Military Lawyers

Wearing or displaying military awards a service member is not entitled to wear can lead to questioning by commanders, supervisors, or investigators. In the military, the unauthorized wearing of decorations or medals can be addressed under the Uniform Code of Military Justice, often through the general article, Article 134, and related conduct can also implicate the federal Stolen Valor statute at 18 U.S.C. 704. When a soldier is pulled in for questioning about such conduct, an immediate concern is whether the soldier can insist on having a lawyer present. The answer requires separating two different protections that apply to military questioning: the warning required by Article 31(b) and the right to counsel that attaches in custodial interrogation.

What Article 31(b) provides, and what it does not

Article 31(b) of the Uniform Code of Military Justice gives military members a protection that civilians do not have. Before a person subject to the code questions a suspect or accused about an offense, the questioner must inform the suspect of the nature of the accusation, advise that the suspect does not have to make any statement, and warn that any statement made may be used as evidence against the suspect. This warning is triggered not only by formal arrest but whenever a person subject to the code, acting in an official capacity, questions someone they suspect of an offense. So in a questioning session about unauthorized awards, the soldier is entitled to be told the suspected offense and to be advised of the right to remain silent.

What Article 31(b) does not do is require the questioner to tell the soldier that they may have a lawyer present. The right to counsel is not part of the Article 31(b) warning itself. This is a frequently misunderstood point. A soldier can always decline to answer and invoke the right to remain silent under Article 31(b), but the statutory warning alone does not guarantee counsel during every questioning.

When the right to counsel attaches

The right to have a lawyer present during questioning comes from the Fifth Amendment privilege against self-incrimination as applied to the military. The Court of Military Appeals extended the protections of Miranda v. Arizona to military interrogations in United States v. Tempia, and that protection is now reflected in the Military Rules of Evidence governing self-incrimination. Under that framework, the right to counsel attaches to custodial interrogation, meaning questioning that occurs …

Yes. Lying about military service to secure benefits from the Department of Veterans Affairs is a federal crime, and prosecutors have several statutes available to charge it. The key legal point is that the false claim must be tied to obtaining something of value. A bare, idle lie about having served, standing alone, is generally protected speech. Once that lie is used as a tool to extract money, property, or government benefits, it crosses into criminal fraud.

Why a Lie Alone Is Not Always a Crime

The constitutional baseline comes from United States v. Alvarez (2012), in which the Supreme Court struck down the original Stolen Valor Act of 2005. That earlier law made it a crime to falsely claim military decorations regardless of motive. The plurality opinion concluded the statute swept too broadly because it punished false statements without regard to whether the lie was told to obtain material gain. The decision did not bless dishonesty. It held that the government cannot criminalize a false statement standing entirely on its own, separated from any fraudulent purpose.

Congress responded with the Stolen Valor Act of 2013, codified at 18 U.S.C. 704. That version narrowed the offense to require intent to obtain “money, property, or other tangible benefit” by fraudulently holding oneself out as a recipient of certain military decorations or medals. VA benefits squarely fit the category of a tangible benefit, which is precisely why falsely claiming service to obtain them can be prosecuted.

The Statutes Prosecutors Commonly Use

The government is not limited to the Stolen Valor Act when someone fabricates a service record to claim VA benefits. Several broader federal fraud statutes apply.

Under 18 U.S.C. 1001, it is a crime to knowingly and willfully make a materially false statement to a federal agency. A false claim of service or a fabricated discharge document submitted to the VA fits this statute. The statement does not have to be made under oath, and it can be written or spoken. A material falsehood is one with a natural tendency to influence the agency receiving it. A conviction can carry up to five years in prison.

Under 18 U.S.C. 287, the false claims statute, anyone who knowingly presents a false or fraudulent claim to a department of the United States, including the VA, may be punished by imprisonment of up to five years and a fine. Submitting a benefits application built …

Article 93 can sometimes reach retaliation against a whistleblower, but it is not the primary or best-fitted tool for the job. Article 93 punishes cruelty, oppression, and maltreatment of subordinates, so it can apply when the retaliation takes the form of abusive treatment of someone subject to the accused’s orders. The dedicated instrument for whistleblower reprisal, however, is Article 132 of the Uniform Code of Military Justice, working alongside the administrative protections of the Military Whistleblower Protection Act. Whether Article 93 fits a given retaliation case depends on the form the retaliation takes and on the relationship between the people involved.

What Article 93 actually covers

Article 93 makes it an offense to be guilty of cruelty toward, or oppression or maltreatment of, any person subject to the accused’s orders. The government must prove that the victim was subject to the accused’s orders, that the accused knew it, and that the accused engaged in conduct that, viewed objectively, was unwarranted, unjustified, and unnecessary for any lawful purpose and that caused or reasonably could have caused physical or mental harm or suffering.

Two limits shape how Article 93 applies to whistleblower retaliation. First, the relationship requirement is strict: the victim must be a person subject to the accused’s orders, which generally means a subordinate. Retaliation by a peer, or by someone outside the victim’s chain of command, falls outside Article 93 even if it is plainly retaliatory. Second, the conduct must be maltreatment in substance. Abusive, degrading, or oppressive treatment qualifies, but a lawful-looking personnel action does not become Article 93 maltreatment merely because the motive was retaliatory.

When Article 93 does fit a retaliation case

Where a supervisor responds to a subordinate’s protected report by subjecting that subordinate to a campaign of abusive treatment, harassment, humiliation, or oppressive working conditions, Article 93 can apply. The retaliation is being carried out through maltreatment of a person subject to the accused’s orders, and the harm element is satisfied by the mental suffering such treatment causes. The general intent standard makes this feasible: in United States v. Caldwell, 75 M.J. 276, the Court of Appeals for the Armed Forces held that Article 93 requires only general intent, so the government need not prove the accused specifically intended to cause suffering, only that the abusive conduct was intended and objectively unjustified.

So Article 93 is a viable charge when the retaliation looks like maltreatment, …

Conspiracy under the Uniform Code of Military Justice is charged under Article 81. The offense punishes the agreement itself once it is paired with action, not merely the completed crime. To convict, the government must prove two things beyond a reasonable doubt: that the accused entered into an agreement with one or more persons to commit an offense under the code, and that one of the conspirators performed an overt act to bring about the object of that agreement. Because the gravamen is the shared criminal purpose, questions about how much each member actually knew become central whenever one participant claims to have been kept in the dark about the real plan.

The agreement is built on shared purpose, not perfect information

Military courts do not require every conspirator to know each detail of the scheme. A member need not know the identity of all other participants, the precise method to be used, or the full scope of the planned harm. What the government must establish is that the accused knowingly entered an agreement with the intent that the underlying offense be committed and shared the general criminal purpose. The agreement does not have to be formal or spoken. It may be inferred from conduct showing a common understanding to accomplish an unlawful object.

This distinction matters because conspiracy law tolerates incomplete knowledge of operational details but does not tolerate the absence of criminal intent. A service member who lends a hand without understanding that any crime is afoot has not joined a conspiracy at all. Negligent or accidental involvement is not enough. The question is always whether the member knowingly agreed that some criminal objective be pursued.

When a member lacks knowledge of the specific agreed objective

The harder situation arises when a service member admits agreeing to one plan but says they never knew about the actual or expanded objective the others pursued. Several principles govern.

First, a member is liable only for the conspiracy they actually joined. If the accused agreed to commit minor misconduct and other members secretly intended a far more serious offense that the accused never embraced, the accused cannot be convicted of conspiring to commit that more serious offense. Liability tracks the scope of the agreement the accused knowingly entered.

Second, a conspirator can be responsible for foreseeable acts done in furtherance of the conspiracy they joined, even acts they did not personally …

Article 93 of the Uniform Code of Military Justice prohibits cruelty toward, oppression of, or maltreatment of any person subject to the orders of the accused. Allegations of demeaning treatment, such as humiliating remarks, belittling conduct, or degrading orders, often fall under this article. Because the offense rests on specific elements and an objective standard, several recognized defenses recur in these cases. The defenses tend to attack one of three things: whether the relationship element exists, whether the conduct meets the objective definition of maltreatment, or whether the required mental state is present.

Attacking the relationship element

The first element of an Article 93 offense is that the alleged victim was a person subject to the orders of the accused. This is broader than direct command and reaches anyone who, by reason of some duty, is required to obey the accused’s lawful orders. Even so, the element is not automatic, and a common defense is to show that the alleged victim was not in fact subject to the accused’s orders. If the supposed victim was a peer, an outsider, or someone over whom the accused had no authority to give lawful orders, a fundamental element of the charge is missing and the offense cannot stand on that theory. This defense reframes the encounter as one between people of equal or unrelated status rather than the abuse of a superior position that Article 93 targets.

The conduct was proper duty or legitimate discipline

Perhaps the most frequently raised defense is that the conduct was lawful supervision rather than maltreatment. The imposition of necessary or proper duties and the requirement that they be performed does not constitute an Article 93 offense, even if the duties are hard, difficult, or hazardous. Demanding performance, correcting deficiencies, issuing firm orders, and holding subordinates accountable are the ordinary work of military leadership. Counsel commonly argues that what the accuser experienced as demeaning was in reality legitimate correction, appropriate discipline, or the assignment of arduous but proper duties. The defense is strengthened by showing that the actions followed established training protocols and that any discipline was proportionate and consistent with military standards.

Failure to meet the objective standard

Article 93 measures cruelty, oppression, and maltreatment by an objective standard, not by the subjective feelings of the person who complains. A defense built on this principle argues that even if the subordinate felt demeaned, the conduct did not …

Unit commanders sit at the front line of how the military responds to a member who is absent without authority. The commander is the official who first determines that a member is missing, accounts for the member’s status, and triggers the formal mechanisms that distinguish a short unauthorized absence from suspected desertion. The commander does not personally adjudicate whether the member is a deserter, which is ultimately a legal and factual question for later proceedings, but the commander’s actions set the administrative and investigative process in motion and create the records that everything afterward depends on.

Desertion compared with unauthorized absence

Two offenses are in play. Article 86 of the Uniform Code of Military Justice punishes absence without leave, meaning being absent from one’s unit, organization, or place of duty without authority. Article 85 punishes the more serious offense of desertion, which requires not just absence but a specific intent, either the intent to remain away permanently, the intent to avoid hazardous duty or to shirk important service, or quitting the unit with intent to avoid those duties. The difference is intent. A member who is simply late or absent without authority commits an Article 86 offense, while a member who intends to stay away for good, or to dodge a deployment or other important service, commits desertion. Because intent is rarely obvious at the outset, the commander’s early steps focus on documenting facts from which intent may later be inferred.

Accounting for the member and classifying the absence

The commander’s first role is accountability. When a member fails to report, the commander confirms the absence, checks whether any authorized leave, pass, or duty explains it, and establishes the date and time the unauthorized absence began. As the absence continues, regulations direct the commander to treat the member’s status differently at defined points, and a prolonged unexplained absence raises the question of desertion. The commander gathers the facts that bear on intent, such as whether the member took personal belongings, expressed an intention to leave, was facing a deployment or hazardous assignment, or left under circumstances suggesting an intent not to return.

Initiating the formal deserter process

When the facts and circumstances of the absence indicate that the member may have committed desertion, the unit commander initiates the formal process by completing the deserter reporting document, the DD Form 553, the report identifying a deserter or absentee wanted by the …

Yes, a recruiter can in principle be charged with both effecting an unlawful enlistment and conduct unbecoming under Article 133 of the Uniform Code of Military Justice arising from the same misconduct, provided the recruiter is an officer subject to Article 133 and the charges are properly drafted to avoid impermissible duplication. The two offenses address different things, which is what allows them to coexist, but they also overlap in ways that trigger important limits on multiplying charges. Understanding both the possibility and the limits is the key to this question.

A note on numbering is essential at the outset. The offense of effecting an unlawful enlistment, appointment, or separation was historically the subject of Article 84. The Military Justice Act of 2016, which took effect on January 1, 2019, renumbered the punitive articles, and that offense is now codified at Article 104b, 10 U.S.C. 904b. Current Article 84, 10 U.S.C. 884, addresses an unrelated offense, breach of medical quarantine. The discussion below uses the current numbering, so references to the unlawful enlistment offense are to Article 104b, while the analysis of dual charging with Article 133 is unchanged.

What each article covers

Article 104b addresses effecting an unlawful enlistment, appointment, or separation. Its core prohibits any person subject to the UCMJ from effecting an enlistment or appointment in, or a separation from, the armed forces of a person known to him to be ineligible because the action is prohibited by law, regulation, or order. This is the provision aimed squarely at recruiters and similar personnel who knowingly process someone they understand to be disqualified. The wrong is the knowing facilitation of a prohibited personnel action.

It is worth distinguishing this offense from the separate offense of fraudulent enlistment under Article 104a, which targets the applicant who lies or conceals information to get in. Article 104b reaches the official, such as a recruiter, who effects the enlistment knowing the person is ineligible. A recruiter who knowingly enlists a disqualified applicant is the classic Article 104b defendant.

Article 133 is the conduct unbecoming an officer provision; the FY2022 National Defense Authorization Act removed the older gendered phrase “and a gentleman” from the statute. It applies to commissioned officers, cadets, and midshipmen, and it punishes conduct that dishonors or disgraces the person as an officer or seriously compromises the officer’s standing. It is a broad, character-of-the-conduct offense rather than a narrowly defined …

Attempt prosecutions are unusual because the charged crime never reaches completion. The law punishes the effort and the intent behind it. When the offense the accused allegedly tried to commit is the violation of a general order or regulation, the intent question becomes especially important. A service member may ask what exactly the government must prove about state of mind to convict for attempting to violate a general order. The answer is that the government carries a real and specific burden: it must prove, beyond a reasonable doubt, that the accused acted with the specific intent to commit the underlying violation, not merely that the accused behaved carelessly or came close to a violation by accident.

Attempt Under Article 80 Requires Specific Intent

Attempt is governed by Article 80, which defines an attempt as an act done with the specific intent to commit an offense under the code, amounting to more than mere preparation, and tending, even if failing, to effect the commission of that offense. The elements are an overt act, the specific intent to commit a certain offense, conduct beyond mere preparation, and an act that apparently tends to bring about the intended offense.

The specific intent element is the defining feature. Criminal attempt involves two layers of intent: the intent to perform the acts that make up the overt act, and the specific intent that the underlying offense actually be committed. Any attempt charge must rest on facts that prove this requisite specific intent. Without proof that the accused purposefully aimed to commit the underlying offense, an attempt conviction cannot stand.

The Underlying Offense: Violating a General Order

The underlying offense in this scenario is the violation of a lawful general order or regulation under Article 92. A completed violation of that theory requires that a lawful general order or regulation was in effect, that the accused had a duty to obey it, and that the accused violated or failed to obey it. Importantly, a completed general-order violation does not require the government to prove that the accused specifically intended to break the rule. Service members are presumed to know punitive general orders and regulations, and the violation can be established without proof of a purpose to disobey.

This creates an important interaction. When the charge is the completed violation, intent to disobey is not an element in the same way. But when the charge is an …

A service member who goes absent without leave more than once may worry that the repetition itself transforms the conduct into desertion. Commanders and investigators sometimes share that intuition, treating a string of unauthorized absences as evidence that the member is really a deserter. The law, however, does not recognize a freestanding “pattern of desertion” offense, and repeated absence does not automatically become desertion through accumulation. What multiple absences can do is serve as evidence bearing on the intent that distinguishes desertion from absence without leave. Understanding that distinction is the key to the question.

Two separate offenses with one decisive difference

Absence without leave is punished under Article 86, UCMJ, codified at 10 U.S.C. section 886. Desertion is punished under Article 85, codified at 10 U.S.C. section 885. The two offenses share the basic fact of an unauthorized absence, but they are separated by intent. Article 86 requires only that the member was absent from the unit, organization, or place of duty without authority. It is a general intent offense and does not require any intent to stay away permanently. Article 85 desertion, by contrast, requires the additional element of a specific intent: an intent to remain away permanently, or in the alternative theories, an intent to avoid hazardous duty or to shirk important service, or the unauthorized entry into a foreign armed service.

That difference is decisive. Desertion is not a more serious grade of absence reached by being absent long enough or often enough. It is a distinct offense defined by the member’s state of mind. Length of absence and repetition are circumstances from which intent might be inferred, but they do not by themselves establish it.

There is no “pattern of desertion” charge as such

The phrase “pattern of desertion” describes an argument, not an offense. The government cannot charge a member with maintaining a pattern of desertion and prove it merely by stacking up several short, unauthorized absences. Each absence is its own event. If the government wants a desertion conviction, it must prove, for the absence it charges as desertion, that the member harbored the requisite specific intent during that absence. Multiple prior absences may be relevant to proving that intent, but they are evidence, not a substitute for the intent element.

How repeated absences can bear on intent

Although repetition does not convert AWOL into desertion automatically, it can be probative. A member …

A prior history of being absent without leave can matter in a desertion case in several distinct ways, and it is important to separate them, because they operate under different rules. A past AWOL might be used to help prove the intent element of a current desertion charge, it might affect sentencing if there is a conviction, and it might shape how the command decides to dispose of the case in the first place. Each of these is governed by its own legal standards, and a prior AWOL is far from automatically admissible or automatically harmful.

The two offenses are not the same

Desertion under Article 85 of the Uniform Code of Military Justice differs from unauthorized absence under Article 86 in one decisive respect: intent. Article 86, the basis for what people call AWOL, requires only that the member was absent from the place of duty without authority. Desertion under Article 85 requires that, plus a specific mental state, namely the intent to remain away permanently or to avoid hazardous duty or shirk important service. The length of an absence alone does not convert AWOL into desertion. The government has to prove the disqualifying intent.

This distinction is why a prior AWOL history becomes relevant. The hardest part of most desertion prosecutions is proving intent, and the government looks for evidence from which a fact finder can infer it. A pattern of past absences is one place prosecutors may look.

Using prior AWOLs to prove intent

In general, evidence that a person committed other bad acts is not admissible simply to show that the person has a bad character and therefore probably acted badly again. The Military Rules of Evidence contain a provision, paralleling its federal counterpart, that prohibits using other-acts evidence to prove propensity but permits it for other purposes such as proving intent, plan, knowledge, or absence of mistake.

That framework is exactly where a prior AWOL history can come into play. The government might argue that earlier unauthorized absences are relevant not to show the member is generally a rule-breaker, but to show the member’s intent during the current absence, or to rebut a claim that the most recent absence was a mistake or that the member always intended to return. Whether the prior absence is actually admitted depends on the judge’s analysis: the prior act must be offered for a proper purpose, it must be …