Military Lawyers

In military court, two intentional killings can look factually similar yet carry very different labels and very different punishments. One is unpremeditated murder under Article 118 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. 918. The other is voluntary manslaughter under Article 119, codified at 10 U.S.C. 919. Both can involve an intent to kill or to inflict great bodily harm. The dividing line is not the intent to harm itself but the presence of legally adequate provocation and heat of passion. Understanding that line is essential to understanding how a court-martial sorts these offenses.

What Article 118 covers

Article 118 defines murder. It reaches a killing committed with premeditation, a killing committed with the intent to kill or inflict great bodily harm, a killing committed while engaged in an act inherently dangerous to others and showing a wanton disregard for human life, and a killing committed during the commission of certain serious felonies. The offense most often compared with voluntary manslaughter is the second category, unpremeditated murder, which is an intentional killing, an intent to kill or to inflict great bodily harm, but without the prior reflection that premeditation requires.

A key point about unpremeditated murder is that the intent need not predate the act by any meaningful interval. A person can be guilty even without forming a plan to kill in advance, so long as the fatal act was done with the intent to kill or to cause great bodily harm. It is, in the traditional phrase, an intentional killing done in cold blood rather than in the grip of sudden passion.

What Article 119 covers as voluntary manslaughter

Article 119 separates manslaughter into voluntary and involuntary forms. Voluntary manslaughter is the form that sits closest to unpremeditated murder. It applies when a person, with an intent to kill or to inflict great bodily harm, unlawfully kills a human being in the heat of sudden passion caused by adequate provocation. The mental state, intent to kill or to do great bodily harm, is the same as unpremeditated murder. What changes the offense is the emotional and circumstantial context in which that intent was formed and acted upon.

The decisive factor: adequate provocation and heat of passion

The distinction Article 118 draws against voluntary manslaughter turns on whether the killing occurred in the heat of sudden passion caused by adequate provocation. If it did, the …

Yes. The identity of the intended victim as a civilian does not place an attempt beyond the reach of Article 80 of the Uniform Code of Military Justice. Article 80 punishes attempts to commit offenses under the code, and what matters is the accused’s status as a service member and the existence of a punishable underlying offense, not whether the target of the attempted crime was in uniform. If a service member forms the specific intent to commit an offense that the code covers and takes a substantial step toward it, an attempt prosecution can follow even though the contemplated victim is a civilian.

How Article 80 works

Article 80 makes it a separate offense to attempt to commit any act that would itself be an offense under the code. The government must prove four elements: that the accused did an 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. The focus of these elements is on the accused’s conduct and mental state and on the nature of the underlying offense being attempted.

Notice that none of the four elements asks who the victim is or whether the victim is a member of the armed forces. The inquiry is whether the accused intended to commit a code offense and took a substantial step toward it. So long as the offense the accused intended to commit is one the code reaches, the civilian status of the intended victim is not a barrier to an Article 80 charge.

Why a civilian target does not defeat jurisdiction

The reason a civilian victim does not shield the accused is that court-martial jurisdiction generally turns on the status of the accused, not on the status of the victim or the location of the offense. The Supreme Court settled this in United States v. Solorio, which abandoned the older requirement of a service connection between the offense and military service and held that court-martial jurisdiction depends on the accused’s status as a member of the armed forces. After Solorio, what establishes jurisdiction is that the accused was subject to the code at the time of the offense.

Article 2 of the code defines who is subject to it, and that list centers on …

Attempted desertion sits at the intersection of two punitive articles of the Uniform Code of Military Justice (UCMJ): Article 85, which defines desertion (10 U.S.C. 885), and Article 80, which defines attempts (10 U.S.C. 880). Prosecuting it means proving that the accused tried to desert but did not complete the offense. The burden of proof question has two parts that should not be confused: the standard of proof, which is the level of certainty the government must reach, and the elements, which are the specific facts the government must establish to that standard. For attempted desertion, the standard is proof beyond a reasonable doubt, and the elements combine the specific intent at the heart of desertion with the substantial step requirement of attempt.

The standard of proof: beyond a reasonable doubt

In any court-martial, the government carries the burden of proof, and the standard is proof beyond a reasonable doubt. The accused is presumed innocent, and that presumption remains until the government overcomes it. This is the same demanding criminal standard used for completed offenses, and it applies fully to attempted desertion. The government must convince the factfinder, beyond a reasonable doubt, of every element of the attempt.

This matters because attempt is an inchoate offense. Even though the accused never completed the desertion, the prosecution is not relieved of the highest burden. It must still prove, to the reasonable-doubt standard, both that the accused had the required criminal intent and that the accused took conduct that the law recognizes as an attempt.

The specific intent required by desertion

Desertion under Article 85 is a specific intent offense. This is what separates it from the lesser offense of absence without leave under Article 86, which is a general intent offense. To prove desertion, the government must establish the accused’s specific intent, most commonly the intent to remain away from the unit or place of duty permanently. Article 85 also reaches other specific intents, such as the intent to avoid hazardous duty or to shirk important service, but the permanent-departure theory is the classic form.

For attempted desertion, that specific intent is indispensable. Article 80 requires a specific intent to commit the underlying offense, and the underlying offense of desertion itself requires a specific intent. The prosecution must therefore prove, beyond a reasonable doubt, that the accused acted with the specific intent that desertion demands, for example the intent to remain …

In a court-martial tried before members, the panel functions much like a civilian jury: the members decide the facts and reach findings, while the military judge controls the law, including which evidence the panel may consider. A natural question is whether the accused, the service member on trial, can object to one of the judge’s evidentiary rulings during the time the panel is deliberating. The answer requires separating two different ideas. Objections to evidentiary rulings are made by counsel during the trial itself, on the record and in time for the judge to act, not during the closed deliberations of the panel. But the law does provide structured mechanisms that allow questions about evidence to be revisited even after deliberations have begun, and it preserves the accused’s ability to challenge erroneous rulings on appeal.

Who decides evidence and who decides facts

Understanding the timing starts with the division of roles. The military judge rules on the admission and exclusion of evidence under the Military Rules of Evidence and instructs the members on the law. The members do not rule on the admissibility of evidence; they weigh the evidence that the judge has admitted and apply the law as instructed to reach findings. Because the members are not the decisionmakers on evidentiary questions, the place to contest an evidentiary ruling is with the judge, and the time to do it is when the ruling is made or when the issue arises during the presentation of evidence.

When and how objections are actually made

The proper moment to object to an evidentiary ruling is during trial, on the record, through counsel. When a party believes evidence was wrongly admitted or excluded, counsel objects or makes an offer of proof so the judge can rule and so the record reflects the dispute. This contemporaneous objection is not a mere formality. It gives the judge the chance to correct course in real time, and it preserves the issue for later review. An accused who waits until deliberations to raise a problem with an earlier evidentiary ruling has generally missed the window for the kind of immediate correction the trial process is built to provide. The accused acts through defense counsel for this purpose; a represented service member does not personally lodge objections separate from counsel.

It is also worth noting that closed deliberations are, by design, the members’ own. The panel deliberates privately, and …

In the Army, a “flag” is the common name for a suspension of favorable personnel actions imposed under Army Regulation 600-8-2. When a soldier believes a flag keeps reappearing for a minor matter that has already been resolved, the question becomes whether a military attorney can simply make it stop. The accurate answer is that a military attorney does not have the authority to lift a flag by command, but counsel can do a great deal to get an improper or stale flag removed through the proper channels. Understanding who actually controls a flag is the key to understanding what a lawyer can and cannot do.

What a Flag Is and Who Controls It

A flag suspends favorable personnel actions while a soldier is in an unfavorable status. While flagged, a soldier is generally blocked from actions such as promotion, awards, favorable assignment or schooling actions, and similar benefits. AR 600-8-2 establishes the categories of conduct or status that justify a flag, divides flags into transferable and nontransferable types, and sets timelines for initiating and removing them.

Critically, the flag is a command personnel action. It is initiated and removed by the chain of command and the responsible personnel office, not by lawyers. A judge advocate or a legal assistance attorney advises; the commander decides. That division of responsibility is the central fact behind the question. An attorney cannot order a commander to remove a flag, and an attorney cannot administratively delete it from the personnel system.

The Regulatory Timelines That Make a Stale Flag Improper

Although an attorney cannot lift a flag directly, the regulation itself constrains how long a flag may remain. A flag is to be initiated promptly after a soldier’s unfavorable status is identified, typically within a few working days, and it is to be removed promptly after the final disposition of the matter, again typically within a few working days. The regulation does not contemplate a flag lingering after the underlying issue has been resolved.

This is exactly where a “minor policy violation that was already resolved” becomes a problem. If the matter that justified the flag has been disposed of, the regulatory basis for keeping the flag in place is gone, and it should be removed within the prescribed window. A flag that keeps recurring after resolution, or that was never removed when it should have been, is not consistent with the regulation. Identifying …

This question sits at the boundary between a completed offense and an attempt, and it has a genuine but carefully limited answer. In principle, an attempt to commit insubordinate conduct under Article 91 of the Uniform Code of Military Justice can be charged under Article 80, the general attempt provision. But whether such a charge fits depends entirely on the facts, and in many situations the better characterization is that a completed offense already occurred. The phrase in the question, that the order was not fully disobeyed, is doing a lot of work, and it must be unpacked.

The completed offense under Article 91

Article 91 punishes insubordinate conduct by an enlisted member or warrant officer toward a warrant officer, noncommissioned officer, or petty officer. It covers three kinds of conduct: striking or assaulting such an officer in the execution of office; willfully disobeying the lawful order of such an officer; and treating such an officer with contempt or being disrespectful in language or deportment while the officer is in the execution of office.

For the willful-disobedience form, the government must prove that the accused knew the person was a warrant, noncommissioned, or petty officer; that the accused had a duty to obey the order; and that the accused willfully disobeyed it. Willful disobedience means an intentional defiance of authority. Crucially, the offense is complete the moment the accused intentionally defies the order. Disobedience does not require that the accused successfully thwart the order’s objective or that the underlying task go undone. A flat refusal, an intentional failure to comply within the time and manner required, or a deliberate act of defiance completes the offense even if the order is later carried out by someone else or eventually obeyed under pressure.

This is why the premise of the question matters so much. If the accused intentionally defied the order at all, the willful-disobedience offense is generally already complete, and there is no need to resort to attempt. Many situations that feel like a partial or unsuccessful disobedience are in fact completed violations of Article 91.

What Article 80 requires for an attempt

Article 80 defines an attempt as an act, done with specific intent to commit an offense under the code, amounting to more than mere preparation and tending, even though failing, to effect its commission. The recognized elements are that the accused did an overt act, that the act …

Fraternization is prosecuted in the military as conduct under Article 134 of the Uniform Code of Military Justice, the general article, when an officer fraternizes with enlisted members on terms of military equality in violation of the custom of the service. A recurring and frustrating scenario arises when a member is investigated for fraternization, a prior process concludes that there was no misconduct, and then new fraternization allegations surface. The member naturally asks whether the earlier clean finding shuts the door on the later allegations. The realistic answer is that it depends on what the prior finding actually was, whether the new allegations cover the same conduct or new conduct, and which doctrine of finality, if any, applies. A favorable prior result helps, but it is not an automatic bar.

What a fraternization charge requires

To convict an officer of fraternization under Article 134, the government must prove 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 certain manner; that the accused knew the person or persons to be enlisted; that the fraternization violated the custom of the service that officers shall not fraternize with enlisted members on terms of military equality; and the terminal element, that under the circumstances the conduct was to the prejudice of good order and discipline or was of a nature to bring discredit upon the armed forces. Each element must be proven beyond a reasonable doubt, and the terminal element must be both alleged and proven, not assumed.

This element-by-element structure matters to the repeat-allegation question, because finality doctrines attach to specific findings about specific facts, not to a general sense that the member was once cleared.

The first question: what kind of prior finding was it

Everything turns on the nature of the earlier process and its result. The military justice system treats different forums very differently for purposes of finality.

If the prior proceeding was a court-martial that resulted in an acquittal of a fraternization charge, then the protection against former jeopardy under Article 44 is in play. An acquittal at a court-martial is final, and the government cannot retry the member for the same offense or a lesser included offense based on the same conduct. In that situation, new allegations that are simply a repackaging of the same fraternization the member was acquitted of …

Hearings before the Defense Office of Hearings and Appeals, known as DOHA, decide whether an applicant for a security clearance, often a defense contractor employee, should be granted or denied access to classified information. These cases are governed by a national framework of adjudicative guidelines, and medical and psychological information can play two very different roles in them. A military medical diagnosis can be the source of a security concern, but it can also be a powerful mitigating factor. The key is understanding how the guidelines treat psychological conditions and what kind of medical evidence persuades an adjudicator.

The adjudicative framework

Security clearance decisions, including those heard at DOHA, apply the National Security Adjudicative Guidelines issued under Security Executive Agent Directive 4, commonly called SEAD 4. These guidelines organize the analysis into specific subject areas, each with its own statement of the security concern, a list of conditions that could raise a concern, and a list of conditions that could mitigate it.

Psychological conditions are addressed under Guideline I. The concern under Guideline I is that certain emotional, mental, and personality conditions can impair an individual’s judgment, reliability, or trustworthiness. The guideline is careful to focus on whether a condition affects these qualities, not on the diagnosis as a label by itself.

A diagnosis cuts both ways

This is where the question of mitigation becomes nuanced. A military medical diagnosis, such as a record of treatment for depression, anxiety, post-traumatic stress, or another condition, can surface as a potential security issue under Guideline I if the government believes the condition may affect judgment or reliability. But the same medical record can serve as the foundation of the applicant’s mitigation case.

Under Guideline I, conditions that can mitigate the security concern include several scenarios that depend on credible medical evidence. They include situations where the identified condition is readily controllable with treatment and the individual has shown ongoing and consistent compliance with a treatment plan; where the individual voluntarily entered counseling or treatment for a condition amenable to treatment and is currently receiving care with a favorable prognosis from a qualified mental health professional; where a duly qualified mental health professional, employed by or acceptable to and approved by the government, opines that a previous condition is under control or in remission and has a low probability of recurrence or exacerbation; and where the past condition was temporary, the situation has …

The short answer is that a service member’s refusal to take part in a spiritual readiness program is unlikely to carry meaningful weight as evidence in a desertion prosecution, and any attempt to use it would face serious relevance and constitutional objections. To understand why, it helps to separate what desertion actually requires from what such a refusal can and cannot show.

What the government must prove in a desertion case

Desertion is charged under Article 85 of the Uniform Code of Military Justice. The most common form requires the government to prove three things beyond a reasonable doubt: that the accused absented himself or herself from a unit, organization, or place of duty; that the absence was without authority; and that at some point during the absence the accused intended to remain away permanently. That intent to stay away permanently is the element that distinguishes desertion from the lesser offense of unauthorized absence under Article 86, where no such intent is required.

Because intent to remain away permanently rarely comes with a written confession, the government usually proves it with circumstantial evidence. Courts look at conduct such as disposing of a uniform, taking up civilian employment under an assumed name, expressing an intention never to return, or fleeing to avoid prosecution. The length of the absence can be circumstantial evidence of intent, but length alone does not automatically convert an unauthorized absence into desertion. The question for any proposed item of evidence is whether it genuinely tends to make that specific mental state, the intent never to come back, more or less probable.

Why refusal to attend a spiritual readiness program proves little

Spiritual readiness programs are part of broader military resilience and wellness efforts. A decision not to participate, standing alone, says almost nothing about whether a person who later left the unit intended never to come back. Under Military Rule of Evidence 401, evidence is relevant only if it has some tendency to make a fact of consequence more or less probable. The logical gap between declining a voluntary or even encouraged wellness activity and forming a permanent intent to abandon military service is wide. A person can skip such a program for countless reasons, including religious objection, scheduling, skepticism about its value, or simple disinterest, none of which point toward desertion.

Even if a prosecutor argued that the refusal showed disengagement or low morale, that inference …

It happens more often than service members expect. A short unauthorized absence is handled quickly with nonjudicial punishment, the member accepts the punishment and moves on, and then the same absence resurfaces as a court-martial charge under Article 86. The instinct is to call this double jeopardy. The accurate answer is more nuanced: nonjudicial punishment does not bar a later court-martial in the way a prior trial would, but the law places real limits on doing this, and it gives the accused important protections when it happens.

Why nonjudicial punishment is not a trial

The constitutional and statutory bar against being tried twice for the same offense is built around criminal trials. Under Article 44 of the UCMJ, a person who has been tried by court-martial for an offense, resulting in a final acquittal or conviction, cannot be tried again for that same offense. Civilian criminal trials trigger the same protection.

Nonjudicial punishment under Article 15 is different. It is a disciplinary tool a commander uses for minor offenses without a trial, and the member can usually refuse it and demand a court-martial instead. Because it is not a trial that places the member in jeopardy, Article 44 does not attach to it. That is the doctrinal reason a prior Article 15 does not, by itself, prevent a later court-martial for the same conduct.

The minor-offense limit

The most significant restriction comes from Article 15 itself. Article 15(f) provides that the imposition of nonjudicial punishment for a minor offense is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission. Read carefully, this rule means that nonjudicial punishment for a truly minor offense does block a later court-martial for that same minor offense. The exception that allows a later court-martial applies when the offense is serious, or when a serious offense grows out of the same conduct.

For an Article 86 absence, this matters a great deal. A brief, routine unauthorized absence is often treated as minor. If a member received nonjudicial punishment for a minor Article 86 absence, that member has a strong basis to seek dismissal of a later court-martial charge for the same minor absence. Whether an offense is minor is judged by factors such as the nature of the offense, the circumstances, the member’s grade, and the maximum punishment authorized, so the characterization is not …