Military Lawyers

Article 87 of the Uniform Code of Military Justice is the missing movement offense. It punishes a service member who fails to be present for a scheduled movement they were required to make. A natural question is whether the article treats all forms of movement the same way, so that missing an aircraft, a ship, and a ground convoy carry identical legal footing. The answer requires reading the statute carefully, because Article 87 lists some modes of transportation by name and reaches others through a broader term.

What Article 87 actually covers

Article 87, codified at 10 U.S.C. 887, makes it an offense to miss the movement of a ship, an aircraft, or a unit with which the service member is required in the course of duty to move. The statute names three things, but they are not three vehicle types. Two are specific conveyances, a ship and an aircraft, and the third, a unit, is an organizational concept rather than a particular vehicle.

To convict, the government generally must prove three elements. 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 that movement through design, meaning intentionally, or through neglect. The maximum punishment depends on the mental state. Missing movement by design is treated more severely than missing movement through neglect.

Aircraft and sea vessels: named, and treated alike

For aircraft and ships, the answer to the question is straightforward. Both are expressly named in the statute, and Article 87 does not assign them different elements or different maximum punishments based on which one was missed. A sailor who intentionally fails to make a ship’s deployment and an airman who intentionally fails to board a required flight are both charged under the same provision, face the same proof structure, and are exposed to the same punishment ceilings. In that sense, aircraft and sea vessels are treated equally under Article 87. The distinguishing factor in punishment is the accused’s state of mind, design versus neglect, not the type of conveyance.

Ground convoys: covered through “unit,” not as a separate category

A ground convoy is where careful reading matters. Article 87 does not list “convoy,” “vehicle,” or “ground transportation” as a separate object of the offense. It lists ship, aircraft, and unit. A ground convoy is ordinarily the movement of …

This question carries an assumption worth examining at the outset. For uniformed service members, the chain of command looms large in almost every personnel decision, so it is natural to expect that a commander’s recommendation would matter in a security clearance dispute too. But a contractor employee does not have a military chain of command, and the system that decides contractor clearance cases is deliberately built to be independent of any single sponsor or supervisor. As a result, the formal role of a “chain of command recommendation” in a contractor clearance hearing is far smaller than newcomers expect, and understanding why explains how these cases are actually decided.

Who decides contractor clearance cases

Eligibility for access to classified information for cleared defense contractors is adjudicated under the National Industrial Security Program. When an issue arises that could justify denying or revoking a contractor employee’s clearance, the case is referred to the Defense Office of Hearings and Appeals, known as DOHA. DOHA issues a Statement of Reasons setting out the security concerns, and the contractor employee may request a hearing before a DOHA administrative judge. That administrative judge, not a commander or a company, makes the decision whether the person is eligible for a clearance, and the losing party may appeal to the DOHA Appeal Board.

This structure is the key to the answer. The decision-maker is a neutral administrative judge applying a national standard, not a supervisor expressing institutional preference. There is no commander in the loop who recommends an outcome, because the contractor employee is a civilian working for a private company, not a member of a uniformed chain of command.

The governing standard: the adjudicative guidelines and the whole-person concept

DOHA judges decide cases under the national adjudicative guidelines established in Security Executive Agent Directive 4, commonly called SEAD 4. These guidelines set out the security concerns, the disqualifying conditions, and the mitigating conditions across categories such as personal conduct, financial considerations, foreign influence, and others. They apply uniformly across the government, including to contractors.

Layered over the specific guidelines is the whole-person concept. The judge is required to weigh all available reliable information about the individual, favorable and unfavorable, past and present, and to reach an overall commonsense determination about whether granting access is clearly consistent with the national interest. The whole-person concept is a risk-assessment tool, not a popularity contest. The question is always whether the …

When a commander or other leader is removed from a leadership position before the normal end of the assignment, the action is frequently described as a relief for cause and is publicly explained with the phrase loss of confidence. To an outsider that phrase can sound vague, as if no real reason is required. In practice the opposite is closer to the truth. A relief for cause is a significant administrative action that follows defined procedures, and the loss of confidence has to be reduced to writing and supported in the documents that carry lasting career consequences. Understanding how that justification is written, and what regulations require of it, demystifies the phrase.

What loss of confidence actually means

Relief for cause occurs when a senior commander loses confidence in a subordinate leader’s ability to perform the duties of the position. The loss of confidence is not a freestanding charge; it is a conclusion drawn from underlying facts, which may involve misconduct, poor judgment, a failure of performance, or an inability to carry out assigned responsibilities. The Army’s evaluation regulation, AR 623-3, frames relief for cause as the early release of an officer from a specific duty or assignment, directed by superior authority, based on a determination that the officer failed in the performance of duty. The phrase loss of confidence is the shorthand the chain of command uses for that determination, but the determination itself must rest on something concrete.

That distinction is the key to the writing requirement. Because the conclusion is derived from underlying facts, the written justification has to connect the conclusion to those facts rather than simply announce that confidence was lost.

The procedural steps that frame the writing

The relief is not supposed to be a spontaneous act. Under the governing regulations, a relief for cause is ordinarily preceded by formal counseling of the subordinate by the commander or supervisor, unless such counseling is not deemed appropriate or practical under the circumstances. That counseling itself generates a written record that explains what the leader did or failed to do, and it gives the leader notice and an opportunity to respond.

There is also an approval safeguard. The final action to relieve an officer from a command position is not taken until it has been approved in writing by a designated senior authority in the chain of command, typically the first general officer in the chain. …

The agreement is the core of any conspiracy charge, and proving it carries a precise evidentiary standard. In a court-martial under Article 81 of the Uniform Code of Military Justice, the government must establish the existence of a conspiratorial agreement beyond a reasonable doubt, the same demanding standard that applies to every element of every offense. What makes conspiracy distinctive is not a lowered burden but the way courts permit that burden to be met, because an agreement is almost never proven by direct evidence of a formal pact.

The elements that frame the standard

Conspiracy under Article 81 has two essential elements. First, the accused entered into an agreement with one or more persons to commit an offense under the code. Second, while the agreement continued and while the accused remained a party to it, one of the conspirators performed an overt act for the purpose of bringing about the object of the conspiracy. The agreement element is what this question is about, and it must be proven, like the rest, beyond a reasonable doubt.

A common misconception is that conspiracy somehow relaxes the burden of proof. It does not. The beyond-a-reasonable-doubt standard governs the agreement just as it governs the overt act and the accused’s participation. What conspiracy law does is recognize that secret criminal understandings leave little direct evidence, so it allows that understanding to be proven by inference.

No formal words are required

The agreement need not take any particular form and need not be expressed in any specific words. There is no requirement of a signed plan, a spoken contract, or an explicit statement of who will do what. The law recognizes that conspirators rarely announce their arrangement. What is required is a common understanding among the participants to accomplish the object of the conspiracy. That understanding can be explicit or implicit, and it can be inferred from the conduct of the parties and the circumstances surrounding them.

This is why courts say the agreement may be proven by the conduct of the parties, by their relationships, and by the circumstances, rather than by direct proof of an express compact. A tacit understanding is enough, provided the totality of the evidence convinces the factfinder beyond a reasonable doubt that a genuine agreement existed.

Circumstantial evidence carries the same weight

The use of circumstantial evidence to prove the agreement does not dilute the standard. Military law …

The standard of proof for an attempt under Article 80 of the Uniform Code of Military Justice is exactly the same as for any other offense tried by court-martial: beyond a reasonable doubt. The fact that the intended crime was never completed does not lower the burden. What the absence of a completed act changes is not the standard but the elements the government must prove to that standard. In an attempt case, the prosecution must still satisfy the same demanding threshold, but it does so by proving intent and a substantial step rather than a finished crime.

Beyond a reasonable doubt applies to every element

In a court-martial, the government bears the burden of proving the accused guilty beyond a reasonable doubt, and that burden never shifts to the accused. The accused is presumed innocent. The fact finder, whether a panel of members or a military judge sitting alone, must be convinced beyond a reasonable doubt of each and every element of the offense before returning a finding of guilty. This is the highest standard in the legal system, and it governs attempts no differently than it governs completed offenses. There is no special, relaxed standard for inchoate crimes.

This means a finding of guilty for an attempt is a determination that the government has met its burden of proof beyond a reasonable doubt as to the attempt charged, or as to any lesser included offense. If reasonable doubt remains on any element, the proper finding is not guilty.

The elements the government must prove for an attempt

Because the crime is an attempt rather than a completed offense, the government must prove a different set of elements, each beyond a reasonable doubt. There are four. First, that the accused did a certain overt act. Second, that the act was done with the specific intent to commit a particular offense under the code. Third, that the act amounted to more than mere preparation. Fourth, that the act apparently tended to effect the commission of the intended offense.

Each of these must be established to the reasonable-doubt standard. The government does not have to prove that the crime was completed, that a victim was actually harmed, or that the plan succeeded. It has to prove that the accused, intending to commit the offense, took a real step toward it that went beyond getting ready.

Specific intent is central and must

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A minor traffic offense, standing alone, rarely costs anyone a security clearance. The harder question is what happens when that offense is left off the paperwork. Security clearance adjudications are governed by Security Executive Agent Directive 4, known as SEAD 4, which sets out the National Security Adjudicative Guidelines. Guideline J of that directive addresses criminal conduct. To understand whether an unreported traffic matter can justify a revocation under Guideline J, it helps to separate the underlying offense from the act of not reporting it, because those two issues are evaluated very differently.

What Guideline J actually covers

Guideline J treats criminal activity as a reliability and trustworthiness concern. The premise is that a pattern of breaking the law calls into question a person’s willingness to comply with rules and regulations, which is exactly the trait the government cares about when entrusting someone with classified information. Guideline J is written broadly. It can reach felonies, misdemeanors, and even lesser infractions, and a concern can arise from evidence of unlawful conduct regardless of whether the person was ever formally charged or convicted.

Despite that breadth, a single minor traffic offense usually carries little weight under Guideline J. The guideline contains mitigating conditions, including that the behavior was minor, happened long ago, was not recent, and is unlikely to recur, and that the conduct does not cast doubt on the individual’s current reliability or judgment. A lone speeding ticket or a low-level moving violation typically fits squarely within those mitigating conditions and would not, by itself, support a denial or revocation.

The reporting question is governed by the SF-86 itself

Whether a traffic offense even has to be disclosed depends on the questionnaire. On the Standard Form 86, the police-record questions ask about arrests, charges, convictions, and similar matters, but the form expressly excludes traffic citations carrying a fine of less than $300 that did not involve alcohol or drugs. In other words, a genuinely minor traffic ticket below that fine threshold and unconnected to alcohol or drugs generally does not have to be listed at all. If the form does not require disclosure, then failing to list that ticket is not a falsification and creates no concern.

Two caveats matter here. First, the relevant number is the fine, not court fees and assessments, so an applicant should look at the actual fine amount. Second, some offenses an applicant thinks of as …

Article 92 of the Uniform Code of Military Justice (10 U.S.C. 892) makes it an offense to violate or fail to obey a lawful order or regulation. Service members often assume that an order must be written down, signed, or formally published before disobeying it can become a chargeable offense. That assumption is mistaken. A verbal order can absolutely be the basis for an Article 92 charge. What matters under the law is not the medium of the order but whether the order was lawful, whether the person giving it had authority, and whether the accused had a duty to obey and the knowledge required for the particular theory charged.

The three theories under Article 92

Article 92 covers three distinct offenses, and the form of the order plays out differently across them. The first is violating or failing to obey a lawful general order or regulation. The second is failing to obey any other lawful order that the accused had a duty to obey. The third is dereliction in the performance of duties. Understanding which theory is in play is essential because the written versus verbal question is really a question about which provision applies and what the government must prove.

Lawful general orders or regulations

A lawful general order or regulation is typically a published directive issued by an authority with command responsibility over a broad group, such as a general order from a senior commander or a service regulation. The elements for this theory are that a certain lawful general order or regulation was in effect, that the accused had a duty to obey it, and that the accused violated or failed to obey it. For this theory, the prosecution generally does not have to prove that the accused had actual knowledge of the order, because general orders and regulations are presumed to be known by those they govern. In practice, orders of this kind are usually issued in written form precisely because they apply broadly and are meant to carry that presumption of knowledge. So while this first theory tends to involve written directives, that is a feature of how general orders are typically promulgated, not a strict statutory requirement that the order be written.

Other lawful orders, including verbal ones

The second theory is where verbal orders most clearly fit. For failing to obey any other lawful order, the elements are that a member of …

When a service member leaves after receiving deployment orders, the conduct can look like desertion at first glance. Whether it actually meets the legal definition of desertion under Article 85 of the Uniform Code of Military Justice is a more careful question. The answer turns on intent and on which specific theory of desertion the government chooses to pursue. In many cases, fleeing in the face of deployment fits more naturally under a different article altogether.

What Article 85 actually requires

Article 85 defines desertion in more than one way. The most familiar form occurs when a member, without authority, goes or remains absent from a unit, organization, or place of duty with the intent to remain away permanently. This is a specific intent offense. The government must prove not only that the member was absent without authority but also that the member intended never to return to military service.

A second form is directly relevant to deployment. A member also commits desertion by quitting a unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service. Under this theory, the government does not need to prove an intent to stay away permanently. It must instead prove that the member left to avoid duty that qualifies as hazardous or that constitutes important service.

Why intent is the heart of the matter

Desertion is distinguished from lesser absence offenses by the mental state involved. Intent to remain away permanently is rarely announced. It is usually proven through circumstantial evidence, such as the length of the absence, statements made by the member, disposal of military identification or property, taking a civilian job under a new identity, or other conduct inconsistent with an intent to return. A member who changes course and comes back promptly has not negated the offense if the requisite intent existed during the absence, but a short, explained absence with a clear intent to return often points away from desertion.

For the deployment-avoidance theory, the focus shifts. The question becomes whether the member quit in order to avoid the specific duty involved and whether that duty was hazardous or important. Combat deployment, deployment to a hostile area, or assignment to a mission essential to national defense can qualify. The government must connect the act of leaving to the purpose of avoiding that duty.

Where missing movement comes in

Fleeing after deployment orders frequently …

Article 97 of the Uniform Code of Military Justice punishes any person subject to the Code who, except as provided by law, apprehends, arrests, or confines another person. The renumbering that took effect on January 1, 2019, under the Military Justice Act of 2016 left this offense in place as Article 97 (10 U.S.C. 897). The question many service members and their families ask is whether confinement imposed through nonjudicial punishment under Article 15 can ever cross the line into unlawful detention under Article 97 when it exceeds the limits the Code allows. The honest answer is that the two provisions occupy different worlds, and reaching Article 97 requires far more than a paperwork mistake about days served.

What Article 15 actually authorizes

Nonjudicial punishment under Article 15 (10 U.S.C. 815) is a disciplinary tool, not a criminal conviction. The punishments a commander may impose are capped by statute and by service regulations, and several of them involve a form of restraint. Correctional custody, for example, is the physical restraint of a person during duty and nonduty hours. For most enlisted members, a commander may impose correctional custody for not more than seven consecutive days, while a flag or general officer in command, or an officer exercising general court-martial jurisdiction, may impose up to thirty consecutive days. Restriction to specified limits is capped at fourteen consecutive days for the lower level of authority and sixty days for the higher level. Article 15 also forbids stacking punishments such as arrest in quarters, correctional custody, extra duties, and restriction so that they run consecutively beyond the maximum allowed for each, requiring an apportionment instead.

These numbers matter because they define what is lawful. A punishment that stays within them is authorized by law, which is exactly the phrase Article 97 carves out when it says “except as provided by law.”

Why exceeding the limit is usually corrected, not criminalized

When an Article 15 punishment runs past the authorized number of days, or combines restraints in a way the statute does not allow, the ordinary consequence is administrative. The service member may appeal the nonjudicial punishment to the next superior authority, who can set aside, mitigate, or correct the illegal portion. A judge advocate reviewing the action can flag the defect, and excess restraint can be credited or undone. Courts and reviewing authorities treat an overlong correctional custody or restriction as an unlawful …

Yes. An officer or enlisted member who was tried by court-martial and acquitted can absolutely cite that acquittal before a later administrative discharge board, and it is usually a central part of the defense presentation. What the acquittal cannot do is automatically end the administrative proceeding. The two forums apply different standards of proof and serve different purposes, so an acquittal does not legally bar the separation action. But as a matter of evidence and persuasion, the acquittal is highly relevant and can be used both to argue the facts and to argue for retention. The key is understanding the difference between using the acquittal as a bar, which generally fails, and using it as mitigation and rebuttal, which is fully proper.

Why an acquittal does not stop the board automatically

A court-martial acquittal means the government failed to prove the offense beyond a reasonable doubt. An administrative discharge board, by contrast, applies a preponderance of the evidence standard, asking only whether the alleged basis for separation is more likely than not. Because the administrative standard is lower, a command can pursue separation on the same underlying conduct even after an acquittal. Administrative proceedings are not criminal trials, do not result in a conviction, and do not carry double jeopardy protection. A command may choose to initiate administrative separation following a court-martial that did not end in a punitive discharge, including a court-martial that ended in acquittal.

There is also a doctrinal reason the acquittal does not bind the board. The difference in the required level of proof makes it unfair to let an acquittal conclusively control a later proceeding that uses a lower standard, because the acquittal establishes only that there was reasonable doubt, not that the conduct did not occur. For that reason, an acquitted member generally cannot use the acquittal to preclude the administrative board from examining the same facts.

How the acquittal works as mitigation and rebuttal

While the acquittal does not bar the board, it is potent evidence within it, and citing it is entirely appropriate. The member can use the acquittal in several overlapping ways.

First, as direct rebuttal on the facts. A neutral court-martial panel or military judge heard the evidence and did not find the allegations proved. The member can argue that if the government could not prove the conduct to a criminal panel, the administrative board should be cautious about finding …