Military Lawyers

Article 31 of the Uniform Code of Military Justice is one of the most important protections a service member has, yet many troops never need it until the day they are unexpectedly questioned. Because of that, the military builds awareness of Article 31 into training, both for the rank and file who may one day be suspects and for the leaders who must honor those rights. Understanding how this knowledge is delivered helps explain why the protection works in practice and not just on paper.

What Article 31 Protects

Article 31 safeguards service members against compelled self-incrimination during questioning by military authorities. It functions in the military much as the Fifth Amendment does in the civilian world, but in some respects it reaches further. Article 31(b) requires that before a service member suspected of an offense is questioned, they be informed of three things: the nature of the offense of which they are suspected, the right to remain silent, and the fact that any statement made may be used against them in a trial by court-martial.

A key feature distinguishes military practice from familiar civilian rules. Service members must be advised of their Article 31 rights before questioning when they are suspected of an offense, not only after a formal arrest or custodial interrogation. This broader trigger is precisely why training matters. A service member needs to recognize when these rights apply, and a leader needs to know when the duty to advise arises.

Learning Article 31 as a Member

Exposure to Article 31 begins early in a service member’s career. Initial military justice instruction is part of the introduction to military life, and the basics of the UCMJ, including the right against self-incrimination, are covered as new members learn the rules that govern their conduct and protect them. Recruiting and initial-soldier briefings introduce the existence of military justice and the protections that come with it, setting a baseline awareness from the outset of service.

That foundation is reinforced over a career through periodic training. Units conduct recurring instruction on rights and responsibilities, and legal assistance and judge advocate offices publish fact sheets and provide briefings explaining Article 31 in plain terms. These materials commonly explain what the rights are, when they apply, and the single most practical lesson: that a service member who is being questioned as a suspect can decline to answer and can ask for a lawyer. …

Article 96 of the Uniform Code of Military Justice makes it a punitive offense to release a prisoner without proper authority. The offense turns almost entirely on a single word: authority. A custodian who lets a prisoner go has either acted lawfully or committed a crime, and the dividing line is whether the release was authorized by someone with the power to order it. Understanding what counts as authority, who holds it, and how it is established is therefore the heart of any Article 96 case involving release of a prisoner.

The offense in brief

Article 96 covers several related acts, including releasing a prisoner without proper authority and allowing a prisoner to escape through design or neglect. This article addresses the release offense. The elements are straightforward in structure. The government must prove that a certain prisoner was committed to the charge of the accused, and that the accused released that prisoner without proper authority. Because the first element fixes responsibility on a custodian and the second element supplies the wrongful character of the act, the case usually rises or falls on whether proper authority existed.

The maximum punishment for releasing a prisoner without proper authority is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for two years. That penalty reflects how seriously the military treats the integrity of lawful custody.

What “release” means before authority even matters

Authority only becomes relevant once there has been a release, so it helps to define that term first. A release under Article 96 means the removal of restraint by the custodian, not by the prisoner, under circumstances that show the prisoner he or she is no longer in legal confinement or custody. The defining feature is that the custodian, the person responsible for holding the prisoner, is the one who takes the affirmative step of ending the restraint. If the prisoner breaks free on his own, the conduct may fall under a different theory such as allowing escape, but it is not a release by the custodian. The release concept therefore presupposes a deliberate custodial act, which is exactly why the lawfulness of that act depends on authority.

What constitutes proper authority

Proper authority means that the release was directed or permitted by a person who actually possessed the power to order it. A custodian does not generate this power simply by holding the keys. Physical control over …

A flag, formally a suspension of favorable personnel actions, freezes promotions, awards, schooling, reassignment, and other benefits while a soldier is under investigation or in an unfavorable status. For the Army, the governing authority is Army Regulation 600-8-2. When a flag drags on past the timeframes that policy contemplates, soldiers often ask whether a military attorney can object to the extension. The answer is that counsel can act, but the avenue is administrative rather than a formal courtroom objection, and the strength of the challenge depends on the type of flag and the reason it remains in place.

How flags work and what timeframes govern them

Under AR 600-8-2, a flag must be initiated within a set number of working days after a soldier’s unfavorable status is identified and removed within a set number of working days after the final disposition of the matter that justified it. The regulation distinguishes transferable flags, such as those for fitness or weight control, from nontransferable flags, such as those tied to adverse actions, pending involuntary separation, or removal from a selection list. The regulation also builds in periodic review so that a flag does not simply persist by inertia.

The key concept is that a flag is supposed to track an underlying condition. It exists because something is unresolved, and it should end when that something resolves. Many commands layer their own policy guidance on top of the regulation, setting internal expectations for how long a flag should remain open and requiring command review at intervals. When an extension surpasses those command policy timeframes, it signals that the flag may have outlived its regulatory justification, which is exactly the situation that invites a challenge.

The nature of the objection

A military attorney cannot file the kind of evidentiary objection that arises at trial, because a flag is an administrative personnel action, not a judicial proceeding. What counsel can do is mount an administrative challenge grounded in the regulation. That ordinarily means preparing and submitting a written request for removal of the flag through the chain of command, supported by the regulation, the relevant command policy, and the facts showing that the basis for the flag no longer exists or that the timeframes have been exceeded without justification.

The regulation itself contemplates this. It permits a soldier to submit a written request for removal of a flag through the chain of command or to …

Sexual assault prosecutions under Article 120 of the Uniform Code of Military Justice (UCMJ) frequently rest on disputed memory, perception, and behavior rather than on physical evidence. In that environment, a forensic psychologist can be one of the most valuable members of a defense team. The role is broader and more nuanced than simply testifying at trial. It ranges from quiet behind-the-scenes consultation to formal expert testimony, and the military justice system has specific rules governing when and how the defense can obtain that help.

Two distinct roles: consultant and witness

The first thing to understand is that a forensic psychologist can serve in two different capacities, and the difference is legally significant.

As a consultant, the psychologist works confidentially with the defense to help counsel understand the case. The consultant might review investigative materials, evaluate the strength of the government’s psychological or behavioral evidence, identify weaknesses to probe on cross-examination, and help counsel prepare questions. Military courts have stressed the need to distinguish between expert consultants and expert witnesses, and the consultant is provided to the defense as a matter of due process to allow counsel to prepare properly for trial.

As a witness, the psychologist testifies before the panel. In that role the expert offers opinions, subject to cross-examination, on matters within the expert’s qualifications and within the limits the Military Rules of Evidence place on expert testimony. The same person does not always fill both roles, and a defense team will sometimes use one expert to consult and a different one, or none, to testify.

How the defense obtains a forensic psychologist

The defense is not automatically given an expert. Under Article 46, UCMJ, and Rule for Courts-Martial (RCM) 703, the accused is entitled to expert assistance after showing necessity, a principle clarified in United States v. Garries, 22 M.J. 288 (C.M.A. 1986). To establish necessity, the defense must demonstrate three things: the reason the assistance is needed, the goal the assistance is expected to accomplish, and why the defense cannot adequately gather or evaluate the evidence without it.

The military judge rules on the request, and that decision is reviewed for abuse of discretion. Courts have recognized that the investigative, medical, and other expert services available within the military are sometimes sufficient, so the defense must articulate concretely why a forensic psychologist is required in the particular case. A well-supported request ties the need to a …

Defending against a sexual offense charge under Article 120 of the Uniform Code of Military Justice frequently requires more than legal argument. These cases often turn on forensic evidence, the effects of alcohol, memory and the dynamics of trauma, digital communications, or the methods used to collect and analyze physical evidence. To meet that kind of proof, the defense may need its own expert. The Rules for Courts-Martial provide a process for requesting expert assistance, and understanding that process is essential to building an effective Article 120 defense. This article walks through how the request works, the standard the defense must meet, and what happens when a request is denied.

The right to expert assistance

The military justice system recognizes that fairness can require giving the defense access to expert help, not only expert witnesses who testify but also consultants who assist counsel behind the scenes. Rule for Courts-Martial 703 governs the production of witnesses and evidence, including the employment of experts at government expense. The underlying principle is that an accused is entitled to the basic tools of an adequate defense, and in a technical case those tools can include an expert who helps the defense understand and challenge the government’s evidence. In an Article 120 prosecution, that may mean a forensic examiner, a toxicologist, a psychologist or other behavioral expert, a digital forensics specialist, or a sexual assault examination consultant, depending on what the case requires.

The necessity standard

The defense does not get an expert simply by asking. It must show that the assistance is necessary. To establish necessity under the governing rule, the defense generally must demonstrate three things. First, it must explain why the expert assistance is needed, identifying the issue in the case that calls for expertise. Second, it must describe what the assistance is expected to accomplish, connecting the expert to a concrete contribution to the defense. Third, it must explain why the defense cannot adequately gather or address the evidence on its own without the expert’s help. Stated another way, the requested assistance must be relevant and not merely cumulative, and it must contribute in some positive way to the defense on a matter genuinely in issue.

This three part showing is the heart of the process. A vague assertion that an expert would be helpful is rarely enough. The defense should tie the request to specific facts, such as a disputed …

Article 92 of the Uniform Code of Military Justice, codified at 10 U.S.C. 892, punishes failure to obey orders and regulations. It is one of the most frequently charged offenses in the military, partly because it sweeps in several distinct theories of liability. When the charge involves a general order, a recurring question arises about willfulness: does the government have to prove that the accused acted willfully, and if so, how is that done? The answer turns on a subtlety in Article 92’s structure that is easy to miss and important to get right.

The three offenses inside Article 92

Article 92 actually contains three separate offenses. The first is violation of a lawful general order or regulation. The second is failure to obey other lawful orders, meaning orders that do not qualify as general orders. The third is dereliction in the performance of duties. Each has its own elements, and the mental state the government must prove differs across them.

This is the crux of the willfulness question. People often assume that to convict someone of disobeying an order, the prosecution must show the accused knew about the order and deliberately, willfully defied it. For a general order, that assumption is wrong.

Knowledge is not an element for a general order

For a violation of a lawful general order or regulation under the first theory of Article 92, the elements are that there was in effect a certain lawful general order or regulation and that the accused violated or failed to obey it. Knowledge of the order is not an element. The law presumes that service members are on notice of general orders and regulations, because such orders apply across a command or service-wide and members are charged with knowing them.

This has a direct consequence for willfulness. Because the government does not even have to prove the accused knew the general order existed, it likewise does not have to prove that the accused willfully or intentionally set out to break it. A general order violation does not carry a willfulness element. The offense is established by proving the order existed and was lawful and that the accused’s conduct violated it. The accused’s state of mind about the order is not part of the government’s case in chief.

So the honest answer to how willfulness is proven in a general order violation is that, as to the general order …

A command-directed mental health evaluation, often called a command-directed evaluation or CDE, is a referral a commander makes when there is a good-faith concern about a service member’s mental health. Service members who receive such a referral sometimes hesitate or decline, and they understandably worry whether that hesitation can be turned against them as evidence of misconduct. The answer is nuanced. A lawful order to report for an evaluation must generally be obeyed, and disobeying it can have consequences. But the situation is governed by detailed Department of Defense rules, by a service member’s rights against self-incrimination, and by limits on how mental health referrals may be used. Sorting out what can and cannot be used requires looking at each of these pieces.

How command-directed evaluations are governed

Command-directed mental health evaluations are governed by Department of Defense Instruction 6490.04, which sets out when and how a commander may direct an evaluation and what protections the service member receives. Under that framework, a commander or supervisor who in good faith believes a subordinate may require a mental health evaluation can direct one, particularly when the member’s words or actions suggest a risk of serious injury to self or others, or when the commander believes the member may be suffering from a severe mental disorder.

The instruction builds in significant procedural safeguards. A referral may not be used as a reprisal, including as retaliation for whistleblowing. The service member generally has the right, upon request, to consult an attorney about the referral, and to communicate without restriction with an inspector general, an attorney, or a member of Congress concerning the referral. These protections exist precisely because mental health referrals have historically been vulnerable to misuse, and the rules are designed to prevent commanders from weaponizing the process.

A lawful order to report can carry obligations

The first thing to understand is the difference between attending an evaluation and what is said during one. When a commander follows the proper procedures and issues a lawful order directing a service member to report for a command-directed evaluation, that order ordinarily must be obeyed, just as other lawful orders must be obeyed. Reporting as ordered is an act of compliance, and outright refusal to report can expose a member to discipline for disobedience, independent of anything related to mental health.

That said, the order must be lawful and the procedures of the governing instruction …

Most Americans know the Miranda warning from television: the right to remain silent, the warning that anything you say can be used against you, and the right to a lawyer. Service members are entitled to a similar warning, but it comes from a different and in important ways broader source. Article 31 of the UCMJ predates Miranda and protects against self-incrimination in a way that fits the realities of military life. In several respects it reaches further than the civilian rule. This article explains why.

Two Different Origins

The civilian Miranda warning comes from the Supreme Court’s 1966 decision interpreting the Fifth Amendment privilege against self-incrimination. It is triggered by custodial interrogation, meaning questioning of a suspect who is in custody. Article 31 of the UCMJ comes from Congress and was enacted before Miranda. Congress wrote it with the military environment in mind, recognizing that the pressures on a service member are different from those on a civilian. In the ranks, the instinct and the duty to obey a superior’s question can make a “voluntary” statement anything but voluntary. Article 31 was designed to neutralize that pressure.

The Custody Difference

The most significant way Article 31 reaches further is that it does not depend on custody. Miranda warnings are generally required only when a suspect is in custody and subject to interrogation. Article 31, by contrast, requires a rights advisement whenever a person subject to the UCMJ questions a suspect or accused about an offense, regardless of whether the person is in custody.

This matters enormously in a military setting. A first sergeant pulling a soldier aside in the motor pool, a supervisor asking about a missing piece of equipment, or an investigator stopping a sailor in a hallway can all trigger the warning requirement even though none of those situations would count as custody under Miranda. The protection attaches at the point of suspicion and questioning, not at the point of arrest. As soon as someone subject to the UCMJ suspects a member of an offense and asks a question about it, the member is entitled to the advisement.

Notice of the Nature of the Accusation

A second way Article 31 is more protective is in what the warning must contain. Article 31 requires that the suspect be informed of the nature of the accusation before questioning. The person being questioned must be told what offense he is suspected …

When a service member suspected of an offense is questioned, the questioner must give the warnings required by Article 31 of the Uniform Code of Military Justice, codified at 10 U.S.C. 831. If the suspect then chooses to answer questions, that choice is a waiver of the right to remain silent. For the resulting statement to be usable, the waiver must be valid. A practical question that arises in real interrogations is whether the number of investigators in the room can affect whether that waiver holds up. The presence of several investigators does not automatically invalidate a waiver, but it is one of the circumstances a court will weigh in deciding whether the waiver was truly voluntary, knowing, and intelligent.

What a valid Article 31 waiver requires

A waiver of Article 31 rights is not effective simply because the suspect started talking. Military law requires that any waiver be made freely, knowingly, and intelligently. The suspect must possess the physical and mental condition sufficient to make such a waiver, must understand the rights being given up, and must understand the consequences of giving them up. The decision to waive must be the suspect’s own choice, made without compulsion.

This standard mirrors the broader voluntariness inquiry that governs confessions. When the admissibility of a statement is litigated, the prosecution bears the burden of establishing that the statement was made voluntarily, and the military judge must find voluntariness by a preponderance of the evidence. The court evaluates the totality of the circumstances, considering both the characteristics of the accused and the details of the interrogation. A waiver that was the product of an overborne will is not valid, and a statement that follows it is inadmissible.

Why the number of investigators is relevant

The phrase totality of the circumstances is the reason the presence of multiple investigators can matter. The court does not look only at the words of the warning and the suspect’s yes. It examines the whole interrogation environment to decide whether the suspect’s choice to waive was genuinely free. The number of people questioning the suspect is part of that environment.

Several investigators questioning one suspect can change the psychological dynamic of the session. A single person across the table presents a different atmosphere than a room with two or three investigators. Multiple questioners can create a sense of being outnumbered, can allow rapid or overlapping questioning, and can …

Article 82 of the Uniform Code of Military Justice is the solicitation offense. It punishes a service member who solicits or advises another person to commit an offense under the code. Because solicitation is an inchoate crime, meaning the offense is complete upon the act of soliciting regardless of whether the solicited crime is ever carried out, convictions under Article 82 raise a distinctive set of appellate questions. A service member convicted under this article and pursuing review before a service Court of Criminal Appeals or, ultimately, the Court of Appeals for the Armed Forces, will often litigate issues that flow directly from the elements and structure of the offense. This article surveys the kinds of issues that commonly arise, without predicting any particular outcome.

Understanding the Offense First

To see why certain appellate issues recur, it helps to recall what Article 82 requires. Under 10 U.S.C. 882, a person subject to the code who solicits or advises another to commit an offense under the code may be punished as a court-martial directs. The statute treats certain solicitations more severely. Soliciting or advising another to commit desertion under Article 85, mutiny or sedition under Article 94, or misbehavior before the enemy under Article 99 carries heightened consequences, and if the solicited offense is attempted or committed, the punishment can match that of the underlying offense. The gravamen of the crime is the act of soliciting or advising with the intent that the other person commit the offense. The crime is complete when the solicitation is communicated, whether or not anyone acts on it.

Legal and Factual Sufficiency of the Evidence

The most common category of appellate challenge in any military conviction, and certainly in solicitation cases, is the sufficiency of the evidence. Military appellate courts review convictions for both legal sufficiency, asking whether a rational factfinder could have found the elements proven beyond a reasonable doubt, and, within the scope permitted by current law, factual sufficiency.

In an Article 82 case, sufficiency challenges tend to focus on whether the accused’s words actually amounted to a solicitation rather than mere talk, anger, or an expression of opinion. Did the statement seriously seek to induce another to commit an offense, or was it idle venting, a joke, or hyperbole? Whether a communication crosses the line into a genuine solicitation is fact intensive, and that is precisely what makes it fertile ground for …