Military Lawyers

A retention override occurs when a commander or higher authority decides to keep a service member on active duty, or in a particular status, despite circumstances that regulation might otherwise treat as grounds for separation or other action. When such a decision appears to contradict an applicable regulation, it is tempting to conclude that something criminal has occurred. Under the Uniform Code of Military Justice, however, a regulatory deviation is not the same thing as a crime. A retention override that contradicts a regulation may be administratively improper, but it is evidence of criminal misconduct only if it independently satisfies the elements of a punitive article.

Regulatory violation versus criminal offense

The core principle is that not every breach of a regulation is a UCMJ offense. Military regulations come in two broad kinds. Some are punitive, meaning a violation can itself support a criminal charge. Many others are purely administrative, written to guide and structure decision-making, and a deviation from them is handled through administrative or command channels rather than through court-martial.

Whether a regulation is punitive or administrative is not a label the reader supplies. Courts examine the regulation’s purpose, looking at factors such as whether the provision was intended to regulate conduct administratively or to punish, whether it operates only on a finding of a culpable mental state, whether it serves traditional aims of punishment, and whether it targets behavior that is already criminal. A retention decision that strays from an administrative personnel regulation, without more, falls on the non-criminal side of that line.

How retention conduct could become criminal

For a retention override to be evidence of criminal misconduct, it must fit a punitive article of the UCMJ. The most relevant candidates are Article 92 and Article 107.

Article 92 covers failure to obey an order or regulation and dereliction of duty. One theory under Article 92 is violation of a lawful general order or regulation. To convict on that theory, the government must prove that a certain lawful general order or regulation was in effect and that the accused violated or failed to obey it. This theory applies only where the regulation in question is a punitive general order or regulation, not merely an administrative guideline. A second theory under Article 92 is dereliction of duty, which requires that the accused had a duty, knew or reasonably should have known of it, and was willfully or …

Mutiny is one of the gravest offenses in the Uniform Code of Military Justice, and the concept of concerted action sits at the center of one of its two forms. Understanding when joint conduct becomes mutiny, and when it is something less, requires looking closely at how Article 94 defines the offense and at the role collective action plays in proving it.

Article 94 and the two forms of mutiny

Mutiny is charged under Article 94 of the UCMJ, which also covers sedition. The article recognizes more than one way to commit mutiny, and the function of concerted action differs depending on which form is charged.

The first form is mutiny by creating violence or a disturbance. This form can be committed by one person acting alone or by more than one person acting together. Here, concerted action is not an element. A single service member who, with intent to override lawful military authority, creates violence or a disturbance can be guilty of mutiny without any partner.

The second form is mutiny by refusing to obey orders or perform duty. This is the form in which concerted action is essential. Mutiny of this kind requires collective insubordination. The accused must refuse to obey orders or do the assigned duty, must act in concert with one or more other persons in that refusal, and must do so with the intent to usurp or override lawful military authority. Without the element of joint action, this form of the offense cannot stand.

What concerted action means

Concerted action means that two or more persons join in the refusal of duty. The law does not require a formal plan, a written agreement, or a leader who organizes the others. The concert of insubordination need not be preconceived. It can arise spontaneously, in the moment, as several members refuse together.

Nor does the refusal have to be active or violent. Mutiny by refusal can consist simply of a persistent and concerted refusal or omission to obey orders or to do duty. The defining feature is that the members act together in resisting authority, not that they do so loudly or forcefully. A quiet, collective sit-down refusal to perform assigned duties can satisfy the element just as a noisy confrontation could.

Concerted action plus insubordinate intent

Concerted action alone is not mutiny. The element that transforms a group refusal into the offense is the insubordinate intent …

Conspiracy is a familiar offense in both civilian and military criminal law: an agreement between two or more people to commit an offense, coupled with an overt act to advance it. In the military, conspiracy is charged under Article 81 of the Uniform Code of Military Justice, codified at 10 U.S.C. 881, which sits within Title 10. Things become more intricate when a civilian is part of the alleged agreement. The key to understanding how military law handles these cases is to separate two distinct questions: who can be tried by court-martial, and what the government must prove about the conspiracy itself.

Article 81 and its elements

Article 81 provides that any person subject to the Code who conspires with any other person to commit an offense under the Code shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct. The elements are an agreement between the accused and at least one other person to commit an offense under the Code, the intent that the offense be committed, and an overt act by at least one conspirator, performed while the agreement existed, to bring about its object.

The phrase “any other person” is significant. The statute does not require that the co-conspirator also be a service member. A service member can conspire with anyone, including a civilian, and still be liable under Article 81, provided the object of the agreement is an offense under the Code and the other elements are met. So the presence of a civilian in the alleged conspiracy does not defeat the charge against the service member.

The jurisdictional dividing line: who can be court-martialed

The harder question is whether the civilian can be prosecuted by court-martial alongside the service member. As a general matter, the answer is no. Court-martial jurisdiction reaches persons subject to the Code, principally members of the armed forces, and does not extend to ordinary civilians. The Supreme Court’s decision in Reid v. Covert is the foundational authority: the Court held that civilian dependents accompanying service members overseas could not constitutionally be tried by court-martial in capital cases in peacetime, emphasizing that the constitutional protections of Article III and the Fifth and Sixth Amendments, including the right to trial by jury, apply to United States citizens and that the power to regulate the armed forces does not …

A frequent question in military criminal cases is whether a service member can be convicted of attempting a crime when, in reality, completing that crime was never actually possible. Perhaps the locker the accused tried to break into was empty, the substance he tried to buy was fake, or the target of a planned offense did not exist. Under the Uniform Code of Military Justice, the answer is generally yes. Attempt charges can stand even when the accused never had the means to complete the offense, because the law of attempt focuses on intent and conduct rather than on whether success was achievable.

What Article 80 Requires

Attempts are governed by Article 80 of the UCMJ, codified at 10 U.S.C. 880. The statute 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. Three core elements emerge from that definition.

First, there must be a specific intent to commit a particular offense. The accused must actually have the purpose of bringing about the completed crime. Second, there must be an overt act, meaning the accused must do something concrete, at an identifiable time and place, rather than merely think or plan. Third, that act must amount to more than mere preparation. It must be a direct movement toward commission of the offense, a substantial step that strongly corroborates the criminal intent.

Notably, the statute itself contains the phrase “even though failing.” That language signals that failure to complete the crime is not a bar to liability. Attempt law exists precisely to reach conduct that fell short of completion.

Why Lack of Means Usually Does Not Defeat the Charge

The reason an attempt can stand despite the impossibility of success lies in the doctrine commonly described as factual impossibility. Factual impossibility refers to a situation in which the accused intended to commit the crime and took substantial steps toward it, but some fact unknown to him made completion impossible. Under Article 80, factual impossibility is not a defense.

The classic illustrations make the point. A service member who reaches into a locker or pocket intending to steal, but finds it empty, has still attempted larceny. A person who tries to purchase controlled substances from someone who turns out to be an undercover agent, or whose product turns out to …

Article 93 of the Uniform Code of Military Justice, codified at 10 U.S.C. 893, is the punitive article that punishes cruelty, oppression, and maltreatment of a person subject to the accused’s orders. Hazing, bullying, and equal-opportunity violations are addressed separately, through Department of Defense and service-specific policies and regulations. These two bodies of authority frequently govern the same underlying conduct, and they interact in ways that affect how misconduct is charged, what the government must prove, and which forum is most appropriate. Understanding the relationship requires seeing that policy violations and Article 93 maltreatment are distinct legal theories that can overlap but are not identical.

Two distinct sources of authority

Article 93 is a criminal offense. Its elements are that the victim was subject to the accused’s orders and that the accused was cruel toward, oppressed, or maltreated that victim, judged by an objective standard. Conviction can result in punishment imposed by a court-martial.

Anti-hazing and equal-opportunity rules, by contrast, originate in policy. At the department level, the Department of Defense addresses hazing, bullying, and other harassment through harassment-prevention and response policy, which directs that the services prohibit and respond to such conduct. Each service implements that direction through its own regulations and orders. These instruments define hazing and bullying, prohibit them, establish reporting and investigation procedures, and set out the responsibilities of commanders. They are administrative and disciplinary frameworks first, even though they can also become the basis for criminal charges.

How a policy violation becomes a punitive charge

The key link between the two is Article 92, codified at 10 U.S.C. 892, which punishes violations of lawful general orders and regulations and the failure to obey other lawful orders. When a service-specific anti-hazing or equal-opportunity regulation is properly issued and contains punitive language, a violation of that regulation can be charged under Article 92. This is the most direct route by which a policy prohibition acquires criminal force. The regulation supplies the rule, and Article 92 supplies the offense.

Article 93 provides a parallel and sometimes overlapping route. The same hazing or harassment conduct that violates a service policy may also constitute maltreatment if the victim was subject to the accused’s orders and the conduct was objectively abusive and served no lawful purpose. In that situation the government may charge under Article 93, under Article 92 for the regulatory violation, or both, and depending on the facts may …

Modern misconduct cases increasingly hinge on text messages, group chats, emails, and social media threads. For a service member facing a conspiracy allegation, an important question is whether digital communications, standing alone, can support a conviction. The answer depends on what those communications actually establish, because military conspiracy law requires specific elements, and messages may prove some of them while leaving gaps in others.

The elements of military conspiracy

Conspiracy is charged under Article 81 of the Uniform Code of Military Justice. To convict, the government must prove that two or more persons entered into an agreement to commit an offense under the UCMJ, that the accused was a party to that agreement with the specific intent to commit the offense, and that at least one of the conspirators performed an overt act to advance the conspiracy.

Each element matters when evaluating digital evidence. The agreement and the accused’s intent go to the meeting of the minds. The overt act goes to whether the conspiracy moved beyond pure talk toward its objective. Digital communications can speak to all three, but they do so with varying strength depending on their content.

How communications can prove agreement

An agreement does not require a signed contract, a recorded meeting, or even an explicit verbal “yes.” Military courts permit agreement to be inferred from circumstantial evidence, including coordinated behavior, patterns of communication, shared information, and other signs of a mutual understanding. Messages in which participants plan, divide tasks, set times and places, or acknowledge a common goal can therefore be powerful proof that an agreement existed and that the accused joined it with the required intent.

This means digital records can, in principle, carry significant weight on the agreement element. A thread showing two members arranging the details of a planned offense may establish the meeting of the minds more clearly than a vague in-person account ever could.

The overt act requirement

An overt act is any act that advances the conspiracy toward its criminal objective. Three features of this requirement are important. First, the act must occur after the agreement is formed. Second, the act need not itself be illegal; an otherwise innocent step taken to further the plan can qualify. Third, the act may be performed by any one of the conspirators, not necessarily the accused.

Because the overt act need not be unlawful, a digital communication can itself sometimes serve as …

Attempted sexual assault and assault consummated by a battery are two different offenses that arise from different articles of the UCMJ, require proof of different elements, and carry different consequences. They can overlap factually, because an unwanted touching that begins a sexual assault may also be a battery, but they are not the same charge. Understanding the distinction matters for how an accused is charged, what the government must prove, and what defenses apply.

Two Different Source Articles

Attempted sexual assault is built from two provisions read together. Sexual assault is defined in Article 120 of the UCMJ, 10 U.S.C. § 920, which addresses rape, sexual assault, and related sexual offenses. The attempt is supplied by Article 80, 10 U.S.C. § 880, the general attempt statute. An attempted sexual assault is therefore a specific intent offense: it requires proof that the accused, with the specific intent to commit the sexual assault, did an overt act amounting to more than mere preparation that tended to effect the commission of the sexual assault, even though the sexual assault was not completed.

Assault consummated by a battery is a separate offense under Article 128 of the UCMJ, 10 U.S.C. § 928, the general assault article. It punishes the actual, unlawful application of force to another person. It is a completed offense, not an attempt, and it does not require any sexual intent at all.

The Core Elements Compared

Attempted sexual assault requires the government to prove specific intent to accomplish a sexual act or sexual contact as defined in Article 120, plus an overt act that goes beyond preparation and tends toward completing that sexual offense, with the offense remaining unconsummated. The focus is on what the accused was trying to do and how far the accused got toward doing it.

Assault consummated by a battery requires proof that the accused did bodily harm to another person and that the bodily harm was done with unlawful force or violence. Bodily harm in this context means an offensive touching, however slight. The touching must actually occur; this is what makes it a battery rather than a mere assault. No specific intent to commit a sexual offense is required, and indeed no sexual element is required at all. A battery can be entirely nonsexual.

Completion Versus Incompletion

The clearest line between the two offenses is completion. Attempt, by definition, addresses conduct that fell short of …

Yes. A civilian employer who knowingly harbors, conceals, or protects a military deserter can face federal criminal liability. The relevant law is not the Uniform Code of Military Justice, which reaches only persons subject to it, but a federal criminal statute that applies to civilians. Understanding which law governs, what the government must prove, and where ordinary employment conduct ends and criminal conduct begins is essential before assuming that hiring a former service member exposes a business to prosecution.

The Governing Statute Is 18 U.S.C. § 1381, Not the UCMJ

Desertion itself is a military offense under Article 85 of the UCMJ, codified at 10 U.S.C. § 885. That article punishes the service member who leaves a unit, organization, or place of duty with the intent to remain away permanently, or who quits to avoid hazardous duty or shirk important service. Article 85 reaches the deserter, not third parties who help one.

A civilian cannot be court-martialed for the deserter’s underlying act. The exposure for an employer comes from Title 18 of the United States Code, the body of general federal criminal law. Section 1381, titled “Enticing desertion and harboring deserters,” reaches “whoever entices or procures or attempts or endeavors to entice or procure any person in the Armed Forces of the United States … to desert therefrom,” and separately reaches “whoever harbors, conceals, protects, or assists any such person who may have deserted from such service … knowing him to have deserted therefrom, or refuses to give up and deliver such person on the demand of any officer authorized to receive him.”

This is the provision under which a civilian employer would be charged. It is enforced in federal district court by the Department of Justice, not by a military convening authority.

What the Government Must Prove

The harboring branch of Section 1381 has a clear knowledge requirement. The statute punishes assisting a person “knowing him to have deserted.” That single word does substantial work. The prosecution must prove that the employer actually knew the individual was a deserter from the armed forces, not merely that the employer should have suspected it or failed to investigate a gap in a resume.

The conduct elements are harboring, concealing, protecting, or assisting the deserter, or refusing to surrender the person when a properly authorized officer demands custody. The penalty under Section 1381 is a fine, imprisonment of not more than three …

This question goes to the heart of one of the more difficult doctrines in attempt law: impossibility. When the only thing standing between an accused’s conduct and a lawful act is the absence of authorization, the answer depends on how the law characterizes that missing authorization. Where the lack of authorization is the very element that makes the conduct criminal, an attempt can be sustained. Where the accused merely imagined that authorization was required when it was not, the result may be different. The analysis turns on the distinction between legal and factual impossibility under Article 80 of the UCMJ.

The Attempt Framework Under Article 80

Article 80, 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. An attempt requires four things: an overt act, the specific intent to commit the offense, conduct beyond mere preparation, and an act that apparently tends toward completing the intended crime.

The mental state is central. Attempt is a specific intent crime. The accused must intend to commit an act that the law actually defines as an offense. This requirement is what makes the impossibility analysis necessary when authorization is the missing piece.

When Lack of Authorization Is the Criminal Element

Many military offenses are defined precisely by the absence of authorization. Conduct that would be perfectly lawful with permission becomes criminal when done without it. The classic examples include taking or using property, accessing systems, possessing items, or being absent from duty without proper authority. In these offenses, the want of authorization is not an incidental fact; it is an element the government must prove.

When that is the case, an attempt can be sustained even though the act would have been legal had authorization existed. The reason is that the accused intended to do the very thing the law forbids, namely the act without authorization. Suppose a service member sets out to take government property believing they have no authority to do so and intending to take it anyway, and is interrupted before completing the taking. The act would have been lawful if the member had been authorized, but the member intended an unauthorized taking. That is an intent to commit a genuine offense, and the overt act in furtherance of it can support an …

Article 92 of the Uniform Code of Military Justice punishes a service member who violates or fails to obey a lawful general order or regulation, who fails to obey another lawful order, or who is derelict in the performance of duties. A frequent question in these cases is whether a regulation was made known to the accused well enough to support a conviction. The answer depends almost entirely on which type of order is charged, because the law applies very different rules to general regulations than it does to individual orders.

The structure of Article 92

Article 92 covers three separate theories. The first is violation of a lawful general order or regulation. The second is failure to obey any other lawful order that the accused had a duty to obey. The third is dereliction in the performance of duties. The dissemination question plays out differently in the first two categories, and understanding the split is the key to the whole subject.

A general order or regulation is one issued by an authority with general command power, such as a service secretary, a major command, or another official whose orders apply broadly to a class of persons rather than to a single individual. An “other lawful order” is typically a directive given to a particular person or a smaller group by someone with authority over them.

General orders: knowledge is not an element

For a violation of a lawful general order or regulation, the military takes a strict position. Knowledge of the order is not an element of the offense, and lack of knowledge is not a defense. Every service member is charged with knowing the general orders and regulations in effect within their command. This rests on the long-standing principle that ignorance of the law is no excuse.

In practical terms, the government does not have to prove that the accused read the regulation, attended a briefing about it, or signed an acknowledgment. It must prove that the regulation was a lawful general order or regulation, that it was properly issued and in effect, and that the accused did the prohibited act or failed to do a required act. Because knowledge is not an element, there is no separate “dissemination threshold” that the prosecution must clear in the way one might expect.

This is why the question of whether a regulation was sufficiently disseminated does not, by itself, defeat …