Military Lawyers

Article 88 of the Uniform Code of Military Justice, codified at 10 U.S.C. 888, is one of the most unusual punitive articles in military law. It criminalizes the use of contemptuous words by a commissioned officer against certain high public officials. It is narrow in who it reaches, specific about whom it protects, and bounded by limits that keep ordinary political debate outside its scope. Anyone trying to understand whether particular conduct could be charged under Article 88 needs to look carefully at each element the government must prove beyond a reasonable doubt.

The statutory text

The article reads, in substance, that any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which the officer is on duty or present shall be punished as a court-martial may direct. The text fixes both the class of speaker and the list of protected officials, and those two features drive the analysis.

The required elements

To obtain a conviction, the prosecution must establish each of the following beyond a reasonable doubt.

First, that the accused was a commissioned officer of the United States armed forces at the time of the conduct. This is a threshold status element, and it is what makes Article 88 distinctive. Enlisted members and warrant officers who are not commissioned are outside the article’s reach.

Second, that the accused used certain words against one of the officials or bodies named in the statute. The words must actually be directed against a covered official, not merely uttered in the abstract.

Third, that the official was one of those specifically enumerated: the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of a State, Commonwealth, or possession. The list is exclusive. Contemptuous words about a senator individually, a federal judge, or a foreign head of state do not satisfy this element, although such conduct might implicate other articles.

Fourth, that the words were contemptuous. Words are contemptuous when they are insulting, rude, or disdainful, expressing scorn rather than reasoned disagreement. Harsh criticism alone is not enough; the speech must cross into derision of the official.

Fifth, that the words were communicated in a manner …

Military life involves a great deal of forceful, blunt, and sometimes profane communication. Members complain about orders, joke darkly about wanting things to go wrong, and argue heatedly without anyone treating those words as crimes. Yet the Uniform Code of Military Justice does criminalize certain communications as solicitation. The line between a chargeable solicitation and mere talk, venting, or abstract advocacy is therefore important and often misunderstood. This article explains how military law separates solicitation from incitement and from ordinary speech, focusing on the elements that actually distinguish a crime from words.

What solicitation is under the UCMJ

Solicitation in the military is principally addressed by Article 82 of the UCMJ. The 2016 reforms, effective in 2019, restructured Article 82 so that it now covers soliciting or advising another to commit an offense under the code, with a separate subsection for soliciting the gravest enumerated offenses such as desertion, mutiny, and misbehavior before the enemy. Solicitation of offenses not reached by Article 82 may be charged under Article 134. Across these provisions the core idea is constant: the accused must seriously ask, advise, or counsel another person to commit a specific criminal offense, with the intent that the offense actually be committed.

The decisive feature is specific intent. The government must prove that the accused intended the solicited offense to be carried out. Negligent, reckless, or careless words do not qualify. The communication must be capable of being reasonably understood as a serious request or inducement to commit a particular crime, not as a passing remark.

Why general speech is not solicitation

Most communication, however heated, falls outside solicitation because it lacks the serious request and the criminal intent. Venting frustration, expressing a wish that something bad would happen, sarcasm, dark humor, and abstract complaint are not solicitation. A member who says they wish a disliked supervisor would disappear has not solicited a crime; there is no serious request that a particular offense be committed and no intent that anyone act on the words. Similarly, expressing an opinion, debating policy, or even voicing disagreement with lawful authority is speech, not a criminal inducement.

The test is whether the words, in context, would reasonably be construed as a genuine attempt to get another person to commit the specified offense. The focus is on the seriousness and purpose of the communication, judged by all the surrounding circumstances, not on whether the words …

Service members often assume that anything they say to a superior could later be used against them, and they sometimes assume the opposite, that off-the-cuff remarks during an informal chat are harmless. Both assumptions are too simple. Article 31 of the Uniform Code of Military Justice, codified at 10 U.S.C. 831, protects against compelled self-incrimination and requires warnings in defined circumstances, but it does not cloak every word spoken to command. Whether a casual conversation with a supervisor is protected depends on a specific legal test, not on how relaxed the setting felt.

What Article 31 Actually Requires

Article 31(b) prohibits a person subject to the code from interrogating, or requesting any statement from, an accused or a person suspected of an offense without first informing that person of the nature of the accusation, the right to remain silent, and the fact that any statement made may be used as evidence against them in a court-martial. Unlike civilian Miranda warnings, Article 31 does not depend on custody. The protection can attach even when the service member is free to leave, which makes it broader than its civilian counterpart in that respect.

But Article 31 is also narrower in a crucial way. The warning requirement is triggered only when the questioning is official. Casual conversation, by itself, is not interrogation. The statute uses the language of interrogation and requesting a statement, and military courts have read into it a requirement that the questioning carry an official law enforcement or disciplinary character before warnings become necessary.

The Modern Two-Part Test

For years military courts applied the framework articulated in United States v. Duga, which asked whether the questioner was acting in an official capacity and whether the person questioned perceived the inquiry as more than a casual conversation. The Court of Appeals for the Armed Forces later refined this approach. In United States v. Swift, the court framed the inquiry around two objective questions. First, was the person being questioned a suspect at the time, judged by whether the questioner believed or reasonably should have believed the service member had committed an offense. Second, was the questioner participating in an official law enforcement or disciplinary investigation or inquiry, judged by whether the questioner was acting, or could reasonably be considered to be acting, in that official capacity.

This objective focus matters. The test no longer turns primarily on the subjective feelings of …

Yes. A service member can be charged, referred to a general court-martial, and even convicted under Article 120 of the Uniform Code of Military Justice without any physical or forensic evidence. Article 120, codified at 10 U.S.C. 920, addresses rape, sexual assault, and related offenses, and nothing in the statute or in the rules of evidence requires DNA, injury, medical records, or other tangible proof. This surprises many people, so it is worth explaining how the system actually works and what it means for an accused.

No corroboration requirement

The central reason physical evidence is not required is that military law, like civilian law, does not impose a general corroboration requirement for the testimony of a complaining witness in a sexual offense case. The sworn testimony of one witness, if the factfinder believes it beyond a reasonable doubt, is legally sufficient to support a conviction. That means an Article 120 case can be built entirely on what the alleged victim says happened, supported perhaps by statements about the surrounding circumstances, without any laboratory result or medical finding.

Why so many cases lack physical evidence

This is not a loophole. It reflects the reality of how these offenses occur. Sexual assault frequently happens in private, between people who already know each other, with no witnesses. In many cases the physical act itself is undisputed and the contested question is consent or capacity to consent, which leaves no forensic signature at all. A DNA match may confirm that contact occurred while saying nothing about whether it was consensual. For these reasons, a large share of Article 120 prosecutions proceed with little or no forensic component, and the case turns on credibility.

The charging decision

Whether to prefer and refer charges is a separate question from whether evidence exists in a lab report. Charges are preferred when a person subject to the UCMJ swears that an offense occurred, and they are referred to court-martial by a convening authority, advised by a legal review, after a preliminary hearing under Article 32 assesses whether there is probable cause. Probable cause is a low threshold. A credible, detailed account from a complaining witness can satisfy it on its own. So a service member can absolutely face formal charges without any physical evidence in the file.

What the government must still prove at trial

Although physical evidence is not required, the government’s burden does not change. At …

Article 91 of the Uniform Code of Military Justice punishes insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer. It covers three distinct behaviors: striking or assaulting such a person, willfully disobeying that person’s lawful order, and treating that person with contempt or being disrespectful in language or deportment. Because the offense reaches enlisted members and the structure of military discipline, the question of what raises the severity of a sentence comes up often. The answer has two layers. First, the offense itself contains built-in elements that change the ceiling on punishment. Second, separate sentencing rules allow the government to present aggravation evidence that pushes a sentence toward the higher end of whatever range applies.

Severity Built Into the Offense Itself

Article 91 does not carry a single maximum punishment. The ceiling depends on what the accused did and the status of the person involved. Striking or assaulting a warrant officer is treated most seriously, followed by striking or assaulting a superior noncommissioned or petty officer, then striking or assaulting other noncommissioned or petty officers. Willful disobedience of a lawful order carries its own range, and contempt or disrespect sits at the lower end. In this sense, the facts that elevate the maximum are part of the charge rather than separate aggravators. Moving from disrespect to disobedience to physical assault changes the legal ceiling before any evidence about circumstances is even heard.

The status of the victim matters as well. The term “superior” noncommissioned or petty officer carries weight because the rank relationship and the duty context can raise the authorized punishment compared with conduct directed at a peer-level noncommissioned officer.

The “In the Execution of Office” Element

A recurring factor that affects Article 91 cases is whether the warrant officer, noncommissioned officer, or petty officer was acting in the execution of their office at the time of the conduct. This element is significant because it goes to whether the offense is fully made out under the more serious framing. Conduct directed at a noncommissioned officer who is carrying out official duties is treated differently from conduct that occurs in a purely private setting unrelated to military function. Counsel on both sides pay close attention to this point because it can move a case between charging theories and affect exposure.

Aggravation Evidence at Sentencing

Even after findings, the punishment is not fixed at a single number. Military sentencing …

Article 31(b) of the Uniform Code of Military Justice (UCMJ) gives service members a self-incrimination warning that is broader than the civilian Miranda rule. The protection attaches even when the suspect is not in custody, which routinely surprises people who assume the only warning that matters is the one familiar from television. The harder question arises when a case is worked jointly by military investigators and civilian agencies, such as the Federal Bureau of Investigation, a state or local police department, or a Defense Criminal Investigative Service component cooperating with civilian prosecutors. In that setting, the timing and source of the warning can determine whether a statement is admissible at a court-martial. This article explains when the Article 31 warning must be given during a joint civilian-military investigation.

What Article 31(b) actually requires

Article 31(b) prohibits anyone subject to the UCMJ from interrogating, or requesting any statement from, a person suspected of an offense without first informing that person of three things: the nature of the accusation, the right to remain silent, and the fact that any statement made may be used as evidence against the person in a trial by court-martial. The warning is triggered by two conditions. First, the person must be suspected or accused of an offense. Second, the questioner must be acting in an official law-enforcement or disciplinary capacity rather than in a purely personal or operational one. When both conditions are present, the warning must precede the questioning, not follow it.

A separate and additional layer comes from the right to counsel. In United States v. Tempia, the Court of Military Appeals (a predecessor to today’s Court of Appeals for the Armed Forces) held that the Supreme Court’s decision in Miranda v. Arizona applies to the armed forces. The practical result is that a suspect subjected to custodial interrogation must be advised not only of the Article 31(b) rights but also of the right to consult with and have a lawyer present during questioning. Military Rule of Evidence 305 codifies these warning and counsel requirements and the consequences of failing to honor them.

The key question: was the civilian acting for the military?

Article 31(b) by its terms binds persons “subject to” the UCMJ. A purely civilian investigator who is pursuing an independent civilian case is generally not bound by Article 31 and need only comply with the civilian standards that govern that investigator, principally …

An Article 32 preliminary hearing is the step that must occur before charges can be referred to a general court-martial under the Uniform Code of Military Justice (UCMJ). When that hearing is slow to be scheduled, an accused service member naturally asks whether the delay itself is a legal violation. The accurate answer is nuanced. A delay in scheduling the Article 32 hearing does not, by itself, automatically violate due process. But delay can become legally significant when it contributes to a denial of the right to a speedy trial, when pretrial confinement is involved, or when the government’s lack of diligence prejudices the defense. The hearing’s timing is therefore best understood as one input into broader speedy-trial protections rather than as a standalone deadline whose breach ends the case.

What the Article 32 hearing is for

The Article 32 hearing, codified at 10 U.S.C. 832, is a preliminary proceeding conducted by a hearing officer before referral to a general court-martial. Its purposes include determining whether there is probable cause to believe an offense was committed and that the accused committed it, assessing whether the court-martial would have jurisdiction, and recommending the disposition of the charges. It also gives the defense an early, recorded look at the government’s evidence. Because the hearing precedes referral, scheduling it is a necessary milestone on the path to trial, and its pace affects the overall timeline of the prosecution.

Speedy trial is the governing framework

The legal question is usually not whether the hearing was scheduled by a particular date, but whether the accused’s speedy-trial rights were honored. Several protections overlap here. The Sixth Amendment guarantees a speedy trial. Rule for Courts-Martial (RCM) 707 sets a 120-day clock within which the accused must generally be brought to trial, subject to excludable delay. And Article 10 of the UCMJ provides a more demanding standard when the accused is in pretrial confinement, requiring that immediate steps be taken to inform the accused of the charges and to either bring the accused to trial or release the accused. A delay in scheduling the Article 32 hearing can eat into these timelines and is evaluated within them rather than judged in isolation.

Pretrial confinement raises the stakes

The presence of pretrial confinement changes the analysis considerably. Article 10 imposes a stricter speedy-trial standard than the Sixth Amendment baseline, because the accused is being held before any conviction. When …

Confessions are powerful evidence, and the military justice system treats them with appropriate caution. When a service member makes a statement after a long, exhausting stretch of duty, the reliability and voluntariness of that statement come under real pressure. The question of who must prove what, and to what level of certainty, is central. The burden rests squarely on the government, and fatigue from extended duty hours is one of the circumstances that can undermine the government’s ability to carry it.

The government bears the burden of voluntariness

In a court-martial, when the defense challenges a confession as involuntary, the prosecution carries the burden of establishing that the statement is admissible. The accused does not have to prove the statement was coerced. The government must affirmatively show that it was voluntary.

The standard of proof is a preponderance of the evidence. The military judge, ruling on a motion to suppress, must find by a preponderance that the statement was voluntarily made. This burden flows from the same constitutional principles the Supreme Court recognized in Jackson v. Denno, which established that an accused is entitled to a fair and reliable determination of voluntariness made independently of the statement’s truth or falsity. The purpose is to prevent the use of a coerced confession as a violation of due process, regardless of whether the confession happens to be accurate.

The totality of the circumstances test

Voluntariness is not decided by any single fact. The military judge examines the totality of the circumstances surrounding the statement. That inquiry weighs both the characteristics of the accused and the details of the interrogation.

On the accused’s side, courts look at factors such as age, experience, education, mental and physical condition, and overall state at the time of questioning. On the interrogation side, courts examine the length of the questioning, the conditions under which it occurred, the conduct of the interrogators, and whether any pressure, threats, or inducements were used. The central question is whether the accused’s will was overborne, meaning the statement was not the product of a free and rational choice.

Why extended duty hours matter

This is where the timing of a confession after extended duty hours becomes legally significant. Sleep deprivation and fatigue directly affect a person’s capacity to make a free and rational decision. Long-recognized principles of confession law hold that deprivation of sleep, like deprivation of food or the use of …

No. A civilian witness cannot be compelled to attend an Article 32 preliminary hearing. This is one of the most misunderstood points in the military justice process, because the rules that govern compulsory process at a later court-martial are very different from the rules that govern the preliminary hearing. Understanding the distinction matters, because the inability to force civilians to appear shapes how both sides prepare for and use an Article 32 hearing.

What an Article 32 hearing is

Since the Military Justice Act of 2016 took effect, the Article 32 proceeding is a preliminary hearing rather than the older, broader investigation. It is governed by Article 32 of the Uniform Code of Military Justice and by Rule for Courts-Martial 405. A preliminary hearing officer, often called the PHO, presides. The hearing has a limited statutory purpose: to determine whether there is probable cause to believe an offense was committed and that the accused committed it, to consider whether the convening authority has jurisdiction, to consider the form of the charges, and to recommend a disposition. It is not a trial and not a mini-trial.

Why civilians cannot be forced to attend

The compulsory process used to bring civilians to a court-martial does not extend to the preliminary hearing. A preliminary hearing officer has no authority to issue a subpoena commanding a civilian to appear and testify at an Article 32 hearing, and a civilian who declines to come cannot be punished for that refusal. The hearing is designed to move efficiently toward a probable cause determination, and Congress deliberately did not arm it with the power to drag reluctant civilians before it.

This does not mean civilian testimony is irrelevant at the preliminary hearing. A civilian witness who is willing to appear may do so voluntarily. In addition, the PHO may consider sworn statements, prior testimony, investigative reports, and other documentary evidence, so the substance of what a civilian would say can still reach the hearing even when the person does not appear in the room.

The pre-referral subpoena for evidence

There is a narrow but important mechanism for obtaining evidence before referral. Under the current rules, if the preliminary hearing officer determines that evidence not under the government’s control is relevant, not cumulative, and necessary, the PHO may direct trial counsel to issue a pre-referral investigative subpoena to produce that evidence, and a military judge may be involved …

A service member who is moving between assignments occupies an unsettled position. The member may have departed one command, may not yet have reported to the next, and may be on leave or in travel status in between. When an alleged offense surfaces during this window, a natural question arises about whether a court-martial can exercise personal jurisdiction over the member at all, and if so, which command may convene the proceeding. The governing principle is straightforward, but applying it during a transition requires attention to the difference between the existence of jurisdiction and the proper exercise of it.

Personal jurisdiction depends on military status

Court-martial personal jurisdiction over a service member rests on the member’s status as a member of the armed forces, not on where the member happened to be or what the member was doing when an offense occurred. The Supreme Court settled this in Solorio v. United States, 483 U.S. 435 (1987), which held that the jurisdiction of a court-martial depends solely on the accused’s status as a member of the armed forces and not on any service connection of the offense charged. In doing so the Court overruled the earlier service-connection requirement of O’Callahan v. Parker.

The practical consequence for transition cases is decisive. As long as the member remains in a status that subjects the member to the Uniform Code of Military Justice, personal jurisdiction exists. A permanent change of station, time spent in travel, or authorized leave between assignments does not by itself sever that status. The member who has left one unit and not yet joined the next is still in the armed forces, and that continuing status is the foundation of jurisdiction.

When does military status attach and end

Because status is the test, the real jurisdictional questions are when status begins and when it ends. Status generally attaches when a person enters the armed forces through a valid enlistment or commission and continues until the member is validly discharged or otherwise separated. A member who is mid-transition has neither been discharged nor stepped outside the force, so status, and with it personal jurisdiction, persists throughout the move. Offenses committed during leave, during travel between duty stations, or in the gap before reporting to a gaining command remain within reach of court-martial jurisdiction because the member’s military status is uninterrupted.

This is why a transition does not create a jurisdictional safe …