Military Lawyers

Service members occasionally find themselves caught between two authorities. A unit leader directs one course of action while a higher headquarters has issued a directive pointing the other way. Obeying one means defiance of the other. When a member is later charged with disobedience, the natural question is whether the conflict itself is a defense. The answer is nuanced. A genuine, irreconcilable conflict between a valid higher directive and a subordinate order can be a complete defense to a charge of willful disobedience, but the defense depends heavily on the facts: whether the orders truly conflicted, which order was lawful, and whether the member acted reasonably in the face of the conflict.

The offenses at issue

Disobedience is prosecuted primarily under two articles of the Uniform Code of Military Justice. Article 90 (10 U.S.C. 890) covers willfully disobeying a lawful command of a superior commissioned officer. Article 92 (10 U.S.C. 892) covers failure to obey a lawful general order or regulation, and failure to obey other lawful orders one has a duty to obey. Both share a common ingredient that is central to the conflicting-orders problem: the order disobeyed must have been lawful, and, for the Article 90 willful-disobedience offense, the member must have willfully refused to comply.

Lawfulness is the gateway

An order is presumed lawful, and the member who refuses bears the burden of overcoming that presumption. But the presumption is not unconditional. An order is lawful only if it is within the authority of the person issuing it and does not conflict with superior orders, statutes, regulations, or the Constitution. This is the doctrinal hook for the conflicting-orders defense. If a subordinate’s order actually conflicts with a lawful directive from higher command, the subordinate’s order may exceed the issuer’s authority and therefore not be a lawful order at all. A member cannot be convicted of disobeying an order that was not lawful in the first place. So the first analytical step is to ask which directive carried lawful authority. Generally, an order from a lower authority that contradicts a valid order from higher authority cannot override the higher directive, and a member who follows the higher, lawful order has not unlawfully disobeyed.

The conflicting-orders or impossibility defense

Beyond the lawfulness gateway, military practice recognizes that conflicting orders can negate the elements of the offense and can function as an impossibility or necessity-type defense. When a member receives …

When a service member is convicted at a court-martial, the question of what sentence follows is governed by detailed rules. Among the recurring concerns in military justice is whether a member sentenced in one command receives treatment comparable to a member convicted of similar conduct in another command. This article explains how the sentencing authority is instructed, where disparity concerns fit into that framework, and why the formal instructions say less about cross-command comparison than many people expect.

Who Imposes the Sentence

The first point to understand is that the sentencing landscape changed substantially under reforms that took effect with the Military Justice Act of 2016 and its implementing rules. For most non-capital general and special courts-martial, sentencing is now performed by the military judge alone rather than by a panel of members, unless the accused affirmatively elects to be sentenced by members in a case where that option remains available. Capital cases remain the principal setting where members determine the sentence. This shift matters for the disparity question because a judge sitting alone applies the law without the spoken instructions that a panel would receive.

What the Sentencing Authority Considers

Under the Rules for Courts-Martial governing presentencing procedure and sentence determination, the sentencing authority weighs the facts and circumstances of the offense, evidence in aggravation, matters in extenuation and mitigation, the accused’s character and service record, and rehabilitative potential. The authority is told to arrive at a sentence appropriate for the offender and the offense before it. Reforms also introduced sentencing parameters and criteria for certain offenses, which channel the judge toward defined ranges and away from purely ad hoc outcomes.

What Members Are Told When They Sentence

When members do sentence, the military judge gives tailored instructions drawn from the standard benchbook used by trial judges. Those instructions direct members to consider only the evidence properly admitted, to weigh aggravation against extenuation and mitigation, to consider the full range of authorized punishments, and to vote in a prescribed order. The instructions emphasize an individualized determination focused on the specific accused. They do not, as a general matter, tell members to compare the case before them against sentences handed down in other commands. Members are not provided with a database of comparable sentences and are not asked to calibrate their result against other units.

Where Disparity Concerns Actually Live

Because the sentencing instructions are individualized rather than comparative, the …

Commands increasingly have access to software that flags service members as elevated risks for misconduct, insider threat, suicide, or security concerns, often by aggregating data and producing a score. When that score drives a real decision, such as a security-clearance suspension, removal from a sensitive duty, a command-directed evaluation, or referral for adverse action, the affected member naturally asks whether the use of an opaque algorithm can be challenged. The answer is a qualified yes. Due process applies, but how much process is owed, and what can be contested, depends entirely on what the score is used for.

Due process attaches to consequences, not to the tool itself

The Fifth Amendment’s Due Process Clause protects against government deprivation of life, liberty, or property without due process of law. The threshold question is never whether a commander used artificial intelligence; it is whether the resulting decision deprived the member of a protected interest. A risk score that merely informs a commander’s discretionary, internal judgment, with no adverse action attached, generally does not by itself trigger a due-process entitlement. The same score becomes contestable once it is the basis for tangible action.

That distinction sorts these disputes into two very different tracks: administrative actions, where civil due-process doctrine governs, and criminal prosecution at court-martial, where the more demanding constitutional and evidentiary protections of the military justice system apply.

In the administrative context: notice, response, and arbitrariness

Most behavioral-risk scoring drives administrative consequences, not criminal charges. There, the protections are those that attach to the specific interest at stake. A service member facing an adverse administrative separation, a clearance revocation, or a flag on assignments is typically entitled to notice of the basis for the action and a meaningful opportunity to respond. The contestable defect is usually not the existence of the algorithm but the secrecy around it: if the member is told only that a system rated him high-risk, with no access to the inputs, the logic, or the data, he cannot mount a meaningful rebuttal, and the process itself becomes suspect.

Civilian courts have wrestled with exactly this problem in the criminal-sentencing context. In State v. Loomis, 881 N.W.2d 749 (Wis. 2016), a defendant challenged a court’s reliance on a proprietary risk-assessment tool whose internal workings were a trade secret he could not examine. The Wisconsin Supreme Court upheld the use of the tool but imposed important guardrails: the score could …

A Board of Inquiry, often called a BOI or “show cause” board, is the formal hearing that decides whether a commissioned or warrant officer will be retained or involuntarily separated from active duty. Because separation can end a career and affect retirement, the process is built around notice. The officer must be told, in writing, that the service is requiring him or her to show cause for continued service, and the officer must be given a defined minimum period to prepare a defense. When a command misses that notice requirement or shortens the time below the floor set by regulation, the consequence is not automatic dismissal of the case. Instead, the defect creates a procedural problem that can be raised before the board, before the separation authority, and later before a board for correction of military records.

Where the notice requirement comes from

The governing framework is layered. The Department of Defense sets the floor through DoD Instruction 1332.30, which covers commissioned officer administrative separations, and each service then implements it. The Air Force uses DAFI 36-3211, and the Army uses Army Regulation 600-8-24. These regulations require that an officer being processed for elimination receive written notification of the reasons, the least favorable characterization of service possible, the right to consult military counsel, and the right to a hearing before a Board of Inquiry when the officer has enough years of service or when an other-than-honorable characterization is possible.

A central protection is the minimum preparation period. Under the service regulations implementing DoDI 1332.30, the officer respondent must be given no fewer than thirty calendar days from the date of notification to prepare the case for the show cause hearing. The respondent may ask the board for additional time, and the board may grant a continuance for good cause. The thirty-day figure is a floor, not a ceiling.

What “failure to notify within the timeline” actually means

It helps to separate two different timing problems. The first is giving the officer too little time, for example scheduling the board only ten days after handing over the notification memorandum. The second is a failure to provide the required content of the notice at all, such as omitting the basis for separation, omitting the possible characterization of service, or failing to advise the officer of the right to counsel and the right to a hearing. Both are defects, but courts and correction …

Charges in a court-martial are not always frozen the moment they are referred to trial. The government may seek to correct or adjust the wording of a charge or specification, and the military justice system allows some of this. The problem arises when a change is made during trial, the accused is not told in a meaningful way, and the change alters what the defense must actually defend against. Military procedure addresses this through the distinction between “minor” and “major” changes, and through a set of remedies that protect the accused’s right to fair notice.

The framework: minor versus major changes

Rule for Courts-Martial 603 governs changes to charges and specifications. The rule draws a sharp line. A minor change is any change that does not add a party, an offense, or substantial matter not fairly included in the charges already preferred, and that is not likely to mislead the accused about what is charged. Minor changes, such as fixing a date, a spelling, or a clerical error that does not affect substance, may be made by the convening authority or the military judge before or during trial without re-preferring the charge.

A major change is anything that is not minor. Under the rule’s framework, changes that add a new offense, a new party, or substantial new matter, or that would mislead the accused, are major. Major changes generally may not be made over the accused’s objection unless the charge is preferred anew, which restarts certain protections, and depending on the level of court the matter may need to return through the preliminary hearing and referral process.

Why notice matters

The right to notice is foundational. The accused is entitled to know the offenses charged so the defense can investigate, prepare, call witnesses, and decide on a theory of the case. When a specification is altered mid-trial in a way that changes the conduct, the theory, or the elements at issue, and the defense learns of it too late to respond, the change can undermine that right. The minor/major line exists precisely to keep amendments from becoming a moving target that the defense cannot hit.

Procedural relief available to the accused

Several remedies exist when an amendment is made without adequate notice, and the appropriate one depends on the nature and timing of the change.

First, the defense can object on the record and ask the military judge to treat …

Article 134 of the UCMJ, the general article codified at 10 U.S.C. 934, is the catch-all that lets the military prosecute conduct not specifically named elsewhere in the punitive articles. One of its branches reaches conduct “of a nature to bring discredit upon the armed forces.” When the conduct in question is speech, applying that branch becomes constitutionally delicate, because the government is punishing expression, and the First Amendment, though narrowed in the military, does not disappear at the gate. Understanding how service-discrediting behavior is defined in the speech context requires separating the three clauses of Article 134 and then layering on the constitutional limits.

The three clauses of the general article

Article 134 creates three distinct theories of liability. Clause 1 covers disorders and neglects to the prejudice of good order and discipline in the armed forces. Clause 2 covers conduct of a nature to bring discredit upon the armed forces. Clause 3 covers noncapital crimes and offenses that violate federal law, assimilated into the military code. Service-discrediting behavior is the clause 2 theory, and it is analytically different from the good-order-and-discipline theory of clause 1.

What “service-discrediting” means

Service-discrediting conduct is conduct of a nature to bring discredit upon the armed forces, meaning conduct that tends to harm the reputation of the service or lower it in public esteem. Two features of that definition matter. First, the focus is outward: clause 2 is concerned with how the conduct reflects on the military in the eyes of the public, whereas clause 1 is concerned with the internal effect on order and discipline within the force. Second, the test is whether the conduct is of a nature to bring discredit, which is an objective inquiry into the tendency of the conduct, not a requirement that the government prove specific, measured reputational damage in a particular instance. The conduct must be of that character; actual, provable injury to reputation is not a separate element.

For every Article 134 offense, the government must also prove the terminal element, that the conduct was either to the prejudice of good order and discipline, service-discrediting, or both, beyond a reasonable doubt. The terminal element is not presumed from the underlying act; it has to be pleaded and proved.

The constitutional overlay: speech is treated differently

When the charged conduct is speech, the analysis cannot stop at the ordinary clause-2 definition, because the government would otherwise …

Facial recognition technology lets investigators compare an image of a face against large databases to generate possible identity matches. Military law enforcement agencies, like their civilian counterparts, have access to these tools. When such a tool is used without proper authorization, the natural question is whether that misuse violates a service member’s constitutional rights, and specifically whether it offends due process. The answer requires separating several distinct legal ideas that often get blended together: the Fourth Amendment’s protection against unreasonable searches, the Fifth Amendment’s guarantee of due process, and the practical question of what remedy, if any, follows a violation.

What “unauthorized” can mean

“Unauthorized” is doing a lot of work in this question, and it can refer to different problems. It might mean the tool was used without a warrant or other legal authorization where one was required. It might mean the search violated a statute, a Department of Defense policy, or a service regulation governing the use of biometric tools. Or it might mean the technology was used in a way that produced unreliable results, such as a low-confidence match treated as a positive identification. Each of these maps onto a different constitutional or procedural theory, and they do not all lead to the same conclusion.

The Fourth Amendment angle

The most direct constitutional question is usually a Fourth Amendment one. The Fourth Amendment protects against unreasonable searches and seizures, and it applies to service members. Whether using facial recognition is a “search” at all is an unsettled and actively debated area of law. Under the traditional view reflected in cases like Katz v. United States, observing what is exposed to public view is generally not a search, and some courts and commentators have reasoned that comparing a publicly visible face is closer to ordinary surveillance than to an intrusion into a protected interest.

On the other side, scholars and some courts argue that the Supreme Court’s decision in Carpenter v. United States, which treated long-term collection of cell-site location data as a search requiring a warrant, supports treating pervasive biometric identification as a search as well. The law here is genuinely in flux. There is no settled rule that every use of facial recognition is a search, and there is no settled rule that it never is. Because the doctrine is unresolved, it would be a fabrication to claim a clear answer. What can be said is …

Yes, they can be. The assumption behind the question, that being off duty and off the installation places political activity beyond the military’s reach, is mistaken. The rules that govern partisan political activity by service members are tied to a member’s status as a member of the armed forces, not to whether the conduct happens during duty hours or on government property. Certain partisan political activities are prohibited regardless of where or when they occur, and engaging in prohibited activity can support adverse administrative action, including separation. Whether a particular allegation is valid depends on what the member actually did, not simply on the time and place.

The Governing Framework Applies to the Member, Not the Clock or the Gate

Political activity by service members is governed by Department of Defense Directive 1344.10. Its central policy is that members on active duty should not engage in partisan political activity, defined as activity supporting or relating to candidates representing, or issues specifically identified with, national or state political parties and their associated organizations. The directive reaches members across their status, and its prohibitions are not switched off at the end of the duty day or at the installation boundary. A member remains a member around the clock, and the policy is designed to preserve the appearance and reality of a military that is nonpartisan. That is why an off-duty, off-base act can still violate it.

Activities Prohibited Wherever They Occur

The directive identifies categories of partisan activity that an active-duty member may not do at all. These include using official authority or influence to interfere with an election or to affect its outcome; participating in partisan political fundraising, rallies, conventions, debates, or management of campaigns; serving in an official capacity in a partisan campaign; soliciting or engaging in partisan political activities; speaking before a partisan gathering as an advocate for a partisan cause; and marching or riding in a partisan parade. Wearing the uniform to a partisan political event is likewise prohibited. None of these depends on being on duty or on base. A member who, on a weekend and off the installation, manages a partisan campaign, headlines a partisan fundraiser, or appears in uniform to endorse a candidate has engaged in conduct the directive forbids, and the off-duty, off-base setting does not cure the violation.

What Members Remain Free to Do

The directive does not strip members of the rights …

The Defense Enrollment Eligibility Reporting System, commonly called DEERS, is the database that tracks service members and their eligible dependents for benefits such as health care and identification cards. Service members carry an obligation to keep their DEERS information current, including changes in marital status, dependents, and contact information. A natural question is whether neglecting that obligation can show up as misconduct in an administrative separation. The short answer is that it can be relevant, but whether it rises to the level of separable misconduct depends heavily on the facts and on how the failure is characterized.

How DEERS Obligations Arise

Keeping DEERS current is not an abstract courtesy. Service regulations and the routine duties of a member require timely reporting of life changes that affect entitlements and accountability. When a member fails to update the record, the consequences range from administrative inconvenience to denial of benefits to dependents, and in some situations to overpayments that the government later seeks to recover. Because the obligation flows from regulation and assigned duty, a failure to perform it can intersect with the article of the Uniform Code of Military Justice that addresses failures to obey orders and dereliction of duty.

The Dereliction of Duty Angle

Article 92 of the UCMJ covers failure to obey lawful general orders or regulations, failure to obey other lawful orders, and dereliction in the performance of duties. Dereliction can be willful or through neglect or culpable inefficiency. Improper record keeping that a member is duty-bound to maintain can fit within this framework when the duty is established and the member knew or reasonably should have known of it. That said, a single oversight, an honest mistake, or a delay caused by circumstances outside the member’s control is a far weaker candidate for dereliction than a knowing or repeated refusal to keep required records accurate.

Administrative Separation Versus Criminal Punishment

Administrative separation is not a criminal proceeding. It is a personnel action used to remove a member from service, and the governing Department of Defense instruction on enlisted administrative separations sets out the permissible bases. Misconduct is one recognized basis, and it is typically supported by a pattern of behavior, a serious offense, or commission of acts that warrant separation. A DEERS lapse standing alone is rarely the kind of serious or repeated misconduct that drives a separation. More commonly, a DEERS issue appears as one item among …

Disobedience offenses in the military punish the willful refusal to comply with a lawful order. But what happens when a service member moves toward disobeying, taking steps that signal an intent to refuse, yet stops short of actually defying the order? The law of attempts under Article 80 of the Uniform Code of Military Justice supplies the framework. An attempt is prosecutable only when the member’s conduct crosses from mere preparation into a substantial step toward the completed offense, taken with the specific intent to commit it. Preparation alone, even when it suggests an unwelcome attitude, is not enough.

The underlying disobedience offenses

Two articles most often define the completed offense of disobedience. Article 90 of the UCMJ punishes willfully disobeying a lawful command of a superior commissioned officer. Its elements require that the accused received a lawful command from a commissioned officer who was the accused’s superior, that the accused knew the officer’s status, and that the accused willfully disobeyed the command. Article 92 punishes failure to obey a lawful general order or regulation and dereliction of duty, and it reaches conduct that is not necessarily willful, including neglectful or careless noncompliance.

The word willfully matters. Disobedience under Article 90 requires intentional defiance of known authority. A failure to comply through forgetfulness or inattention is not willful, though it may still be charged as a failure to obey or dereliction under Article 92. This distinction shapes any attempt analysis, because an attempt to commit a willful offense necessarily requires proof of that same purposeful intent.

Article 80 and the line between preparation and a substantial step

Article 80 makes it an offense to attempt to commit any offense under the code. An attempt has four elements: an overt act, done with the specific intent to commit a certain offense, that amounts to more than mere preparation, and that apparently tends to effect the commission of the intended offense. The third element is the heart of most disputes. Military law has adopted the substantial step standard, meaning the overt act must be a substantial step toward the commission of the crime, strongly corroborative of the accused’s criminal intent, rather than a remote or equivocal preparatory step.

This is precisely the dividing line raised by a member who takes preparatory steps but does not fully act. Planning to refuse, complaining about an order, gathering items needed to defy it, or even …