Military Lawyers

Yes. A military protective order can shape an Article 120 defense in significant and sometimes underappreciated ways. It restricts how the accused can communicate and move, it creates a new and independent risk of additional charges, and it can influence how a panel and a command perceive the case. A defense strategy that ignores the protective order is incomplete.

What a military protective order is

A military protective order, often called an MPO and typically issued in writing on Department of Defense Form 2873, is an order from a commander directing a service member to stay away from and refrain from contacting a specified person. Commanders commonly issue an MPO early, when there is reason to believe a service member may have engaged in conduct that could lead to a court-martial, including allegations of sexual assault under Article 120. The order can prohibit direct and indirect contact through any means, including in person, by phone, by text, by email, or through third parties, and it can require the service member to remain a certain distance from the protected person.

An MPO is a command instrument and is distinct from a civilian protective order issued by a court. Both can be in effect at the same time, and the accused must comply with each.

The most serious risk: a new charge

The single largest way an MPO affects defense strategy is the danger of an independent violation. Because an MPO is a lawful order, violating it can itself be charged. Failure to obey an MPO is commonly prosecuted as a violation of Article 92 of the UCMJ for failure to obey a lawful general order or regulation or other lawful order. In some circumstances, depending on who issued the order, a violation can implicate Article 90, which concerns willfully disobeying a superior commissioned officer.

This matters enormously to defense planning. A service member facing an Article 120 allegation who then contacts the complaining witness, even with innocent intent, even to apologize, even to seek reconciliation, can hand the government a second, easier-to-prove charge. A violation can also be used as evidence of consciousness of guilt and can undercut credibility. As a practical matter, defense counsel routinely advise clients that strict compliance with the MPO is non-negotiable, because the violation is often simpler for the government to prove than the underlying Article 120 offense.

Effects on building the defense

An MPO also …

A second confirmed positive urinalysis is one of the most serious administrative problems a Sailor can face. The instinct of many Sailors is to assume that two positives mean automatic discharge. The legal reality is more nuanced. Navy policy makes separation processing mandatory after a confirmed positive result, but mandatory processing is not the same thing as mandatory separation. Whether a Sailor can be retained after two consecutive positives depends on the type of discharge action, the strength of the evidence, and the discretion left to decision makers along the way.

Mandatory processing is not mandatory discharge

The governing Navy policy on drug abuse separations, MILPERSMAN 1910-146, directs that processing for administrative separation is mandatory when a member’s urine is tested and confirmed positive at a Navy drug screening laboratory or another Department of Defense approved laboratory. That language tells the command it must initiate the separation process. It does not tell the ultimate decision maker that the Sailor must be discharged.

This distinction matters enormously. “Processing” means the chain of command must start the separation action and route it through the required steps. The outcome of that action, retention or separation, is a separate question decided later by the appropriate separation authority, sometimes after an administrative separation board has weighed the evidence and made a recommendation.

The role of the administrative separation board

Whether a Sailor gets a board depends largely on length of service and the characterization of discharge the command seeks. Sailors with sufficient years of service, or those facing a potential other than honorable characterization, are generally entitled to have their case heard by an administrative separation board before any discharge becomes final. At that board, the Sailor and counsel can present evidence, cross-examine witnesses, and argue for retention.

An administrative separation board makes two basic decisions: whether the alleged misconduct is supported by a preponderance of the evidence, and if so, whether the Sailor should be retained or separated and with what characterization of service. A board is entitled to recommend retention even when it finds that drug abuse occurred. That is the legal mechanism by which a Sailor with two positives can stay in the Navy. The board, or the separation authority, can decide that retention is warranted under the circumstances.

What can support retention

Several lines of argument can support a retention recommendation. First, the Sailor may contest whether the positives reflect knowing, …

Service members are stationed and deployed around the world, and allegations of sexual assault sometimes arise from conduct that took place outside the United States. A common question is whether a charge under Article 120 of the Uniform Code of Military Justice can rest on conduct that occurred in a foreign country. The short answer is yes. Military jurisdiction follows the service member based on status rather than geography, and the punitive articles of the UCMJ apply worldwide. But the foreign location introduces practical complications involving foreign authorities, evidence gathering, and the relationship between the host nation’s legal system and the court-martial.

Military Jurisdiction Is Status-Based, Not Territorial

Unlike most civilian systems, where jurisdiction often depends on where an offense occurred or what subject matter is involved, the military justice system exercises jurisdiction based on a person’s military status. If the accused was subject to the UCMJ at the time of the offense and the conduct is punishable under the code, the court-martial generally has jurisdiction regardless of where the conduct happened.

Article 5 of the UCMJ reinforces this by providing that the code applies in all places. Because the punitive articles apply everywhere, an Article 120 offense committed by a service member in a foreign country is no less chargeable than one committed on a domestic installation. The location of the conduct does not strip the court-martial of authority. This worldwide reach is a defining feature of military criminal law and is essential to maintaining discipline among forces deployed far from the United States.

Article 120 Applies the Same Way Abroad

Article 120 punishes rape, sexual assault, aggravated sexual contact, and abusive sexual contact, and its elements do not change based on the country where the conduct occurred. The government must prove the same things abroad as at home: that a sexual act or sexual contact occurred and that it took place under circumstances the statute prohibits, such as by force, by threat, without consent, or where the other person was incapable of consenting because of impairment, sleep, or unconsciousness. The definition of consent and the circumstances that negate it are matters of military law, applied uniformly wherever the case arises. A foreign setting does not import foreign definitions of the offense into the court-martial.

Concurrent Jurisdiction and the Host Nation

The most significant practical wrinkle when conduct occurs in a foreign country is that the host nation usually …

The punishment for soliciting a serious, felony-level offense under the UCMJ is not set by a fixed number that applies to every case. Instead, the sentence is tied to the offense the accused tried to bring about. As a general rule, solicitation under Article 82 is punished by reference to the offense solicited, and the maximum authorized punishment for the solicitation cannot exceed the maximum authorized for that underlying offense. That principle is the single most important thing to understand, because it means there is no one-size-fits-all range. The exposure depends entirely on what crime the accused solicited.

Because the question of sentencing causes a great deal of anxiety, it is worth walking through how the framework actually works, why the underlying offense controls, and what factors shape the sentence a panel or judge ultimately imposes.

The Punishment Tracks the Underlying Offense

Article 82 of the UCMJ punishes a service member who solicits or advises another to commit an offense, with the intent that the offense be committed. The Manual for Courts-Martial sets the maximum punishment for solicitation by reference to the offense that was solicited. In practical terms, the more serious the offense the accused tried to instigate, the greater the potential punishment for the solicitation.

For the gravest offenses historically singled out in the statute, such as desertion, mutiny, misbehavior before the enemy, and sedition, the law provides that if the solicited offense is attempted or committed, the soliciting member faces the punishment provided for the commission of that offense. The general principle running through the framework is that the punishment for solicitation does not exceed the maximum authorized for the underlying offense. This is why no universal numeric range can be quoted. A solicitation tied to a low-level offense carries modest exposure, while a solicitation tied to a felony-level offense carries exposure approaching that of the serious crime itself.

Why There Is No Single Felony Range

The phrase felony-level is a useful shorthand for offenses that, in civilian terms, would be serious crimes, but the military does not use a civilian felony grading system to set solicitation punishments. Instead, each punitive article carries its own maximum, and Article 82 borrows from that maximum. A service member asking what range applies to solicitation of a felony-level offense is really asking two questions at once: which specific offense was solicited, and what is the maximum punishment authorized for that …

Yes. At a modern Article 32 preliminary hearing, both the government’s representative and the defense are permitted to argue for the disposition each side believes is appropriate. This is not a courtroom-style summation to a jury, because there is no panel and no finding of guilt at this stage, but each party does have the right to address the preliminary hearing officer and advocate for a recommendation. Understanding what that argument can and cannot accomplish requires understanding what the Article 32 hearing is for after the major statutory changes that took effect on January 1, 2019.

The Narrowed Purpose of the Article 32 Hearing

Article 32 of the Uniform Code of Military Justice requires a preliminary hearing before a charge can be referred to a general court-martial. Rule for Courts-Martial 405 implements that requirement. After the National Defense Authorization Act for Fiscal Year 2014 and later amendments, the hearing’s purpose is limited. The preliminary hearing officer determines whether each specification alleges an offense, whether there is probable cause to believe the accused committed the offense charged, whether the convening authority has court-martial jurisdiction over the accused and the offense, and what disposition the officer recommends.

Congress deliberately removed discovery as a purpose of the hearing. The proceeding is no longer the broad investigative tool it once was. That narrowing shapes the scope of any argument the parties make. Argument must stay tethered to probable cause, jurisdiction, the legal sufficiency of the charges, and the appropriate disposition.

The Right of Each Party to Argue Disposition

Under the procedures governing the hearing, the government’s counsel is allowed to present evidence, cross-examine witnesses, and argue for a disposition appropriate to the interests of the government. The defense has parallel rights. Defense counsel may present evidence relevant to the limited purposes of the hearing, cross-examine witnesses who testify, and argue for a disposition appropriate to the interests of the accused.

So the answer to the question is structural, not discretionary. Both sides are entitled to advocate. The government typically argues that probable cause exists, that the charges are properly framed, and that referral to a general court-martial is the appropriate disposition. The defense typically argues that probable cause is lacking on some or all specifications, that certain charges fail to state an offense, or that a lesser disposition, such as dismissal of particular charges, nonjudicial punishment, or administrative action, better serves the interests of …

Article 88 of the Uniform Code of Military Justice (UCMJ) is one of the most frequently misunderstood punitive articles. People hear that it forbids “contemptuous words” toward civilian leaders and assume it bans officers from holding or voicing political views. That is not what the article says or how it has been applied. The accurate answer is narrower and more interesting: an officer cannot be punished for holding or expressing a political opinion as such, but the manner in which that opinion is expressed can cross into criminal contempt. The line is between criticism and scorn.

What Article 88 says

Article 88, codified at 10 U.S.C. 888, provides 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.

Several features of the text deserve emphasis. The article applies only to commissioned officers. Enlisted members and warrant officers without commissions are not covered by Article 88, although other provisions such as Article 134 may reach disrespectful or disloyal speech in some circumstances. The article also lists a closed set of protected officials and bodies. Contemptuous words about a local mayor, a federal judge, or a foreign leader, for example, do not fall within Article 88 because those targets are not named. For a state governor or legislature, the statute adds a geographic qualifier: the officer must be on duty or present in that state, commonwealth, or possession.

The required elements

To convict under Article 88, the government must prove that the accused was a commissioned officer, that the accused used certain words against one of the named officials or bodies, that the words came to the knowledge of a person other than the accused by an act of the accused, and that the words were contemptuous, either on their face or by the circumstances in which they were used.

The element that does the real work is the requirement that the words be contemptuous. Contempt in this context means more than disagreement, more than criticism, and more than emphatic disapproval. It connotes scorn, derision, or disdain directed at the official. Words that merely express a policy disagreement, even strongly, are not automatically contemptuous.…

When a service member is being processed out of the military, the speed of the administrative machinery can outrun the member’s medical reality. A common and serious problem arises when a member with a potentially disqualifying medical condition is pushed toward an administrative separation before that condition has been evaluated through the disability system. The question is whether a military attorney can stop, or at least pause, the discharge when the relevant medical documentation was never reviewed. The answer is a qualified yes, and it rests on the relationship between two parallel systems.

Two different exit paths

The military has two distinct ways a member can be separated for reasons other than completing a normal term. One is administrative separation, governed at the Department of Defense level by DoD Instruction 1332.14 for enlisted members, with service implementing regulations. Administrative separation addresses things like unsatisfactory performance, misconduct, or failure to meet standards. The other is the Disability Evaluation System (DES), governed by DoD Instruction 1332.18 and implemented through the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) process. The DES exists to determine whether a member’s medical condition makes the member unfit for continued service and, if so, what disability disposition and benefits apply.

These two paths lead to very different outcomes. A disability separation or retirement can carry significant benefits, including potential disability pay and protected status, while an administrative separation may carry none of those and can come with a less favorable characterization of service. That difference is exactly why the sequencing of the two processes matters so much.

The precedence principle

The key legal lever is that disability processing generally takes precedence over most administrative separations when a qualifying medical condition is in play. Under the DES framework and its service implementations, when an appropriate medical authority, such as the treating physician or profiling officer, determines that a member may have a medical condition that fails to meet retention standards, the member is supposed to be referred into the disability evaluation system, and a pending administrative separation for many reasons should be held in abeyance pending that evaluation.

The logic is protective. A member should not be administratively pushed out for performance or similar reasons when the underlying problem may actually be a service-connected or otherwise compensable medical condition that the disability system is designed to address. Allowing the administrative track to finish first could strip the …

When the person who was approached comes forward and reports the solicitation, it does not erase the soliciting member’s criminal liability, but it can have a significant practical effect on the case. The reason lies in the nature of the offense. Solicitation under Article 82 of the UCMJ is complete the moment the soliciting communication is made with the required intent. Because the crime is finished at that point, the later choice of the solicited person to report it cannot undo what has already legally occurred. What that report can do is provide powerful evidence for the prosecution while also shaping how the case is investigated, charged, and ultimately resolved.

This distinction between guilt and consequences is the key to understanding the issue. The following sections explain why the offense remains complete, how a report strengthens the government’s hand, and where it nonetheless affects the trajectory of a prosecution.

Solicitation Is Complete Upon Communication

Article 82 punishes a service member who solicits or advises another to commit an offense, with the intent that the offense actually be committed. The offense is finished when the solicitation is communicated. It does not matter whether the person solicited agreed, refused, ignored the request, or, as here, reported it. It also does not matter whether the underlying offense was ever attempted or carried out.

This is what makes solicitation an inchoate offense. The law targets the act of trying to set a crime in motion, not the success of that effort. Consequently, the solicited individual’s decision to report the approach has no bearing on whether the elements of the offense were satisfied. By the time the report is made, the crime, if the intent was genuine, has already been committed.

Why a Report Strengthens the Prosecution

Although the report does not create liability that was not already present, it frequently transforms a case from a difficult one to prove into a strong one. The contested issue in most solicitation prosecutions is intent. The government must show that the accused genuinely wanted the offense committed rather than joking, venting, or speaking hypothetically. The solicited person who reports the conduct usually becomes the central witness on exactly that point.

That witness can describe what was said, how it was said, whether the request was repeated, and whether the accused offered incentives or pressure. Prompt, voluntary reporting also tends to bolster the witness’s credibility, since it suggests …

Article 31 of the Uniform Code of Military Justice gives service members a statutory protection against compelled self-incrimination that is older and broader than the civilian Miranda rule. When investigators or members of the chain of command ignore its requirements, the consequences are not automatic. A violation does not erase a case by itself. Instead, it sets in motion a chain of evidentiary rulings that can hollow out the prosecution to the point where dismissal becomes the only realistic result. Understanding how that chain works is the key to understanding when a single missed warning can end an entire prosecution.

What Article 31 actually requires

Article 31(b) requires that before a person subject to the UCMJ questions a suspect or accused, that person must inform the individual of the nature of the accusation, advise the individual of the right to remain silent, and warn that any statement made may be used as evidence against the individual at trial by court-martial. Article 31(d) supplies the enforcement mechanism: a statement obtained in violation of the article may not be received in evidence.

These warnings are owed whenever a person subject to the code is suspected of an offense and is questioned by another person subject to the code who is acting in an official law enforcement or disciplinary capacity. Unlike Miranda, custody is not required. The duty to warn can attach during a routine interview in an office or a barracks long before anyone is detained.

The first domino: suppression of the statement

When a warning is required but not given, the resulting statement is treated as involuntary. Under Military Rule of Evidence 305 and the framework of Military Rule of Evidence 304, an involuntary statement is generally inadmissible against the accused. Defense counsel raise the issue through a pretrial motion to suppress. If the military judge agrees that the warning was owed and was not properly given, the statement is excluded from the government’s case.

For many prosecutions this is the decisive moment. Confessions and admissions are often the strongest evidence the government holds. Removing them can leave the remaining proof too thin to sustain a conviction.

The second domino: derivative evidence

Suppression can reach beyond the words themselves. Evidence that the government located only because of an unwarned statement may also be challenged as the fruit of the earlier violation. If a suspect’s improperly obtained admission led agents to a …

United States v. Huelsman, 27 M.J. 511 (A.C.M.R. 1988), is a decision of the Army Court of Military Review that addressed what a service member must be told about the suspected offense before being questioned. The case interprets the warning requirement of Article 31(b) of the Uniform Code of Military Justice, which obligates a questioner to inform a suspect of the nature of the accusation before interrogation. The phrase “general nature of the offense” describes the level of detail that warning must convey, and Huelsman is often cited for how the court applied that standard when the warning given did not match the questioning that followed.

The statutory warning

Article 31(b) requires that before a person subject to the Code questions a suspect or accused, the questioner must inform the person of the nature of the accusation, advise that the person need not make any statement regarding the offense, and warn that any statement made may be used as evidence in a trial by court-martial. The warning serves to ensure that a service member understands what conduct is under suspicion and can make a knowing decision about whether to speak. The phrase at issue concerns the first of these requirements, the duty to disclose what the person is suspected of having done.

The problem the case confronted

Huelsman dealt with a mismatch between the warning and the interrogation. The service member was advised that he was suspected of one category of misconduct but was then questioned about a different category of misconduct. The reported circumstances involved a warning oriented toward a property offense, followed by questioning that moved into drug-related conduct. The defense challenged the use of the statements obtained, arguing that the suspect had not been told the true subject of the inquiry and so could not exercise his rights in a meaningful way as to the offense he was actually being questioned about.

What the court required

The court explained that Article 31(b) does not demand a precise legal recitation of the charge or a technical statement of every element. A questioner need not deliver the equivalent of a formal specification. What the warning must do is convey the general nature of the offense. In practical terms, the suspect must be oriented toward the area of suspicion. The warning has to identify the subject of the questioning with enough specificity that the suspect understands the kind of conduct …