Military Lawyers

The question of whether a commander may impose nonjudicial punishment after charges have been referred to a court-martial and then withdrawn sits at the intersection of several rules: the structure of nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), the protections against former jeopardy, and the procedures governing withdrawal of charges. The short answer is that nonjudicial punishment is often still available after a withdrawal, but the analysis depends on whether jeopardy ever attached at the court-martial and on the nature of the offense. This article walks through the framework.

What Nonjudicial Punishment Is

Nonjudicial punishment, commonly called NJP, an Article 15, captain’s mast, or office hours depending on the service, is a disciplinary tool that allows a commander to address minor misconduct without a criminal trial. It is authorized by Article 15, codified at 10 U.S.C. 815, and implemented in Part V of the Manual for Courts-Martial. NJP is not a criminal conviction. It permits limited punishments, and except in specific circumstances the service member may refuse the NJP and demand trial by court-martial instead. Because NJP is reserved for minor offenses and is not a trial, its relationship to the court-martial process is governed by distinct rules.

Referral and Withdrawal of Court-Martial Charges

When charges are referred to a court-martial, the convening authority directs that they be tried by a specified court. Referral does not by itself begin a trial. Under the Rules for Courts-Martial, a convening authority may withdraw charges from a court-martial before the trial begins, and may do so after it begins only for proper reasons. The timing of any withdrawal is critical because of when jeopardy attaches.

When Jeopardy Attaches

The protection against being tried twice for the same offense is grounded in Article 44 of the UCMJ and the Rules for Courts-Martial, which mirror the constitutional double jeopardy guarantee for the military setting. In a court-martial, jeopardy attaches when evidence is introduced on the general issue of guilt. This means that referral, arraignment, and even motions practice can occur without jeopardy attaching, so long as the government has not begun introducing evidence on guilt. If charges are withdrawn before that point, jeopardy never attached, and the former-jeopardy bar does not prevent further disposition of the matter, whether by re-referral, dismissal, or another disciplinary route.

How These Rules Apply to NJP After Withdrawal

If charges are referred and then …

The phrase at the center of sedition allegations under military law comes from Article 94 of the UCMJ, which punishes a service member who, with intent to cause the overthrow or destruction of lawful civil authority, creates in concert with another person revolt, violence, or other disturbance against that authority. Interpreting the words “revolt, violence, or disturbance” requires reading them together with the intent and concert-of-action requirements that surround them, because those surrounding elements do most of the limiting work. This article explains how the phrase is understood and why it cannot be read in isolation.

The Statutory Source and Its Wording

Article 94 is codified at 10 U.S.C. § 894. The sedition provision punishes a person subject to the UCMJ who, with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority. The companion mutiny provision uses similar language directed at lawful military authority. The phrase “revolt, violence, or disturbance” therefore appears as the object of the verb “creates” and describes the kind of upheaval the offense targets.

A first interpretive point is that the statutory text says “revolt, violence, or other disturbance.” The word “other” signals that “disturbance” is understood in light of the more serious terms that precede it. The disturbance contemplated is one of a kind with revolt and violence, that is, a serious upheaval directed against lawful authority, not any minor commotion.

The Phrase Cannot Be Read Alone

The single most important principle in interpreting the phrase is that the words “revolt, violence, or disturbance” do not stand by themselves. They are bracketed by two demanding requirements that narrow the offense dramatically.

The first is intent. The statute requires the specific intent to cause the overthrow or destruction of lawful civil authority. The revolt, violence, or disturbance must be created with that purpose. Ordinary anger, criticism, or even disorderly conduct that lacks the aim of overthrowing or destroying lawful authority does not satisfy the intent element, no matter how disruptive it appears. This intent requirement is what separates sedition from lesser offenses and from protected expression.

The second is concert of action. Sedition is committed only when the accused acts in concert with another person. A lone individual acting alone cannot commit sedition under Article 94, because the statute requires a collective, coordinated effort. The revolt, violence, or disturbance …

Yes. When a service member is charged with a completed offense, the military judge can instruct the court-martial panel on both that offense and the attempt to commit it, provided the evidence reasonably raises the possibility that the accused tried but did not complete the crime. The attempt is treated as a lesser included offense, and the rules governing instructions require the judge to cover lesser offenses that the evidence fairly puts in issue. This article explains the legal basis for that dual instruction, when it is appropriate, and how panels are told to use it.

Attempt as a Lesser Included Offense

Article 80 of the UCMJ, codified at 10 U.S.C. § 880, defines an attempt as an act, done with specific intent to commit an offense, amounting to more than mere preparation and tending, even though failing, to effect the commission of that offense. The statute also states that a person may be convicted of an attempt even though the trial shows the offense was actually completed.

That statutory language is the foundation for instructing on both theories. Because the law expressly permits an attempt conviction where the proof shows completion, an attempt is generally a lesser included offense of the completed crime. Article 79 of the UCMJ, 10 U.S.C. § 879, recognizes that an accused charged with an offense may be found guilty of a lesser offense necessarily included in the one charged. Military courts have long treated attempt as falling within this framework relative to the substantive offense.

The Judge’s Duty to Instruct on Lesser Offenses

Under the Rules for Courts-Martial, the military judge is responsible for instructing the panel on the elements of each charged offense and on any lesser included offense reasonably raised by the evidence. The duty does not depend on a request from either party. If the record contains evidence from which the members could rationally find that the accused committed only the attempt rather than the completed crime, the judge should give the lesser included offense instruction even if the defense has not asked for it and even if both sides would prefer an all-or-nothing presentation.

The trigger is whether the evidence reasonably raises the lesser offense. Where the proof of completion is overwhelming and undisputed, and nothing suggests the act fell short, an attempt instruction may not be warranted because the lesser offense is not genuinely in issue. But where the …

Deployments are demanding, and members sometimes voice strong objections to them, occasionally urging others not to go. When that happens, commanders and members alike ask whether merely advocating a refusal to deploy can support a conviction under Article 94 of the Uniform Code of Military Justice, the article covering mutiny and sedition. The answer is nuanced. Advocacy alone, in the sense of expressing an opinion, does not automatically establish an Article 94 offense, because the article demands collective action and a specific insubordinate intent. But advocacy that crosses into organizing or joining a concerted refusal, or into attempting to create one, can fall within Article 94, and the same conduct may support other charges even when it does not.

What Article 94 requires

Article 94 defines several distinct offenses, the most relevant of which is mutiny by refusing to obey orders or perform duty. The Manual for Courts-Martial sets out its elements: that the accused refused to obey orders or otherwise do the accused’s duty; that the accused acted in concert with another person or persons in doing so; and that the accused did so with the intent to usurp or override lawful military authority.

Two features of this offense are critical. First, it requires action in concert, meaning a combination of two or more persons in resisting authority. The collective character is essential; an individual acting entirely alone does not commit mutiny of this kind. Second, it requires a specific intent to usurp or override lawful military authority. The concert of insubordination need not be planned in advance and need not be violent; a persistent, joined refusal to obey or perform duty can suffice, but only when carried out with that insubordinate intent. Sedition, a separate Article 94 offense, similarly requires concerted action and an intent to overthrow or destroy lawful authority by force or disturbance.

Where advocacy fits, and where it falls short

Against that framework, simply advocating refusal to deploy, in the sense of voicing the view that a deployment is wrong or that members should not go, does not by itself satisfy mutiny. Mutiny requires an actual refusal in concert with the intent to override authority. A member who merely complains, expresses dissent, or states an opinion has not refused duty in concert and has not necessarily formed the required intent. Pure expression, without more, is not the offense.

The picture changes when advocacy becomes part …

A natural assumption is that trying to commit a crime should be punished less severely than actually completing it. Under the Uniform Code of Military Justice the picture is more nuanced. Attempts are prosecuted under their own article, and while the maximum punishment usually tracks the completed offense, important statutory caps and sentencing realities distinguish the two. Understanding those differences helps service members gauge their real exposure.

How attempts are charged

Attempts are governed by Article 80 of the UCMJ. An attempt has three elements: a specific intent to commit a particular offense, an overt act that goes beyond mere preparation, and a tendency, though ultimately a failure, to bring about the intended offense. The accused need not succeed; the law punishes the dangerous, purposeful step toward the crime even when the objective is never achieved.

A completed offense, by contrast, is charged under whatever punitive article defines it, and the government must prove that the crime was actually carried out, not merely attempted.

The general rule: same maximum, with key exceptions

The starting point under Article 80 is that a person found guilty of an attempt is subject to the same maximum punishment authorized for the completed offense that was attempted. In that sense, the ceiling for an attempt often mirrors the ceiling for the finished crime.

Two statutory exceptions modify this rule, and they are central to the sentencing difference. First, the death penalty may never be adjudged for an attempt, even where the completed offense is capital. Second, except in the case of attempted murder, confinement for an attempt may not exceed twenty years, regardless of the maximum that would apply to the completed offense.

These caps mean that for the most serious crimes, an attempt carries materially lower maximum exposure than the completed offense. A completed capital offense can expose an accused to death, while the attempt cannot, and a completed offense carrying confinement beyond twenty years is reduced to a twenty-year ceiling when only attempted, with attempted murder being the carved-out exception.

Where the maximums truly diverge and where they do not

For many ordinary offenses whose authorized confinement is already twenty years or less, the attempt and the completed offense share the same maximum punishment, because the twenty-year cap does not bite. In those cases the statutory ceiling is identical, and any sentencing difference comes from the facts rather than from the article.

The …

A federal contractor that depends on government work faces an existential threat when a suspension or debarment looms, because exclusion can cut off an entire revenue stream. The threat is especially fraught when the underlying misconduct is contested rather than established, for example when an indictment, an investigation, or an allegation has surfaced but no court or board has found the contractor culpable. The federal acquisition system does provide protections in that situation, but they are concentrated in procedure and in the governing standard rather than in any presumption that a contractor cannot be excluded before guilt is proven.

Suspension is not punishment, which shapes the protections

The first thing to understand is the legal character of suspension. Under the Federal Acquisition Regulation, Subpart 9.4, suspension is a temporary measure imposed when there is adequate evidence of certain misconduct and immediate action is needed to protect the government’s interest pending the completion of an investigation or legal proceedings. It is framed as a protective tool, not a sanction, and it is grounded in the concept of present responsibility, meaning whether the contractor is currently a responsible party with whom the government should do business. Because it is protective rather than punitive, a suspending official may act on adequate evidence even while the misconduct itself remains disputed and unadjudicated.

That framing is important because it explains why a contractor cannot defeat a suspension simply by pointing out that the allegations are unproven. The protections instead operate by giving the contractor a meaningful chance to contest the evidence and to demonstrate present responsibility.

The core procedural protections

The FAR builds in several safeguards for a contractor facing suspension. The contractor is entitled to notice of the suspension and of the reasons for it, in enough detail to respond. The contractor then has the opportunity to submit information and argument in opposition, both in writing and, in appropriate cases, in person, often through counsel. The suspending and debarring official must consider that submission before deciding whether the suspension continues.

A particularly significant protection applies when the contractor’s submission raises a genuine dispute over material facts. In that circumstance, and when the action is not based on an indictment, the regulation provides for additional fact-finding. The official is to refer the matter so that the contractor receives an opportunity to appear with counsel, to present witnesses, and to confront any witness the agency presents, …

Yes, a service member who impersonates a superior in order to bring about a separation from the armed forces can be prosecuted for effecting an unlawful separation, provided the government proves the offense’s specific elements. That offense is now Article 104b of the Uniform Code of Military Justice, codified at 10 U.S.C. 904b. 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 titles still call the unlawful-separation offense Article 84. The impersonation is the method; the prosecutable conduct under Article 104b is the act of effecting a separation that the accused knew was unlawful.

How impersonation connects to Article 104b

Article 104b has two essential elements. The accused must have effected the separation of a person from the armed forces, and that separation must have been prohibited by law, regulation, or order, with the accused knowing of the prohibition at the time. A separation processed by someone pretending to hold an authority he does not actually have is, almost by definition, a separation lacking proper legal authority. Separation decisions must be made and approved by officials with the regulatory power to make them. When a service member impersonates a superior to push a separation through, the action is unauthorized at its core, and the impersonator necessarily knows he lacks the genuine authority he is pretending to wield. That knowledge supplies the mental element Article 84 demands.

In this sense, impersonation is strong evidence of both required elements at once. It tends to show that the separation was prohibited, because it was effected without lawful authority, and it tends to show knowledge, because a person who deliberately assumes a false rank or position understands that he is circumventing the proper approval process.

The separation must actually be effected or attempted

Article 104b is aimed at effecting a separation. If the impersonation scheme succeeded in producing a separation, the completed offense is in play. If the scheme was interrupted before the separation took effect, the government may instead charge an attempt under Article 80 of the UCMJ, which reaches conduct that goes beyond mere preparation toward the commission of the underlying offense. Either way, the focus is on bringing about, or trying to bring about, a separation the accused knew was not permitted.

Impersonation may also be charged separately

The fact that Article 104b can …

Article 86 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. 886, punishes absence without leave, commonly called AWOL or unauthorized absence. A natural question arises when a service member takes steps toward leaving without authority but is intercepted before actually getting away: can the government charge an attempt? The answer depends on the law of attempts under Article 80, the line between preparation and a true attempt, and the unusual nature of absence offenses. This article explains how those pieces fit together.

The Underlying Offense Under Article 86

Article 86 covers several forms of unauthorized absence, including failing to go to an appointed place of duty, leaving that place, and being absent from one’s unit, organization, or place of duty without authority. The core of the offense is the unauthorized absence itself. Importantly, AWOL is generally treated as an offense of status or condition rather than a single instantaneous act. A person is AWOL during the entire period they remain absent without authority. This characterization matters because the law of attempts was developed primarily for offenses that consist of a discrete act the accused tries but fails to complete.

The Law of Attempts Under Article 80

Article 80, codified at 10 U.S.C. 880, makes it an offense to attempt to commit any other offense punishable under the code. An attempt has well-defined elements: the accused must have the specific intent to commit a particular offense, and must commit an overt act that amounts to more than mere preparation and that tends, even if it fails, to effect the commission of the intended offense. Two ideas are central. First, the accused must specifically intend to commit the target offense. Second, the conduct must cross the line from preparation into a direct movement toward completion. General intent, recklessness, or early-stage planning is not enough.

Preparation Versus a Substantial Step

The decisive concept for the question posed is the distinction between preparation and an act that goes beyond it. Preparation consists of arranging the means or measures necessary for the offense, such as packing a bag, buying a bus ticket, or telling a friend of an intention to leave. An attempt requires conduct that constitutes a direct movement toward commission after preparations are complete, the kind of act that would result in the offense but for an intervening cause such as being stopped. Courts evaluate how far the conduct …

Maltreatment cases often do not turn on a single dramatic act. They build from a series of smaller incidents, a course of conduct by a superior toward a subordinate that, taken together, becomes abusive. That raises a practical question: how much evidence, and of what kind, does the government need to demonstrate a pattern of maltreatment over time rather than an isolated incident? The answer involves two layers. There is the formal burden of proof, which sets the threshold for any criminal finding, and there is the analytical standard for maltreatment itself, which is objective and considers the totality of the circumstances. Demonstrating a pattern requires meeting the burden of proof as to conduct that, viewed objectively across the relevant period, amounts to cruelty, oppression, or maltreatment.

The governing offense and its elements

Cruelty and maltreatment are punished by Article 93 of the UCMJ, codified at 10 U.S.C. section 893. The article makes it an offense for any person subject to the Code to be cruel toward, or to oppress or maltreat, any person subject to that person’s orders. Two elements define the offense. First, the victim must have been subject to the orders of the accused, which captures the superior-subordinate relationship at the heart of the offense. Second, the accused must have been cruel toward, oppressed, or maltreated that person.

The relationship element is essential. Article 93 protects those within the accused’s chain of authority, and “subject to the orders of” is read broadly to include not only direct subordinates but others required to obey the accused’s lawful orders. Without that relationship, the conduct may be some other offense, but it is not Article 93 maltreatment.

The objective standard for maltreatment

Maltreatment is measured by an objective standard. The question is not whether the particular victim felt mistreated, but whether the accused’s conduct, viewed objectively in light of the totality of the circumstances, was abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose, and whether it caused, or reasonably could have caused, physical or mental harm or suffering. Actual harm need not be shown; the potential to cause harm under an objective view is enough. This objective framing matters for pattern cases, because it allows the finder of fact to look at the cumulative effect of the accused’s behavior rather than demanding proof of injury from each separate act.

The conduct can be physical or non-physical. Verbal …

Conspiracy charges under Article 81 require an overt act, and service members frequently agree to and pursue plans while stationed overseas, deployed, or on temporary duty abroad. That prompts a natural concern: if the overt act, the concrete step that completes the conspiracy, took place on foreign soil, can a court-martial still sustain the charge? The answer is generally yes. The location of the overt act in a foreign jurisdiction does not, by itself, defeat a conspiracy charge under the UCMJ, because court-martial jurisdiction follows the service member around the world. This post addresses that geographic question specifically. It does not address whether attempt and conspiracy may both be charged, or whether the object offense must be a UCMJ crime, which are separate issues.

Court-martial jurisdiction is worldwide

The foundation of the answer is that UCMJ jurisdiction is based on the status of the accused as a person subject to the Code, not on where the conduct occurred. Article 2 of the UCMJ defines who is subject to military law, principally members of the armed forces, and personal jurisdiction attaches regardless of the service member’s physical location anywhere in the world. The Code is expressly designed to apply uniformly wherever service members are stationed. A soldier in Germany, a sailor in Japan, and an airman in the United States are equally subject to the punitive articles.

Because jurisdiction rests on status rather than geography, an offense committed in whole or in part overseas is still within the reach of a court-martial. There is no requirement that the offense occur on United States territory or even on a military installation. This is a defining difference between military and ordinary civilian federal criminal jurisdiction, much of which is territorial.

Applying that to the overt act

Article 81, codified at 10 U.S.C. section 881, requires an agreement to commit an offense and an overt act by at least one conspirator to effect the object of the agreement. The overt act need not itself be criminal; it need only be a step that shows the conspiracy is operating. Nothing in the statute requires that the overt act occur within the United States. If the agreement was formed by persons subject to the Code, and a conspirator performed a qualifying overt act, the offense is complete, and the fact that the act happened in a foreign location does not change the analysis. A court-martial can …