Military Lawyers

Conspiracy under the Uniform Code of Military Justice is charged under Article 81. The statute makes it an offense for any person subject to the code to conspire with another to commit an offense under the code, where at least one conspirator performs an overt act to bring about the object of the agreement. A recurring defense theory arises when the accused says, in substance, that he agreed to do something but genuinely believed the plan was lawful. This article explains how that mistaken belief argument fits into the elements of conspiracy, where it can succeed, and where it usually cannot.

The elements the government must prove

To convict under Article 81, the prosecution must establish four things. First, that the accused entered into an agreement with one or more persons to commit an offense under the code. Second, that the agreement was made with the intent that the underlying offense be committed. Third, that while the agreement existed, at least one conspirator performed an overt act to effect its object. Fourth, that the accused knew of the agreement and voluntarily joined it. The mental state is demanding. Conspiracy requires a knowing and intentional agreement aimed at carrying out a specific offense. Mere knowledge of someone else’s plan, or passive presence, is not enough.

Because intent sits at the heart of the offense, a sincere and reasonable belief that the planned conduct was legal can attack the case at its most vulnerable point. The question is always whether that belief negates the specific intent the statute requires.

Mistake of fact versus mistake of law

Military law, like civilian criminal law, treats mistakes about facts very differently from mistakes about the law. A mistake of fact occurs when the accused is wrong about something in the world, for example believing the property he agreed to take already belonged to him. A mistake of law occurs when the accused understands the facts but is wrong about whether those facts amount to a crime.

The general rule is that ignorance of the law is not a defense. A service member who agrees to a plan, correctly understands what the plan involves, but assumes it is permissible, usually cannot escape liability merely by saying he did not know it was illegal. That is a classic mistake of law and it ordinarily fails.

The picture changes when the offense itself requires a specific intent or …

A Board of Inquiry, commonly called a BOI, is the administrative panel that decides whether a commissioned officer should be required to leave the service through involuntary separation, sometimes called elimination or “show cause.” Officers facing a BOI frequently want to know how much of their past the board can examine. A common and pointed version of the question is whether the board may consider nonjudicial punishment imposed in a different unit, sometimes years earlier, that has nothing to do with the current allegation. The short answer is that prior nonjudicial findings generally can be considered, but the way they may be used is shaped by important rules and limits.

How a Board of Inquiry Works

A BOI is an administrative proceeding, not a criminal trial. Its job is to determine, by a preponderance of the evidence, whether the basis for separation is supported and, if so, whether the officer should be retained or separated. The governing framework for commissioned officer administrative separations is Department of Defense Instruction 1332.30, which the military services implement through their own regulations. Because the proceeding is administrative, the rules of evidence are more relaxed than they would be in a court-martial, and the board is permitted to consider a broad range of information about the officer’s service record.

Nonjudicial Findings Are Generally Admissible

Nonjudicial punishment under Article 15 of the Uniform Code of Military Justice produces a record that becomes part of an officer’s history. Department of Defense policy makes clear that prior administrative or disciplinary action does not insulate an officer from separation and, conversely, that such prior action can be part of the record before the board. A prior Article 15 is one of the most common forms of evidence in elimination cases, and nothing in the framework prohibits a board from learning that an officer received nonjudicial punishment in an earlier assignment.

This is consistent with the purpose of a BOI. The board is asked to make a judgment about whether an officer should continue to serve, which is inherently a whole-record assessment. A pattern that spans more than one unit can be directly relevant to that judgment. An isolated incident in the current command looks different from a recurring problem that followed an officer across assignments.

“Unrelated” and “Previous Unit” Do Not Automatically Bar Consideration

The fact that a prior nonjudicial action came from a different unit, or that it …

When a military judge denies a defense discovery request, the defense often wants immediate review rather than waiting until after a possible conviction. The instinct is understandable, because a wrongly denied piece of discovery can shape the entire trial. The military justice system, however, gives the defense no ordinary statutory right to take an interlocutory appeal of a discovery ruling. The realistic answer is that the defense cannot file a routine interlocutory appeal, but it may, in narrow circumstances, seek extraordinary relief through a writ.

The asymmetry of interlocutory appeals

The statute that authorizes interlocutory appeals during a court-martial is Article 62 of the UCMJ, and it belongs to the government, not the defense. Article 62 allows the United States to appeal certain rulings before the case ends, including an order that terminates the proceedings as to a charge or specification, an order excluding evidence that is substantial proof of a material fact, and an order affecting the disclosure or nondisclosure of classified information. The government cannot use Article 62 to appeal a ruling that amounts to a finding of not guilty.

Article 62 is a one-way street. There is no parallel provision allowing the defense to appeal an adverse interlocutory ruling such as a denied discovery motion. The defense generally must litigate the issue at trial, preserve it in the record, and raise it on appeal after final judgment if there is a conviction. This asymmetry is deliberate. The government has limited appellate rights because jeopardy and finality concerns restrict it, while the accused’s remedy is the ordinary appeal of a conviction, where the full range of trial errors can be reviewed.

The extraordinary writ as the narrow exception

The defense is not entirely without a path to immediate review, but it runs through the All Writs Act rather than through any direct appeal. Military appellate courts, including the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces, may issue extraordinary writs such as mandamus or prohibition in aid of their existing jurisdiction. A writ petition can be entertained even on an interlocutory matter, before any finding or sentence has been entered, where the petition is genuinely in aid of the court’s jurisdiction.

The All Writs Act does not create new jurisdiction. It allows a court to issue a writ only where two conditions are met. The writ must be in aid of the …

A flag, formally a suspension of favorable personnel actions, can freeze a soldier’s career. Promotions, schools, reenlistment, awards, and reassignment all stop while the flag is in place. When the flag arises from a fraternization allegation, soldiers often raise a sharp objection: no specific command directive or order was ever violated, so why should the flag stand? The answer is that a flag can indeed be removed, and the absence of a violated command directive can be an important argument, but the analysis is more nuanced than “no order, no flag.” Fraternization can be misconduct under the UCMJ even without a written local policy, and a flag is an administrative tool tied to the existence of an investigation or contemplated action rather than to a proven violation. Understanding both points is the key to getting a flag lifted.

What a flag is and why it is imposed

In the Army, suspension of favorable personnel actions is governed by Army Regulation 600-8-2. A flag is not a punishment and not a finding of guilt. It is an administrative hold that prevents a soldier from receiving favorable actions while a question about the soldier’s status is pending. Flags are commonly imposed when a soldier is under investigation or is the subject of an adverse action, including disciplinary, administrative, or other proceedings. The regulation prescribes when a flag must be initiated, how it is transferred, and, importantly, when it must be removed.

Because a flag tracks the pendency of an investigation or contemplated action, it can be properly imposed before any violation has been established. The flag does not assert that misconduct occurred; it preserves the status quo while the matter is examined. That is why the existence of a flag, standing alone, does not prove that any rule was broken.

Fraternization does not always require a violated written directive

The premise that “no command directive was violated” assumes that fraternization is purely a creature of local policy. It is not. Fraternization can be charged as an offense under the UCMJ, principally under Article 134, the general article, when a relationship between an officer and an enlisted member, or another improper senior-subordinate relationship, violates the customs of the service against such relationships and is prejudicial to good order and discipline or service-discrediting. Some improper relationships are also addressed through Article 92 when they violate a lawful general order or regulation, such as a …

The phrase “stolen valor” describes the act of falsely claiming military service, rank, or decorations. People often assume that any false claim about military status is a federal crime, and they sometimes ask whether something as ordinary as a personal email that references a military rank can be used to allege a stolen valor violation. Under current federal standards, the answer is that personal emails can be evidence, but only a narrow category of false claims is actually criminal, and merely referencing a rank in an email is far from enough. The federal statute reaches false claims about decorations made to obtain a tangible benefit, not casual or boastful references to rank.

The Constitutional Background: United States v. Alvarez

To understand the current standard, it helps to start with why the law looks the way it does. An earlier version of the federal stolen valor law criminalized falsely claiming to have received military decorations or medals, without requiring any intent to gain anything. In United States v. Alvarez, 567 U.S. 709 (2012), the Supreme Court struck down that earlier statute as a violation of the First Amendment. The case involved a man who falsely claimed at a public meeting that he was a retired Marine who had received the Medal of Honor. The Court held that the government generally cannot criminalize false statements simply because they are false. At the same time, the Court made clear that false speech can be regulated when it is used to effect a fraud or to secure money or other valuable consideration.

That distinction is the foundation of the current law. Lies about military honors, however offensive, are largely protected speech. Lies used to obtain a tangible benefit can be punished.

The Current Federal Standard: 18 U.S.C. 704 and the Stolen Valor Act of 2013

Congress responded to Alvarez by enacting the Stolen Valor Act of 2013, which was signed into law on June 3, 2013, and is codified within 18 U.S.C. 704. The revised statute narrowed the offense to address the constitutional problem the Court identified. Under the current federal standard, the offense focuses on a person who, with intent to obtain money, property, or other tangible benefit, fraudulently holds himself or herself out to be a recipient of certain military decorations or medals.

Two features of this standard are critical. First, the false claim must concern covered military decorations or medals, the …

The offense of effecting an unlawful enlistment, appointment, or separation 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 refer to the unlawful-separation offense as Article 84. The offense makes it punishable for any person subject to the Code to effect the enlistment or appointment of, or the separation from the armed forces of, any person who is known to be ineligible for that action because it is prohibited by law, regulation, or order. A retirement is a category of separation. That places certain improper retirements squarely within the article’s reach, but only when the specific elements are met. The phrase “unofficial channels” describes how a problem might arise, not whether the conduct is criminal. The criminal question turns on the elements of the offense, not the informality of the route.

What the statute actually requires

The Manual for Courts-Martial breaks Article 104b into two essential elements. First, the accused effected the enlistment, appointment, or separation of a named person. Second, that person was ineligible for the action because it was prohibited by law, regulation, or order, and the accused knew of that prohibition at the time. Both elements must be proven beyond a reasonable doubt. The knowledge element is the heart of the offense. An honest mistake, a clerical error, or a misreading of a complicated regulation does not satisfy it, because the accused must have understood that the separation was prohibited and acted anyway.

Applying this to early retirements

A service member who is improperly retired early has been separated from the armed forces. If that retirement violated a governing law, regulation, or order, and a person subject to the Code knowingly brought it about, the elements of Article 104b can be satisfied. The label “early retirement” does not change the analysis. What matters is whether the action was prohibited and whether the accused knew it was prohibited when he caused it to happen.

The reference to unofficial channels usually points to processing that bypassed required approval authorities, generated retirement orders without the legal authority to issue them, or relied on documentation that circumvented personnel regulations. Each service has detailed regulations governing who may approve a retirement, what eligibility conditions a member must …

“Stolen Valor” is a popular term for falsely claiming military service, rank, or decorations. As a legal matter, what actually constitutes a crime is narrower than the everyday phrase suggests. Federal law reaches only specific kinds of fraudulent claims about military honors, and a layer of state statutes adds offenses that vary widely from one jurisdiction to the next. Understanding what is and is not unlawful requires separating dishonest bragging, which is generally protected speech, from fraud and impersonation, which can be prosecuted. This article explains the federal framework, the constitutional limits that shaped it, and how state law fills in around the edges.

The Federal Statute: 18 U.S.C. 704

The federal Stolen Valor Act of 2013 is codified at 18 U.S.C. 704. It makes it a crime to fraudulently hold oneself out, with intent to obtain money, property, or other tangible benefit, as a recipient of certain military decorations or medals. The statute lists covered awards, including the Medal of Honor, the distinguished-service crosses, the Silver Star, the Purple Heart, and other specified decorations, with enhanced treatment for false claims about the Medal of Honor. The separate subsections of the statute also address the unauthorized wearing, manufacture, or sale of certain decorations.

The decisive feature of the 2013 law is the tangible-benefit requirement. It is not enough that a person lied about receiving a medal. The government must prove the lie was made fraudulently and with the intent to gain something of value, such as money, employment, a contract, or another concrete benefit. A boast made to impress acquaintances, without any effort to obtain a tangible benefit, falls outside the statute even though it is dishonest and offensive.

Why the Law Was Narrowed: United States v. Alvarez

The current statute exists in its narrowed form because of a Supreme Court decision. In United States v. Alvarez, decided in 2012, the Court struck down the earlier Stolen Valor Act of 2005, which had criminalized falsely claiming to have received military decorations regardless of any intent to profit. The defendant in that case had falsely claimed at a public meeting to be a Medal of Honor recipient. A divided Court held that the broad ban violated the First Amendment, reasoning that false statements are not categorically outside constitutional protection and that the government had not shown the direct link between the speech ban and the harm it sought to prevent.

Congress …

Article 89 of the UCMJ addresses misconduct toward a superior commissioned officer. Service members sometimes assume that offenses against officers are matters between officers, or that the disrespect articles are tools used only against the lower ranks by their immediate leaders. The reality is more precise. Article 89 applies to any person subject to the UCMJ who disrespects or assaults a superior commissioned officer, and that includes enlisted members. The question is not whether an enlisted member can be charged, but what the government must prove for the charge to stick.

What Article 89 covers

Article 89, codified at 10 U.S.C. 889, reaches conduct toward a superior commissioned officer. As reorganized by the Military Justice Act of 2016, the article addresses both disrespect toward a superior commissioned officer and assault on a superior commissioned officer, consolidating offenses that had been distributed differently under the prior code. The disrespect branch is the one most often charged.

The provision applies broadly. It covers any person subject to the UCMJ, a phrase that plainly includes enlisted members. An enlisted soldier, sailor, airman, marine, or guardian who treats a superior commissioned officer with contempt or who behaves disrespectfully toward that officer can be charged under Article 89. The article is not limited to officer-on-officer conduct.

The elements for disrespect

For the disrespect offense, the government must prove that a certain commissioned officer was the object of the conduct; that this officer was the accused’s superior commissioned officer; that the accused knew the officer was the accused’s superior commissioned officer; and that the accused behaved with disrespect toward that officer.

Each element matters for an enlisted accused. The superior status and the accused’s knowledge of it are not formalities; they define the offense.

The superior relationship is essential

The central limit on Article 89 is the requirement that the officer be the accused’s superior commissioned officer. It is not enough that the person disrespected is a commissioned officer somewhere in the service. The officer must be superior to the accused, generally because the officer is in the accused’s chain of command or is superior in rank or command in the circumstances, and that superior relationship must exist at the time of the conduct.

For an enlisted member, virtually every commissioned officer is senior in grade, which makes the superior element easy to establish in most cases. But the relationship still has to be shown. Disrespect …

Article 94 of the UCMJ draws a sharp line between lawful protest and criminal sedition, and the line is defined almost entirely by intent and concerted action rather than by the content of what a service member says. A member may voice grievances, complain, and petition without committing sedition. The conduct becomes criminal only when it crosses into a coordinated effort, undertaken with the specific intent to overthrow or destroy lawful civil authority, that creates revolt, violence, or other disturbance against that authority. This article explains how that distinction works.

The Text of Article 94

Article 94, 10 U.S.C. § 894, addresses mutiny and sedition. 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 parallel mutiny provision targets revolt against lawful military authority undertaken with intent to usurp or override it. Article 94 also punishes failure to do one’s utmost to suppress or report a mutiny or sedition that one witnesses or knows about.

Every operative term in the sedition definition narrows the offense. The accused must have a specific destructive intent, must act jointly with at least one other person, and must create serious upheaval directed at lawful civil authority. Those requirements are what separate sedition from protected protest.

Intent Is the Central Dividing Line

The most important distinction Article 94 draws is the intent requirement. Sedition demands the specific intent to cause the overthrow or destruction of lawful civil authority. This is a high mental threshold. It is not enough that a service member is angry, critical, or even loudly opposed to a policy or to those in authority. The member must actually intend to bring about the overthrow or destruction of lawful authority.

Lawful protest, by contrast, is animated by a different purpose. A service member who protests typically seeks to express disagreement, draw attention to a problem, or persuade authorities to change course. That purpose, the desire to be heard or to reform, is fundamentally different from the seditious aim of destroying the authority itself. Because Article 94 keys the offense to the destructive intent, expression aimed at persuasion or redress does not become sedition simply because it is forceful or unwelcome.

Lawful Complaint and Petition Are Protected

Article 94’s framework leaves room for the lawful …

Yes. A military member can be charged with an attempt under Article 80 of the UCMJ even though command intervention interrupted the conduct before the intended offense was completed. In fact, attempt law is designed precisely for situations in which the crime is not finished, and an interruption by a commander, by law enforcement, or by any outside force does not defeat the charge once the accused has taken the necessary steps. This article explains why interruption does not bar an attempt and how it interacts with the related defense of voluntary abandonment.

Attempt Targets Incomplete Crimes

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. The phrase “even though failing” is doing essential work. The statute expressly contemplates that the intended crime will not be completed. Attempt is the charge that holds a person accountable for criminal conduct that fell short of its goal.

The four elements are an overt act, the specific intent to commit the offense, conduct that amounted to more than mere preparation, and an act that apparently tended to effect the commission of the intended offense. None of these elements requires that the crime succeed. Once the accused has crossed from preparation into a substantial step taken with the intent to commit the offense, the attempt is complete as a legal matter. What happens afterward, including an interruption, does not undo it.

The Overt Act Need Not Be the Last Step

A common misunderstanding is that an attempt requires the accused to take the final action before completion. It does not. The overt act must be a direct movement toward the commission of the crime, strongly corroborative of the accused’s criminal intent and indicative of a resolve to commit the offense. It must go beyond mere preparation, but it need not be the last possible act before the result.

This is why command intervention does not prevent the charge. If a commander steps in, orders the member to stop, physically intervenes, or directs others to prevent the member from finishing, the intervention occurs after the member has already taken the substantial step that constitutes the attempt. The crime of attempt was complete the moment that step was taken with the requisite intent. The intervention prevents the …