Military Lawyers

Defense contractors who hold or seek security clearances complete the Questionnaire for National Security Positions, Standard Form 86 (SF-86). The form asks detailed questions about finances, foreign contacts, drug use, criminal history, and employment. When an investigator later finds that the form left something out, the contractor faces a Statement of Reasons threatening denial or revocation of the clearance. A common defense is that the omission was honest, not a lie. Whether that defense works depends on which forum is asking and on the facts that surround the missing answer.

Two different questions hide inside one form

An SF-86 omission can create two separate problems, and intent matters differently in each.

The first is the administrative clearance question handled by the Defense Office of Hearings and Appeals (DOHA) for industry applicants. The concern there is whether the omission shows poor judgment, dishonesty, or unreliability that bears on the applicant’s fitness to protect classified information.

The second is potential criminal exposure under 18 U.S.C. 1001, the federal false statements statute, which can apply when a person knowingly and willfully makes a materially false statement or conceals a material fact within the jurisdiction of the executive branch. The SF-86 is submitted to a federal agency, so it falls within that jurisdiction.

The two questions share a theme, intent, but they apply different standards and lead to different consequences.

Intent under the adjudicative guidelines

For the clearance decision, the controlling framework is the National Security Adjudicative Guidelines, in particular Guideline E, Personal Conduct. The guideline treats as disqualifying the deliberate omission, concealment, or falsification of relevant facts from a personnel security questionnaire used to determine eligibility for access to classified information.

The word that does the work is deliberate. If the omission was genuinely inadvertent, the disqualifying condition for falsification is not established on its own terms. Faulty memory, a misreading of an ambiguous question, reasonable confusion about what a question required, or a good-faith belief that a matter was not covered can all support the conclusion that the applicant did not deliberately conceal anything.

That does not end the inquiry, however. Even an innocent omission may leave underlying conduct on the table. If a contractor left a debt off the form, the debt itself may raise Guideline F, Financial Considerations, regardless of whether the omission was deliberate. So showing a lack of intent to deceive may defeat the personal-conduct allegation while the …

Conspiracy under the Uniform Code of Military Justice is built on a single core idea: an agreement. Article 81 of the UCMJ punishes a service member who conspires with one or more persons to commit an offense and who, or whose co-conspirator, then performs an overt act to bring that offense about. Because the agreement is the heart of the charge, military courts spend most of their analysis separating two very different situations: a person who merely watched or stood near misconduct, and a person who actually joined a shared criminal plan. The line between passive observation and active agreement decides whether a conspiracy conviction can stand.

The two elements the government must prove

A conspiracy charge has two distinct elements. First, the accused must have entered into an agreement with at least one other person to commit a substantive offense punishable under the code. Second, while that agreement still existed and while the accused remained a party to it, the accused or a co-conspirator must have performed an overt act intended to advance the object of the conspiracy.

The overt act element is separate from the agreement and is often misunderstood. The act itself does not have to be criminal, and it does not have to be performed by the accused personally. A single step taken by any co-conspirator can satisfy this element. Because the overt act bar is low, the real battleground in most cases is the first element: was there an agreement at all, and did this particular accused join it?

What counts as an agreement

The agreement does not need to be written, spoken aloud, or expressed in any formal way. Military courts have long held that a conspiracy can rest on nothing more than a mutual understanding among the participants to accomplish the unlawful object. The parties must reach what courts describe as a meeting of the minds.

Because secret agreements rarely leave a paper trail, the government is allowed to prove the agreement through circumstantial evidence. Reasonable inferences drawn from how the participants behaved, what they said before and after, and how their conduct fit together can establish that an understanding existed. A coordinated sequence of actions that makes little sense unless the participants were working toward a common goal can support the inference of agreement.

Why passive observation is not enough

The same body of law that allows circumstantial proof also sets a …

A soldier who is acquitted at court-martial, cleared by an investigation, or who has charges dismissed may reasonably expect to move on. Yet the same allegation can resurface during the promotion process. A board may withhold a promotion, the Secretary may delay it, or a promotion review board may recommend removal from a list, all citing the very matter the soldier already overcame. The question is whether that decision can be challenged when the underlying legal issue was resolved in the soldier’s favor. It can be contested, but the path and the odds depend on the procedural posture and on what record the command is actually relying upon.

Favorable resolution does not automatically clear a promotion file

It is important to understand at the outset why a resolved matter can still affect promotion. An acquittal at court-martial means the government did not prove guilt beyond a reasonable doubt. It is not a finding that the conduct never happened, and it is not, by itself, an order to purge the underlying documents. Investigative reports, adverse evaluations, and command memoranda may remain in the soldier’s record after the criminal or administrative matter ends.

Promotion authorities operate under a lower standard than a criminal court and may consider the whole record. So the practical question is usually not whether the soldier was cleared, but whether the documents and characterizations that drove the promotion decision are themselves accurate, lawful, and properly retained.

Delay and removal each have their own rules

Federal law distinguishes between delaying a promotion and removing an officer from a promotion list, and the distinction shapes the challenge.

For officers, the involuntary delay of a promotion is governed by statute. Under 10 U.S.C. 14311, applicable to reserve officers, a promotion may be delayed when there is cause to believe the officer is mentally, physically, morally, or professionally unqualified, when an investigation or proceeding is pending, or in similar circumstances, but the statute imposes notice requirements and time limits and provides that the officer must be given an opportunity to respond. A parallel framework governs other components. The key point is that a delay must rest on a recognized ground and must follow the required process; a delay that rests solely on a matter already resolved favorably, with no new basis, is vulnerable precisely because the predicate has evaporated.

Removal from a promotion list and promotion propriety actions involve a separate review. …

Field exercises place service members in close quarters, away from normal oversight, often tired and improvising. It is unsurprising that plans are hatched in that environment, and sometimes those plans are unlawful. The question is whether an agreement reached in the field, perhaps loosely and informally, can support a criminal charge. Under the Uniform Code of Military Justice the answer is yes: a conspiratorial agreement formed during a field exercise can be just as actionable as one formed anywhere else, provided the elements of conspiracy are met. The setting does not insulate the agreement, and in some respects it can supply the very acts that complete the offense.

The governing offense

Conspiracy is charged under Article 81 of the UCMJ. The Manual for Courts-Martial sets out two elements. First, the accused must have entered into an agreement with one or more persons to commit an offense under the code. Second, while the agreement existed and while the accused remained a party to it, the accused or at least one co-conspirator must have performed an overt act to bring about the object of the conspiracy. Both elements can be satisfied by conduct during a field exercise.

The object of the agreement must be an offense under the UCMJ. Conspiracies to commit larceny of equipment, to falsify records, to obstruct an investigation, to assault another member, or to commit any other punitive-article offense are all within reach. What matters is that the members agreed to accomplish something the code forbids.

The agreement need not be formal

A common misconception is that a conspiracy requires an explicit, articulated plan. It does not. The agreement may be silent and informal; no particular words are necessary, only a common understanding among the participants to accomplish the unlawful object. The agreement need not spell out how the offense will be carried out or what role each person will play. This is precisely why field-exercise agreements are reachable. A nod, a shared plan whispered between tasks, or a tacit understanding to cover for one another can constitute the agreement. The government can prove it through circumstantial evidence, including the parties’ conduct, just as in any other setting.

There must, however, be at least two genuine participants who actually agree. A single member who merely intends to commit an offense, or who is talked into it by a government agent who never truly joins, does not form a …

A compassionate reassignment, sometimes called a compassionate or humanitarian assignment, lets a service member move to a location where the member’s presence is needed to resolve a serious family problem. When such a request is denied, and the denial appears to rest on adverse counseling in the member’s file rather than on the merits of the family hardship, legal counsel has several avenues to challenge the decision. The strategy usually combines attacking the denial of the reassignment with attacking the underlying counseling that tainted it.

Understanding the program and its limits

Compassionate reassignment is governed by personnel regulations rather than by the UCMJ. It is designed for situations where extreme or unusual family problems require the member’s presence for a defined period. Approval authority rests with personnel command rather than the immediate unit, and the request is initiated on the prescribed application form and routed through the chain of command. Reconsideration rights exist but are limited; a service member may generally request reconsideration for the same family emergency only once, after which there is no further reconsideration of that request.

Because the program is regulatory, the challenge to a denial is fundamentally an administrative law matter. Counsel works within the regulation’s framework, arguing that the denial was inconsistent with the regulation, unsupported by the facts, or improperly influenced by something that should not have controlled the outcome.

The core problem: adverse counseling as the basis

When a denial rests on adverse counseling, two distinct problems arise. The first is that the counseling may itself be inaccurate, unjust, or improperly documented. The second is that even valid counseling may not be a legitimate basis to deny a request whose purpose is to address a genuine family hardship. Counsel can attack on both fronts at once, challenging the validity of the counseling and challenging its use as the reason for denial.

If the adverse counseling is removed, transferred, or discredited, the principal justification for the denial may collapse, which is why counsel often pursues the counseling and the reassignment denial together rather than in isolation.

First, attack the counseling itself

Adverse counseling, like other unfavorable information, can be contested through the administrative processes that govern a member’s records. Counsel can pursue a rebuttal at the time the counseling is issued, disputing the facts or offering extenuation and mitigation. If the counseling is already filed, counsel can seek its removal or transfer through …

This question goes to the heart of how military law treats criminal attempt. A service member may worry that an attempt charge collapses if completing the crime was never actually possible, for example because the target did not exist, the contraband was fake, or circumstances made success unattainable. Under the Uniform Code of Military Justice, that worry is usually misplaced. The short answer is yes: an accused can be convicted of attempt even when the opportunity to complete the offense was never present.

What Article 80 actually requires

Attempt is charged under Article 80 of the UCMJ. The government must prove four things. First, that the accused did a certain overt act. Second, that the act was done with the specific intent to commit a particular offense under the code. Third, that the act amounted to more than mere preparation. Fourth, that the act apparently tended to effect the commission of the intended offense.

Notice what is missing from that list. There is no element requiring that success was actually possible. The offense punishes a culpable state of mind joined to conduct that moves beyond planning. The law treats a person who tries to commit a crime and fails as dangerous and blameworthy, regardless of whether an outside circumstance, unknown to the accused, doomed the effort from the start.

Factual impossibility is not a defense

The reason a missing opportunity does not defeat the charge is the doctrine of impossibility. Military courts distinguish between factual impossibility and legal impossibility, and they treat the two very differently.

Factual impossibility means the accused intended to commit a real crime but could not complete it because of a fact unknown to the accused. The classic examples include trying to pick an empty pocket, firing at a bed believing a person is asleep in it, or attempting to buy what the accused believes are illegal drugs when the substance is harmless powder. In each case the accused had every intention of committing the offense and took concrete steps to do so. Military law holds that factual impossibility is not a defense to attempt. The accused is judged on the facts as the accused believed them to be, not on the hidden reality that made completion impossible.

The Court of Appeals for the Armed Forces confirmed this principle in United States v. Roeseler, 55 M.J. 286 (C.A.A.F. 2001). There the court affirmed a conviction for …

When a single act breaks a military regulation and also satisfies the elements of a different punitive article, prosecutors face a choice about how to charge it. Article 92 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. 892, punishes the failure to obey a lawful general order or regulation, the failure to obey other lawful orders, and dereliction of duty. Because so much of military life is governed by written regulations, the same misconduct can frequently be framed either as a regulatory violation under Article 92 or as a more specific offense elsewhere in the code. Understanding how these overlapping theories interact matters for both charging decisions and sentencing exposure.

The Three Distinct Offenses Within Article 92

Article 92 is not a single crime. It describes three separate offenses. The first is violating or failing to obey a lawful general order or regulation. The government must prove the order or regulation existed and was lawful and that the accused violated or failed to obey it. Knowledge is not a separate element for general orders because such orders are presumed to apply to everyone within their reach. The second offense is failing to obey another lawful order, which does require proof that the accused knew of the order and had a duty to obey it. The third is dereliction of duty, where the accused knew or reasonably should have known of a duty and was willfully, negligently, or culpably inefficient in performing it.

These distinctions matter when the same conduct touches another article. The general-order theory carries the heaviest maximum punishment of the three, including a dishonorable discharge and confinement, which is why prosecutors often prefer it when a published regulation squarely covers the behavior.

When One Act Implicates a Regulation and Another Article

Consider a service member who tests positive for a controlled substance. That conduct may violate a general regulation prohibiting drug use, which sounds in Article 92, and it may also constitute wrongful use under Article 112a, the specific narcotics article. Similarly, mishandling classified material can violate an information-security regulation under Article 92 while also implicating other articles addressing the underlying harm. The existence of two viable theories does not mean both must be charged, and it does not automatically mean both can survive at trial.

The governing principle is that a more specific statute generally controls over a general one. Military courts have …

Nonjudicial punishment, imposed under Article 15 of the Uniform Code of Military Justice, is a familiar tool for disposing of minor misconduct without a court-martial. It is most often associated with enlisted members and junior officers, so a question that occasionally arises is whether a general officer can ever receive nonjudicial punishment, and in particular whether a commander of equal grade could impose it. The short answer is that the statute allows nonjudicial punishment of officers, including senior officers, but the rules on who may impose it make an equal-grade commander an unusual and generally inappropriate choice. Understanding why requires looking at the structure of Article 15 and the regulations that implement it.

Who may impose nonjudicial punishment

Article 15 authority belongs to commanders. A commanding officer may impose nonjudicial punishment on members of the command, and the statute extends the authority to officers in command at various levels. The key concept is command, not merely rank. The person imposing punishment must be the commander exercising authority over the member, and the available punishments scale with the imposing officer’s grade. Field grade commanders may impose heavier punishments than company grade commanders.

Article 15 also recognizes that superior authority shapes who actually exercises this power. A superior commander may withhold or limit a subordinate commander’s authority to impose nonjudicial punishment, reserving certain cases to a higher level. In practice, the services use this mechanism to push decisions about senior personnel upward.

Why senior officers are normally handled at a higher level

For general officers, the realistic answer is that nonjudicial punishment, if used at all, is typically imposed by a superior in the chain of command, such as a higher-ranking general officer or a general court-martial convening authority. The services commonly reserve to senior commanders the authority to impose nonjudicial punishment on officers, especially senior officers. This reflects both the structure of command and the practical reality that a general officer ordinarily answers to someone above him, not to a peer.

There is also a basic principle embedded in the system. Nonjudicial punishment flows from the authority a commander exercises over subordinates within the command. A general officer is not a subordinate of another officer who merely holds the same grade. Without a command relationship that places the general officer under the imposing officer, there is no foundation for nonjudicial punishment.

The equal-grade problem

This is the heart of the question. …

A common instinct among service members facing a court-martial is to argue that they did not believe they were doing anything wrong. When the charge is an attempt under Article 80 of the Uniform Code of Military Justice, and the evidence of the attempt itself is strong, that instinct usually runs into a hard rule: a sincere belief that conduct was lawful, standing alone, is generally not a defense. Understanding why requires separating two ideas that often get blurred together, mistake of law and mistake of fact.

Ignorance or mistake of law is generally not a defense

Rule for Courts-Martial 916 sets out the recognized defenses in the military justice system. Under R.C.M. 916(l), ignorance or mistake of law ordinarily is not a defense. This mirrors the long-standing principle in American criminal law that a defendant cannot escape liability by claiming he did not know the law prohibited his conduct, or that he believed the law permitted it. If a service member intends to commit the acts that make up an offense, the fact that he privately thought those acts were legal does not undo his criminal responsibility. The law presumes that people are bound to know the rules that govern them, particularly rules that members of the armed forces are trained and ordered to follow.

So when the question is framed as “the accused believed the conduct was lawful,” the answer in most cases is that this belief is a mistake of law, and a mistake of law is not a defense.

Mistake of fact is different

The defense that does carry weight is mistake of fact, which R.C.M. 916(j) addresses. A mistake of fact is a defense when the accused held, because of ignorance or mistake, an incorrect belief about the actual circumstances, such that if the circumstances had been as he believed them to be, he would not be guilty of the offense. For offenses requiring specific intent, an honest mistake of fact can be a defense even if it was unreasonable, while for general intent offenses the mistake must be both honest and reasonable.

The distinction matters enormously. Believing that the law allowed what you did is mistake of law and almost never helps. Being mistaken about a fact in the world, so that the thing you intended was not actually the wrongful thing the charge describes, is mistake of fact and can defeat an element …

Article 87 of the UCMJ, missing movement, punishes a service member who fails to move with a ship, aircraft, or unit that the member was required to move with. Operations rarely run exactly on schedule, and movements are often pushed back. A natural question arises when a movement is postponed but the member still does not show up: does Article 87 apply, or does a delay take the conduct outside the article? The answer depends on a single decisive fact, whether a movement actually took place.

What Article 87 requires

Article 87, codified at 10 U.S.C. 887, makes it an offense to miss the movement of a ship, aircraft, or unit through neglect or design when the member is required in the course of duty to move with it. The elements are that the accused was required in the course of duty to move with a ship, aircraft, or unit; that the accused knew of the prospective movement; that the accused missed the movement; and that the member did so through design or through neglect.

Two mental states qualify. Design means the member intentionally missed the movement, and neglect means the member failed to exercise the care a reasonable person would have used to be present. The article does not require a specific intent to avoid duty in the way desertion does; ordinary neglect is enough.

The prerequisite: a movement must occur

The core of the question lies in an element that is easy to overlook. There can be no missing of a movement unless a movement actually happens. If the ship sails, the aircraft departs, or the unit moves, and the member is not there, the offense can be complete. If the movement never occurs, there is nothing to miss, and Article 87 does not apply.

This is why postponement requires careful analysis. Postponement is not a single concept. It covers at least two materially different situations, and they lead to opposite results.

Postponed but the movement still happens

In the first situation, the movement is delayed and then occurs at a later time. The departure slips from morning to evening, or from one day to the next, but the ship, aircraft, or unit eventually moves. Here Article 87 remains fully applicable. The member was required to move, knew of the prospective movement, and the movement took place. If the member failed to report and was therefore absent when …