Military Lawyers

Senior officers accused of sexual harassment face a process that is largely administrative rather than criminal, and the outcomes are far more varied than headlines suggest. Some officers are separated, some are retained at a reduced retirement grade, and some are retained without further action. The question of what precedent supports retention is best answered by understanding the boards and standards that decide these cases, because retention is the product of that process rather than a single controlling case.

The administrative nature of the question

Sexual harassment by a senior officer can be addressed through the criminal system, but it is frequently handled administratively. The central mechanism for a commissioned officer is the Board of Inquiry (BOI), also called a show-cause board. A show-cause authority, typically a general or flag officer, decides that there is a basis to require the officer to show cause for retention. The officer is then entitled to a hearing before a board of at least three officers, who hear evidence and argument and make findings and a recommendation on whether the officer should be retained or separated, and if separated, with what characterization of service.

Because the BOI is an adversarial proceeding with the right to counsel, the right to present evidence, and the right to cross-examine, it is the place where retention is actually decided. The relevant precedent for retention is therefore not a body of court opinions so much as the standards the board applies and the patterns of board outcomes.

The standard the board applies

A BOI does not apply the criminal standard of proof beyond a reasonable doubt. It generally decides whether the misconduct is supported by a preponderance of the evidence, and then weighs whether that misconduct warrants separation. This lower standard cuts both ways. It means a board can find misconduct that a court-martial would not have proven, but it also means the officer’s case for retention rests heavily on context, rehabilitation, service record, and the seriousness of the specific conduct rather than on a binary guilty or not guilty finding.

This is why two officers facing similar allegations can receive different results. A single, isolated, lower-level incident accompanied by a strong record and credible evidence of changed behavior is the kind of case where boards have recommended retention. Repeated conduct, abuse of a supervisory relationship, or conduct involving subordinates tends to push toward separation. The board’s discretion is …

Living with a partner who is not a United States citizen does not automatically end a security clearance, but it does raise a question the government takes seriously. Security clearance adjudications are not criminal trials, and they do not turn on guilt or innocence in the ordinary sense. Instead they ask whether granting or continuing access to classified information is clearly consistent with the national interest. When the concern is cohabitation with a foreign national, the analysis is less about blame and more about risk, mitigation, and the overall picture of the person. That is what people are reaching for when they ask how “partial culpability” is weighed.

The Guideline at Issue

Concerns about a foreign-national cohabitant fall under Guideline B, the foreign influence guideline, found in the federal adjudicative guidelines for eligibility for access to classified information. Guideline B recognizes that a security risk may exist when an individual’s immediate family, cohabitants, or other people to whom the individual is bound by affection, influence, or obligation are not United States citizens or could be subject to duress. The worry is that such a relationship could create a conflict between loyalty to the person and loyalty to the United States, or could expose the person to coercion that might lead to the compromise of classified information.

Sharing living quarters with a person, regardless of citizenship status, is listed as a disqualifying condition when the potential for adverse foreign influence or duress exists. The mere fact of cohabitation with a foreign national, then, can raise the issue. But raising the issue is only the beginning of the analysis.

Why “Culpability” Is the Wrong Lens

In a criminal case, partial culpability might reduce the severity of a charge. Clearance adjudication does not work that way. The decision is predictive and protective rather than punitive. The central question under Guideline B is the reasonable foreseeability that a person’s foreign connections create a risk of conflicting interests. The guidelines acknowledge that even the most loyal and law-abiding person can be subject to coercion under the right circumstances, so the inquiry is not whether the individual did something wrong. It is whether the relationship creates an unacceptable vulnerability.

What people describe as partial culpability is better understood as a weighing process. The adjudicator looks at how much risk the cohabitation actually creates, how much of that risk has been mitigated, and how the individual’s overall …

Article 120 of the Uniform Code of Military Justice, codified at 10 U.S.C. 920, addresses rape and sexual assault. In the civilian world, some defendants facing serious charges can enter diversion or deferred-prosecution programs that suspend or avoid a conviction in exchange for treatment, supervision, or other conditions. Service members and their families often ask whether anything similar exists for Article 120 cases in the military. The honest answer is that the military justice system does not offer civilian-style diversion for these offenses, and recent reforms have made the path of an Article 120 case more rigid, not more flexible.

What diversion means and why it rarely fits the military

Civilian diversion and alternative adjudication programs are typically creatures of statute or local court practice. They allow a court to set criminal proceedings aside while a defendant completes conditions, after which charges may be dismissed. These programs are most common for lower-level offenses and first-time defendants, and they generally do not extend to serious felony sex offenses.

The military justice system is not built around diversion programs of that kind. It has its own framework for disposing of misconduct, ranging from administrative action, to nonjudicial punishment, to the various levels of court-martial. There is no general statutory diversion track that a service member charged with a UCMJ offense can elect into the way a civilian defendant might enter a drug court or a pretrial diversion agreement. This structural difference is the starting point for any Article 120 case.

Recent reform centralized decision-making and removed flexibility

The most important development is the creation of the Offices of Special Trial Counsel. Established through the National Defense Authorization Act for Fiscal Year 2022, these offices give independent military prosecutors, rather than commanders, the authority over a set of the most serious offenses, known as covered offenses. The services stood up these offices in late December 2023, and the special trial counsel hold jurisdiction over covered offenses committed on or after that date.

Article 120 is one of the covered offenses. That means the decision whether to prefer charges, where to refer the case, and whether to enter into any plea agreement rests with an independent special trial counsel, not with the accused’s chain of command. The reform was designed to bring independence and consistency to the handling of sexual offenses. One effect is that the disposition of an Article 120 allegation is funneled …

In a court-martial under Article 120 of the Uniform Code of Military Justice (UCMJ), the panel that decides guilt is the military equivalent of a jury. Before the members deliberate, the military judge reads them instructions on the law. Among the most consequential instructions in a contested sexual assault case is the one explaining what it means for an accused to have held a “reasonable belief” that the other person consented. Because this belief, when raised, becomes an affirmative defense the government must disprove, the precise wording of the instruction can decide the case.

Where the instruction comes from

Military judges do not draft these instructions from scratch in each trial. They draw from a standardized set of pattern instructions historically published in the Military Judges’ Benchbook, modeled on the elements and defenses set out in Article 120 and the Manual for Courts-Martial. The instruction on mistake of fact as to consent is the vehicle through which the panel learns the meaning of a reasonable belief of consent.

The defense becomes available because consent and mistake of fact as to consent are affirmative defenses to the sexual offenses charged under Article 120, rather than elements the government must prove from the outset. When the evidence raises the defense, the judge must instruct on it, and the burden shifts: the prosecution must then disprove the defense beyond a reasonable doubt.

The two-part standard the panel must apply

The core of the instruction tells the members that a mistaken belief in consent is a defense only if it was both honest and reasonable. These are two separate tests, and the panel must apply both.

The first part is subjective. The members must consider whether the accused actually, genuinely believed the other person consented. A belief that the accused did not really hold cannot support the defense, no matter how a reasonable person might have viewed the situation.

The second part is objective. Even a genuinely held belief fails if it was not reasonable. The instruction tells the panel to measure the belief against what a reasonable person would have understood. The military pattern frames this as the belief a reasonably careful, ordinary, prudent, sober adult would have held under the circumstances at the time of the alleged offense.

How the instruction defines “reasonable”

The instruction does more than label the belief reasonable or unreasonable. It explains the standard so the panel can …

The Article 32 preliminary hearing is a right that stands between a service member and a general court-martial. Like many rights, it can be given up. Some accused waive it as part of a negotiated agreement; others do so for tactical reasons. Whatever the motivation, waiving the hearing changes the path the case takes and forfeits a set of benefits that the hearing would otherwise provide. This article explains what actually happens, procedurally and practically, when a service member waives the Article 32 hearing, so the decision can be made with eyes open.

What the Hearing Would Have Provided

To understand the effect of a waiver, it helps to recall what the hearing offers. The preliminary hearing is required before charges may be referred to a general court-martial. It is conducted by a preliminary hearing officer who evaluates whether there is probable cause to believe an offense was committed and that the accused committed it, considers whether the court would have jurisdiction, and recommends how the charges should be disposed of. Along the way, the hearing gives the defense an early look at the government’s evidence and a chance to examine certain witnesses. It functions both as a screening step and as a discovery and preview tool.

When the accused waives the hearing, all of these functions are skipped. There is no probable cause screening by a hearing officer, no early opportunity to test the government’s witnesses, and no preview of the case in that forum.

The Waiver Must Be the Accused’s Own Choice

The right to the preliminary hearing belongs to the accused personally. Counsel cannot waive it unilaterally on the client’s behalf. A valid waiver is a knowing and voluntary relinquishment of a known right, which means the service member should understand both what the hearing offers and what is being surrendered before agreeing to forgo it. Waivers frequently appear in connection with pretrial agreements, where giving up the hearing is exchanged for some benefit such as a favorable disposition, but a waiver can also be made for strategic reasons unrelated to any deal.

The Case Proceeds Toward Referral

The most immediate consequence of a waiver is procedural. The preliminary hearing requirement is satisfied or excused, and the case can move toward referral to a general court-martial without the hearing taking place. In other words, waiving the Article 32 does not stop or slow the prosecution; it removes …

Solicitation cases under the Uniform Code of Military Justice (UCMJ) frequently come down to the word of one person. Article 82 covers solicitation of desertion, mutiny, misbehavior before the enemy, and sedition, while Article 134 covers solicitation of other offenses. In both, the offense is complete the moment the accused communicates a request or advice to commit a crime, with the intent that it be committed, regardless of whether anyone agrees or acts. Because the crime can be entirely verbal and is complete on communication, the most important witness is often the very person who was allegedly solicited. This article addresses the evidentiary standards that apply when that solicited party’s testimony is essentially the only proof.

The burden of proof never changes

No matter how thin or robust the evidence, the government must prove every element of the solicitation offense beyond a reasonable doubt. That includes proving that the accused solicited or advised a particular person to commit a particular offense and that the accused acted with the specific intent that the offense be committed. The single-witness nature of the proof does not lower the burden; it simply means that the factfinder must be convinced beyond a reasonable doubt on the strength of that testimony, considered with any other evidence and reasonable inferences.

Can a conviction rest on one witness alone?

As a general matter in military practice, the testimony of a single witness, if believed, can be legally sufficient to support a conviction. There is no universal rule that solicitation requires a second witness or independent corroboration of the spoken request. The decisive issue is credibility: whether the factfinder believes the solicited party’s account beyond a reasonable doubt. This makes the solicited party’s credibility the central battleground of the case.

The picture is more cautious where the solicited party is properly viewed as an accomplice, meaning someone who shared in the criminal venture rather than an innocent recipient of the request. Military law does not impose an absolute bar on convicting based on accomplice testimony, and a conviction can stand even without a cautionary instruction. At the same time, military courts recognize that the better practice is to caution the factfinder against placing too much reliance on the testimony of an accomplice, because an accomplice may have motives of self-interest. In a contested case, the defense will often request such a cautionary instruction and will press the point that …

Internal command networks run on identity. Access to a shared drive, a personnel database, a logistics portal, or a classified system depends on the user being who they claim to be and holding the role they claim to hold. When a service member misrepresents credentials on one of those systems, whether by logging in as someone else, claiming a clearance or qualification they do not have, or entering false identifying information to gain access, the conduct can support more than one charge under the Uniform Code of Military Justice. Which charge fits depends on what the misrepresentation was and what it was used to accomplish.

False official statements under Article 107

The most direct fit is often Article 107, false official statement. Article 107 reaches a person who, with intent to deceive, makes a false official statement knowing it to be false. The statement need not be spoken; it can be a written or electronic entry. Information that a user enters into a command system to establish identity or eligibility, such as a falsified profile field, a fabricated credential claim, or a false certification submitted through a network form, can qualify as an official statement when it is made in the line of duty or bears on a matter within the military’s official business.

The government must prove three things that matter here. First, that the statement was false. Second, that the accused knew it was false when made. Third, that the accused made it with the intent to deceive. A simple data-entry error or a good-faith mistake about one’s own qualifications does not meet the knowledge and intent requirements. The deception element is what separates a chargeable false official statement from an honest mistake on a login form.

Fraudulent use of access devices under Article 121a

If the misrepresentation involves using another person’s credentials, the more specific Article 121a may apply. Article 121a, added in the 2016 reforms, criminalizes the knowing use, with intent to defraud, of an unauthorized or stolen access device. The term access device is broad and includes account numbers, codes, and other means of account access. A common access card login, a username and password combination, or a system token can fall within that definition when the network credential functions as the key to an account or resource.

Article 121a is the right frame when the wrong is essentially identity theft inside the network: the …

Article 99 of the Uniform Code of Military Justice, codified at 10 U.S.C. 899, is one of the most serious offenses in military law. It is titled misbehavior before the enemy, and it carries a maximum punishment of death. Within that single article sit nine separate ways a service member can violate it. Two of those concepts sit very close together in the public imagination but are legally far apart: cowardly conduct, which is criminal, and tactical withdrawal, which is ordinary battlefield decision-making. Understanding where one ends and the other begins is the heart of any Article 99 defense.

The structure of Article 99

Article 99 lists nine distinct kinds of misbehavior before the enemy. Among them are running away, shamefully abandoning or surrendering a command or position one has a duty to defend, casting away arms or ammunition, causing false alarms, willfully failing to do one’s utmost to engage the enemy, and being guilty of cowardly conduct. Each of these is a separate theory of liability with its own elements, and a charge sheet will specify which one the government intends to prove.

Cowardly conduct is its own listed offense. It is not a catch-all label for any failure on the battlefield. It is a specific charge with specific elements that the prosecution must prove beyond a reasonable doubt.

The elements of cowardly conduct

To convict an accused of cowardly conduct under Article 99, the government must establish that the accused committed a specific act, that the act was cowardly, that the accused committed it while before the enemy, and that the accused acted out of fear. Each element matters, but the fourth is decisive.

Cowardice in this legal sense means misbehavior that was motivated by fear. The defining feature is the internal mental state: the refusal or failure to act arose because fear overcame the duty to act. Fear alone is not the crime, and the law recognizes this expressly. A mere display of apprehension is not enough. Soldiers feel fear; that is human and expected. The offense punishes the surrender to fear that produces misconduct, not the emotion itself.

What tactical withdrawal is

A tactical withdrawal, or a retrograde movement, is a recognized military maneuver. It is a deliberate repositioning of forces undertaken for a sound operational reason: to preserve combat power, to avoid encirclement, to consolidate with another unit, to draw an enemy into unfavorable ground, …

Some court-martial cases involve information that the government has classified for national security reasons. When that happens, the ordinary procedures of a military prosecution intersect with a separate body of rules designed to protect classified information from disclosure. These rules apply not only at trial but at the Article 32 preliminary hearing, the screening proceeding that must occur before serious charges can be referred to a general court-martial. Understanding how classified documents are handled at this early stage is important because the protections, and the limitations, are different from anything that arises in an ordinary case.

The Governing Authority: Military Rule of Evidence 505

The central rule governing classified information in the military justice system is Military Rule of Evidence 505. It establishes a privilege against the disclosure of classified information and creates detailed procedures for protecting that information while still affording the accused a fair proceeding. Rule 505 is the military counterpart to the framework that governs classified information in federal civilian courts, and it functions in much the same way. The rule applies across the stages of a case, including the Article 32 preliminary hearing, sentencing, post-trial review, and appeal, so its protections are in force from the earliest formal proceeding.

Because the rule applies at the preliminary hearing, classified documents that the government intends to rely on, or that the defense seeks to use, do not lose their protected status simply because the case is still in its preliminary phase. The privilege and the procedures travel with the information into the Article 32 setting.

Who May Claim the Privilege

The classified information privilege is not something a trial counsel asserts casually. The privilege must be claimed by the head of the executive or military department or government agency that controls the information, or by a properly designated official. This requirement reflects the seriousness of the privilege and ensures that a decision to withhold classified material from a proceeding is made at a responsible level within the government, not improvised in the courtroom.

Protective Orders

A core mechanism under Rule 505 is the protective order. When classified information will be involved in a proceeding, the relevant authority can issue an order governing how that information is handled, who may see it, where it may be discussed, and how it must be stored. Protective orders are the practical tool that allows a case to move forward without exposing classified …

Article 120 of the Uniform Code of Military Justice covers sexual assault and related offenses, among the most serious matters tried by court-martial. These cases often involve intensely private disclosures, and a service member in crisis sometimes turns to a chaplain. That raises a natural question for both an accused and an alleged victim: if something was said to a chaplain, can the government or the defense force the chaplain to repeat it on the witness stand? The answer turns on the clergy privilege in Military Rule of Evidence 503, which is strong and applies in Article 120 prosecutions just as it does in any other case.

The Clergy Privilege Under MRE 503

Military Rule of Evidence 503 recognizes a privilege for confidential communications made to a chaplain. Under the rule, a person has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made to a clergyman or to a clergyman’s assistant, when the communication is made either as a formal act of religion or as a matter of conscience.

There is no special exception for Article 120 cases. The rule applies the same way regardless of the underlying charge. The seriousness of a sexual offense allegation does not, by itself, strip away the protection. If the communication qualifies under MRE 503, a chaplain generally cannot be compelled to disclose it, and neither a commander nor a court may require disclosure when the privilege properly applies.

The Three Requirements for the Privilege

Whether a particular conversation is protected depends on three components that a party claiming the privilege must satisfy.

First, the communication must have been made either as a formal act of religion or as a matter of conscience. A confession, a request for spiritual guidance, or a disclosure made in seeking moral or religious counsel fits. Ordinary social conversation does not.

Second, the communication must have been made to a chaplain acting in their capacity as a spiritual advisor, or to a chaplain’s assistant acting in an official capacity. A chaplain wears more than one hat. When a chaplain is functioning as a counselor in a religious or moral sense, the privilege can attach. When the same person is acting in some other role, such as a friend swapping stories or an official gathering information for administrative purposes, the conversation may fall outside the protection.

Third, the communication must have been intended …