Military Lawyers

A sergeant who returns or is returned to military control after an extended absence is often surprised to find the charge is not merely absence without leave but desertion. The two offenses sound similar but are legally distinct, and that distinction is exactly where a desertion charge can fall apart. For an Army E-5 initially carried in absent-without-leave status, several factors can lead a prosecutor to drop the desertion charge, a convening authority to refer something lesser, or a court to acquit on desertion. The common thread is the element that separates the two crimes: intent.

The two charges and the decisive difference

Absence without leave is charged under Article 86 of the Uniform Code of Military Justice, 10 U.S.C. 886. It is a general-intent offense. The government need only prove that the soldier was absent from the unit, organization, or place of duty without authority. No particular state of mind about returning is required.

Desertion is charged under Article 85, 10 U.S.C. 885. It is a specific-intent offense. For the most common theory, the government must prove not only the unauthorized absence but also that the soldier intended to remain away permanently, or, under other theories of the article, intended to avoid hazardous duty or to shirk important service. That added mental element is the heart of desertion and the most fertile ground for getting the charge dismissed or reduced. An Army E-5 placed in AWOL status when the absence began is, at the outset, facing only the general-intent offense. Desertion is an elevation that the government must justify with proof of intent, and if it cannot, the charge should not stand.

Factor one: the government cannot prove intent to remain away permanently

The single most powerful factor is the absence of proof of the required intent. Length of absence alone does not convert AWOL into desertion. A soldier can be gone for many months and still lack any intent to sever the military relationship permanently. The government typically tries to prove intent through circumstantial evidence, such as disposing of military equipment or uniforms, assuming a new identity, establishing a settled civilian life elsewhere, or making statements about never coming back. Where that circumstantial picture is thin, equivocal, or absent, the desertion theory weakens. Evidence that the soldier kept identification, maintained ties to the unit or to family who expected a return, or expressed an intention to come back …

A Board of Inquiry, or BOI, is an administrative proceeding used to decide whether a commissioned or warrant officer should be retained or involuntarily separated. It is not a criminal trial. When the basis for a BOI rests on several allegations that no one has independently confirmed, the entire case can turn on how the board judges who is telling the truth. Understanding how a board approaches credibility in that situation is essential for any officer trying to defend a career.

The standard is preponderance, not proof beyond a reasonable doubt

The first thing to understand is the burden. A BOI applies the preponderance of the evidence standard. The board must decide whether each alleged basis for separation is more likely than not to have occurred, meaning greater than fifty percent likelihood. This is far lower than the beyond a reasonable doubt standard used at courts-martial. As a practical matter, this means a board can sustain an allegation even where a criminal court would have acquitted, and it can do so based on testimony that was never tested in a trial setting.

Because the standard is lower, credibility carries enormous weight. When complaints are uncorroborated, there is no physical evidence, no documentary record, and no third party witness to anchor the account. The board is left to weigh competing statements and decide which version is more believable.

Boards are not bound by the rules of evidence

A BOI does not follow the Military Rules of Evidence in the way a court-martial does. Hearsay can be considered. Written statements can be admitted without the author appearing. Prior allegations, even ones that were never proven, can come before the board. This flexibility cuts both ways. It allows the government to present accounts that a trial judge might exclude, and it allows the defense to introduce favorable material that strict evidentiary rules might keep out.

The looseness of the evidentiary framework places a premium on the board’s own assessment. Members are expected to use their judgment and military experience to assign weight to what they hear, rather than relying on technical admissibility rulings.

What the board actually looks at when complaints are uncorroborated

Credibility assessment in this setting is not mechanical, but several recurring factors guide how a reasonable board weighs uncorroborated accounts.

Internal consistency matters. A complaint that stays stable over multiple retellings is generally treated as more reliable than one that …

Service members sometimes assume that any prohibited relationship, such as one between an officer and an enlisted member, automatically exposes the participants to sexual assault charges under Article 120 of the Uniform Code of Military Justice. That assumption confuses two very different bodies of law. Article 120 criminalizes sexual acts that occur without consent or with a person incapable of consenting. Fraternization and related prohibited-relationship rules address relationships that undermine good order and discipline, even when both people willingly participate. A consensual relationship that violates a fraternization policy is a serious matter, but consent is the dividing line between that misconduct and a sexual offense under Article 120. Understanding the distinction prevents both overcharging and a false sense of security.

What Article 120 actually requires

Article 120 is built around the absence of consent. It reaches sexual acts accomplished by force or threat, sexual acts upon a person who did not consent, and sexual acts upon a person incapable of consenting due to impairment, sleep, unconsciousness, or similar conditions. Consent is defined as a freely given agreement by a competent person.

The decisive feature is that genuine, freely given consent by a competent person places conduct outside the core prohibitions of Article 120. The statute does not criminalize sex simply because the relationship was against the rules. If both participants are competent adults who freely agreed, the conduct generally does not satisfy the elements of a sexual offense under Article 120, no matter how improper the relationship is under service policy. Article 120 is concerned with whether there was consent, not with whether the relationship was permitted.

Where fraternization rules come in

The prohibition on improper relationships lives elsewhere in the code. Fraternization is generally charged under Article 134 and is rooted in the custom of the services that officers shall not fraternize with enlisted members on terms of military equality. The elements focus on the existence of an improper relationship that violates the custom of the service and that prejudices good order and discipline or brings discredit upon the armed forces. The individual military services also issue their own regulations defining and prohibiting unprofessional or prohibited relationships, and a violation of those regulations can itself be charged.

What distinguishes these offenses from Article 120 is that consent is not a defense to fraternization. The harm addressed is the damage to discipline, the chain of command, and unit cohesion caused …

Article 107 of the Uniform Code of Military Justice punishes false official statements, codified at 10 U.S.C. section 907. It reaches any person subject to the Code who, with intent to deceive, signs a false record or makes another false official statement knowing it to be false. Of the article’s several elements, the one that most often decides falsification cases is intent to deceive. A false statement, by itself, is not enough; the government must prove that the maker intended to deceive. Understanding how the military defines that intent, and how it is distinguished from related mental states, is central to both prosecuting and defending an Article 107 case.

Article 107 and where intent fits

To convict under Article 107, the prosecution must prove four elements beyond a reasonable doubt: that the accused signed an official document or made an official statement; that the document or statement was false in certain particulars; that the accused knew it was false at the time; and that the accused made or signed it with the intent to deceive. The first three elements establish that a knowing falsehood was uttered in an official context. The fourth element, intent to deceive, supplies the wrongful purpose that turns a false statement into a crime. Without it, even a knowingly false official statement does not complete the offense.

The core definition

In the Article 107 context, intent to deceive refers to the purpose of conveying false or misleading information that the accused knows to be false or misleading, in order to make another person believe it is true. The deception is the goal of the communication. The accused is not merely speaking carelessly or mistakenly; the accused is trying to get the recipient to accept a falsehood as fact. That purpose, to mislead the listener or reader into believing something untrue, is the essence of the intent the statute requires.

Knowledge of falsity versus intent to deceive

It is easy to blur two distinct elements, but they are separate and both must be proven. Knowledge of falsity asks whether the accused knew the statement was untrue when making it. Intent to deceive asks whether the accused made the statement for the purpose of misleading. A person can conceivably know a statement is technically false yet not be trying to deceive anyone, for example if the falsehood is obvious, immaterial, or made in a context where no one …

Service members often expect the Article 32 preliminary hearing to be the place where they fight to keep illegally obtained evidence out of their case. It is not. The Article 32 hearing and a motion to suppress are two different proceedings with two different purposes, and understanding the line between them is essential. The short answer is that you generally do not litigate suppression at the Article 32 hearing; you litigate it before the military judge at trial. But what happens at the Article 32 hearing can still shape how a later suppression motion plays out. This article explains both halves of that answer.

The narrow purpose of the Article 32 hearing

The Article 32 preliminary hearing, governed by Article 32 of the Uniform Code of Military Justice and Rule for Courts-Martial 405, exists to screen a case before it can be referred to a general court-martial. Its scope is deliberately limited. The preliminary hearing officer is there to determine whether each specification states an offense, whether there is probable cause to believe the accused committed the charged offenses, whether the court-martial would have jurisdiction, and what disposition the officer recommends.

Nothing in that list is about the admissibility of evidence at trial. The hearing tests whether there is enough to send the case forward, not whether particular evidence was lawfully obtained. That difference is the whole reason suppression is not the business of the Article 32 hearing.

Why suppression is not decided at the Article 32 hearing

A motion to suppress asks a court to exclude evidence because it was obtained in violation of the accused’s rights, for example through an unlawful search, an involuntary statement, or a defective seizure. Resolving such a motion requires the full machinery of the rules of evidence and a judge with authority to make binding admissibility rulings. The Article 32 hearing has neither.

At the preliminary hearing, only a limited set of the Military Rules of Evidence applies, principally the rules on privileges, the rape-shield protections, and the privilege against self-incrimination. The broad rules that govern the admissibility of physical evidence, search results, and confessions are not fully in play, and the preliminary hearing officer, while standing in the role of the judge for the limited rules that do apply, is not the trial judge and does not issue binding rulings on suppression. The officer can consider evidence in deciding probable cause even …

An extramarital relationship is sensitive enough in any military context. When the service member holds a security clearance or works in a national security role, the allegation travels down two separate tracks at once: a possible disciplinary track under the Uniform Code of Military Justice, and a security-eligibility track under the federal adjudicative guidelines. These tracks have different standards, different decision-makers, and different consequences, and understanding how each one treats the conduct is essential to responding intelligently.

The disciplinary track: Article 134 extramarital sexual conduct

Under military criminal law, an extramarital relationship is addressed through Article 134 of the Uniform Code of Military Justice, the general article. Effective with the 2019 changes to the Manual for Courts-Martial, the offense formerly called adultery was reframed as extramarital sexual conduct. The elements require that the accused engaged in certain sexual conduct, that the accused or the other person was married to someone else at the time, that the conduct was wrongful, and, critically, that under the circumstances the conduct was either prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces.

That last element is the gatekeeper. Not every extramarital relationship is criminal. The conduct must have a reasonably direct and palpable effect on good order and discipline, or genuinely tend to lower the service in public esteem. The Manual identifies factors relevant to that judgment, including the impact on unit cohesion and the mission, the rank and positions of the people involved, and any misuse of government time or resources to carry on the relationship. The 2019 revisions also recognized a legal separation defense in defined circumstances. Because the offense lives under the general article, prosecutors must prove the terminal element, not merely the existence of the affair.

Why national security duties intensify the disciplinary analysis

When the member works in a national security role, the conduct is more likely to clear the prejudice-or-discredit threshold, and more likely to draw command attention. A relationship that compromises operational focus, creates a security vulnerability, involves a foreign national in a way that raises counterintelligence concerns, or undermines trust within a cleared team can show the direct and palpable prejudice the offense requires. The same affair that might be handled informally in a routine assignment can look materially different when the participants hold sensitive positions. This is a function of the circumstances element, which is inherently context-dependent, …

Article 78 of the Uniform Code of Military Justice (UCMJ) punishes the accessory after the fact: a person who helps someone they know to be an offender escape the consequences of a crime. It is a separate offense from the underlying crime, and it carries its own burden of proof. A service member charged under Article 78 should understand exactly what the government must establish, because each element is a distinct hurdle, and a failure to prove any one of them defeats the charge. To sustain a conviction, the prosecution must prove four elements beyond a reasonable doubt.

Element one: an underlying offense was committed

The government must first prove that some person committed an offense punishable under the UCMJ. This is the predicate crime. Importantly, the principal offender does not have to have been convicted, or even charged, for an accessory conviction to stand. What matters is that the underlying offense actually occurred. The prosecution proves the fact of the offense, not the paperwork of a separate prosecution. If the evidence fails to establish that an underlying UCMJ offense took place at all, an accessory charge cannot survive, because there is nothing for the accused to have helped conceal or escape.

Element two: the accused knew the person had committed the offense

The second element is knowledge, and it is often the heart of the case. The accused must have had actual knowledge that the specific person committed the offense. Mere suspicion, rumor, or a vague sense that something happened is not enough. The accused must know the essential facts that made the conduct a crime. The law does not, however, require the accused to know the precise article violated or the technical legal label for the offense. Knowing the underlying facts that constitute the crime can satisfy this element even if the accused could not name the statute. This distinction matters: the government proves what the accused knew about the facts, not whether the accused understood the finer points of military criminal law.

Element three: the accused received, comforted, or assisted the offender

Third, the prosecution must prove that, after the offense, the accused received, comforted, or assisted the offender. This is the conduct element, and it requires an affirmative act. Silence or a failure to report a crime, by itself, does not make a person an accessory after the fact. The accused must do something to aid …

Yes, a service member can face charges under Article 134 of the Uniform Code of Military Justice for secretly recording a private conversation, but whether a particular recording is actually chargeable depends on the law that applies and on the circumstances. Article 134 is unusually broad, and it provides more than one route by which a nonconsensual recording can become a military offense. Understanding those routes is the key to understanding the real exposure.

The three clauses of Article 134

Article 134 is often called the general article because it reaches conduct not specifically listed elsewhere in the Code. It contains three distinct clauses. Clause 1 covers conduct to the prejudice of good order and discipline. Clause 2 covers conduct of a nature to bring discredit upon the armed forces. Clause 3 incorporates noncapital federal crimes, and through the Federal Assimilative Crimes Act it can also incorporate state law for offenses committed on certain federal property. A secret recording can potentially be charged under any of these clauses, and the analysis differs for each.

Clause 3 and the federal wiretap statute

The most direct path runs through Clause 3 and the federal Wiretap Act, codified at 18 U.S.C. 2511. That statute makes it a crime to intentionally intercept any wire, oral, or electronic communication. Federal law is a one party consent regime, which means that recording a conversation is generally lawful under the statute if at least one party to it consents, and a participant who records their own conversation has that consent. The statute does, however, prohibit interception by someone who is not a party to the communication, and it prohibits even a participant from recording for the purpose of committing a crime or a tort.

This framework matters a great deal. A member who records a conversation they are part of usually does not violate the federal statute. A member who plants a device to capture a conversation they are not part of, or who records a conversation in order to blackmail, harass, or commit another wrong, can fall squarely within the prohibition and be charged under Clause 3.

Clause 3 and assimilated state law

The picture changes when state law is in play. Through the Assimilative Crimes Act, conduct on a federal installation located in a state can be prosecuted under that state’s law if there is no specific federal counterpart. Many states are two party, or …

Counseling is a normal part of military life. A supervisor sits down with a subordinate to address performance, correct behavior, set expectations, or document a developmental conversation. Most of these sessions have nothing to do with criminal liability. But because counseling involves a superior questioning or confronting a subordinate, service members often ask whether the rights protections of Article 31 can apply. The short answer is that they can, but only when the counseling stops being administrative and starts functioning as questioning of a suspect.

The line Article 31 draws

Article 31(b) of the Uniform Code of Military Justice requires a person subject to the code to advise a service member, before questioning, of the nature of the suspected offense, of the right to remain silent, and that any statement may be used against the member. Unlike civilian Miranda warnings, Article 31 does not require custody to attach. It can apply in an office, a motor pool, or a counseling room.

What Article 31 does require is a particular kind of interaction. Military courts ask two questions. Is the person doing the questioning acting in an official law-enforcement or disciplinary capacity? And does the service member reasonably perceive the questioning as official rather than as a casual or purely administrative exchange? A warning is owed only when both are true and the member is suspected of an offense.

Why routine counseling usually does not trigger the rule

A genuine administrative counseling session, focused on duty performance, professional development, or corrective guidance, ordinarily does not require Article 31 warnings. The purpose is administrative, not disciplinary in the law-enforcement sense, and the supervisor is not questioning the member as a suspect to gather evidence of a crime. Counseling a junior member about being late, about uniform standards, or about productivity is administrative supervision, and the law does not demand a rights advisement to conduct it.

The key concept is purpose. When the supervisor’s aim is to manage and correct, not to investigate and elicit an admission of an offense, the encounter falls outside Article 31’s core trigger.

When counseling crosses the line

The protection can be triggered, however, when the counseling session turns into questioning about a suspected offense. Two situations illustrate the shift.

First, the supervisor may begin the session already suspecting the member of misconduct that could be charged, and may use the counseling format as a vehicle to draw …

Receiving an Article 31 advisement is not the same as understanding it. A service member can be read the warning word for word and still walk away confused about what was being asked, what rights were on the table, or what crime was at issue. When that happens, an important question follows: can the misunderstanding make the resulting statement inadmissible? The answer is that it can, because the law does not protect the recitation of words. It protects the suspect’s ability to make a knowing and informed choice.

What the advisement is supposed to accomplish

Article 31(b) of the Uniform Code of Military Justice requires that before interrogating or requesting a statement from a suspect, the questioner inform the suspect of the nature of the accusation, of the right to remain silent, and that any statement may be used as evidence against the suspect at a court-martial. The warning need not cite the specific punitive article that is suspected, but it must give the suspect fair notice of the offense or the area of inquiry, so that the suspect can intelligently decide whether to speak. That phrase, fair notice so the suspect can intelligently choose, is the heart of why misunderstanding matters.

Where a suspect is in custody, the protections expand. Under United States v. Tempia, the principles of the civilian Miranda decision apply in the military, so a custodial suspect must also be advised of the right to consult with counsel before and during questioning. Article 31 rights are not identical to Miranda rights; in the military they provide protections in addition to the custodial warnings. Any statement obtained in violation of an applicable warning requirement under Article 31, Tempia, or Military Rule of Evidence 305 is inadmissible against the accused.

Why understanding is essential

A statement given after warnings is admissible only if the suspect’s waiver of the right to silence, and where applicable the right to counsel, was knowing, voluntary, and intelligent. A waiver cannot be knowing or intelligent if the suspect did not actually understand the rights being given up. This is where misunderstanding becomes legally significant. If the service member did not comprehend the advisement, the foundation for a valid waiver is missing, and the government may be unable to use the statement.

The concern is not limited to one kind of confusion. A misunderstanding about the nature of the accusation can defeat the fair-notice …