Military Lawyers

The question of what “custody” means matters because escape from custody and related offenses can turn an underlying problem into a separate, serious charge. Before answering, one point of housekeeping is essential, because it affects every citation in this area. For most of the UCMJ’s history, resistance, flight, breach of arrest, and escape were prosecuted under Article 95. The Military Justice Act of 2016, which took effect on January 1, 2019, renumbered that offense as Article 87a, now codified at 10 U.S.C. section 887a. The current Article 95 addresses a different subject entirely, the offenses of a sentinel or lookout. So a service member or counsel researching “custody under Article 95” today should be aware that the escape-from-custody offense lives in Article 87a for conduct on or after that date, while pre-2019 conduct was charged under the former Article 95. The legal definition of custody, however, is substantially the same, and the answer to the question does not depend on the renumbering.

The short answer

No. Custody does not require physical restraint or confinement. The military definition of custody is broader than either of those concepts. Custody is the restraint of free movement imposed by lawful apprehension, and that restraint can be physical, but it can also be a matter of control exercised over a person who has submitted to authority, without any locks, handcuffs, or cell.

How the Manual defines custody

Under the Manual for Courts-Martial, custody is the restraint of free locomotion that is imposed by a lawful apprehension. The restraint may be physical. But once a person has submitted to apprehension, or has been forcibly taken into custody, the restraint may consist of control exercised in the presence of the person by official acts or orders. In other words, when an apprehended service member is told to stay put, to come along, or to remain with an escort, that order-based control is itself custody. The person need not be touching anything or locked anywhere.

Custody is also temporary by design. It is intended to last only until some other form of restraint takes its place, such as arrest, restriction, or confinement, or until the person is released. This temporary, transitional character is why custody can exist in the brief window after an apprehension and before any formal confinement decision is made.

Custody compared with confinement and arrest

The reason the question arises is that the UCMJ uses …

Service members are sometimes confronted with memoranda, counseling statements, or letters of reprimand that describe alleged misconduct in vague terms, without identifying when the behavior occurred, where it happened, or who observed it. These documents can derail a career even though they never specify the basic facts that would let the member respond. A military attorney can and routinely does advocate for the removal or transfer of such documents, and the lack of time, place, or witnesses can be a powerful part of that advocacy.

Why specificity matters

A memorandum that references behavior without time, place, or witnesses is difficult to defend against, and that difficulty is the point of the legal argument. Fairness requires that a service member be able to understand and rebut an accusation. When a document omits the date, the location, and the identity of any witness, it deprives the member of the ability to mount a meaningful response. The member cannot show an alibi, cannot challenge a witness’s account, and cannot test whether the conduct described actually occurred as alleged.

That vagueness supports two distinct arguments. The first is procedural: the document is unfair because it does not give adequate notice of the allegation. The second is substantive: a conclusory accusation unsupported by specifics may not be backed by sufficient evidence to be true or just. Both arguments aim at the same result, which is getting the document out of the record or moved where it can no longer cause harm.

The first opportunity: the rebuttal

The earliest and often most effective stage of advocacy is the rebuttal, before the document is filed. When a commander issues an adverse memorandum, counseling, or reprimand, the service member is typically given an opportunity to respond before a filing decision is made. A military attorney can use that response to attack the document directly.

There are generally two complementary approaches to a rebuttal. One is to dispute the underlying facts, arguing that the member did not commit the conduct described. The other is extenuation and mitigation, which acknowledges context that lessens the seriousness of what occurred. Where a memorandum lacks time, place, or witnesses, the factual challenge is especially strong, because the attorney can argue that the accusation is too vague and unsupported to justify any adverse filing. The goal at this stage is to persuade the issuing or filing authority either not to issue the document, to …

Article 86 of the Uniform Code of Military Justice, codified at 10 U.S.C. 886, is the article that punishes absence without leave. It reaches a service member who, without authority, fails to go to an appointed place of duty, goes from that place, or absents himself or remains absent from his unit, organization, or place of duty. A common assumption is that a member who is traveling between assignments, in what the services often call travel or permanent-change-of-station status, is somehow categorically immune from Article 86 liability. That assumption is mostly right for the reason that matters, but it is not absolute, and understanding why requires focusing on the word “authority” at the heart of the offense.

The core of Article 86 is the absence of authority

The defining feature of an Article 86 offense is that the absence is without authority. If a member’s whereabouts are authorized, the member is not absent without leave, no matter where the member physically is. A service member in proper travel status between assignments is, by definition, where the orders permit him to be. The travel itself is authorized, usually by permanent-change-of-station orders or temporary-duty orders that allot travel time, leave in conjunction with the move, and a reporting date at the new command. While the member is operating within the authority those orders confer, there is no unauthorized absence, and so no Article 86 violation.

This is why travel status generally protects against Article 86 charges. The protection is not a special exemption for travelers; it flows directly from the element the government must prove. A member acting within the scope of valid orders is authorized to be doing exactly what he is doing, which negates the central element of the offense.

Where the protection ends: exceeding the authority

The protection lasts only as long as the member stays within the authority granted. Travel orders are not open-ended. They specify travel time, any authorized leave, a route or general parameters, and most importantly a date and place to report. Two situations can convert an authorized traveler into a member absent without leave.

The first is failing to report. Article 86 expressly reaches a failure, without authority, to go to or be at an appointed place of duty at the prescribed time. The new assignment carries a reporting date. A member who does not report by that date, without authority, can be charged …

Few setbacks frustrate a high-performing service member more than learning that a promotion has been put on hold because of an unnamed complaint. The good news is that promotion delays are governed by rules, not unfettered discretion, and a delay that rests on thin, unverified, or anonymous allegations can be challenged. The avenues for relief range from engaging the chain of command to formal applications before a Board for Correction of Military Records.

Why promotions can be delayed at all

Commanders and the services have legitimate authority to delay a promotion when there is a question about an officer’s or enlisted member’s qualification or conduct. A delay is meant to be a temporary pause that preserves the status quo while a concern is examined, not a punishment in itself and not a permanent denial. Service regulations typically require that the member be notified of the reason for the delay, be given an opportunity to respond, and that the delay be resolved within a defined period rather than left open indefinitely.

Those procedural guardrails are the foundation of any challenge. A delay is administratively proper only when it follows the rules that authorize it. When it does not, the member has grounds to seek correction.

The problem with anonymous allegations

Anonymous allegations sit uneasily with the requirements of fairness that surround adverse personnel actions. The core procedural protections, notice of the basis for the action and a meaningful chance to respond, become difficult to satisfy when the source and substance of the complaint are hidden. A member cannot meaningfully rebut a charge whose details and origin are withheld.

This does not mean an anonymous tip can never start an inquiry. Commands may receive information from many sources, and a credible concern can warrant a look. But there is a difference between using an anonymous report as a lead that prompts verification and treating the unverified report itself as sufficient justification to hold a promotion. A delay sustained solely on an uncorroborated, anonymous allegation, without investigation or substantiation, is vulnerable to challenge as administratively improper, because it deprives the member of the ability to respond and rests on nothing the command has actually verified.

Building the appeal: identify the procedural defect

A successful challenge usually focuses on what the regulations require and how the delay departed from them. Relevant questions include whether the member received proper notice, whether the stated reason was …

Duty rosters are frequently admitted in prosecutions under Article 86 of the Uniform Code of Military Justice, the article that addresses absence without leave, codified at 10 U.S.C. 886. They are not admissible automatically, however. Like any document, a duty roster must satisfy the Military Rules of Evidence governing relevance, authentication, and hearsay before a military judge will allow a panel to consider it. When those requirements are met, a duty roster can be powerful evidence of the facts an Article 86 charge requires.

What the government must prove under Article 86

Article 86 covers several distinct forms of unauthorized absence, including failing to go to an appointed place of duty, leaving that place, and absenting oneself from a unit, organization, or place of duty without authority. The government must prove the accused’s duty status, the existence and nature of the obligation to be present, the fact of the absence, and that the absence was without authority. For the failure-to-go and going-from variants, the government must also prove that the accused actually knew of the appointed time and place of duty, although that knowledge can be shown by circumstantial evidence.

A duty roster speaks directly to several of these elements. It can establish that the accused was scheduled to be at a particular place at a particular time, which supports both the duty obligation and, when combined with evidence of how rosters are published and acknowledged, the knowledge element. It can also support the inference of absence when read alongside testimony or sign-in records showing the accused was not present.

The hearsay hurdle and the records exceptions

A duty roster is an out-of-court written assertion offered to prove the truth of what it records, so it is hearsay unless an exception applies. Two exceptions in the Military Rules of Evidence ordinarily carry the load.

The records of a regularly conducted activity exception, Military Rule of Evidence 803(6), often called the business records exception, applies when the roster was made at or near the time by someone with knowledge, kept in the course of a regularly conducted military activity, and made as a regular practice of that activity. A unit’s duty roster, prepared and maintained as a matter of routine to schedule personnel, typically fits this description. The proponent lays the foundation through the testimony of a custodian or other qualified witness, or through a written certification that complies with the …

A reprimand is a formal expression of censure, and it can appear in the military justice system in more than one way. The question here is narrower than it first appears. It asks whether a military judge can hand down a reprimand after trial as a freestanding act, detached from the sentence the court-martial adjudges. Understanding the answer requires separating the reprimand as a punishment from the reprimand as an administrative or command tool, and recognizing where a judge’s authority ends.

A reprimand is a sentence component, not a standalone judicial act

Within a court-martial, a reprimand is a recognized form of punishment. The Manual for Courts-Martial lists reprimand among the punishments a court-martial may adjudge under the sentencing rules. When a court-martial sentences an accused who has been found guilty, the sentencing authority may include a reprimand as part of the overall sentence, alongside or in place of other punishments such as confinement, forfeitures, reduction in grade, or a punitive discharge.

The crucial point is that a punitive reprimand is part of the sentence. It is not something a judge issues on the side, independent of the sentencing process. A military judge sitting alone determines the sentence when the accused has elected trial by judge alone, and any reprimand the judge imposes is a component of that adjudged sentence. It flows from the finding of guilt and is announced as part of the sentence, not as a separate post-trial pronouncement untethered from sentencing.

So if the question means whether a judge can impose a censuring reprimand as punishment after a conviction, the answer is yes, but only as part of the sentence. There is no mechanism for a judge to issue a punitive reprimand floating free of the sentence the court-martial returns.

The convening authority’s role in reprimands

Reprimands also intersect with post-trial action by the convening authority. The convening authority has limited power to act on a sentence after trial, and a reprimand is among the punishments that can be affected by that action. Where the rules permit, the convening authority may take action on portions of an adjudged sentence, and reprimands are one of the categories that can be addressed in that posture. This authority belongs to the convening authority, however, not to the military judge, and it operates on the sentence the court returned rather than creating a new judicial censure.

Why a judge cannot issue

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Article 93 of the Uniform Code of Military Justice, codified at 10 U.S.C. 893, punishes any person subject to the Code who is cruel toward, or who oppresses or maltreats, any person subject to that person’s orders. A question that often confuses both accused service members and observers is what state of mind the offense requires. Must the government prove that the accused intended to be cruel, or intended to cause harm? The answer is more nuanced than a simple yes or no. Article 93 is built around an objective standard for the conduct itself, while still requiring that the underlying acts be done knowingly rather than by accident. Intent matters, but not in the way many assume.

The two elements and where intent fits

Maltreatment under Article 93 has two elements. First, the victim must have been subject to the orders of the accused. Second, the accused must have been cruel toward, or have oppressed or maltreated, that victim. Neither element is phrased as a specific intent to harm. The Manual for Courts-Martial defines the prohibited 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 critical word is “objectively.” Whether conduct is cruel or maltreating is judged by an objective standard, not by whether the accused subjectively wished to be cruel and not solely by whether the victim subjectively felt mistreated. This is the central feature of Article 93’s mental-state framework: the offense does not require proof of a specific intent to injure or degrade the victim.

Why specific intent to harm is not required

Because the standard is objective, the government does not have to prove that the accused acted with the purpose of causing harm or with malice toward the victim. It must prove that the accused engaged in the conduct knowingly and that the conduct, measured objectively, was abusive and served no lawful purpose. A superior who subjects a subordinate to objectively abusive treatment cannot escape liability merely by claiming a benign motive or by asserting that no harm was intended. The law focuses on what was done and whether it was justified, not on whether the accused harbored ill will.

This is reinforced by the harm requirement. The government need not prove that the victim actually suffered …

Choosing the forum is one of the most consequential decisions an accused makes at a court-martial. An enlisted member who suspects that a panel of members might be harsher, or who believes a single military judge would weigh the evidence more dispassionately, naturally asks whether he can object to a panel and insist on a bench trial. The accurate way to frame the answer is that an enlisted accused does not so much object to a panel as affirmatively choose his forum. The Uniform Code of Military Justice and the Rules for Courts-Martial give the accused the right to request trial by military judge alone, and exercising that right is the mechanism by which he avoids a panel.

The accused selects the forum

At a general or special court-martial, the default is trial by a panel of members, but the accused has a choice. Under the governing rules, an accused may elect to be tried by military judge alone instead of by members. The accused does not need to prove that a bench trial would be fairer or persuade anyone that the panel would be biased; the election itself is the means of avoiding a panel. So an enlisted member who believes a judge would be the fairer fact-finder can act on that belief simply by requesting a military judge alone.

This choice belongs to the accused. The decision is personal to him, made with the advice of defense counsel, and it reflects strategic judgment about which forum is more favorable given the charges, the evidence, the likely members, and the identity of the judge.

How the election is made and what it requires

The Rules for Courts-Martial surround this choice with safeguards to ensure it is knowing and voluntary. A request for trial by military judge alone must be made in a signed writing by the accused or made orally on the record. Before approving the request, the military judge must ensure that the accused has consulted with defense counsel about the choice, has been informed of the identity of the military judge who would hear the case, and understands that he has the right to trial by members. These steps exist precisely because the accused is giving up the right to a panel, and the system wants the waiver to be deliberate.

A practical point follows from the requirement that the accused be told who the judge is: …

A permanent change of station (PCS) can put real strain on a service member’s or contractor’s finances. Households move on the government’s schedule, sell or carry two residences, front travel and lodging costs, and wait for reimbursements that may arrive late. When delays in a PCS produce missed payments or accumulated debt, the matter can surface in a security clearance case before the Defense Office of Hearings and Appeals (DOHA). Administrative judges there assess financial issues under a structured framework, and PCS-related hardship is evaluated through that lens rather than as a special category.

The guideline at issue: Financial Considerations

DOHA clearance cases that involve debt arise under Guideline F, Financial Considerations, of the National Security Adjudicative Guidelines. The concern is straightforward: a person who is financially overextended is at greater risk of having to engage in illegal or unethical acts to generate funds, and a history of not meeting financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules, all of which can raise questions about the person’s reliability and trustworthiness.

Financial Considerations is consistently among the most frequently cited issues in clearance adjudications. The presence of delinquent debt, regardless of its origin, can establish a disqualifying condition. The PCS context becomes relevant at the next stage, mitigation.

How the panel structures the analysis

A DOHA administrative judge works through the case in steps. First, the judge determines whether the government has established disqualifying conditions, typically that the applicant has a history of not meeting financial obligations or has an inability or unwillingness to satisfy debts. Delinquent accounts shown on a credit report or admitted in the response to the Statement of Reasons usually satisfy this.

Second, the judge considers whether the applicant has shown mitigating conditions. This is where the circumstances of the debt, including a PCS delay, carry weight.

Third, the judge applies the whole-person concept, weighing all the facts together to reach a commonsense judgment about the applicant’s reliability.

The mitigating condition that fits PCS hardship

Guideline F includes a mitigating condition for debt that arose from circumstances largely beyond the person’s control. The condition recognizes that conditions that resulted in the financial problem were largely beyond the person’s control, such as loss of employment, a business downturn, unexpected medical emergencies, a death, divorce, or separation, and that the individual acted responsibly under the circumstances.

A PCS delay can fit the …

When a security clearance is suspended and the government issues new derogatory information, the affected service member or contractor frequently wants to point to the past. They may have been investigated and cleared more than once, perhaps after disclosing the very issues that are now being raised again. A natural instinct is to argue that the earlier favorable decisions should settle the matter. The honest answer is nuanced. Prior favorable reviews are admissible and often helpful, but they do not bind a current adjudication, and they cannot prevent the government from reassessing eligibility when new information arises.

The governing framework

Security clearance eligibility for access to classified information is adjudicated under Security Executive Agent Directive 4, known as SEAD 4, which sets out the national adjudicative guidelines. Those guidelines are also codified in the regulatory adjudicative criteria found at 32 CFR Part 147. The thirteen guidelines cover areas such as allegiance, foreign influence, financial considerations, personal conduct, criminal conduct, and the handling of protected information. Each guideline lists conditions that may raise a security concern and conditions that may mitigate that concern.

The decision is not mechanical. Adjudicators apply the whole person concept, weighing all available and reliable information about the individual, past and present, favorable and unfavorable. The ultimate determination is whether granting or continuing eligibility is clearly consistent with the interests of national security. That phrase, clearly consistent with the national interest, frames the entire inquiry, and doubts are generally resolved in favor of national security rather than the individual.

Why a prior favorable review does not control the outcome

Eligibility is a continuing judgment, not a vested right. The government may reexamine eligibility at any time, and temporary or continued eligibility can be revoked when unfavorable information is identified. Because the standard asks whether continued access is clearly consistent with the national interest at the present time, a clearance is never permanently locked in by a past decision. New derogatory information, changed circumstances, or a fresh evaluation under the whole person concept can all support a new look.

This is why a prior favorable adjudication, even one that considered the same general subject matter, does not operate as a binding precedent or as a form of immunity. The adjudicative system is designed to protect classified information on an ongoing basis, so the current decision maker is not bound by an earlier decision maker’s conclusion.

How prior favorable

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