Military Lawyers

Article 82 of the Uniform Code of Military Justice, codified at 10 U.S.C. section 882, punishes soliciting or advising another person to commit an offense. A frequent question is whether one comment, made a single time and aimed at a relatively minor offense, can support a charge. The short answer is yes, in principle, because Article 82 is structured around the act of solicitation rather than the seriousness of the offense solicited. The longer answer depends on intent, proof, and how the article was restructured in recent years.

How Article 82 Is Built

The 2019 reform of the military justice system, enacted through Public Law 114 to 328 and effective January 1, 2019, divided Article 82 into distinct parts. One subsection addresses soliciting or advising another person to commit any offense punishable under the UCMJ. A separate subsection addresses solicitation of four especially serious offenses: desertion, mutiny, misbehavior before the enemy, and sedition. The first subsection is the key to the question here. By reaching solicitation of any punishable offense, Article 82 plainly extends to offenses that are comparatively minor, not only to the gravest military crimes.

This structure matters because the older version of the article focused on the four enumerated offenses. Today, advising a fellow service member to commit even a low-level UCMJ violation can fall within the general solicitation subsection.

The Elements That Must Be Proven

To convict under the general solicitation portion of Article 82, the government must establish that the accused solicited or advised a certain person or persons to commit an offense under the UCMJ, and that the accused did so with the specific intent that the offense actually be committed. The intent element is decisive. A passing remark, idle speculation, or rhetorical comment without a genuine intent that the act occur does not satisfy the statute. The prosecution must show that the accused meant for the solicited person to carry out the offense.

If the solicited offense was in fact attempted or committed, the government may also need to show that it resulted from the solicitation. But the offense does not need to be carried out for criminal liability to attach. Solicitation is complete when the accused communicates the request or advice with the required intent. The crime lies in the asking, not in the doing.

Why One Statement Can Be Enough

Because solicitation is complete at the moment the request is made …

The preliminary hearing officer, often called the PHO, presides over the Article 32 preliminary hearing that must occur before charges can be referred to a general court-martial. A common question is how active the PHO may be, and in particular whether the officer can question witnesses directly rather than simply listening to the questions posed by trial counsel and defense counsel. The PHO does have authority to question witnesses, but that authority is bounded by the limited purpose of the hearing and by the duty to stay neutral.

The PHO Operates Within a Limited Hearing

Rule for Courts-Martial 405 governs the Article 32 preliminary hearing as it exists after the amendments that took effect on January 1, 2019. The hearing has a narrow function. It determines whether the specification alleges an offense, whether there is probable cause to believe the accused committed the offense, whether the convening authority has court-martial jurisdiction, and what disposition the PHO recommends. Congress removed discovery as a purpose of the hearing, so the proceeding is not a broad fact-finding investigation. Everything the PHO does, including any questioning, must serve those limited determinations.

Consistent with that scope, the PHO is directed to consider only testimony relevant to the issues for determination. If evidence offered by either party falls outside the scope of the hearing, the PHO must inform the parties and halt that presentation. That gatekeeping role is part of why the officer holds questioning authority. To police relevance and to reach a probable cause judgment, the officer must be able to engage with the testimony.

Source of the PHO’s Authority Over Witnesses

The PHO exercises authority that, in the courtroom, would belong to the military judge. When the evidentiary rules are applied at the preliminary hearing, the term military judge means the PHO. That substitution gives the officer the authority a judge would have to manage witnesses and to exclude evidence following the procedures in the applicable evidentiary rules.

Witnesses at the hearing, with the exception of the accused, testify under oath. Because the PHO administers and presides over sworn testimony and must determine its relevance, the officer can put questions to a witness to clarify testimony, to resolve ambiguity, or to develop a point that bears on probable cause, jurisdiction, or the legal sufficiency of the charges. This is independent of the questioning conducted by the parties, in the sense that the officer is …

When a service member first meets with defense counsel, whether a detailed military defense attorney or a retained civilian lawyer, the conversation is usually the most candid the member will ever have about the case. The member describes what happened, shares fears, and reveals facts that may be damaging. The expectation is that everything said in that initial intake is confidential and cannot be used by the government. That expectation is largely correct, because the attorney-client privilege protects these communications. But the privilege is not absolute, and there are narrow circumstances in which statements made during an intake conversation can lose protection. Understanding both the strength of the privilege and its limited exceptions is important for any member relying on counsel.

The Privilege That Protects Intake Communications

In military practice, the attorney-client privilege is governed by Military Rule of Evidence 502. It gives a client the privilege to refuse to disclose, and to prevent others from disclosing, confidential communications made for the purpose of obtaining or facilitating professional legal services. An initial intake meeting falls squarely within this protection. The member is consulting a lawyer to get legal help, and the communications made to that end are confidential. The privilege applies whether or not the lawyer ultimately takes the case, and it attaches even to a preliminary consultation, because the purpose of the meeting is to obtain legal advice. As a general rule, then, what a member tells defense counsel during intake cannot be used against the member.

The Confidentiality Requirement

A core condition of the privilege is confidentiality. The communication must be made privately, in circumstances where disclosure to outsiders is not expected. If a third party who is not part of the legal team is present during the intake, the conversation may not be confidential, and the privilege may not attach. There are exceptions for people whose presence furthers the legal consultation, such as an interpreter, a paralegal, or others reasonably necessary to the representation. But a friend, a family member, or another service member sitting in on the meeting can defeat confidentiality and, with it, the privilege. The same risk arises if the member discusses the case in a setting where others can overhear. The protection depends on keeping the communication within the attorney-client relationship.

Waiver by the Client

The privilege belongs to the client, and the client can waive it. Waiver can occur deliberately, by disclosing …

Yes, an Article 32 preliminary hearing can be revisited when significant new evidence comes to light before the charges are referred to a court-martial. The convening authority who directs the preliminary hearing retains the authority to send a matter back to a hearing officer, and additional proceedings can be arranged when the circumstances warrant. There are also other mechanisms, short of a full new hearing, through which newly discovered information can reach the decision maker before referral. Understanding which path applies depends on the timing, the nature of the new evidence, and where the case sits in the process.

The window before referral is the key. Referral is the formal decision by the convening authority to send specific charges to a court-martial for trial. Until that decision is made, the case remains in the disposition phase, and the system is designed to ensure that the disposition decision rests on an adequate factual picture. New evidence that surfaces during this phase can therefore still be folded into the process.

The Convening Authority Controls the Hearing

The preliminary hearing exists to inform the convening authority’s disposition decision. Because the convening authority directs the hearing in the first place, that same authority can direct further proceedings when appropriate. If important evidence emerges after the initial hearing but before referral, the convening authority can return the case for additional inquiry rather than proceeding on an incomplete record.

This flexibility makes sense given the hearing’s purpose. The preliminary hearing officer is charged with assessing probable cause, jurisdiction, the form of the charges, and the appropriate disposition. If new evidence materially changes the picture on any of those points, allowing the officer to consider it produces a better-informed recommendation. The decision to reopen or hold a further session is a matter committed to the convening authority’s discretion, exercised in light of how significant the new evidence is.

When Reopening Is Likely Warranted

Not every new fact justifies reconvening a hearing. The evidence usually needs to be material, meaning it could realistically affect the probable cause determination or the recommended disposition. Examples of the kind of development that might justify further proceedings include a previously unavailable witness coming forward, the discovery of records that significantly undercut or strengthen the allegations, or the emergence of information that changes whether a specification states an offense or whether jurisdiction exists.

By contrast, minor or cumulative information that does not alter …

The preliminary hearing officer in a military case is required to produce a written report covering the charges, and that report is supposed to address each specification. Sometimes it does not. A charge may be omitted, a probable cause finding may be missing for one specification, or the recommendation may simply fail to discuss a charge that later gets referred to trial. This article explains what that omission means legally, whether it stops the case, and how the defense can use it. The recurring theme is that an Article 32 defect rarely ends a prosecution on its own, but it can still matter.

What the PHO’s written report is supposed to contain

Article 32 of the UCMJ, codified at 10 U.S.C. 832, sets the scope of the preliminary hearing and the report. For the charges before the hearing officer, the report should reflect whether each specification states an offense, whether there is probable cause to believe the accused committed each charged offense, whether the convening authority has jurisdiction, and a recommendation on disposition. The implementing Rules for Courts-Martial require the report to be in writing and to address these matters. A complete report walks through the specifications rather than treating the case as a single undifferentiated block.

When the report omits a charge, several things might have happened: the PHO overlooked it, the parties did not present it clearly, the charge was added later, or the PHO believed it was subsumed in another. The legal significance depends on what the omission actually is.

An Article 32 defect is generally not jurisdictional

The most important principle is that the preliminary hearing is a procedural protection, not a source of the court’s power to act. A defect in the Article 32 process, including a failure to address a charge, does not by itself deprive the court-martial of jurisdiction. This matters because a non-jurisdictional error is treated differently from a jurisdictional one. It generally must be raised in a timely way, and on review it is usually tested for prejudice rather than treated as automatically fatal. So the bare fact that the PHO did not discuss a particular charge does not mean the charge is void.

That said, the protection still has teeth when it is invoked properly and the omission caused real harm.

The remedy is usually to object and seek relief before trial

The correct response to a missing charge in …

Article 120 of the Uniform Code of Military Justice (UCMJ) covers the most serious sexual offenses in the military justice system, including rape, sexual assault, aggravated sexual contact, and abusive sexual contact. A conviction under Article 120 carries severe and lasting consequences. A natural question for anyone with such a conviction is whether it can come back to haunt them later, specifically whether it can be used to increase the punishment if they are convicted of a different offense in the future. The answer is yes, but the mechanism in the military is different from the formal recidivist statutes familiar from civilian law, and the distinctions matter.

The military does not use civilian-style recidivist statutes here

In many civilian systems, a prior conviction can trigger a mandatory sentencing enhancement or a higher statutory range, sometimes automatically. Court-martial sentencing does not generally work that way. Courts-martial do not operate under fixed sentencing guidelines with mechanical criminal-history multipliers. Instead, within the maximum punishment authorized for the new offense, the sentencing authority, either a panel or a military judge, decides an appropriate, individualized sentence. A prior Article 120 conviction does not raise the statutory maximum for a later, unrelated offense. What it does is enter the sentencing calculus as evidence the sentencing authority may weigh.

That distinction is important. The prior conviction does not turn a misdemeanor-equivalent into a felony-equivalent or unlock a higher ceiling. But it can heavily influence where, within the lawful range, the sentence lands, and it can support arguments for a more severe sentence.

How a prior conviction enters the next sentencing: RCM 1001(b)(3)

The principal vehicle is Rule for Courts-Martial (RCM) 1001, which governs presentencing procedure. RCM 1001(b)(3) specifically allows trial counsel to introduce evidence of the accused’s prior military or civilian convictions during the sentencing phase. The theory is that a record of prior convictions illuminates the background and character of the offender, which is a legitimate sentencing consideration. So if a service member is convicted of a new offense and has a prior Article 120 conviction, the government may put that prior conviction before the sentencing authority under RCM 1001(b)(3).

There are limits on what counts as a usable conviction. For a court-martial, a conviction generally exists once a sentence has been adjudged. For civilian matters, the rule treats certain dispositions as convictions and excludes others, such as diversions without a finding of guilt, expunged convictions, …

Digital surveillance data, such as the contents of a cell phone, location records, messages, images, or data pulled from a government device or account, is now central to many courts-martial. When that data is gathered without proper authorization, the defense can move to exclude it. Whether the motion succeeds depends on whether the collection violated the member’s rights, whether an exception applies, and whether suppression would actually deter future misconduct. The governing framework is Military Rule of Evidence 311.

How Digital Searches Are Authorized in the Military

In the military justice system, a lawful search of digital data ordinarily requires one of a few things: the member’s consent, a warrant from a civilian court, or a search authorization issued by a proper military authority, typically a commander with control over the place or property to be searched. To obtain a search authorization, the requesting party must show probable cause to believe that an offense was committed and that evidence connected to it will be found in the place or device to be searched.

A search authorization in the military is the functional equivalent of a warrant, but it is issued by a neutral and detached commander rather than a judge. The commander issuing the authorization does not need formal legal training, but must act neutrally and base the decision on probable cause. When digital surveillance data is collected with none of these justifications, no consent, no warrant, and no valid search authorization, the collection is presumptively unlawful and becomes a target for suppression.

The Suppression Framework Under Military Rule of Evidence 311

Military Rule of Evidence 311 is the mechanism for excluding evidence obtained through an unlawful search or seizure. It provides that evidence gathered in violation of the member’s constitutional or statutory rights is generally inadmissible at court-martial, subject to defined exceptions.

Critically, exclusion is not automatic even when a violation is shown. Before suppressing evidence, the military judge must find that the evidence was obtained as a result of an unlawful search or seizure, that exclusion would result in appreciable deterrence of future unlawful searches or seizures, and that the deterrence benefit outweighs the costs to the justice system. This deterrence-and-balancing requirement is the heart of the analysis. The defense must show not only that the collection was unlawful, but that suppressing the data would meaningfully discourage similar conduct and that the value of that deterrence outweighs the …

Military physicians, nurses, dentists, psychologists, and other health professionals often hold security clearances because their roles touch sensitive operations, intelligence support, or protected information. Their professional lives are also governed by demanding ethical standards: confidentiality, honesty, competence, appropriate boundaries with patients, and integrity in records and prescribing. When a health professional commits a medical ethics violation, the conduct can do more than draw professional discipline. It can also become a security concern that places the clearance at risk. Understanding how an ethics lapse translates into a clearance problem requires looking at the federal adjudicative framework rather than the medical licensing system alone.

The Adjudicative Framework

Security clearance decisions across the federal government are made under the National Security Adjudicative Guidelines, set out in Security Executive Agent Directive 4 and reflected in regulation at Title 32 of the Code of Federal Regulations, Part 147. These guidelines list the categories of conduct that can raise security concerns and the factors that can mitigate them. They are applied under a whole-person concept, meaning adjudicators weigh the entire record rather than reacting to a single isolated allegation. A medical ethics violation is not its own listed guideline. Instead, it becomes relevant because it implicates one or more of the established guidelines, most often the guideline addressing personal conduct.

Guideline E: Personal Conduct

The guideline most frequently engaged by a medical ethics violation is Guideline E, personal conduct. This guideline addresses conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations, all of which can raise doubts about a person’s reliability, trustworthiness, and ability to protect classified information. A health professional who falsifies a medical record, lies on a credentialing application, breaches patient confidentiality, or disregards professional rules demonstrates exactly the kind of judgment and rule-following problem this guideline targets. Personal conduct is consistently one of the most common bases for clearance denial and revocation precisely because it captures dishonesty and unreliability that other guidelines do not specifically name.

Other Guidelines That Ethics Violations Can Trigger

Depending on the nature of the violation, other guidelines may apply alongside or instead of personal conduct. Criminal conduct becomes relevant if the ethics violation also amounts to a crime, such as unlawful prescribing, fraud, or unauthorized disclosure of protected information. Drug involvement and substance misuse can be implicated where a clinician diverts controlled substances or abuses them. Sexual behavior may be at …

Military training is full of moments where service members speak candidly. A trainee role-plays a scenario, narrates a mistake during an after action review, answers a hypothetical posed by an instructor, or confesses to a simulated wrongdoing as part of an exercise. A natural question follows: if a service member says something during training that sounds incriminating, can the government later use that statement as an admission in a court-martial? The answer turns on basic rules of evidence and on the protections that surround compelled and involuntary statements. There is no blanket training exception either way, so the analysis is fact specific.

Admissions are generally admissible, with conditions

As a starting point, a statement made by the accused that is relevant can be offered against the accused as an admission. Under the Military Rules of Evidence, a party’s own statement offered against that party is not barred by the hearsay rule. So the fact that words were spoken during a training event does not, by itself, make them inadmissible. If a service member volunteers during training that he committed a real offense, that statement is potentially usable, subject to the protections discussed below.

The controlling evidentiary framework for confessions and admissions is Military Rule of Evidence 304. An involuntary statement, meaning one obtained through coercion, unlawful inducement, or in violation of the constitutional or Article 31 protections, may not be received in evidence over timely objection. The training context matters because it bears directly on voluntariness, on whether Article 31 warnings were required, and on whether the statement was an acknowledgment of real conduct at all.

Was it a statement about real conduct or only a role?

The threshold question is what the statement actually meant. Much of what is said in training is performance within a scenario, not a factual assertion about the speaker’s real life. If a service member, while playing a role in an exercise, says words that would be incriminating only inside the fiction of the scenario, those words are not an admission of real misconduct and are not relevant for that purpose. The government can use a statement as an admission only if it reflects a genuine acknowledgment about real events. Defense counsel will press hard on the distinction between a scripted or hypothetical utterance and a true confession that happened to occur in a training setting.

The Article 31 warning question

A second major …

Article 82 of the Uniform Code of Military Justice punishes soliciting or advising another person to commit an offense. A recurring question in modern practice involves a service member who tries to solicit someone, but the message never reaches its target. A request gets typed but not sent, an email lands in a spam folder, a text bounces, or a go-between never passes the message along. Does Article 82 still apply when the intended recipient never received the communication? The answer turns on a precise reading of when the offense of solicitation is legally complete and how the doctrine of attempt fills the gap when it is not.

What Article 82 Actually Criminalizes

Following the Military Justice Act of 2016, which took effect on January 1, 2019, Article 82 was broadened considerably. The earlier version reached only solicitation of four named offenses: desertion, mutiny, misbehavior before the enemy, and sedition. The current statute covers solicitation or advising another person to commit any offense punishable under the code, with the four traditional offenses now carrying heightened punishment exposure. This expansion absorbed solicitation conduct that prosecutors had previously charged under the general article.

To convict, the government must show that the accused solicited or advised a particular person to commit a specific offense and that the accused intended the offense to be committed. The crime is one of specific intent. A vague comment, an angry outburst, or abstract approval of wrongdoing does not satisfy the statute. The accused must genuinely want the solicited act carried out.

The Communication Requirement Is the Core of the Question

Solicitation is what military and civilian courts often describe as a communication offense. The crime is generally complete the moment the solicitation is communicated to another person. It does not matter whether that person agrees, refuses, ignores the request, or ever acts on it. The harm the statute targets is the act of reaching out to enlist another in criminal conduct.

That principle is exactly why a message that is never received creates a problem for a completed Article 82 charge. If communication to another person is the act that completes the offense, then a request that never arrives has not been communicated in the sense the offense requires. A draft solicitation sitting unsent, a voicemail that fails to record, or an intermediary who never delivers the message arguably leaves the solicitation incomplete. In that situation, the …