Military Lawyers

Article 87 of the Uniform Code of Military Justice makes it an offense to miss the movement of a ship, aircraft, or unit with which a service member is required in the course of duty to move. The statute identifies two ways the offense can be committed: through neglect or through design. These are not interchangeable labels. They describe two distinct mental states, they require the government to prove different things, and they carry sharply different maximum punishments. Understanding the difference is essential for anyone charged under Article 87, because the entire severity of the case can turn on which theory the government can actually prove.

The shared elements that apply either way

Before reaching the neglect-versus-design distinction, it helps to identify what the two share. For either theory, the government must prove that there was a specific movement of a ship, aircraft, or unit; that the accused was required in the course of duty to move with it; that the accused knew of the prospective movement; and that the accused missed it. The mode of liability, neglect or design, attaches to that final failure and explains the accused’s state of mind in missing the movement. The first three elements do not change based on which mode is charged.

Missing movement through design

“Design” means the accused missed the movement intentionally. It reflects a specific intent not to be present for the movement, a conscious and deliberate purpose to avoid it. This is the more serious of the two theories because it involves a willful choice to skip an obligation the service member knew about.

To prove design, the government must establish more than the fact of absence. It must show the accused acted with the purpose of missing the movement. Evidence of design often comes from conduct surrounding the absence, such as statements of intent to avoid a deployment, deliberate steps taken to make the movement impossible, or a pattern showing the absence was planned rather than accidental. Because intent is rarely admitted, it is frequently proven through circumstantial evidence, and that gives the defense room to contest whether the absence was truly purposeful.

Missing movement through neglect

“Neglect” is a fundamentally different mental state. It means the accused failed to take the measures that a reasonable person would have taken under the circumstances to ensure presence at the required movement. The failure is the product of carelessness or …

Mutiny is one of the most serious offenses in the military justice system, carrying penalties that can extend to death in time of war. Because the stakes are so high, the government must prove every element beyond a reasonable doubt, and the elements differ depending on which form of mutiny is charged. Article 94 of the UCMJ (10 U.S.C. 894) defines mutiny along with the related offenses of sedition and failure to suppress or report. This article focuses on what the prosecution must establish to convict a service member of mutiny itself.

Article 94’s structure

Article 94 punishes more than one kind of misconduct. It reaches mutiny, sedition, and the failure to do one’s utmost to prevent and suppress a mutiny or sedition, as well as the failure to report such conduct. Mutiny is the heart of the article, and the Manual for Courts-Martial recognizes that it can be committed in two distinct ways: by refusing to obey orders or perform duty in concert with others, and by creating violence or a disturbance. Each form has its own set of elements.

Mutiny by refusing to obey orders or perform duty

The first form is collective insubordination aimed at command authority. To convict, the government must prove beyond a reasonable doubt three things.

First, that the accused refused to obey orders or otherwise refused to do their duty. Mere grumbling or complaint is not enough; there must be an actual refusal to obey or to perform.

Second, that the accused acted in concert with another person or persons. This concerted-action requirement is what separates mutiny from a simple individual refusal to obey, which would fall under other articles. Mutiny by this method is inherently a group offense. There must be a joint or coordinated refusal, an understanding among more than one person to resist.

Third, that the accused did so with the intent to usurp or override lawful military authority. This is the specific-intent element that gives mutiny its gravity. The accused must not merely disobey; the accused must act with the purpose of seizing or overriding the authority of lawful command. A refusal driven by fear, confusion, or even ordinary defiance, without that intent to override authority, does not meet this element.

Mutiny by creating violence or disturbance

The second form does not require concerted action. To convict under this theory, the government must prove beyond a reasonable doubt two …

Circumstantial evidence makes people uneasy. It does not announce a fact the way an eyewitness or a confession seems to; it asks the factfinder to infer one thing from another. So when a court-martial involves circumstantial proof, a frequent pretrial fight is whether that evidence should reach the panel at all. A military judge decides that question using the Military Rules of Evidence, applying the same relevance standard to circumstantial evidence as to direct evidence, then filtering it through a separate balancing test. This article explains how that two-step analysis works at the pretrial-motion stage and why circumstantial evidence is treated no differently in principle from any other proof.

Relevance is a low threshold, and it does not distinguish direct from circumstantial

The starting point is Military Rule of Evidence 401, which defines relevant evidence as evidence having any tendency to make a fact of consequence more or less probable than it would be without the evidence. That standard is deliberately broad. It does not ask whether the evidence proves the point, only whether it moves the needle at all on a fact that matters to the case.

Crucially, Rule 401 draws no line between direct and circumstantial evidence. Both are evaluated by the same test: does this item have any tendency to make a consequential fact more or less probable? Circumstantial evidence frequently clears that bar even though it requires an inference, because the inference is exactly the “tendency” the rule contemplates. A fingerprint, a pattern of behavior, or a timeline does not state the ultimate fact, but it makes that fact more or less probable, and that is all relevance requires.

Under Military Rule of Evidence 402, relevant evidence is generally admissible and irrelevant evidence is not. So the first thing a military judge asks about a piece of circumstantial evidence is simply whether it meets the Rule 401 tendency standard. If it does, it is relevant, full stop, regardless of its circumstantial character.

The judge weighs the chain of inferences, not the label

Because circumstantial evidence works by inference, the judge’s relevance analysis focuses on whether a logical connection exists between the item offered and the fact it is supposed to bear on. The judge is not asking whether the inference is the only possible one or even the most likely one; that is the panel’s job to weigh. The judge is asking whether the evidence has …

Article 120 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. 920, defines and punishes the most serious sexual offenses against adults in the military justice system. The article distinguishes between a “sexual act” and “sexual contact.” That distinction is not academic. It determines which offense a service member can be charged with, and it carries very different consequences. This article explains what counts as sexual contact under Article 120 and how it differs from a sexual act.

The statutory definition of sexual contact

Article 120 defines sexual contact as touching, or causing another person to touch, either directly or through the clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, harass, or degrade any person, or to arouse or gratify the sexual desire of any person. The statute adds that the touching may be accomplished by any part of the body or by an object.

Several features of this definition deserve attention. First, the contact does not have to involve skin-to-skin contact. Touching through clothing satisfies the definition. Second, the touching can be committed with any part of the body, not only with the hands, and it can be committed with an object. Third, the statute reaches both touching another person and causing another person to do the touching, which means a person can be charged for forcing or manipulating someone else into making the contact.

The required body parts

The definition is limited to specific anatomical areas. The covered parts are the vulva, penis, scrotum, anus, groin, breast, inner thigh, and buttocks. Touching outside these enumerated areas does not meet the statutory definition of sexual contact, even if the conduct is unwelcome. This is an important boundary. Offensive touching of, for example, an arm or shoulder might support a different charge, such as assault, but it is not sexual contact within the meaning of Article 120. The precision of the list reflects Congress’s choice to define the offense by reference to particular parts of the body rather than by a general standard of sexual touching.

The required intent

Sexual contact is not defined by the physical touching alone. The government must also prove a specific mental state. The touching must be done with an intent to abuse, humiliate, harass, or degrade any person, or with an intent to arouse or gratify the sexual …

Missing movement is a distinct offense under Article 87 of the Uniform Code of Military Justice. A common question for service members and their counsel is whether failing to make more than one scheduled movement can be charged as several separate offenses, or whether the events must be combined into a single charge. The general answer is that multiple missed movements can be charged separately when they involve genuinely distinct movements, but the way those charges are framed is subject to important limits rooted in the elements of the offense and in the military law of multiplicity and unreasonable multiplication of charges. This article explains how those principles work together.

What counts as a movement under Article 87

Article 87 punishes a person who, through neglect or design, misses the movement of a ship, aircraft, or unit with which the person is required in the course of duty to move. The offense is built around a specific, identifiable movement. Not every change of location qualifies. Military courts have understood “movement” to mean a substantial scheduled relocation, such as a deployment, a ship getting underway, or a unit moving as part of an operation, rather than a routine, local, or administrative shift. Whether a particular event is a “movement” is itself an element the government must prove.

This matters for the question of separate charges because the answer depends on identifying how many qualifying movements actually existed. Each charge of missing movement must point to a real, distinct movement that the accused was required to make and failed to make.

When separate charges are appropriate

If a service member is required to make two genuinely separate movements at different times, and misses each one, those are conceptually two offenses. Each missed movement has its own set of elements: a specific movement, a duty to move with it, the accused’s knowledge of the prospective movement, and the failure to be present through neglect or design. Because the elements are satisfied independently for each event, the government may, as a structural matter, charge each missed movement as its own specification.

A clear example would be a sailor who misses the ship getting underway on one date and then, after the ship returns and prepares to deploy again weeks later, misses that second sailing as well. Two distinct movements, two distinct duties to move, two distinct failures. Charging these separately reflects the reality that …

Solicitation under the Uniform Code of Military Justice is the offense of urging, advising, or otherwise trying to induce another person to commit a UCMJ offense. The question here adds a wrinkle that sounds like a contradiction but is not: can the offense be charged when the person solicited is a civilian who is nevertheless subject to the UCMJ? To answer it, two separate ideas have to be pulled apart, because the identity of the person solicited and that person’s UCMJ status are doing different jobs in the analysis.

What the solicitation article requires

Solicitation is codified at Article 82, 10 U.S.C. 882. The 2019 reorganization of the punitive articles expanded its reach. Today Article 82 has two parts. Subsection (a) is the general provision: any person subject to the UCMJ who solicits or advises another to commit any UCMJ offense, other than the offenses listed in subsection (b), may be punished as a court-martial directs. Subsection (b) is the serious-offense provision, reaching solicitation or advice to desert under Article 85, to commit mutiny or sedition under Article 94, or to commit misbehavior before the enemy under Article 99, with enhanced punishment if the solicited offense is attempted or committed. Anyone analyzing these cases must use the current structure, because the pre-2019 version of Article 82 covered only the four serious offenses and did not contain a general solicitation provision.

The elements track that structure. The government must prove that the accused solicited or advised another person to commit a UCMJ offense and that the accused did so with the intent that the offense be committed. The offense is generally complete at the moment of communication; the solicited person need not agree, attempt, or carry out the crime for the general solicitation offense to be made out, although whether the solicited offense was attempted or committed affects punishment under the subsection (b) framework.

Who must be solicited: the role of the listener

The statute says the accused must solicit “another” to commit an offense under the chapter. That phrasing matters. The offense solicited has to be a UCMJ offense, which means the conduct urged has to be conduct that the UCMJ punishes. That is where the listener’s status becomes relevant. UCMJ offenses are crimes committed by persons subject to the UCMJ. If the accused urges someone to commit conduct that would be a UCMJ offense, the listener has to be …

Article 91 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. 891, governs insubordinate conduct toward a warrant officer, noncommissioned officer (NCO), or petty officer. A common question is whether a service member can be charged when the alleged misconduct happened somewhere the superior could not see or hear it. The answer depends entirely on which of the three offenses within Article 91 the government chooses to charge, because the statute treats presence very differently across them.

The three offenses inside Article 91

Article 91 is not a single crime. It punishes three distinct categories of conduct directed at a warrant officer, NCO, or petty officer. The first is striking or assaulting that person. The second is willfully disobeying that person’s lawful order. The third is treating that person with contempt or being disrespectful in language or deportment toward that person. Each category has its own elements, and the role that the superior’s presence plays is not uniform.

Where presence is required

For the assault offense and for the contempt or disrespect offense, the law requires that the warrant officer, NCO, or petty officer be in the execution of office at the time of the conduct. The disrespect or contempt must occur while the superior is performing official duties, and the accused must have known that the person held the relevant status. In practice this means the victim ordinarily must be present, because disrespect in language or deportment is directed at a person who is there to perceive it. A service member who mutters an insult in an empty barracks room with no superior present has not committed the disrespect offense in the way the statute contemplates, because there is no superior in the execution of office being treated with contempt at that moment.

That said, presence is not always literal face-to-face presence. Disrespectful language can be communicated in ways that reach a superior who is still in the execution of office, and military courts evaluate the surrounding circumstances rather than applying a rigid rule about physical proximity. The decisive questions are whether the superior was performing official duties and whether the conduct was directed toward that person in a way that conveys contempt or disrespect.

Where presence is not required

Willful disobedience of a lawful order is the offense that most often arises from conduct outside the superior’s presence. This offense does not carry the same …

Malingering is the offense of faking or causing an illness or injury to dodge military duty, and it is prosecuted under Article 83 of the Uniform Code of Military Justice (UCMJ). Because the conduct often looks superficially like a genuine medical complaint, the question of proof is central: what must the government actually establish to convict, and to what degree of certainty? This article explains the elements of malingering, the proof required for each, and the beyond-a-reasonable-doubt standard that governs a court-martial.

The current statutory home of the offense

A point of background helps avoid confusion. The 2019 Military Justice Act reorganized the punitive articles, and malingering is now designated Article 83 of the UCMJ. Older materials sometimes refer to malingering as Article 115, which was its prior designation before the renumbering. The substance of the offense, however, has remained consistent: it punishes feigning or self-inflicting a condition to avoid work, duty, or service.

The elements the government must prove

Under Article 83, malingering occurs when a person subject to the UCMJ, for the purpose of avoiding work, duty, or service, either feigns illness, physical disablement, mental lapse, or mental derangement, or intentionally inflicts self-injury. Breaking that down, the prosecution must prove three elements. First, that the accused was assigned to, or was aware of a prospective assignment to or availability for, the performance of work, duty, or service. Second, that the accused feigned illness, physical disablement, mental lapse, or mental derangement, or intentionally inflicted injury upon himself. And third, that the accused’s purpose or intent in doing so was to avoid that work, duty, or service.

Each of these elements must be established, and the third, the avoidance purpose, is where many malingering cases are won or lost.

The standard of proof: beyond a reasonable doubt

Because malingering is a criminal offense tried by court-martial, the government must prove every element beyond a reasonable doubt. This is the same high standard that applies to all criminal charges. It is not enough for the government to show that the accused probably faked an illness or that his complaint was suspicious. The fact-finder, whether a panel of members or a military judge sitting alone, must be convinced to a moral certainty, leaving no reasonable doubt, that each element is satisfied. If the evidence leaves a reasonable doubt about whether the condition was genuine or whether the accused intended to avoid duty, …

The short answer is that there is no automatic bar against using a person’s old social media posts in a court-martial simply because they were written before the person enlisted. Military prosecutors are not blocked from reaching into a service member’s pre-service life. But the longer answer is more useful, because admissibility turns on several evidentiary doctrines that apply with full force regardless of when the statement was made. A pre-service post is treated like any other out-of-court statement: it gets in only if it is relevant, properly authenticated, not barred by the rules against character and hearsay, and not so prejudicial that its danger outweighs its value.

The starting point: relevance

Under Military Rule of Evidence 401, evidence is relevant if it has any tendency to make a fact of consequence more or less probable. A pre-service statement can clear that low bar in a number of ways. It might bear on identity, on knowledge, on intent, on a motive that predates enlistment, or on the meaning of later conduct. If a charged offense involves a continuing scheme, a relationship, or a belief that began before service, the older posts can be genuinely probative. But relevance is not automatic. A post about an unrelated topic from years before the charged conduct may simply have no logical connection to the elements the government must prove, and if it does not, it is inadmissible no matter how colorful it is.

The character-evidence problem

The biggest obstacle to using old social media is Military Rule of Evidence 404. Rule 404(a) generally forbids using evidence of a person’s character to prove that the person acted in conformity with that character on a particular occasion. So the government cannot offer a pre-service post merely to suggest that the accused is the kind of person who would commit the charged offense. That is the classic forbidden propensity use.

Rule 404(b) is the doorway through which such evidence sometimes passes. It permits evidence of other acts when offered for a non-propensity purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. A pre-service statement that shows the accused had specialized knowledge, harbored a specific intent, or had formed a plan can be admitted under 404(b) even though it could not come in as character evidence. The proponent has to articulate the legitimate purpose, the act has to be proven well enough …

The Article 32 preliminary hearing is the gateway proceeding before charges can be referred to a general court-martial under the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. 832. Service members and their families often expect the hearing to function like a full trial, with extensive questioning of every witness. Since major reforms took effect, that expectation no longer matches the law. Cross-examination still exists at an Article 32 hearing, but it is conducted within a narrowed framework that limits both who testifies and what may be asked. This article explains how cross-examination works in the current preliminary hearing.

From investigation to preliminary hearing

For most of its history, the Article 32 proceeding was an investigation that resembled a civilian preliminary hearing or even a discovery deposition, and defense counsel could call and cross-examine witnesses at length. Congress changed that in the National Defense Authorization Act for Fiscal Year 2014, converting the proceeding into a preliminary hearing with a limited purpose. The reform was driven in significant part by concern over the lengthy cross-examination of complaining witnesses in sexual assault cases. The result is a proceeding focused on a narrow set of determinations rather than a full airing of the evidence.

The limited purpose that defines the scope of questioning

The scope of cross-examination is controlled by the limited purpose of the hearing. By statute, the preliminary hearing is confined to determining whether each specification alleges an offense under the UCMJ, whether there is probable cause to believe the accused committed the charged offense, whether the convening authority has court-martial jurisdiction over the accused and the offense, and what disposition of the case should be recommended. The examination of witnesses and evidence is limited to matters relevant to those determinations. That limitation is the single most important fact about cross-examination at an Article 32 hearing, because questions that stray beyond probable cause, the elements of the offense, jurisdiction, and disposition are outside the permitted scope.

The right to cross-examine

Within that scope, the accused retains a genuine right to confront the government’s evidence. The statute provides that the accused may cross-examine witnesses who testify at the preliminary hearing and may present additional evidence relevant to the issues for determination. The accused also has the right to be represented by counsel at the hearing. So when the government calls a witness to testify, defense counsel may question that witness, …