Military Lawyers

Soldiers sometimes find themselves shut out of remedial training, retraining, or rehabilitative pathways that would let them correct a deficiency and stay on track for promotion or retention. When that happens with no explanation, it can feel arbitrary and final. The good news is that a military attorney can assist, and there are recognized administrative channels for challenging a command decision that appears unjust, unlawful, or an abuse of discretion. The form that representation takes depends on the nature of the action.

Remedial training is administrative, not criminal

Being blocked from remedial training is an administrative matter rather than a criminal one. Administrative actions in the military are meant to be corrective and rehabilitative rather than punitive, and they range from counseling and reprimands to involuntary separation. Because the action is administrative, the procedural protections differ from those at a court-martial. There is generally no automatic right to a free defense attorney for routine administrative steps the way there is for a criminal trial.

That does not mean a soldier is on their own. Legal assistance attorneys are available to advise soldiers on administrative matters, and military defense counsel become available when the matter escalates to certain proceedings, such as a separation board. An attorney can review the action, identify whether a regulation or right has been violated, and help craft a response even where representation at a formal hearing is not guaranteed.

The Article 138 complaint of wrongs

The most direct tool for a soldier who believes a commander has wronged them is a complaint under Article 138 of the Uniform Code of Military Justice. Article 138 allows a service member who has been wronged by a commanding officer to seek redress. A valid complaint must involve an act, decision, or omission by a commanding officer that is unjust or unlawful, that exceeds the officer’s legitimate authority, or that is arbitrary, capricious, or an abuse of discretion, and that personally and adversely affects the complainant.

Being blocked from a remedial training pathway without explanation can fit this framework if the decision adversely affects the soldier and falls into one of those categories. The lack of explanation itself can support an argument that the decision was arbitrary or an abuse of discretion, although the underlying facts always control.

How the Article 138 process works

The process begins with a written request for redress addressed to the commanding officer. The request …

Command climate surveys are designed to measure the health of a unit, not to adjudicate the conduct of an individual. When the results of those surveys conflict with one another, or when they conflict with other evidence, an administrative review of alleged misconduct must treat them with care. They can be relevant context, but they are anonymous, aggregated, and confidential instruments that were never built to prove who did what. Inconsistent results therefore tend to reduce, rather than increase, the weight a reviewer can responsibly place on the survey data, and they push the inquiry back toward direct evidence about the specific conduct at issue.

What a command climate survey is

The principal tool in this area is the Defense Organizational Climate Survey, commonly called the DEOCS. It is a confidential, command-requested survey that measures cross-cutting risk and protective factors to help leaders understand problematic behaviors and the overall climate within their organization. Commanders are required to administer it within a set period after taking command and on a recurring basis afterward. Individual responses are protected and kept private, and the system is designed so that no one in the unit can identify how any particular member answered. Results are reported to the commander and the next level of supervision and are meant to drive organizational improvement.

Two features of that design matter enormously for misconduct review. First, the survey is anonymous and aggregated, so it measures collective perceptions, not verified individual acts. Second, it is a climate development tool, not an investigative instrument. Those features shape how inconsistent results should be handled.

Why inconsistency is common and not inherently suspicious

Climate surveys can be inconsistent for entirely innocent reasons. They are snapshots taken at different times, often with different populations as members rotate in and out of a unit. Perceptions shift after leadership changes, deployments, high-tempo periods, or specific events. Different participation rates and different respondents can produce different aggregate pictures even when nothing improper has occurred. A unit that scores poorly on one administration and well on another may simply reflect a changing population or a changing situation rather than a hidden truth about a single person.

Because of this, an administrative reviewer should not assume that an inconsistency reveals manipulation or proves wrongdoing. The first analytical step is to recognize that survey-to-survey variation is normal and to ask what the inconsistency actually shows before drawing any inference …

A service member who notices that promotions, reenlistment, or expected bonus payments have suddenly stopped is often experiencing the practical effect of an administrative flag. In the Army this device is governed by the regulation on suspension of favorable personnel actions, AR 600-8-2. The question of whether a military attorney becomes involved when a flag appears to be reaching into a member’s pay deserves a careful answer, because the honest response is that a flag and a pay action are two different things, and the lawyer’s role depends on which one is actually causing the loss of money.

What a flag is, and what it is not

A flag suspends favorable personnel actions. Under AR 600-8-2 the actions that get frozen are things like promotion, reenlistment or extension, reassignment, attendance at military or civilian schools, assumption of command, and the recommendation for or receipt of individual awards. The regulation is explicit that a flag is an administrative management tool, not a punishment. A commander cannot lawfully use it to discipline a member or to impose a financial penalty.

This matters for the pay question. A flag does not, by its own force, take base pay away. What a flag commonly does is stop money that depends on a favorable action being completed. An enlistment or reenlistment bonus, or a selective retention bonus, is a favorable action; if the member is flagged, the regulation prohibits paying that bonus while the flag is in place. Advance or excess leave can be suspended. Promotion is suspended, so the higher pay grade and its associated pay do not begin. In each of these situations the member feels a loss of money, but the cause is the suspension of a favorable action, which is exactly what a flag is designed to do, rather than a separate seizure of earned pay.

When the loss is really a pay action, not a flag

True withholding of pay that the member has already earned is a separate matter and is not what a flag accomplishes. Recoupment of an unearned bonus, collection of a debt to the government, forfeiture of pay imposed as nonjudicial punishment under Article 15, or a forfeiture adjudged by a court-martial each have their own legal authority and their own procedures. If a member’s earned base pay is being reduced, the right question is which of these mechanisms is operating, because the answer dictates what …

Officers who go before a Board of Inquiry often assume that a split vote is inherently suspect, as if a divided panel signals that something went wrong. That assumption misreads how these boards work. A Board of Inquiry, the show-cause hearing that decides whether a commissioned officer should be retained or separated, decides by majority vote, not by unanimity. So a non-unanimous result is not a defect at all. The real question is whether the board followed the procedural rules that govern how it reaches and records that majority decision, and a procedural challenge has to be aimed there.

Majority vote is the rule, not the exception

The framework for commissioned officer administrative separations is set out in DoD Instruction 1332.30 and the implementing service regulations. Under that framework, the board’s findings and recommendations are determined by majority vote. A board does not need to be unanimous to recommend separation or retention. This means a two-to-one or other split outcome is exactly what the rules contemplate. An officer cannot challenge a recommendation simply because one or more members disagreed with it.

Because majority vote is the governing standard, the existence of dissent is not a procedural error. In fact, the rules expressly anticipate disagreement: a board member who does not concur with the findings or recommendations may submit a statement of non-concurrence, with reasons, for inclusion in the record. A documented dissent is a feature of a properly run board, not evidence that the process broke down.

Where procedural challenges actually live

If the vote count itself is not a valid target, what can be challenged on procedural grounds? Quite a lot, but the focus has to shift from the outcome to the integrity of the proceeding. Common procedural issues include the following.

Board composition and qualifications. The board must be properly constituted with eligible members. If a member was disqualified, improperly detailed, or did not meet the seniority or other requirements set by regulation, that is a procedural ground worth examining.

Member challenges. The respondent generally has the right to challenge members for cause. The legal advisor, who is a non-voting participant, rules on matters of procedure, evidence, and challenges, except challenges to the legal advisor’s own appointment. If a meritorious challenge was wrongly denied, the resulting panel may have been improperly composed.

The evidentiary standard. Board findings must be supported by a preponderance of the evidence. A challenge …

After a court-martial reaches findings and a sentence, the case enters the post-trial phase, which includes the convening authority’s review and the submission of clemency matters. Many accused want to know whether they may contact the victim during this stage, perhaps to apologize, to seek a statement of support, or to discuss the consequences of the conviction. The safe and accurate answer is that contact is heavily constrained and frequently prohibited outright, and that any contact carries serious legal risk. The restrictions come from several overlapping sources, and an accused should assume that direct contact is off limits unless counsel confirms otherwise.

The Sources of the Restrictions

There is no single rule that says an accused may never speak to a victim after trial. Instead, several distinct authorities combine to limit or bar contact during the post-trial and clemency stages.

The first source is any no-contact order already in place. Courts-martial and commands commonly impose no-contact orders, often early in a case, directing the accused to avoid the victim and witnesses. These orders frequently remain in effect through trial and beyond, and violating a lawful no-contact order is itself a separate offense, typically charged under Article 92 as a failure to obey a lawful order. An accused who contacts a victim in violation of such an order during the post-trial phase risks fresh charges on top of the existing conviction.

The second source is the law of obstruction and witness intimidation. Even without a standing no-contact order, reaching out to a victim in a way that could be seen as pressuring, influencing, or discouraging the victim, including efforts to shape a victim’s clemency submission, can expose the accused to charges such as obstruction of justice or, in some circumstances, intimidation offenses under the UCMJ. The post-trial clemency stage is exactly the kind of setting where a well-meaning contact can be characterized as an attempt to improperly influence the proceeding, because the victim has a statutory voice in clemency.

The third source is the victim’s own statutory rights, which shape how the process is conducted and signal why unsupervised contact is disfavored.

The Victim’s Rights During Clemency Under Article 6b

Article 6b of the UCMJ, codified at 10 U.S.C. 806b, establishes the rights of a victim of an offense within the military justice system. Among those rights are the right to reasonable, accurate, and timely notice of proceedings, the reasonable right …

Falsifying eligibility test scores is serious misconduct that can absolutely lead to criminal prosecution under the Uniform Code of Military Justice. But the specific question of whether it leads to prosecution “under Article 84” requires careful attention, because the content of Article 84 changed substantially when the military justice system was reorganized. Understanding what Article 84 now covers, and which articles actually reach the falsification of test scores, is essential to giving an accurate answer.

Article 84 Was Renumbered, and Its Subject Changed

For decades, Article 84 of the UCMJ addressed unlawful enlistment, appointment, or separation, and a neighboring provision, the former Article 83, addressed fraudulent enlistment. The Military Justice Act of 2016, which took effect on January 1, 2019, renumbered many punitive articles. As a result, what people remember as the enlistment-related offenses moved. The former unlawful enlistment provision was renumbered, and the current Article 84, codified at 10 U.S.C. 884, now carries an entirely different title: “Breach of medical quarantine.”

The current Article 84 punishes a person who is ordered into medical quarantine by someone authorized to issue that order and who, with knowledge of the quarantine and its limits, goes beyond those limits before being released by proper authority. That offense has nothing to do with test scores. So if the question is read literally against today’s code, falsifying eligibility test scores does not fit within the current Article 84.

This is more than a technicality. Charging documents must allege the correct article and the correct elements. An accurate analysis has to look past the old numbering and identify the articles that actually criminalize falsifying scores.

The Articles That Actually Reach Falsified Test Scores

Several current UCMJ articles can apply depending on who falsified the scores, when, and why.

Fraudulent enlistment, appointment, or separation is now addressed by Article 104a, codified at 10 U.S.C. 904a. This article punishes a person who procures his or her own enlistment or appointment through knowingly false representation or deliberate concealment as to qualifications and who then receives pay or allowances. If a recruit falsified eligibility or qualification test scores to obtain an enlistment or appointment for which he was not actually qualified, this is the article most squarely on point. The key features are that the falsification concerns qualifications and that it secured the enlistment or appointment.

False official statements are addressed by Article 107, codified at 10 U.S.C. 907. This …

Sexual harassment in the armed forces has long had an uncomfortable fit within the punitive articles of the Uniform Code of Military Justice. For many years there was no offense titled “sexual harassment,” so commands and prosecutors charged the conduct under articles that already existed. The most common vehicle was Article 93, cruelty and maltreatment, codified at 10 U.S.C. 893. Understanding how a sexual harassment accusation is treated under Article 93 requires looking at how the elements of maltreatment map onto harassing conduct, why that fit was imperfect, and how the law changed once sexual harassment became a standalone offense.

Why Article 93 was the traditional charging vehicle

Article 93 punishes anyone subject to the Code who is cruel toward, or who oppresses or maltreats, any person subject to that person’s orders. The offense has two elements: the victim must have been subject to the accused’s orders, and the accused must have been cruel, oppressive, or maltreating. Because much workplace sexual harassment in the military occurs between a superior and a subordinate, the authority relationship needed for Article 93 is frequently present, and unwelcome sexual conduct directed by a superior at a subordinate fit naturally within the maltreatment concept.

Sexual harassment was therefore usually charged under Article 93 as maltreatment of a subordinate, with the harassing conduct serving as the maltreatment. This allowed prosecutions to proceed even before any dedicated offense existed.

How the elements apply to harassment allegations

When a sexual harassment accusation is charged under Article 93, the government must still prove the standard maltreatment elements. First, it must establish the authority relationship, meaning the complainant was subject to the accused’s orders. This requirement limits the article: it reaches harassment by someone in a position of authority over the victim, not necessarily harassment between true peers who hold no authority over one another.

Second, the government must prove that the conduct constituted maltreatment under the objective standard. The Manual for Courts-Martial describes the relevant treatment as conduct that, viewed objectively under all the circumstances, is abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose, and that causes or reasonably could have caused physical or mental harm or suffering. The maltreatment need not be physical, which is why verbal and other non-physical sexual harassment can qualify. The government need not prove that the victim actually suffered harm, only that the conduct reasonably could have caused it.

This …

Recruiting and accessions personnel routinely handle citizenship and immigration paperwork, and foreign-born applicants present documents that must be checked against eligibility rules. When an applicant is later found to have been ineligible, attention can turn to the official who processed the enlistment, and the question arises whether a failure to verify the applicant’s foreign citizenship documents can be charged under Article 84 of the Uniform Code of Military Justice. As a preliminary point, the 2019 Military Justice Act moved the unlawful-enlistment offense from Article 84 to Article 104b, so the body below refers to it as Article 104b. The short answer is that a mere failure to verify, standing alone, generally does not satisfy that offense, because it requires knowledge of ineligibility, not negligence. The analysis below explains why.

What the unlawful-enlistment offense actually prohibits

The offense of effecting an unlawful enlistment, appointment, or separation is now codified at Article 104b of the Uniform Code of Military Justice. The 2019 Military Justice Act renumbered the former Article 84 to Article 104b, and present-day Article 84 addresses breach of medical quarantine. Older sources and some H1 references still call the unlawful-enlistment offense Article 84, but the current statute is Article 104b. The Manual for Courts-Martial frames the offense around three core ideas. First, the accused must have effected, meaning caused or brought about, an enlistment, appointment, or separation. Second, the person enlisted, appointed, or separated must have been ineligible because it was prohibited by law, regulation, or order. Third, and decisively, the accused must have known that the person was ineligible at the time of the act.

The article targets the official or other person who knowingly puts an ineligible person into, or out of, the service. It is distinct from the fraudulent-enlistment offense, now Article 104a, which punishes the applicant who fraudulently enlists. Article 104b reaches the gatekeeper, but only when that gatekeeper acts with knowledge of the disqualifying facts.

Why knowledge is the pivotal element

The verb that controls Article 104b is knew. The accused must have known the person was ineligible. This is a specific mental-state requirement, and it is what separates a chargeable Article 104b offense from a simple administrative or performance failure. An official who actually knew that an applicant was disqualified, for example because the applicant lacked the required immigration status or the documents on their face showed ineligibility, and who processed the enlistment anyway, …

The intersection of military discipline and free expression is one of the most delicate areas of military law. Article 94 of the Uniform Code of Military Justice, which addresses mutiny and sedition, sits at the extreme end of the spectrum, and it is sometimes invoked or feared in situations involving service members who speak out against military orders. Understanding how Article 94 interacts with the First Amendment requires precision about what Article 94 actually prohibits, how it differs from mere criticism, and how courts have treated the free speech rights of those in uniform.

What Article 94 actually prohibits

Article 94 is not a general speech offense. It targets the most serious threats to lawful authority. Under the article, a person is guilty of mutiny if, with intent to usurp or override lawful military authority, the person refuses, in concert with another, to obey orders or otherwise do their duty, or creates violence or disturbance. A person is guilty of sedition if, with intent to cause the overthrow or destruction of lawful civil authority, the person creates, in concert with another, revolt, violence, or other disturbance against that authority. The article also punishes failure to suppress or report a mutiny or sedition.

Two features define the offense. First, it requires concerted action with at least one other person. Mutiny and sedition are collective by definition. An individual acting alone does not commit mutiny. Second, it requires a specific and grave intent, either to usurp or override lawful military authority, or to cause the overthrow or destruction of lawful civil authority. The maximum punishment reflects this seriousness, reaching as high as death.

These features matter enormously for the free speech analysis. Article 94 does not criminalize opinion. It criminalizes coordinated conduct aimed at overriding authority, where speech is the vehicle for organizing or carrying out that conduct.

Why ordinary criticism of orders is not mutiny or sedition

Because Article 94 requires concerted action and an intent to override or overthrow authority, garden-variety criticism of a policy or an order does not fall within it. A service member who privately complains, who voices disagreement through proper channels, or who expresses a critical opinion is not committing mutiny. Individual refusal to obey a lawful order is also not mutiny; that conduct is addressed by other articles dealing with insubordination and disobedience, such as Articles 90, 91, and 92. The line is crossed only …

Desertion is one of the most serious offenses in the military justice system, and it carries a built-in tension with the rules governing pretrial confinement. Desertion under Article 85 of the Uniform Code of Military Justice is, at its core, the offense of leaving or remaining absent with the intent to stay away permanently, or with the intent to avoid hazardous duty or shirk important service. Because the offense is defined by an intent not to return, a service member charged with desertion is often viewed as a flight risk. That perception shapes whether the member can be placed in pretrial confinement and how long that confinement may last. This article explains when confinement is permitted, the standards that apply, and the protections built into the process.

What pretrial confinement is, and what it is not

Pretrial confinement is the physical restraint of a service member before trial. It is not punishment, and it is not a finding of guilt. Its limited purposes are to ensure the member’s presence at trial and to prevent serious criminal misconduct while the case proceeds. Because confinement deprives a presumptively innocent person of liberty, the rules surrounding it are protective, and the government must justify each step.

The framework appears in the Rules for Courts-Martial, principally Rule for Courts-Martial 305. That rule sets out the grounds for confinement, the timeline for review, and the rights of the confinee. It applies across the offense spectrum, including desertion.

The standard for ordering confinement

Confinement is not automatic upon a desertion charge. Before a member may be confined, there must be probable cause to believe that an offense triable by court-martial has been committed and that the member committed it. Beyond probable cause, the deciding official must conclude that confinement is necessary because it is foreseeable that the member will not appear at trial, pretrial hearing, or investigation, or that the member will engage in serious criminal misconduct, and that less severe forms of restraint are inadequate.

This is where desertion is distinctive. The intent element of desertion, an intent to remain away permanently or to avoid duty, directly supports the conclusion that the member may flee or fail to appear. A member who has already absented himself with the intent not to return presents an obvious risk of doing so again. For that reason, commands frequently seek pretrial confinement in desertion cases, and the flight-risk ground …