Military Lawyers

Falsely claiming to be a decorated veteran is one of the few areas where federal criminal law reaches a lie itself. The key statute is the Stolen Valor Act of 2013, which amended 18 U.S.C. 704. Understanding what that law actually punishes, and what it does not, is essential because the penalties hinge almost entirely on whether the false claim was tied to a concrete benefit.

What the law makes a crime

The Stolen Valor Act of 2013, signed into law on June 3, 2013, was Congress’s response to an earlier version of the statute that the Supreme Court struck down. In United States v. Alvarez (2012), the Court held that simply lying about receiving military honors, without more, was protected speech under the First Amendment. Congress narrowed the law in response.

Under the current version of 18 U.S.C. 704, the criminal offense focuses on fraudulent claims made for gain. A person commits the offense if, with intent to obtain money, property, or other tangible benefit, he fraudulently holds himself out to be a recipient of a covered military decoration or medal. The lie alone is not enough. The prosecution must connect the false claim to an intended tangible payoff.

This is the single most important feature of the law for anyone trying to understand the penalties. Bragging at a bar, wearing a uniform for attention, or seeking social respect does not satisfy the statute, because admiration and esteem are not tangible benefits. The crime exists where the false claim is the lever used to extract something of real value.

The penalties under the federal statute

For the fraudulent representation offense, the maximum penalty is a fine, imprisonment of not more than one year, or both. This is a misdemeanor-level exposure in terms of the maximum term, but a federal conviction carries lasting consequences beyond the sentence itself.

The statute also reaches conduct beyond verbal claims. Trafficking in military decorations, meaning buying, selling, trading, bartering, or manufacturing certain medals with intent to deceive, carries its own penalties. The general trafficking offense is punishable by a fine, imprisonment of not more than six months, or both. Where the offense involves the Medal of Honor and certain other specified decorations, the maximum term increases to one year.

Which covered decorations trigger the enhanced treatment matters. The statute lists the Medal of Honor and other high decorations, and the precise list and corresponding …

The offense of effecting an unlawful enlistment is worth locating precisely, because the 2019 restructuring of the Uniform Code of Military Justice renumbered it. The conduct many people still call “Article 84” is now codified at Article 104b (10 U.S.C. 904b), while the present-day Article 84 (10 U.S.C. 884) addresses breach of medical quarantine, a different subject entirely. Under Article 104b, it is an offense to effect an enlistment or appointment in, or a separation from, the armed forces of a person who is known to the accused to be ineligible because the action is prohibited by law, regulation, or order. The conduct it targets is not the paperwork mistake that happens in any large personnel system. It is the knowing facilitation of an unlawful entry, appointment, or exit. Understanding the line between an honest administrative error and a chargeable Article 104b offense comes down to one decisive concept: knowledge.

The elements of effecting an unlawful enlistment, appointment, or separation

To convict under Article 104b, the government must prove that the accused caused or procured an enlistment, appointment, or separation; that the action was unlawful because the person was ineligible or the action was otherwise prohibited by law, regulation, or order; and that at the time of the act the accused knew the disqualifying facts or knew that the action was prohibited. The offense is most often associated with recruiters, retention personnel, and others who hold authority to process accessions or separations, because they are the ones positioned to effect the prohibited action.

The maximum punishment for the offense includes a dishonorable discharge, total forfeiture of pay and allowances, and confinement. The seriousness of those consequences reflects that Article 104b punishes deliberate corruption of the accession or separation process, not clerical slips.

Knowledge is the dividing line

The single most important difference between administrative error and an Article 104b violation is the knowledge element. Article 104b requires that the accused actually knew the relevant facts that made the enlistment, appointment, or separation unlawful, or knew that the action was prohibited. Without that knowledge, the offense is not made out.

An administrative error, by contrast, is a mistake. A recruiter who processes an applicant in good-faith reliance on records that later prove inaccurate, a personnel clerk who misapplies a regulation they reasonably misunderstood, or an office that enters wrong data through oversight has made an error, not committed a crime under …

Service members increasingly work in joint and interagency settings where the person giving day-to-day direction is a civilian. A Department of Defense civilian employee, a contractor lead, or a civilian agency official may run a program a uniformed member supports. When a service member declines to follow an instruction from that civilian, the question arises whether Article 92 of the Uniform Code of Military Justice reaches the refusal. The answer depends less on the civilian’s status and more on the nature of the directive and the source of the member’s duty to obey. Article 92 can apply, but usually not because the civilian personally issued an order in the military sense.

The three theories under Article 92

Article 92, UCMJ, codified at 10 U.S.C. section 892, contains three distinct offenses. The first is violation of or failure to obey a lawful general order or regulation. The second is failure to obey any other lawful order issued by a member of the armed forces whom the accused has a duty to obey. The third is dereliction in the performance of duties. Each theory has its own requirements, and a civilian directive fits some better than others.

Why a civilian’s instruction is usually not an “order” under the second theory

The second theory, failure to obey other lawful orders, is built around military authority. The order must be issued by a member of the armed forces, and the accused must have a duty to obey that person. The person giving the order need not be superior in rank, but the framework contemplates a military member in the chain who has authority over the accused. A civilian supervisor, however senior or however much practical control they exercise, is generally not a member of the armed forces and therefore cannot personally issue an “order” of the kind this theory punishes. A flat refusal to comply with a civilian’s verbal instruction, standing alone, usually will not support an Article 92 charge under the personal-order theory.

That does not end the inquiry, because the duty to comply with a civilian’s directive frequently comes from somewhere else.

How the directive can still be enforceable

The more common path to liability runs through the first and third theories. A lawful general order or regulation, or the published policies governing a joint command, will often require service members to comply with the lawful direction of designated supervisors, including civilian …

Threats of professional retaliation can constitute maltreatment under Article 93 of the Uniform Code of Military Justice, but only when the threat fits the article’s specific requirements: the target must be a person subject to the accused’s orders, and the conduct must be unwarranted, unjustified, and unnecessary for any lawful purpose when measured objectively. A threat to harm a subordinate’s career is a classic example of non-physical maltreatment, yet not every harsh warning or adverse personnel decision qualifies. The line between lawful supervision and criminal maltreatment is where these cases are won or lost.

What Article 93 prohibits

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

Two features of this standard matter for retaliation threats. First, the maltreatment need not be physical. The Court of Appeals for the Armed Forces and the older Court of Military Appeals have consistently recognized that mental harm and suffering satisfy the statute, and that the cruelty, oppression, or maltreatment is measured by an objective standard. Second, the relationship requirement is strict: the victim must be subject to the accused’s orders, which usually means a subordinate in the accused’s chain of command or supervisory authority.

How threats of retaliation fit the statute

A threat to wreck a subordinate’s career, to write a damaging evaluation in bad faith, to deny a deserved award, or to engineer an adverse assignment as punishment can be maltreatment because it is conduct directed at a person subject to the accused’s orders that is unnecessary for any lawful purpose and reasonably could cause mental suffering. The harm element is readily met because the fear and stress of a credible threat to one’s livelihood is exactly the mental suffering the statute contemplates.

The intent standard makes prosecution 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, meaning the government need not prove …

When a judge advocate who once represented or advised the accused later appears as the prosecutor in the same case, the situation raises one of the clearest conflicts in military justice. A lawyer who learned an accused’s confidences while on the defense side cannot fairly turn around and use the government’s power against that same person in the same matter. Military law recognizes this and provides grounds to disqualify a trial counsel whose prior involvement compromises the fairness of the proceeding. The disqualification is not automatic in every scenario, but side-switching within a single case is squarely prohibited.

The detail and qualifications of trial counsel

Trial counsel and defense counsel are detailed to courts-martial under Article 27 of the Uniform Code of Military Justice. For a general court-martial, trial counsel must be a judge advocate who is a law school graduate or a member of the bar of a federal court or the highest court of a state, and must be certified as competent by the Judge Advocate General of the relevant service. Article 27 establishes who is qualified to serve, but qualification is only the threshold. A qualified judge advocate can still be barred from a particular case if a disqualifying conflict exists.

The rule against switching sides in the same case

The Rule for Courts-Martial governing detail of counsel contains the controlling prohibition. Under RCM 502(d)(4), no person who has acted as counsel for a party may serve as counsel for an opposing party in the same case. This is the heart of the answer. A judge advocate who served as defense counsel for the accused, and who thereby acted as counsel for one party, may not then serve as trial counsel against that accused in the same case. The rule directly forbids the side-switching that the question describes.

The same rule lists other disqualifications, providing that a person may not serve who is or has been the accuser, an investigating officer, a military judge, or a court-martial member in the case, subject to express waiver by the accused where permitted. These categories reflect the principle that someone who occupied a different role in the same proceeding cannot also serve as counsel without undermining the integrity of the trial.

Disqualification is broader than the listed categories

Importantly, the disqualifications spelled out in the rule are not exclusive. Counsel may also be disqualified based on otherwise applicable standards of …

Espionage is one of the gravest offenses in military law, and the law reaches conduct that falls short of a completed transfer of national defense information. Under Article 80 of the Uniform Code of Military Justice, an attempt to commit any UCMJ offense, including espionage, is itself punishable. When the underlying offense is espionage, the interaction with a service member’s security clearance is immediate and severe, because clearance adjudication runs on a different track and a different standard than the criminal case. Understanding how those two tracks intersect is essential for any cleared service member facing such an allegation.

What Attempted Espionage Means Under Article 80

Article 80 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 the underlying offense, conduct that is more than mere preparation, and an act that apparently tends to bring about the intended crime. The military applies a substantial step analysis to separate mere planning from a punishable attempt, decided case by case.

When the target offense is espionage, the underlying conduct is governed by the UCMJ’s espionage provision, which addresses communicating, delivering, or transmitting national defense information to a foreign government or its agents with the relevant intent. Espionage can be charged even in peacetime and is among the most serious offenses in the code. An Article 80 attempt charge means the government alleges the accused took a substantial step toward that conduct with the specific intent to complete it, even if no information actually changed hands. As an attempt, the charge is generally punished by the same maximum as the completed offense, though Article 80 limits an attempt’s confinement and does not authorize the death penalty.

Clearance Adjudication Is Separate From the Criminal Case

A criminal charge and a security clearance determination are independent proceedings. The criminal case is resolved through the court-martial process, where guilt must be proven beyond a reasonable doubt. A clearance decision, by contrast, is an administrative adjudication that asks whether continued access to classified information is clearly consistent with the national interest. That standard resolves doubt in favor of national security, not in favor of the individual.

Because of that difference, an attempted-espionage allegation can trigger clearance consequences long before, …

The phrase “stolen valor” describes the false claiming of military honors a person did not earn. Federal law makes some of that conduct a crime, but not all false claims are criminal, and not every decoration is treated the same way. The current federal statute focuses on a defined list of high-level valor awards and, for the most serious offense, on the intent behind the false claim. Knowing which awards are covered, and what the law actually requires, is essential to understanding when stolen-valor conduct can lead to federal prosecution.

The statute and its history

Federal stolen-valor conduct is governed by 18 U.S.C. section 704. An earlier version, the Stolen Valor Act of 2005, made it a crime simply to falsely claim to have received certain decorations. The Supreme Court struck down that pure false-speech prohibition in United States v. Alvarez in 2012, holding that criminalizing a false statement standing alone, without more, violated the First Amendment. Congress responded with the Stolen Valor Act of 2013, signed into law on June 3, 2013, which narrowed the crime by tying the false claim to an intent to obtain a tangible benefit. That intent requirement is what allowed the revised statute to survive constitutional scrutiny.

The fraudulent-claim offense and its intent requirement

Under the current statute, it is a federal crime to fraudulently hold oneself out as a recipient of one of the covered decorations or medals with the intent to obtain money, property, or other tangible benefit. The intent element is central. Lying about having received a medal in order to win social respect, admiration, or political support is not, by itself, the crime the statute punishes, because respect and admiration are not tangible benefits. The conduct becomes criminal when the false claim is made to obtain something of tangible value, such as money, employment, discounts, or other property, by convincing another person that the speaker received the award. Wanting esteem is not enough; the law requires a fraudulent purpose aimed at a tangible payoff.

The specific awards that the statute covers

The fraudulent-claim offense and the enhanced penalties apply to a defined set of valor and combat decorations. The decorations the statute singles out include the Congressional Medal of Honor, the distinguished-service cross, the Navy cross, the Air Force cross, the silver star, and the Purple Heart. The statute also covers combat badges, which it defines to include the Combat …

Article 93 of the Uniform Code of Military Justice prohibits cruelty toward, oppression of, or maltreatment of any person subject to the accused’s orders. The hardest question under this article is also the most practical one for anyone in a position of authority: where is the line between demanding, even harsh, leadership and conduct that crosses into criminal maltreatment? The military justice system answers this with an objective test that asks whether the treatment served a legitimate purpose or instead became abusive, unjustified, and unnecessary. This article explains how that line is drawn.

The Elements and the Core Definition

Article 93 has two elements. First, that a certain person was subject to the orders of the accused. Second, that the accused was cruel toward, oppressed, or maltreated that person. The accused does not have to be the victim’s direct supervisor in a narrow sense. It is enough that the victim was subject to the accused’s orders, which can arise from rank, assignment, or the situation.

The decisive language is in how the Manual for Courts-Martial defines the prohibited treatment. The terms cruel, oppressed, and maltreated refer to treatment that, when 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. Every word in that definition does work in separating lawful leadership from unlawful cruelty.

The Lawful-Purpose Safe Harbor

The clearest dividing line is purpose. Conduct tied to a legitimate military objective is lawful even when it is rigorous or unpleasant. The Manual makes this explicit by stating that the imposition of necessary or proper duties and the requirement that they be performed does not establish the offense, even though the duties are hard, difficult, or hazardous.

This is the safe harbor for strict leadership. Demanding physical training that meets standards, requiring repeated drill until a task is performed correctly, assigning extra duty for legitimate disciplinary reasons, holding subordinates to high performance standards, and enforcing accountability are all consistent with proper leadership. They have a lawful purpose connected to readiness, discipline, training, or mission accomplishment. The fact that a subordinate finds them stressful, exhausting, or unwelcome does not transform them into maltreatment.

When Conduct Crosses Into Cruelty

The offense is established when the treatment is unwarranted, unjustified, and unnecessary for any lawful purpose. That is the inverse of the …

Military appellate courts approach Article 93 cases involving toxic leadership through a consistent framework: they apply an objective standard to decide whether the leader’s conduct was maltreatment, they require only general intent, and they test the evidence for legal sufficiency rather than substituting their own view of good leadership. The result is that genuinely abusive or oppressive command behavior can be sustained as maltreatment, while harsh but lawful leadership, poor judgment, or merely unpleasant supervision is not enough. “Toxic leadership” is a cultural label, not a statutory offense, so the courts translate it into the specific elements of Article 93.

The statutory frame the courts apply

Article 93 of the Uniform Code of Military Justice punishes cruelty toward, or oppression or maltreatment of, any person subject to the accused’s orders. On appeal, courts measure each element. The victim must have been subject to the accused’s orders. The accused must have known that. And the conduct, viewed objectively under all the circumstances, must have been unwarranted, unjustified, and unnecessary for any lawful purpose, causing or reasonably capable of causing physical or mental harm or suffering. The harm need not be physical; mental suffering is sufficient.

The objective standard is central

The most important interpretive principle the appellate courts apply is that maltreatment is measured objectively. The question is not whether the leader believed the conduct was acceptable or whether the leader intended cruelty, but whether a reasonable view of the conduct under all the circumstances shows it was abusive and unnecessary for any lawful purpose. This objective lens is what allows appellate courts to evaluate toxic command climates: a pattern of belittling, humiliating, or oppressive treatment can be maltreatment even if the leader insists it was tough but legitimate supervision, because the test does not turn on the leader’s self-justification.

General intent, not specific intent

In United States v. Caldwell, 75 M.J. 276, the Court of Appeals for the Armed Forces held that Article 93 is a general intent offense, requiring the government to prove only that the accused intended the conduct, not that the accused specifically intended to cause harm or suffering. The court grounded that holding in the principles the Supreme Court discussed in Elonis v. United States, ensuring the statute reaches more than accidental conduct while not demanding proof of a malicious purpose. For toxic leadership cases this is decisive: a commander cannot defeat an Article 93 conviction …

When a commander disregards the procedural protections that govern a General Officer Memorandum of Reprimand, accountability runs mostly through corrective and remedial channels rather than through punishment of the commander. The service member’s primary remedy is to attack the reprimand itself, getting it transferred, removed, or set aside, while the issuing authority can face professional and administrative consequences for serious or repeated abuses. Understanding this requires separating the due process the system actually guarantees from the popular assumption that a flawed GOMOR automatically punishes the commander who issued it.

What process a GOMOR requires

A GOMOR is an adverse administrative action, not a criminal punishment. In the Army it is governed by Army Regulation 600-37, which sets the rules for placing unfavorable information in a soldier’s Army Military Human Resource Record. Authority to direct that a GOMOR be filed in the permanent record is restricted to general officers and certain school commandants.

The regulation affords two core due process protections before a GOMOR is filed. First, the recipient is entitled to review the documentation that serves as the basis for the proposed filing, and that documentation is to be largely unredacted so the member can meaningfully respond. Second, the member is entitled to a reasonable amount of time to submit a written rebuttal, with active duty soldiers typically given a set number of days to respond. The issuing authority must consider the rebuttal before deciding whether to file the reprimand in the performance portion of the permanent record or to file it locally.

A due process violation in this context usually means the command denied the member the supporting documents, refused or shortened the rebuttal period, filed the GOMOR before the member responded, or failed to genuinely consider the rebuttal.

The member’s primary remedy: attack the GOMOR

The most direct consequence of a due process violation falls on the reprimand, not the commander. A member can use the rebuttal itself to document the procedural defect. If the GOMOR is filed despite the violation, the member can seek transfer of the document out of the permanent record or removal of it through the appropriate appeal channels and, ultimately, the relevant Board for Correction of Military Records or service equivalent.

On appeal the burden generally rests on the member to show by clear and convincing evidence that the GOMOR is untrue or unjust, in whole or in part. A clear procedural violation, …