Military Lawyers

Mental health records can be among the most consequential pieces of evidence in a court-martial. A complaining witness’s psychiatric history might contain statements that contradict the allegation, document a motive to fabricate, or bear on the reliability of memory and perception. Yet these same records are shielded by a privilege designed to protect patients. When an accused service member believes that exculpatory information is locked inside protected mental health records and is denied access to it, military law provides a structured set of remedies. The remedies range from a court-ordered review of the records to, in extreme cases, exclusion of evidence or even dismissal. The path runs through the privilege rules, the discovery rules, and the military judge’s authority to fashion relief.

The Privilege That Stands in the Way

The obstacle is Military Rule of Evidence 513, the psychotherapist-patient privilege. It allows a patient to refuse to disclose, and to prevent others from disclosing, confidential communications made to a psychotherapist for the purpose of diagnosis or treatment of a mental or emotional condition in a case arising under the UCMJ. The Court of Appeals for the Armed Forces has clarified the privilege’s scope, holding that Rule 513 protects confidential communications between patient and psychotherapist rather than every mental health record, diagnosis, or treatment plan. That distinction matters, because material falling outside the protected communications may be reachable even when the core privilege stands.

It is also important to understand a limit on the privilege. An older version of Rule 513 contained an exception allowing disclosure when constitutionally required, but that exception was removed by executive order in 2015 for cases in which the accused was arraigned after the change. The practical consequence is that an accused generally cannot pierce the privilege simply by asserting a general constitutional need; relief must be sought through the recognized procedures and the rule’s remaining exceptions.

The In Camera Review

The principal remedy when an accused contends that exculpatory material is being withheld is to ask the military judge to review the records privately. The preferred practice is for the military judge to inspect the records in camera, meaning outside the presence of the parties, to determine whether they contain exculpatory or otherwise discoverable evidence before any party gains access. Rule 513 sets out the procedure for this review, including a closed hearing and a requirement that the patient be given a reasonable opportunity to …

When investigators ask a service member to unlock a personal phone, the request sits at the intersection of two very different legal questions. The first is whether refusing amounts to obstruction of justice under Article 134 of the Uniform Code of Military Justice (UCMJ). The second is whether the Constitution and the UCMJ actually permit the government to compel the passcode in the first place. The short answer is that a lawful invocation of a recognized privilege is not obstruction, and the law on compelling passcodes remains genuinely unsettled. This article explains why.

What obstruction under Article 134 actually requires

Article 134 is the general article, and obstruction of justice is one of the enumerated offenses charged under it. The offense is built around specific intent. The government must prove that there were criminal proceedings pending or that the accused knew a criminal investigation was underway, that the accused did some act, and that the accused did so with the intent to obstruct, impede, or interfere with the administration of justice. The conduct must also be prejudicial to good order and discipline or service discrediting under the terminal element of Article 134.

The center of gravity is intent to impede justice through a wrongful act. Classic examples are threatening a witness, destroying or hiding evidence, or trying to influence testimony. Obstruction targets affirmative interference with the machinery of justice, not the lawful assertion of a right that the law itself extends to the accused.

Asserting a privilege is not a wrongful act

A foundational principle limits how far obstruction can reach. The administration of justice is not obstructed when a person exercises a constitutional or statutory privilege that the law grants. A witness who invokes the privilege against self-incrimination, or a suspect who declines to answer questions, is doing exactly what the law permits. Charging that lawful choice as obstruction would punish the exercise of a right, which the system does not allow.

That principle matters directly to a phone passcode. If disclosing the passcode would itself be protected, then refusing to disclose it is the lawful exercise of a protection, not a wrongful act undertaken with intent to impede justice. The obstruction theory collapses because the wrongful-act element cannot be satisfied by protected conduct.

Why a passcode may be protected in the first place

Whether the government can compel a passcode turns on the Fifth Amendment privilege against compelled …

Article 88 of the Uniform Code of Military Justice is unusual. It makes it an offense for a commissioned officer to use contemptuous words against certain high officials. Because it targets words, it sits at the intersection of military discipline and the First Amendment, and that is where satire and parody enter the picture. An officer accused under Article 88 may want to argue that a contemptuous-sounding post or remark was a joke, a parody, or political satire rather than genuine contempt. Whether that argument works is not a simple yes or no. Satire or parody can support a defense, but only because of what Article 88 actually requires the prosecution to prove, not because humor is a free pass.

What Article 88 actually covers

Article 88 applies only to commissioned officers. It prohibits using contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, and the Governor or legislature of any State, Commonwealth, or possession in which the officer is on duty or present. Two features stand out. First, the offense is limited to a defined list of officials and bodies; contempt directed at someone not on the list is not Article 88. Second, the conduct is the use of contemptuous words, and military practice treats the offense as requiring that the words be contemptuous either in themselves or because of the circumstances in which they were used, and that they come to the knowledge of someone other than the speaker through an act of the accused.

Why satire and parody can matter

The defense potential of satire and parody flows from the word contemptuous and from the intent the offense implies. Contempt is not the same as criticism, disagreement, or even mockery. To be contemptuous, words must express genuine disdain or scorn directed at the official in the official’s capacity. Satire and parody, by their nature, often operate at a distance from sincere expression. A parody adopts a voice or exaggerates a position precisely so the audience understands it is not meant literally. Genuine satire comments on or criticizes through irony and exaggeration. If a reasonable understanding of the words, in context, is that they were a joke or a comedic exaggeration rather than a sincere expression of contempt, then a central element of the offense is in doubt.

This is why counsel handling …

It is one of the more counterintuitive features of military criminal law. A service member can be convicted of solicitation even though the person they asked did absolutely nothing in response, refused outright, or reported the request to authorities. The crime is in the asking, not in the doing. Understanding why requires a close look at how the Uniform Code of Military Justice defines solicitation and what the government must prove.

What solicitation is under the UCMJ

Solicitation in the armed forces is addressed primarily by Article 82 of the UCMJ. The offense, at its core, punishes a service member who solicits or advises another person to commit an offense. The harm the law targets is the attempt to set crime in motion by recruiting, encouraging, or persuading someone else to break the law. Congress and the Manual for Courts-Martial treat that act of inducement as dangerous in itself, independent of whether the scheme ever advances.

There is also a separate, older provision focused on specific grave offenses. Article 82 has historically reached the solicitation of desertion, mutiny, sedition, and misbehavior before the enemy, treating those solicitations as especially serious because of the offenses involved. The general principle, however, is the same across the board: the criminal conduct is the solicitation.

The offense is complete when the request is made

The decisive point for the question posed here is the moment of completion. Under the Manual for Courts-Martial, the solicitation offense is complete when the solicitation is made, and it makes no difference whether the person solicited agreed to act on it. In other words, the crime crystallizes the instant the request, advice, or encouragement leaves the accused. Refusal by the listener, silence, or a flat rejection does not undo the offense that has already occurred.

This is why a solicitation charge can stand even when the solicited person refuses to act. The government does not have to prove that anyone agreed, that anyone took a step toward the crime, or that the underlying offense was ever attempted or committed. It must prove that the accused solicited or advised another to commit the offense, and that the accused did so with the intent that the offense be committed. The listener’s response is largely beside the point for guilt, although it can affect punishment.

What the government must actually prove

To secure a conviction, the prosecution generally must establish that the …

When more than one person accuses the same service member of sexual offenses under Article 120 of the UCMJ, codified at 10 U.S.C. section 920, the case takes on a distinct shape. The central procedural question becomes whether the separate allegations will be tried together in one court-martial or split into separate trials, and that question carries real consequences for both sides. The answer turns on the rules governing joinder of offenses, the standard for severance, and the limits on using one allegation as evidence about another.

How the allegations move through the system

Each complaint enters the military justice system the same way a single allegation would. The matter is typically reported, investigated by a military criminal investigative organization, and reviewed by the appropriate authority for a disposition decision. For covered sexual offenses, that decision now rests with a special trial counsel under recent reforms rather than the traditional convening authority. Before referral to a general court-martial, the charges ordinarily proceed through an Article 32 preliminary hearing, where a preliminary hearing officer assesses probable cause and other matters. Multiple allegations do not change these steps; they simply mean several specifications, often involving different complainants and different dates, may be considered together.

Joinder: trying the allegations together

The rules for courts-martial permit two or more offenses to be referred to a single court-martial, and the general expectation is that known charges against an accused will be tried at one proceeding rather than piecemeal. This means it is both lawful and common for allegations from multiple accusers to be joined in one trial. Joinder serves efficiency and spares witnesses repeated proceedings, but it also raises a concern that members might improperly aggregate the accusations, reasoning that where there is smoke there must be fire.

Severance: the standard for separate trials

The defense may move to sever the charges so that each complainant’s allegations are tried separately. The military standard for severance is demanding. Under the rules for courts-martial, severance of offenses is granted only to prevent manifest injustice, a more restrictive standard than the corresponding federal civilian rule. A military judge’s ruling on severance is reviewed only for abuse of discretion, which gives the trial court considerable latitude. The practical effect is that joinder is the norm and severance the exception, granted only where trying the allegations together would create a genuine risk of an unjust result that instructions and careful …

When a service member harms themselves during a psychological crisis, the military system has to answer two very different questions at once. The first is clinical: does this person need care, protection, and treatment? The second is legal: did the conduct cross into territory that the Uniform Code of Military Justice treats as an offense? These questions sometimes pull in opposite directions, and the way a command, a medical provider, and eventually a lawyer handle the early hours often shapes everything that follows.

This article explains how military law actually treats self-injury that grows out of a mental health crisis, where the line between a medical event and a chargeable offense sits, and why intent is the hinge on which the whole analysis turns.

The starting point is not a charge, it is a duty to care

A self-injury incident first triggers the military’s safety and medical apparatus rather than its prosecutorial one. Commands are expected to protect a member who appears to be a danger to themselves, arrange evaluation, and avoid actions that worsen the crisis. Many self-harm episodes never produce any disciplinary action at all because the conduct is understood as a symptom rather than a deliberate effort to evade responsibility.

That framing matters because it sets the default. In most crisis-driven cases the appropriate response is evaluation and treatment, and the legal system stays in the background unless specific facts pull it forward.

The article most often raised: malingering under Article 83

The UCMJ provision that prosecutors look to when self-injury is alleged to be misconduct is Article 83 of the UCMJ, the malingering article. Article 83 reaches two related forms of conduct: feigning illness, physical disablement, mental lapse, or derangement; and intentionally inflicting self-injury.

The element that does the heavy lifting is purpose. To sustain a malingering charge built on self-injury, the government must prove that the member inflicted the injury for the purpose of avoiding work, duty, or service. A self-inflicted wound, standing alone, is not enough. The prosecution has to connect the act to an intent to dodge an assignment, a deployment, or some other obligation.

That intent requirement is exactly where a genuine mental health crisis tends to defeat a malingering theory. A member in acute distress who harms themselves is, in the ordinary case, not acting to escape a duty roster. They are responding to internal pain. When the evidence points to …

In a court-martial, the people who decide guilt and adjudge a sentence are called members, not jurors, and the process of questioning them to expose bias is voir dire. Before voir dire, the parties often have access to written questionnaires that the prospective members complete. A natural and important question for the defense is whether it is entitled to see those questionnaires. The answer, under the Rules for Courts-Martial, is yes, and the right is built directly into the rule that governs the assembly and examination of members.

The governing rule: RCM 912

Rule for Courts-Martial 912 controls the use of member questionnaires and voir dire. Under RCM 912(a), trial counsel may submit written questionnaires to the prospective members before trial, and must do so when the defense requests it. The rule makes member questionnaires a defense-accessible tool rather than a one-sided resource for the government. When the defense asks for questionnaires to be used, the prosecution is obligated to have the members complete them.

Once completed, the questionnaires are provided to the defense. The point of allowing them is to give both sides, and the military judge, advance information about the members’ backgrounds so that voir dire can be focused and meaningful. A questionnaire that only the government could see would defeat that purpose and would undercut the defense’s ability to identify members who should be challenged. In ordinary practice, the completed questionnaires are furnished to the military judge and to defense counsel in advance of trial so that counsel can prepare challenges, often well before the members are assembled in the courtroom.

Why the defense needs the questionnaires

Member selection in the military is different from civilian jury selection. The convening authority details the members, who are typically service members senior to the accused, and the pool is smaller and often more interconnected than a civilian venire. Information about a member’s rank, career field, prior involvement in military justice matters, relationships within the command, and exposure to similar cases is essential to identifying bias. The questionnaire is frequently the first and most efficient source of that information.

The defense uses questionnaire answers to prepare two kinds of challenges. A challenge for cause seeks to remove a member who cannot be impartial, and a peremptory challenge allows each side to remove one member without stating a reason. Effective use of both depends on knowing the members’ backgrounds in advance, …

Article 91 of the Uniform Code of Military Justice punishes insubordinate conduct by an enlisted member or a warrant officer toward a warrant officer, a noncommissioned officer, or a petty officer. The article reaches three distinct forms of misconduct: striking or assaulting one of those superiors while the superior is in the execution of office, willfully disobeying a lawful order given by such a superior, and treating that superior with contempt or being disrespectful in language or deportment while the superior is in the execution of office. Because Article 91 covers conduct toward enlisted leaders and warrant officers rather than commissioned officers, it is the noncommissioned counterpart to Article 90. The defenses that work against an Article 91 charge track the specific elements the government must prove, so an effective defense usually begins by isolating which element is weakest.

Attacking the status and execution-of-office elements

For striking, assault, and disrespect specifications, the government must prove that the alleged victim was a warrant officer, noncommissioned officer, or petty officer and, for two of the three theories, that the superior was in the execution of office at the time. The execution-of-office requirement is a frequent pressure point. If the noncommissioned officer was not performing a military duty when the words or conduct occurred, but was instead acting in a purely personal capacity, the conduct may fall outside Article 91 even if it was rude. A related defense challenges whether the accused knew the person held the relevant status. Knowledge of status is an element the prosecution must establish, and a genuine, reasonable lack of knowledge can defeat the charge.

Lawfulness of the order

When the charge rests on willful disobedience of an order, the lawfulness of that order is central. An order is presumed lawful, but that presumption can be rebutted. A directive that has no valid military purpose, that conflicts with the rights of the accused, that requires the commission of a crime, or that exceeds the authority of the person giving it is not a lawful order. If the order was unlawful, refusing it is not a punishable offense under Article 91. The defense may also argue that what was communicated was not actually an order at all but a request, a suggestion, or an expression of preference that did not carry the force of a command.

Willfulness and intent

The disobedience theory requires willful disobedience, not mere failure or …

The right of an accused to be present at trial is among the most basic protections in any justice system, and the military is no exception. A court-martial can, in narrow circumstances, proceed without the accused physically present, a practice known as trial in absentia. Because that course removes the accused from the proceeding that may result in confinement and a punitive discharge, the rules surround it with safeguards. This article explains those protections and the conditions that must be satisfied before a service member may be tried in absence.

The starting point: a right to be present

A service member has both a constitutional and a statutory right to be present during the court-martial. Rule for Courts-Martial 804 spells out the scope of that right. The accused has the right to be present at the arraignment, at the time of the plea, at every stage of the trial including sessions held under Article 39(a) of the Uniform Code of Military Justice, during voir dire and challenges of members, at the return of findings, during the sentencing proceeding, and at post trial sessions. The presumption is presence, and trial in absence is the exception that must be justified.

The threshold safeguard: a valid arraignment

The first and most important safeguard is that the accused cannot be tried in absentia from the very beginning. The accused must first be present for a valid arraignment. Arraignment is the stage at which the charges are formally presented and the accused is called upon to plead. Only after the accused has been arraigned, and has thereby been brought within the jurisdiction of the court and informed of the charges, can the proceeding continue in absence. This requirement ensures that no service member is convicted on charges he or she never had the opportunity to confront in person.

The voluntariness requirement

The second safeguard is that the absence must be voluntary. Under Rule for Courts-Martial 804, an accused may be tried in absentia when the accused is voluntarily absent after arraignment. The rule applies whether or not the military judge specifically warned the accused of the obligation to remain present, but the absence itself must be a choice rather than the product of circumstances beyond the accused’s control. An accused who is hospitalized, detained by another authority, or otherwise prevented from attending has not voluntarily absented himself, and the trial generally cannot proceed without him.…

A frequent and urgent question for service members connected to a sexual offense allegation is how long the government has to bring charges. In many areas of criminal law, a statute of limitations sets a hard deadline, and once it passes the case cannot proceed. For charges under Article 120 of the Uniform Code of Military Justice (10 U.S.C. 920), the answer turns heavily on when the alleged conduct occurred. For modern offenses there is effectively no clock, while older offenses were governed by a fixed limitation period. Understanding which rule applies, and what the act of preferral actually does to the timeline, is essential to evaluating any Article 120 matter.

The Statute of Limitations for Recent Offenses

For the most serious sexual offenses under Article 120, Congress has eliminated the statute of limitations. For offenses occurring on or after December 26, 2013, there is no limitation period, which means the government may bring charges regardless of how many years have passed since the alleged conduct. This change grew out of legislative reforms aimed at allowing prosecution of military sexual offenses long after the events, in recognition of how often such allegations surface only after significant delay. The practical effect is stark: a service member can face an Article 120 charge for conduct alleged to have occurred many years earlier, and the passage of time alone will not bar the prosecution.

The Older Rule for Earlier Conduct

The absence of a limitation period was not always the law. For sexual assault offenses occurring before December 26, 2013, a limitation period of five years applied. Whether a particular older allegation is time barred therefore depends on the precise date of the alleged conduct and the limitation rule in force at that time. These timing questions can be legally intricate, especially for conduct near the dividing date, and they are exactly the kind of issue that defense counsel will examine closely. A service member facing an allegation about events from many years ago should not assume the case is either barred or viable without a careful analysis of the applicable date and rule.

What Preferral Means in the Timeline

Preferral is the formal act that begins the court-martial charging process. An accuser signs the charge sheet, the DD Form 458, under oath before a commissioned officer, swearing that the charges and specifications are true to the best of their knowledge and belief. …