosing a prior unterminated enlistment.

Critically, the intent that Article 85 cares about is intent regarding the military relationship, principally the intent to remain away permanently. Article 85 does not require any intent to commit a separate crime. So the presence of an intent to commit a civilian offense is not itself the thing that makes an absence desertion.

How the Intent to Commit a Civilian Crime Affects the Desertion Analysis

The plan to commit a civilian crime usually matters as evidence of the member’s true intent regarding the absence, rather than as an element. If a service member walks off intending to commit a civilian offense and the surrounding circumstances show the member meant never to return to military control, that evidence supports the inference of intent to remain away permanently. Courts and panels infer intent to remain away permanently from circumstantial evidence, because direct proof of a …