Military Lawyers

Service members sometimes assume that any false statement they make in an official setting could be charged as perjury. The Uniform Code of Military Justice draws a sharper line than that. Perjury under Article 131 is a specific offense tied to sworn falsehoods in a judicial setting. False statements made in ordinary administrative contexts are generally addressed by a different provision. This article explains the scope of Article 131, contrasts it with the article that covers false official statements, and identifies the gray areas where the distinction can become contested.

What Article 131 Actually Prohibits

Article 131 of the UCMJ criminalizes perjury. At its core, the offense punishes a person who, having taken an oath or affirmation that the testimony or statement will be true, willfully gives testimony or makes a statement that is material and false, while not believing it to be true. The classic elements include an oath properly administered in a judicial proceeding or in a course of justice, a willful false statement, materiality of the statement, and the accused’s disbelief in its truth. The defining feature is the combination of an oath and a judicial or justice-related setting. Perjury is, in essence, lying under oath where the law contemplates sworn testimony.

The Judicial Proceeding Requirement

The phrase that controls the reach of Article 131 is the requirement that the false statement be given under oath in a judicial proceeding or course of justice. Trials by court-martial plainly qualify. The course of justice also extends to proceedings closely connected to the adjudicative process, such as a preliminary hearing conducted under Article 32, where witnesses are sworn and their testimony bears on whether charges should proceed. The unifying theme is that the false statement is sworn testimony or a sworn statement offered within the machinery of adjudication, not a casual or routine administrative communication.

Why Routine Administrative Statements Generally Fall Outside Article 131

An ordinary administrative statement, such as an unsworn entry on a form, a remark during an informal interview, or an oral report to a supervisor, typically lacks the two features that define perjury. There is usually no oath of the kind the perjury statute requires, and the setting is not a judicial proceeding or course of justice. For that reason, a false statement made in a purely administrative context is generally not perjury under Article 131. That does not mean the conduct is lawful. It …

Yes. A reprimand, including a General Officer Memorandum of Reprimand, can be contested after a service member transfers to a new duty station, even when the underlying conduct and the reprimand both occurred during a temporary assignment. A permanent change of station does not erase the document, and it does not by itself end the avenues for challenging it. What changes after a move is mainly practical: who has custody of the paperwork, which command is now in the picture, and which removal procedure makes the most sense. The right to respond and the right to seek later removal travel with the member.

What a reprimand is and why timing matters

A reprimand is an administrative censure, not a court-martial conviction. In the Army the most consequential version is the General Officer Memorandum of Reprimand, or GOMOR, governed by Army Regulation 600-37 (Unfavorable Information). Other services use comparable administrative tools, such as letters of reprimand. A reprimand can be issued by a commander with authority over the member at the time of the conduct, including a commander at a temporary duty location or a deployed setting. The fact that the member was on temporary assignment when the reprimand was issued does not make the reprimand invalid, and it does not shorten the window to respond.

The first and most important right: the rebuttal

Before a reprimand is filed permanently, the member is entitled to notice and an opportunity to respond. Under AR 600-37, a soldier who receives a GOMOR has the right to review the supporting documentation and to submit a written rebuttal before the imposing authority decides where to file it. Active duty soldiers are typically given seven calendar days, while National Guard and Reserve members are usually given thirty calendar days, and commands routinely grant reasonable extensions when the matter is complex or the member is gathering statements. This rebuttal stage is the single best chance to defeat or limit the reprimand, because the imposing general officer personally decides whether to file the reprimand locally, where it eventually disappears, or in the official military personnel file, where it can follow the member for years.

A temporary assignment can complicate this stage in real ways. The member may be in transit, the supporting evidence may be held by the temporary command, or the seven-day clock may run while the member is focused on the move. The correct response is …

No, not in the sense the question implies. A visual reconstruction, such as a computer animation or a staged reenactment of alleged misconduct, cannot be used as a substitute for missing surveillance footage in the way the footage itself would have been used. The two serve different evidentiary functions. Surveillance footage, when authenticated, is substantive proof of what actually happened. A reconstruction is a depiction of someone’s account or theory of what happened. A reconstruction may sometimes be admissible to illustrate testimony that is independently in the record, but it cannot manufacture proof of the underlying events that the absent footage would have supplied, and a court will not let it backfill an evidentiary gap.

Two Categories: Substantive Evidence Versus Demonstrative Aids

Trial practice draws a sharp line between substantive evidence and demonstrative aids. Substantive evidence, like an authenticated video recording, is offered to prove that the events depicted actually occurred. Demonstrative evidence, by contrast, helps the fact-finder understand testimony or other evidence already admitted; charts, diagrams, models, and animations are common examples. Within the visual category, courts further distinguish an animation, which illustrates a witness’s recollection or an expert’s opinion, from a simulation, which uses underlying data and scientific principles to reach a result and therefore must satisfy stricter foundational requirements. Missing surveillance footage is substantive proof of the event. A reconstruction is, at best, demonstrative. Calling it a replacement for the footage confuses the two roles.

What the Military Rules Require Before a Reconstruction Comes In

Under the Military Rules of Evidence, any visual reconstruction must clear several hurdles before a military judge will allow it. It must be relevant under Military Rule of Evidence 401. It must be authenticated under Military Rule of Evidence 901, which for an illustrative exhibit means a sponsoring witness establishes that it fairly and accurately represents what it purports to show; for a simulation that rests on data or scientific method, the proponent must also establish the reliability of the underlying inputs and process. And it must survive Military Rule of Evidence 403, which lets the judge exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice, confusion, or misleading the fact-finder. These requirements are the choke points where an attempt to pass off a reconstruction as a stand-in for the real event tends to fail.

Why a Reconstruction Cannot Fill the Gap Left by Missing Footage

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Closing argument is supposed to be advocacy drawn from the record, not a vehicle for smuggling in facts the members never heard. When a trial counsel, the military prosecutor, argues matters not in evidence, the misstep can echo all the way to the appellate courts. Whether it actually reverses a conviction, however, depends on a structured analysis that turns heavily on one early decision at trial: did the defense object.

The rule trial counsel is breaking

Argument must be confined to the evidence admitted at trial and the fair inferences that flow from it. The Court of Appeals for the Armed Forces has been explicit that a trial counsel’s argument reciting facts not in evidence is improper. United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005), is the leading authority, holding that it is improper for trial counsel to argue facts not in evidence, among other prosecutorial excesses such as injecting personal opinion or inflaming the members. The prohibition protects the integrity of the factfinding process: members are sworn to decide on the evidence, and an argument that imports outside facts asks them to convict on something other than the proof.

The pivotal question: was there an objection

The standard of review on appeal is dictated by whether the defense objected at trial.

If the defense objected and the objection was overruled, the appellate court reviews the issue for an abuse of discretion and asks whether any error was harmful. If a constitutional dimension is implicated, the government may have to show the error was harmless beyond a reasonable doubt; for nonconstitutional error, the question is whether the error had a substantial influence on the findings or sentence.

If the defense did not object, the appellate court reviews only for plain error. Under that standard the appellant must show that there was an error, that the error was plain or obvious, and that the error materially prejudiced a substantial right. United States v. Halpin, 71 M.J. 477 (C.A.A.F. 2013), illustrates the point: because the appellant did not object to the trial counsel’s argument at trial, the court reviewed for plain error and placed the burden on the appellant to show the alleged error materially prejudiced a substantial right. The failure to object does not waive the claim entirely, but it shifts the burden onto the defense and raises the bar for relief.

Measuring prejudice: the Fletcher factors

Once improper argument …

Service members receive counseling from many sources. Some counselors are uniformed providers, some are government civilians, and some are employees of civilian contractors who deliver behavioral health, family advocacy, employee-assistance, or substance-abuse services under contract to the Department of Defense. When records from a contractor counselor become relevant to a court-martial, two questions arise: are those communications privileged, and if they are reached, are the records admissible? The answer depends less on the counselor’s contractor status than on whether the relationship fits the definition of a protected psychotherapist-patient relationship and on the ordinary rules of authentication and hearsay.

The governing privilege: MRE 513

The central rule is Military Rule of Evidence (MRE) 513, the psychotherapist-patient privilege. MRE 513 allows a patient to refuse to disclose, and to prevent others from disclosing, a confidential communication made between the patient and a psychotherapist, or an assistant to the psychotherapist, for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.

The privilege turns on the nature of the provider and the communication, not on the provider’s employment arrangement. MRE 513 defines a psychotherapist as a person authorized to practice in a recognized mental health discipline, such as a psychiatrist, clinical psychologist, or clinical social worker, who is performing in that capacity. A counselor employed by a civilian contractor can fall squarely within that definition if the counselor is a licensed or credentialed mental health professional providing diagnosis or treatment. The contractor relationship between the provider’s employer and the government does not strip the communication of its privileged character. What matters is whether the person meets the definition of a psychotherapist or an assistant and whether the communication was confidential and made to facilitate diagnosis or treatment.

Conversely, if the contractor counselor is not a qualified mental health professional, for example a life coach, a chaplain’s aide, or an unlicensed peer counselor, the communications may not fall within MRE 513 at all. In that situation the records are not protected by the psychotherapist-patient privilege, although other rules or service regulations may still limit their use.

Communications versus records

A crucial limitation runs through MRE 513 and frequently decides these disputes. The privilege protects confidential communications between the patient and the psychotherapist. It does not, by its terms, protect every document in a mental health file. Military appellate courts have read the word communication narrowly, holding that it does not …

Courts-martial sometimes depend on evidence located abroad: records held by a host nation, witnesses stationed overseas, or material that must travel through a foreign government’s legal channels. Obtaining that evidence can take months. The accused, meanwhile, has a right to a speedy trial. The question is whether time consumed by foreign evidence requests counts against the government’s speedy trial obligations or whether it is properly excluded. The answer is that such delay can affect the speedy trial calculus, but in most cases a legitimate, diligently pursued foreign evidence request will be treated as good-cause delay that does not violate the accused’s rights.

Three overlapping speedy trial protections

Military speedy trial law operates through three distinct but overlapping sources, and a foreign-evidence delay is analyzed differently under each.

The first is Rule for Courts-Martial (RCM) 707, the bright-line rule. It requires that an accused be brought to trial within 120 days of the earlier of preferral of charges, imposition of restraint, or entry on active duty for the offense. For RCM 707 purposes, the accused is brought to trial at arraignment. The 120-day clock is mechanical, but it is subject to excludable delay.

The second is Article 10, UCMJ, which applies with special force when the accused is in pretrial confinement or other restraint. Article 10 requires that immediate steps be taken to try the accused or dismiss the charges, and it imposes a more demanding standard than the Constitution alone: the government must show reasonable diligence in moving the case forward.

The third is the Sixth Amendment right to a speedy trial, evaluated under the four-factor balancing test of Barker v. Wingo.

Foreign evidence delay under RCM 707

Under RCM 707, the key concept is excludable delay. All periods of delay approved by the convening authority before referral, or by the military judge after referral, are excluded from the 120-day count, provided the approval rests on good cause. The rule expressly contemplates that securing the availability of substantial witnesses or other evidence is a legitimate basis for delay, as is time needed to complete related proceedings.

A request for evidence held abroad fits squarely within these recognized grounds. If the government must route a request through a host nation’s authorities, a status-of-forces arrangement, or formal international legal assistance channels, the time reasonably required to do so can be approved as excludable delay. The crucial point is that the delay must …

Service members sometimes assume that once their retirement is approved and the paperwork is in motion, they have effectively left the reach of military justice. That assumption is dangerous. Submitting retirement or discharge paperwork does not, by itself, end a commander’s authority to prosecute. Court-martial jurisdiction over a member generally continues until the discharge actually takes effect, and even after a true retirement, certain categories of retirees remain subject to the Uniform Code of Military Justice. So misconduct committed while a member is pending retirement can ordinarily be prosecuted, and the fact that paperwork has been filed does not change that.

Jurisdiction turns on status, not paperwork

The key concept is in personam jurisdiction, meaning jurisdiction over the person. As a matter of black-letter military law, jurisdiction over a service member is lost upon discharge from the service, absent some saving circumstance or statutory authorization. The critical word is discharge. Filing retirement requests, receiving approval, or having a separation date on the calendar is not a discharge. Until the member is actually released, the member remains on active duty and fully subject to the UCMJ.

Military courts have made the trigger concrete. Court-martial jurisdiction over an active-duty member ordinarily ends only on delivery of a discharge certificate or its equivalent, issued pursuant to competent orders, to the member. The companion statute, 10 U.S.C. 1168, reinforces this: a member may not be discharged or released from active duty until the discharge certificate and final pay, or a substantial part of that pay, are ready for delivery. Until those events occur, the member has not been separated.

Jurisdiction continues past a scheduled separation date

Because of that rule, jurisdiction normally continues past a scheduled separation date if the discharge has not been finalized. The recognized formulation is that court-martial jurisdiction continues until a discharge certificate or its equivalent is delivered, or until the government fails to act within a reasonable time after the member objects to continued retention. In other words, if charges are preferred or the process to hold the member begins before the discharge is actually executed, the command can stop the separation clock and proceed. Pending paperwork is not a finish line that the member crosses simply by submitting it.

This is why commands sometimes place a member on legal hold or flag the separation when misconduct surfaces. Doing so before the discharge takes effect preserves jurisdiction so the …

When a commanding officer forwards a case toward a court-martial or an administrative board, that forwarding document sets the terms of what the accused must defend against. If the memo that moves the case forward rests on violations that do not exist, whether because the cited article does not criminalize the alleged conduct or because the cited regulation or offense is simply made up, the accused has real avenues to challenge it. The mechanism depends on whether the case is heading to a court-martial or to an administrative separation board, and the timing rules differ, so it pays to understand both tracks.

How charges move toward a court-martial

In the court-martial system, a case is built in stages. Charges are first preferred, meaning sworn, then forwarded up the chain with recommendations, and finally referred to a particular court-martial by the convening authority. The commanding officer’s forwarding or referral memo is part of that chain. The charge sheet itself lists the articles of the Uniform Code of Military Justice allegedly violated and the specifications describing the conduct.

If a charging document cites a non-existent violation, the problem usually takes one of two forms. Either a specification fails to state an offense, meaning the conduct described is not actually criminal under the article cited, or the document contains a defect in how the charges were preferred, forwarded, or referred. Both are challengeable, but through different rules.

Challenging a specification that states no offense

A specification that does not allege a real offense can be attacked under the Rules for Courts-Martial. Under RCM 907, a specification shall be dismissed if it fails to state an offense. This is the core remedy when a charge cites conduct that the cited article does not actually prohibit, or pairs an article with a specification whose facts do not match its elements.

Importantly, the failure-to-state-an-offense objection is durable. Unlike many pretrial objections, a claim that a specification does not allege an offense can be raised at any time during the proceedings, and even on appeal. So if the underlying violation does not exist as charged, the defense is not foreclosed by having missed an early deadline, although raising it promptly is always the better practice.

Challenging defects in preferral, forwarding, or referral

Defects in the process itself, including the forwarding or referral memo, fall under a different rule. Under RCM 905, motions raising defenses or objections based …

When a service member believes they were singled out for court-martial because of race, religion, sex, or some other protected characteristic, while similarly situated members who did the same thing were not charged, the member may raise a claim of selective prosecution. A common instinct is to support that claim with statistics: data suggesting that members of one group are charged at higher rates than others. Statistical discrimination data can be relevant to a selective-prosecution claim, but the law sets a demanding standard, and raw numbers alone rarely carry the day. Understanding what the data must show, and what it must be paired with, is essential.

Selective prosecution is a constitutional claim

Selective prosecution is rooted in the equal protection guarantee. The military, like the civilian system, may not base a charging decision on an unjustifiable standard such as race, religion, or other arbitrary classification. The controlling framework comes from the Supreme Court’s decision in United States v. Armstrong, 517 U.S. 456 (1996), which governs selective-prosecution claims and the related question of when a defendant is entitled to discovery to support such a claim. Military courts apply this constitutional standard.

The two elements: discriminatory effect and discriminatory purpose

Under Armstrong, a defendant claiming selective prosecution must prove two things. First, discriminatory effect, meaning that similarly situated individuals of a different group were not prosecuted. Second, discriminatory purpose, meaning that the decision to prosecute was actually motivated by a discriminatory intent. Both elements are required. It is not enough to show that a charging pattern falls more heavily on one group; the claimant must also show that the government was motivated by discrimination, and must identify similarly situated people who escaped prosecution.

This is where statistical data fits, and also where it runs into limits. Statistics can be powerful evidence of discriminatory effect, because comparative charging rates can suggest that similarly situated members of other groups were treated differently. But statistics standing alone usually struggle to prove discriminatory purpose. Numbers can show a disparity; they do not, by themselves, prove that a particular prosecutor or convening authority charged this particular member because of a protected characteristic. The “similarly situated” requirement is also strict: the comparison group must be genuinely comparable in the relevant respects, such as the nature and seriousness of the offense, the strength of the evidence, and the member’s record. Aggregate statistics that lump together dissimilar cases tend to …