Military Lawyers

Unlawful command influence is sometimes called the mortal enemy of military justice. The Uniform Code of Military Justice prohibits it in Article 37, which bars persons subject to the code from using their position to influence the outcome or the decision-making in a court-martial. A senior leader’s public statement, made before a case goes to trial, can become the foundation of a pretrial unlawful command influence claim. The statement does not need to be aimed at a specific accused, and it does not need to have actually corrupted any decision, to matter. Its impact depends on which kind of unlawful command influence the defense raises and how the courts evaluate the effect of the words.

Two kinds of unlawful command influence

Courts recognize two forms of unlawful command influence under Article 37: actual and apparent. Actual unlawful command influence occurs when an improper exercise of authority in fact affects a decision in the case, such as a referral, a witness’s willingness to testify, or a panel member’s deliberations. Apparent unlawful command influence is different. It does not require that any decision was actually tainted. It asks whether an objective, disinterested observer, fully informed of the facts, would harbor significant doubt about the fairness of the proceeding. The concern is the public’s confidence in the integrity of the military justice system, not only the fairness experienced by the particular accused.

A senior leader’s public statement most often surfaces as a basis for an apparent unlawful command influence claim, because such a statement is broadcast to the force and to the public and can shape perceptions even when no specific decision can be traced to it.

Why a public statement can be so consequential

A statement from a high-ranking official carries the weight of the official’s authority. When a senior leader publicly suggests that a category of offense will not be tolerated, that the guilty should be punished, or that a particular outcome is expected, subordinates who later make decisions in individual cases, convening authorities, potential witnesses, and panel members, may feel pressure to align with the leader’s expressed view. Even where no subordinate consciously yields, the appearance that they might have can be enough to support an apparent unlawful command influence claim. The Court of Appeals for the Armed Forces has emphasized that for apparent unlawful command influence, no showing of intent or knowledge by the speaker is required, and the …

When a service member is questioned during an investigation, the questioner is often not a stranger in a police uniform. It may be a first sergeant, a commander, or another superior in the chain of command. The rank and authority of that person change the nature of the encounter. Because of that dynamic, pressure applied by the chain of command during an investigative interview can in fact give rise to an Article 31 claim. Whether it succeeds depends on how the questioning unfolded and on how the resulting statement is used.

What Article 31 protects

Article 31 of the Uniform Code of Military Justice (UCMJ) is the military’s version of the right against self-incrimination, and in some respects it reaches further than civilian Miranda law. Article 31(b) provides that no person subject to the UCMJ may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing the person of the nature of the accusation, advising that the person does not have to make any statement regarding the offense, and warning that any statement made may be used as evidence against the person in a trial by court-martial.

The reason these warnings carry special weight in the military is precisely the chain-of-command relationship. The effect of superior rank or official position can be so strong that merely asking a question, under the right circumstances, operates as the equivalent of a command. The warning requirement exists to counteract that built-in pressure.

When the warnings are required

Not every conversation triggers Article 31(b). Military courts apply a framework that asks whether warnings were required at all. The protections are triggered when a suspect or accused is questioned for a law enforcement or disciplinary purpose by a person subject to the UCMJ who is acting in an official capacity, and who is perceived as acting in that capacity by the person questioned. The Court of Appeals for the Armed Forces has developed this approach in cases including United States v. Cohen, 63 M.J. 45 (C.A.A.F. 2006), and United States v. Jones, 73 M.J. 357 (C.A.A.F. 2014).

In practice this involves two related inquiries. First, was the questioner acting, or could the questioner reasonably be seen as acting, in a law enforcement or disciplinary capacity, judged by the totality of the circumstances at the time. Second, did the service member perceive the questioning as official rather than …

Service members and their families often hear the terms “Article 32” and “Article 15” used in the same breath, which leads to a common and understandable mix-up. The two share a number in the Uniform Code of Military Justice, but they sit at opposite ends of the disciplinary spectrum. One is a step on the road to a felony-level court-martial. The other is a tool a commander uses to resolve a minor problem without a trial. Knowing which one you are facing changes everything about how you should respond.

Two Different Articles, Two Different Purposes

Article 15 of the UCMJ authorizes nonjudicial punishment, often called NJP, Captain’s Mast in the Navy and Coast Guard, or Office Hours in the Marine Corps. It allows a commander to address minor misconduct and impose limited punishment without sending the case to a criminal trial. Article 32 of the UCMJ is something else entirely. It requires a preliminary hearing before charges can be referred to a general court-martial, the most serious level of military trial. In short, Article 15 is a way to keep a case out of court, while Article 32 is a gateway into the most serious court a service member can face.

What an Article 15 Proceeding Looks Like

An Article 15 is handled inside the chain of command. The commander, not a judge, decides whether the member committed the offense and, if so, what punishment to impose. The process is meant for minor offenses that call for prompt corrective action rather than a federal conviction.

A service member offered nonjudicial punishment generally has the right to refuse it (with a narrow exception for some members aboard a vessel) and instead demand trial by court-martial. That right matters because an Article 15 does not produce a federal criminal conviction. Possible punishments are limited and may include reduction in rank, forfeiture of part of one month’s pay, extra duty, restriction, and a reprimand, with the exact limits depending on the rank of the imposing commander. The member can present matters in defense, examine the evidence relied upon, and appeal the result to a higher commander.

What an Article 32 Proceeding Looks Like

An Article 32 preliminary hearing is far more formal and far more serious. A convening authority details a preliminary hearing officer, who is normally a judge advocate, to preside. The hearing officer acts impartially and produces a written report. The …

When a command moves to separate an enlisted service member for unsatisfactory performance or misconduct, it builds an administrative discharge packet. Members often ask whether the command can reach back into older evaluation reports and counseling entries to support that packet, or whether only fresh, current misconduct counts. The general answer is that prior documented performance issues can be used, and they frequently are central to the case. But their use is governed by rules that both enable and constrain the command, and those rules create real opportunities for the member to push back.

The framework: DoD Instruction 1332.14

Enlisted administrative separations are governed by Department of Defense Instruction 1332.14, which the services implement through their own regulations such as the Army’s AR 635-200 and the equivalent Navy, Air Force, and Marine Corps directives. This instruction sets the bases for separation, the documentation the command must assemble, and the procedural rights of the member. Past performance evaluations and counseling records sit at the heart of the documentary record because the instruction often requires a showing that a problem is persistent and that the member was given a chance to fix it.

Why prior evaluations are usually admissible and relevant

For several separation bases, particularly unsatisfactory performance and a pattern of minor disciplinary infractions, the command must demonstrate that the conduct is not a one-time lapse. Establishing that a deficiency is persistent and that it has continued over time almost necessarily requires looking backward. Prior evaluation reports, periodic performance assessments, and earlier counseling statements are the documents that prove the pattern. So the use of past evaluations is not merely permitted; it is often the only way to satisfy the standard the regulation imposes.

A member’s entire military record can be considered in the separation process. That record cuts both ways: it includes adverse markings and documented shortfalls, and it also includes awards, favorable evaluations, and letters of recommendation that the member can introduce to rebut the command’s narrative.

The counseling and rehabilitation prerequisite

A crucial protection limits how the command uses performance issues. Under DoD Instruction 1332.14, for performance- and conduct-based separations, processing generally may not be initiated until the member has been formally counseled about the deficiencies and afforded a reasonable opportunity to overcome them, as reflected in counseling or personnel records. The point of this requirement is fairness: the member must have been told what was wrong and …

A service member can find themselves subject to two overlapping orders at once: a military protection order issued by a commander and a civilian restraining order issued by a state court. The two instruments come from different sources of authority, follow different procedures, and carry different enforcement consequences. When their terms diverge, the question is not which order “wins” in the abstract but how each operates within its own sphere and what a service member must do to remain in compliance with both.

Two different instruments

A military protection order (MPO) is a command tool. It is issued by a commander, ordinarily memorialized on DD Form 2873, and directs a service member to avoid specified contact, locations, or persons, often following a reported incident of domestic violence or sexual assault. Because it is a lawful order, violating it can be charged as a violation of a lawful order under the UCMJ. An MPO does not require a judicial hearing; a commander may issue it based on the command’s assessment of risk and good order and discipline.

A civilian restraining or protective order, by contrast, is a court order. A state judge or magistrate issues it after some form of due process, typically notice to the respondent and an opportunity to be heard, although many jurisdictions allow a temporary or ex parte order first, followed by a full hearing. The order binds the respondent as a matter of state law and is enforceable through the civilian criminal and contempt systems.

Why the orders can conflict

Conflicts arise because the two systems are not coordinated at the point of issuance. A commander may set conditions tailored to the military environment, such as barracks assignments, duty-location restrictions, or no-contact terms keyed to a unit. A civilian judge may set conditions tailored to a household, custody exchange, or specific addresses. The orders can differ on distance requirements, on whether limited contact is permitted for childcare or property retrieval, and on duration. A service member trying to comply with both can face terms that do not line up.

The governing principle: each order is enforced in its own forum

The military does not treat an MPO and a civilian order as competitors that cancel each other out. The two coexist. An MPO may be issued whether or not a civilian court has also acted, and a civilian order remains valid regardless of what the command …

It is a confusing and frustrating situation for a service member. A leave request is submitted, the command denies it, the member submits another, and at some point those denied requests show up in a negative counseling statement framed as a pattern of misconduct. The member did not skip work, did not go absent without leave, and did not disobey an order; the member simply asked for leave that the command declined to grant. When a command then characterizes the act of requesting leave as a disciplinary problem, a military attorney can play a meaningful role in protecting the member’s record and career. This article explains how.

Why this scenario is troubling on its face

Requesting leave is a normal and authorized part of military life. Leave is a benefit that service members earn, and submitting a request is not misconduct. Denial of a request is a command decision about timing and mission needs, not a finding that the member did anything wrong. So when multiple denied requests are gathered up and described in a counseling statement as evidence of a pattern of misconduct, the framing often does not match the underlying facts.

There can be legitimate concerns lurking nearby. A member who takes leave that was never approved, who departs without authorization, or who fails to return on time may have a genuine disciplinary issue. But the bare fact that requests were submitted and denied is different. A military attorney begins by separating what actually happened from how the command has characterized it, because that separation is frequently where the defense lies.

Examining whether the counseling is accurate and fair

A military attorney first scrutinizes the counseling statement itself. Negative counseling becomes part of a member’s record and can influence promotions, assignments, and future actions, so its accuracy matters. The attorney examines whether the statement accurately describes the leave requests, whether it omits context that would change the picture, and whether it draws an unfair inference from conduct that was not actually wrongful.

The attorney looks for several specific problems. Does the statement mischaracterize lawful requests as misconduct? Does it leave out the reasons the member needed leave or the circumstances surrounding each request? Does it imply a violation that did not occur, such as suggesting the member was absent when in fact the member remained present and simply asked for time off? Does it conflate a denied request …

An administrative separation board, also called an administrative discharge board, hears a service member’s case when the command seeks an involuntary separation and the member is entitled to a board. The board recommends whether to retain or separate the member and, if separation is recommended, the characterization of service. A recurring tension arises when the board’s recommendation conflicts with what commanders in the chain have endorsed. Commanders may have urged separation with an unfavorable characterization, while the board recommends retention or a more favorable discharge, or the reverse. Understanding how that conflict is reviewed and resolved is essential to understanding how much the board’s decision actually protects a service member.

What the board does and what command endorsements are

The board functions as a fact-finding and recommending body. After hearing the evidence and the member’s case, it makes findings on whether a basis for separation exists and recommends a course of action: retention, or separation with a stated characterization such as honorable, general under honorable conditions, or, where authorized, under other than honorable conditions. For the Army, this process is governed by Army Regulation 635-200 for active duty enlisted soldiers, and the other services maintain parallel regulations.

Command endorsements are the recommendations of the commanders who initiate and route the separation action. The initiating commander and intermediate commanders typically express their views on whether the member should be separated and how the service should be characterized. These endorsements travel with the case file. They are influential, because they reflect the chain of command’s assessment, but they are recommendations rather than decisions, and the board’s role is to evaluate the case independently rather than to ratify what commanders have urged.

The separation authority resolves the conflict

When the board’s recommendation contradicts the command endorsements, the conflict is resolved by the separation authority. The separation authority is the official, often a general court-martial convening authority such as a division commander, who holds the power to make the final decision on the separation. This official reviews the board’s findings and recommendation together with the command endorsements and the rest of the record, and then decides what action to take.

Two principles shape that decision. First, the separation authority is not bound by the recommendations of the initiating or intermediate commanders. The command endorsements do not control the outcome, so the existence of strong command support for separation does not require the separation authority …

One of the first surprises for a service member preparing for an Article 32 preliminary hearing is learning how the government plans to present its case. Rather than calling each accuser and witness to testify in person, the prosecution may rely heavily on written statements, investigative reports, and laboratory results. To someone expecting a trial-like proceeding, this can look improper. It is not. The question of whether the government can introduce hearsay at an Article 32 hearing has a clear answer: yes, it generally can, and the reasons reveal a great deal about what this hearing is and is not.

What Hearsay Is and Why It Usually Matters

Hearsay is, in simple terms, an out-of-court statement offered to prove the truth of what it asserts. A written statement that a witness gave to investigators, used to establish that the events described actually happened, is a classic example. At a court-martial, hearsay is generally inadmissible unless it fits within a recognized exception, because the system prefers live testimony that can be tested by cross-examination and observed for credibility. That preference is one of the foundations of a fair trial.

The Article 32 preliminary hearing, however, is not a trial. It is a screening proceeding that asks a narrower question, and that difference is what changes the treatment of hearsay.

Why Hearsay Is Allowed at the Preliminary Hearing

The Military Rules of Evidence, as a general matter, do not apply at an Article 32 preliminary hearing. Apart from a limited set of rules, the evidentiary restrictions that filter what a court-martial panel may hear are relaxed at this stage. The most consequential result of that relaxation is precisely the treatment of hearsay: because the rule against hearsay does not control the proceeding, the hearing officer may consider out-of-court statements and documents that would face objection at trial.

The reason lies in the limited purpose of the hearing. Under the governing statute and Rule for Courts-Martial 405, the preliminary hearing officer 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. Probable cause is a far lower standard than proof beyond a reasonable doubt. Because the proceeding tests only whether there is enough to move forward, the law permits the government to make that showing through documentary materials rather …

Article 120 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. section 920, consolidates the military’s principal sexual offenses into a single article. Within that article, “sexual assault” and offenses involving “sexual contact” are distinct categories that carry different elements, different definitions of the prohibited touching, and different maximum punishments. The distinction is not a matter of degree alone. It rests on a precise statutory difference between a “sexual act” and “sexual contact,” and that difference drives nearly everything else.

The pivotal definitions: “sexual act” versus “sexual contact”

The entire structure of Article 120 turns on two defined terms. A “sexual act” refers to penetration, however slight, of the vulva, anus, or mouth by the penis, penetration of the vulva or anus by any body part or object when done with the requisite intent, and oral contact with the genitalia. In short, a sexual act involves penetration or oral-genital contact.

“Sexual contact” is defined differently. It means touching, or causing another to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, when done with intent to abuse, humiliate, harass, or degrade any person, or to arouse or gratify sexual desire. Sexual contact therefore covers a broader range of touching of intimate areas but does not require penetration. Because clothing-on touching can qualify, sexual contact reaches conduct that a sexual act, by definition, cannot.

This single definitional line is the source of the legal distinction. Offenses built on a “sexual act” are the rape and sexual assault offenses. Offenses built on “sexual contact” are the aggravated sexual contact and abusive sexual contact offenses.

Sexual assault as an offense

Sexual assault under Article 120 is committed when the accused commits a sexual act upon another person under one of the circumstances the statute specifies. Those circumstances include, among others, committing the sexual act by bodily harm, by threatening or placing the person in fear, by making a fraudulent representation that the act served a professional purpose, by inducing a belief by artifice that the accused is another person, or when the accused knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the act is occurring, or is incapable of consenting due to impairment by a substance or due to a mental disease, defect, or condition.

The defining feature is that the prohibited …

Solicitation offenses in the military arise when one person advises, counsels, or urges another to commit an offense with the intent that the offense be committed. The Uniform Code of Military Justice (UCMJ) addresses solicitation in two places. Article 82 covers solicitation of four specific serious offenses: desertion, mutiny, misbehavior before the enemy, and sedition. Solicitation of other offenses is charged under Article 134, the general article. A distinctive complication appears when the person doing the soliciting holds command or supervisory authority over the person solicited, because the relationship of superior to subordinate introduces the possibility of coercion. This article explains how coercion is evaluated in that setting and why command authority changes the analysis.

Two roles command authority can play

Command authority can matter in a solicitation case from two opposite directions, and it is important to keep them separate.

First, command authority can be part of the government’s theory against the superior who did the soliciting. When a superior uses the weight of rank and the power to reward or punish to press a subordinate to commit an offense, the abuse of that authority can aggravate the conduct and bear on how the case is charged and punished. The superior’s position does not excuse the solicitation; if anything, leveraging command power to induce a crime can make the conduct more serious.

Second, command authority can be central to the defense of the subordinate who was solicited and who then acted. A subordinate who carries out an offense because a superior coerced them may raise coercion or duress as a defense to their own culpability. Here the question is whether the subordinate’s will was overborne to the point that the law should not hold them fully responsible. These are different inquiries, and a single set of facts can implicate both.

What the solicitation offense itself requires

Before reaching coercion, it helps to understand what solicitation requires, because the offense is complete early. Solicitation is a specific intent offense. The government must prove that the accused solicited or advised a particular person to commit a particular offense and did so with the intent that the offense be committed. Under Article 82, the solicitation must also be made under circumstances reasonably tending to induce the commission of the enumerated offense. Critically, the offense is complete when the solicitation is communicated with the required intent, regardless of whether the person solicited agrees, …