Military Lawyers

Military administrative boards, such as enlisted administrative separation boards and officer boards of inquiry, decide whether a service member should be retained or separated and how any separation should be characterized. These boards do not follow the strict evidentiary rules that govern a court-martial, which leads many people to assume that anything a command gathers can be put in front of the board. That assumption is too simple. When a command coordinates improperly with civilian investigators, it can create problems that affect what the board may rely on and whether its decision can withstand later challenge.

How evidence works at an administrative board

The first thing to understand is the evidentiary standard. Administrative separation boards and boards of inquiry are not bound by the Military Rules of Evidence. Evidence is generally admissible if it is relevant, and the board may consider material that would be excluded in a criminal trial, including hearsay and various reports. Witnesses may testify, the respondent may cross-examine, and counsel may argue, but the board operates under a relevance-based approach rather than the formal rules of a court-martial.

Because the threshold is relevance rather than strict admissibility, evidence produced through cooperation with civilian law enforcement, such as police reports or investigative findings, is often allowed before the board. The mere fact that civilian investigators were involved does not make their work inadmissible.

Where improper coordination causes problems

The real concern is not coordination itself, which is often lawful and routine, but improper coordination that taints the fairness of the process or the reliability of the evidence. Several distinct issues can arise.

One is unlawful command influence. Article 37 of the Uniform Code of Military Justice prohibits a person subject to the code from using authority to coerce or, by unauthorized means, influence the action of a court-martial or other proceeding, and it bars deterring witnesses from participating in the investigatory process or from testifying. While Article 37 is framed around courts-martial, the principle that command may not improperly steer the outcome of a proceeding informs the fairness review of administrative actions as well. If a command pressures civilian investigators or shapes their findings to produce a predetermined result, or discourages witnesses from cooperating, the integrity of the evidence and the board can be called into question.

A second issue is constitutional and statutory limits on how evidence is obtained. If civilian investigators acting in coordination with …

Suppose two service members agree to commit an offense and then begin taking steps toward it together. Have they committed an attempt, a conspiracy, both, or neither? Under the Uniform Code of Military Justice (UCMJ), the answer depends on the nature of the steps taken and on the role of the agreement between them. Attempt is governed by Article 80 (10 U.S.C. 880) and conspiracy by Article 81 (10 U.S.C. 881). These are distinct inchoate offenses, meaning each punishes conduct that stops short of the completed crime, but they measure different things, and the same joint preparatory conduct can satisfy one without satisfying the other.

Attempt under Article 80

An attempt is an act, done with the specific intent to commit a particular offense under the UCMJ, that amounts to more than mere preparation and that tends, even though it fails, to effect the commission of that offense. Three features stand out. There must be a specific intent to commit the underlying offense. There must be an overt act. And that overt act must go beyond mere preparation.

The dividing line between preparation and attempt is the heart of Article 80. Military law applies a substantial step analysis: the act must be a substantial step toward commission of the crime, one that strongly corroborates the actor’s criminal purpose, rather than remote planning or arranging. Whether conduct has crossed from preparation into a substantial step is decided case by case on the specific facts. Buying tools, scouting a location, or making plans may still be preparation; conduct that directly moves toward carrying out the offense and is close in time and design to its commission is more likely an attempt.

Conspiracy under Article 81

Conspiracy has two elements. First, the accused entered into an agreement with one or more persons to commit an offense under the UCMJ. Second, while the agreement existed and while the accused remained a party to it, the accused or at least one co-conspirator performed an overt act for the purpose of bringing about the object of the conspiracy.

The agreement is the core of conspiracy. The overt act requirement is comparatively modest. The overt act need not itself be unlawful, and it need not be a substantial step or bring the offense anywhere near completion. Even a minor act done to advance the agreement can satisfy this element. The act serves only to show that the …

When Army criminal investigators open an investigation, the soldier who is named as a subject can be left with a lasting mark on federal databases even after the case quietly closes. A common and frustrating scenario is that the investigation ends without charges or with a finding that does not support the original allegation, yet the soldier is never told and the adverse entry remains. The good news is that the soldier is not without options. The remedies do not depend on whether anyone sent a courtesy notice; they depend on the underlying record being wrong or unjust, and there are established channels to fix it.

What “titling” is and why closure matters

The root problem is usually “titling.” A soldier is titled when the Army Criminal Investigation Division names that person as the subject of a report of investigation. Titling requires only that the investigator develop credible information that the person may have committed an offense, a low threshold that is met early and is not a finding of guilt. Once titled, the soldier’s name is indexed in the Defense Central Index of Investigations, and the report is retained for many years, often decades, in the Army’s centralized criminal records.

That index does real damage. Information from these law enforcement records can surface in background checks, security clearance adjudications, and screening for promotions, assignments, and post-service employment. A related document, the Commander’s Report of Disciplinary or Administrative Action, feeds offense information into national criminal databases that civilian and federal background investigators can access. So when an investigation closes without substantiating the allegation but the titling entry stays put, the consequences continue regardless of whether the soldier received notice of the closure.

The lack of notice is a symptom, not the claim

It is important to frame the legal question correctly. There is generally no cause of action that exists simply because investigators failed to mail a closure notice. The notice issue matters because it explains why the soldier did not act sooner and because it underscores that the record was never corrected. The actual claims a soldier pursues are aimed at the record itself: removing or amending the titling, the report of investigation, and any derivative entries that no longer reflect the truth.

Correcting the law enforcement record at the source

The first avenue is to go to the records holder. The Army’s Crime Records Center maintains the reports …

A summary court-martial is the lowest tier of the three court-martial levels under the Uniform Code of Military Justice (UCMJ). It handles minor offenses, uses a single officer rather than a panel, and carries limited punishment authority. Because it is streamlined and informal, the review that follows a summary court-martial conviction does not look like the formal appellate process that follows a general court-martial. The accurate answer is that a summary court-martial finding of guilty is reviewed by higher authority, and the accused can seek relief from higher authority, but it does not receive an automatic appeal to a Court of Criminal Appeals in the way more serious convictions do. The pathways run through Article 64 and Article 69 of the UCMJ.

Why summary courts-martial are treated differently

The Supreme Court has long recognized that a summary court-martial is not equivalent to a criminal prosecution carrying the full set of trial rights, and a service member can refuse a summary court-martial and demand trial by a special or general court-martial instead. That structural difference is why the post-trial review for summary courts is lighter and largely administrative rather than judicial. The trade-off is fewer formal appellate rights in exchange for a faster, lower-stakes proceeding.

Article 64: judge advocate review

Every summary court-martial that results in a finding of guilty is reviewed by a judge advocate under Article 64, UCMJ (10 U.S.C. 864). This review is automatic and does not depend on the accused requesting it. The judge advocate examines the record for legal sufficiency, looking at whether the court had jurisdiction over the accused and the offense, whether each charged offense states an offense, whether the findings and sentence are correct in law and fact, and what corrective action, if any, should be taken.

If the judge advocate concludes that corrective action is required as a matter of law, and the official who must act on the case does not take action at least as favorable to the accused as the judge advocate recommended, the record is forwarded to the Judge Advocate General for review under Article 69. In this way, Article 64 functions as a built-in legal safety check on every summary court-martial conviction.

Article 69: review by the Judge Advocate General

Article 69, UCMJ (10 U.S.C. 869), is the principal avenue for an accused who wants higher authority to set aside or modify a summary court-martial result. Upon …

A soldier who learns of a pending UCMJ investigation wants a lawyer, and fast. A worry that sometimes surfaces is whether the military will turn the soldier away because of low rank, a particular job, or a sense that defense help is reserved for senior personnel. The reassuring part of the answer is that access to military attorneys does not depend on rank or military occupational specialty. The more important part is that the soldier is asking about the wrong office. The right to counsel for a UCMJ investigation comes from the defense services, not the legal assistance office, and understanding that distinction is what actually protects the soldier.

Two different offices, two different missions

The military runs two separate attorney services that soldiers frequently confuse. The legal assistance office, authorized by 10 U.S.C. 1044, provides advice and help with personal civil legal matters: wills, powers of attorney, family law issues, consumer disputes, landlord problems, and similar private concerns. Legal assistance attorneys are judge advocates or qualified civilian attorneys, and the service is free to those eligible.

Crucially, legal assistance offices do not represent soldiers in criminal or adverse disciplinary matters. They generally cannot advise a soldier as the subject of a UCMJ investigation, and they do not provide defense representation for courts-martial, nonjudicial punishment, or adverse administrative actions. That is by design and applies to everyone regardless of rank. So if a soldier under investigation walks into a legal assistance office and is told it cannot help with the investigation, that is not a denial based on rank or MOS. It is a referral, because criminal defense is simply not that office’s function.

The defense services handle UCMJ investigations

The office that exists precisely for a pending UCMJ investigation is the defense organization: Trial Defense Services in the Army, the Area Defense Counsel in the Air Force, and Defense Service Offices in the Navy and Marine Corps. These uniformed defense counsel represent soldiers facing investigation, nonjudicial punishment, courts-martial, and administrative separation. Their representation is provided at no cost to the soldier, and entitlement to it is grounded in the UCMJ’s protections for the accused and suspects, not in the soldier’s grade or job.

There is no rank floor and no MOS exclusion for defense counsel. A junior enlisted soldier in any specialty is entitled to consult and be represented by detailed military defense counsel when facing UCMJ action, on …

Yes. A General Officer Memorandum of Reprimand is a serious administrative action, but it is not a discharge, and many officers who receive one and pursue a formal appeal remain on active duty and continue their careers. Whether an officer is retained depends on how the reprimand is filed, whether the appeal succeeds in limiting or removing it, and whether the underlying conduct also triggers a separate elimination action. Understanding how those pieces fit together is the key to understanding why a reprimand does not automatically end a career.

What a GOMOR is and what it is not

A General Officer Memorandum of Reprimand, commonly called a GOMOR, is a formal censure issued by a general officer. It documents that the officer engaged in conduct the command considers unacceptable. By itself it does not separate the officer from service, reduce rank, or impose the kind of punishment that a court-martial can. It is administrative, not punitive in the criminal sense.

Its danger lies in where it is filed and what later decision makers do with it. The issuing general officer decides whether to file the reprimand locally, which generally means it is held at the unit and removed when the officer departs, or permanently in the officer’s official personnel file. A reprimand placed permanently in the official record can become grounds for denial of promotion, denial of continued service, or initiation of elimination. So the filing decision often matters more than the reprimand itself.

The rebuttal and the formal appeal

Before the filing decision becomes final, the officer is given a chance to respond. The officer is notified, provided the supporting documents, and given a set period to submit matters in rebuttal. Active component members are typically given a short window measured in days, while reservists are usually allowed more time. This rebuttal is the officer’s first and most important opportunity to influence the outcome, because the issuing authority must consider the response before deciding how to file.

A strong rebuttal can persuade the general officer to file the reprimand locally rather than permanently, to withdraw it, or simply to leave it in place. Even when the reprimand is filed permanently, that is not the end of the road. After permanent filing, an officer can pursue further appeals. Common avenues include asking the issuing general officer to reconsider, petitioning the service board that handles personnel records to transfer the reprimand …

A Board of Inquiry is the administrative hearing through which the services determine whether a commissioned or warrant officer should be involuntarily separated, often described as a show-cause proceeding because the officer must show cause for retention. One of the officer’s core rights at that hearing is the right to present a defense, and that includes calling witnesses. When the board or the convening authority refuses to produce a requested witness, the natural question is whether that refusal can later be raised as a procedural error that undermines the result. The answer is yes, denial of a properly requested and relevant witness is a recognized type of procedural error, but whether it changes the outcome depends on how the request was framed and how much the missing testimony actually mattered.

The witness right at a Board of Inquiry

A respondent at a Board of Inquiry generally has the right to be present, to be represented by counsel, to review the evidence, to cross-examine witnesses, to testify or remain silent, and to present evidence in defense, including calling witnesses. The right to witnesses is not unlimited. It typically extends to witnesses whose testimony is relevant and not merely cumulative, and the production of witnesses can be subject to reasonableness and availability considerations. A board is not obligated to produce a witness whose testimony would be irrelevant, or simply repeat what other evidence already establishes, or who is not reasonably available.

This framing is the key to understanding when a denial becomes a genuine procedural error. A refusal to produce a witness who was relevant, material, and reasonably available looks like an error that infected the fairness of the proceeding. A refusal to produce a witness who was cumulative, irrelevant, or unavailable usually does not, because the officer was not actually deprived of a fair chance to present a defense.

Why this is a procedural error and not a separate appeal of an investigation

It is important to distinguish the Board of Inquiry itself from any underlying investigation that led to it. An informal command investigation, such as one conducted under the Army’s AR 15-6 framework, generally is not independently appealable, and that is by design, because the investigation feeds into a separate action, the board, that carries its own due process protections. The Board of Inquiry is where those protections live. So the right way to attack a wrongful denial of …

Desertion is one of the most serious unauthorized-absence offenses in the armed forces, and it is defined the same way for every service member. The substantive crime lives in Article 85 of the Uniform Code of Military Justice (10 U.S.C. 885), which applies uniformly to soldiers, sailors, airmen, Marines, Guardians, and Coast Guardsmen. What does differ across the branches is the administrative machinery each service uses to classify an absence as desertion, track the absent member, document a return, and decide how to dispose of the case. Those procedural differences come from each branch’s own regulations rather than from the UCMJ itself.

The underlying offense is identical for everyone

Article 85 reaches three forms of desertion: leaving or remaining absent with the intent to stay away permanently, absenting oneself to avoid hazardous duty or to shirk important service, and quitting one’s unit to surrender to the enemy. The distinguishing element in every branch is intent. Absence without leave under Article 86 requires only an unauthorized absence, while desertion adds the additional mental state of intending to remain away permanently or to avoid serious obligations. Because Article 85 is a federal statute, no service can redefine the elements, the requirement of proof beyond a reasonable doubt, or the basic concept that intent separates desertion from a simple unauthorized absence.

Terminology differs before a charge is even framed

The first visible difference is vocabulary. The Army and the Air Force describe an unauthorized absence as absence without leave, commonly written as AWOL. The Navy and the Marine Corps instead use the term unauthorized absence, or UA. The difference is largely historical and does not change the legal analysis, but it matters in practice because each service’s forms, message traffic, and personnel systems are built around its own term. A defense attorney reviewing a Navy file will see UA entries where an Army file would show AWOL.

Administrative classification and tracking

Across the Department of Defense, the framework for handling these absences is set by Department of Defense Instruction 1325.02, which governs desertion and unauthorized absence. Each branch then implements that guidance through its own service regulation, such as the Army’s personnel-absence regulation and the Air Force’s instruction on desertion and unauthorized absence. These regulations control the paperwork rather than the criminal elements.

A common administrative milestone is the thirty-day mark. When a member has been absent for thirty consecutive days, the unit …

A Board of Inquiry, often called a BOI, is an administrative officer-elimination proceeding, not a court-martial. That distinction is the key to understanding whether a board can reopen testimony after it has retired to deliberate. The answer is that a BOI generally can reopen the proceeding and take additional evidence before it announces its findings and recommendations, because the board is governed by administrative regulation and a duty to develop a complete record, not by the rigid finality rules that constrain a criminal jury. There are, however, important fairness limits on how and when that happens.

What a Board of Inquiry Is and Why It Matters Here

A BOI is convened to decide whether a commissioned officer who has been required to show cause should be retained or separated. The statutory framework for officer eliminations appears at 10 U.S.C. 1181 through 1187, and the detailed procedures live in service regulations such as the Army’s AR 600-8-24. A board typically consists of three or more members, and it answers questions such as whether a basis for separation exists, whether the officer should be retained or separated, and what service characterization is appropriate.

Because the proceeding is administrative, the Military Rules of Evidence that govern courts-martial do not apply. The board operates under a preponderance-of-the-evidence standard rather than proof beyond a reasonable doubt, and its central obligation is to produce a fair and complete record on which the separation authority can act. That orientation toward a complete record is precisely why reopening is permissible in a way it usually is not for a criminal panel.

Deliberation in an Administrative Board Is Not the Same as Jury Deliberation

In a court-martial, once members close to deliberate on findings, reopening the case to admit new evidence is tightly restricted and disfavored, because the criminal process places a premium on finality and on protecting the accused from a moving target. A BOI does not carry the same constitutional weight. The members are reaching a recommendation, not a criminal verdict, and the board retains discretion to manage its own proceeding in service of accuracy.

As a practical matter, this means a board that realizes during deliberation that it needs clarification, that a witness left a material point unresolved, or that a relevant document was not addressed may reopen to receive that information before it finalizes its findings and recommendations. The legal recorder, the board’s legal advisor, …

A false official statement is itself a completed offense under Article 107 of the Uniform Code of Military Justice the moment it is made with intent to deceive. But sometimes a lie is not the end goal. A service member may make a false statement in order to set some further unlawful result in motion, hoping the statement will cause someone else to act, release funds, issue an order, or take a step that the member could not lawfully accomplish directly. The question is whether that forward-looking purpose makes the statement chargeable as an attempt to commit the further offense under Article 80. The answer is that it can be, but only when the facts satisfy the attempt elements, and the analysis has to keep the completed lie and the attempted further crime separate.

Two different offenses are in play

The first thing to recognize is that two distinct theories may apply to the same conduct. Article 107 punishes the false official statement itself. Its elements are that the accused made an official statement, that the statement was false, that the accused knew it was false, and that the accused made it with intent to deceive. None of those elements requires that the lie succeed in producing any further consequence. The offense is complete on the making of the deceptive statement.

Article 80 is different. It punishes an attempt to commit some other offense. An attempt requires a specific intent to commit a particular underlying offense, an overt act that is more than mere preparation, and conduct tending, even though failing, to effect the commission of that offense. So when a member lies in order to initiate an unlawful action, two questions arise: has the member committed the completed false-official-statement offense, and has the member also attempted the further offense the lie was meant to bring about?

When the false statement can serve as the overt act of an attempt

A false official statement can function as the overt act that supports an attempt charge for the further offense. If the member’s specific intent was to bring about an identifiable unlawful result, and the false statement was a substantial step toward that result rather than mere preparation, the statement can be the act that tends to effect the commission of the intended offense. In that situation, the lie is both a completed Article 107 violation and the actus reus of …