Military Lawyers

Article 88 of the Uniform Code of Military Justice is one of the oldest and most distinctive offenses in military law. It forbids a commissioned officer from using contemptuous words against certain high officials. The rise of social media has put new pressure on the article, because an officer can now broadcast an opinion to thousands of people instantly, from a personal phone, on personal time. The question of whether a social media post counts as the kind of conduct Article 88 reaches does not turn on a special internet rule. It turns on the elements of the article itself, applied to a new medium.

What Article 88 actually prohibits

The statute, 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 directs. Several features stand out. The offense applies only to commissioned officers; it does not reach enlisted members or warrant officers. It protects a closed list of officials and institutions. And it requires that the words be contemptuous, meaning scornful, disrespectful, or expressing disdain, not merely critical.

The elements the government must prove are that the accused was a commissioned officer, that the accused used certain words against one of the listed officials or bodies, that the words came to the knowledge of someone other than the accused through an act of the accused, and that the words were contemptuous either in themselves or because of the circumstances.

Why publication, not “public conduct,” is the real issue

Article 88 is not framed in terms of a category called public conduct, and it is a mistake to ask whether a post is public in the way a uniformed appearance or an official statement is public. The element that does the work is whether the contemptuous words “came to the knowledge of some person other than the accused” by an act of the accused. That is fundamentally a publication requirement. A purely private thought, or words spoken to no one, is not reached. The moment an officer’s contemptuous words about a covered official become known to another person through the officer’s own act, that element is satisfied.

A …

In the military justice system, the preliminary hearing officer, or PHO, presides over the Article 32 preliminary hearing that ordinarily precedes referral of charges to a general court-martial. The PHO’s role is governed by Article 32 of the UCMJ, codified at 10 U.S.C. section 832, and by Rule for Courts-Martial 405. A natural question for an accused is what happens if, during that hearing, the PHO identifies procedural errors in how the case was investigated or charged. The answer is that the PHO can note and report such errors, but the PHO’s findings are recommendations only, and they do not by themselves dismiss charges or bind the authority who decides whether the case goes forward.

What the Article 32 hearing is for

Since the 2014 reforms, the Article 32 proceeding is a preliminary hearing rather than a full investigation. Its limited statutory purposes are to determine whether there is probable cause to believe an offense was committed and that the accused committed it, to determine whether the convening authority has court-martial jurisdiction over the offense and the accused, to consider the form of the charges, and to recommend a disposition of the case. The hearing is not a discovery vehicle or a mini-trial, and the PHO’s authority is correspondingly narrow.

What the PHO can do about procedural errors

If a party believes the procedures of Rule for Courts-Martial 405 were not followed, the objection must be raised promptly upon discovery. The PHO is generally not required to rule definitively on objections that the hearing’s own procedures were violated, but when a party objects, and that party so requests, the PHO must include the objection in the report. This ensures that any claimed procedural defect is preserved on the record for the authorities who later review the case and for the military judge at trial.

The PHO may also address legal and procedural issues that bear on the matters the hearing is meant to decide. The PHO can note in the report concerns about the form of the charges, gaps or irregularities in the investigation, or other procedural problems observed during the proceeding. These observations become part of the written report and recommendation that the PHO forwards.

The PHO’s findings are a recommendation, not a ruling

The crucial point is that the PHO does not have the power to dismiss charges or to grant relief for procedural errors. The PHO produces …

The Uniform Code of Military Justice (UCMJ) separates adult sexual offenses from child sexual offenses into two distinct statutes. Article 120, codified at 10 U.S.C. 920, addresses rape and sexual assault generally, meaning offenses against adults. Article 120b, codified at 10 U.S.C. 920b, addresses rape and sexual assault of a child. Although the two articles share defined terms such as “sexual act” and “sexual contact,” they punish different conduct and carry different maximum penalties. This article compares the penalty structures and explains why they diverge.

Two statutes, two purposes

Article 120 covers sexual misconduct involving adults and is organized around four offenses: rape, sexual assault, aggravated sexual contact, and abusive sexual contact. Article 120b is focused entirely on victims who are children, defined under the statute as persons who have not attained the age of 16 years. It is organized around three offenses: rape of a child, sexual assault of a child, and sexual abuse of a child. The separation reflects a deliberate congressional judgment that offenses against children warrant their own elements and, in the most serious cases, harsher consequences.

How the consent element differs

One of the most significant structural differences appears in the consent element, and it shapes both prosecution and punishment. Under Article 120, lack of consent or the use of force is often central to the offense, and the meaning of consent is defined by statute. Under Article 120b, lack of consent is not an element and need not be proven, because the statute provides that a child cannot consent to a sexual act, a lewd act, or the use of force. This means that, for the youngest victims, the government does not have to prove force or absence of consent at all. That difference makes Article 120b offenses easier to establish in some respects and underlies the gravity reflected in the penalties.

Penalties under Article 120

The maximum punishments under Article 120 are set by the Manual for Courts-Martial and vary by offense. Rape is the most serious and carries the heaviest exposure, including a dishonorable discharge, forfeiture of all pay and allowances, and confinement up to life. Sexual assault carries a dishonorable discharge, total forfeitures, and confinement for up to 30 years. The two contact offenses are punished less severely than the act offenses. Aggravated sexual contact carries a dishonorable discharge, total forfeitures, and confinement for up to 20 years, while abusive sexual …

Article 78 and Article 81 of the Uniform Code of Military Justice both punish a service member for involvement in someone else’s crime rather than for personally committing the underlying offense. Because of that surface similarity, the two are sometimes confused, and they are occasionally charged together in the same case. They are, however, fundamentally different offenses. The clearest way to understand the distinction is to focus on timing, on the mental state the government must prove, and on what the accused actually did. This article walks through each of those points as they apply in UCMJ prosecutions.

Two offenses, two moments in time

The single most important difference is when the accused’s conduct occurs relative to the underlying crime.

Conspiracy under Article 81 (10 U.S.C. 881) is an inchoate offense that forms before the substantive crime is completed. A person violates Article 81 by conspiring with at least one other person to commit an offense under the code, when one or more of the conspirators performs an act to effect the object of the conspiracy. The agreement, and the overt act in furtherance of it, exist at the planning and execution stage.

Article 78 (10 U.S.C. 878) punishes being an accessory after the fact. By definition, the conduct it reaches happens only after the underlying offense has already been committed. The accused steps in afterward to help the offender avoid apprehension, trial, or punishment. Assistance given before or during the crime is not Article 78 conduct at all; depending on the facts, it might be conspiracy or aiding and abetting under Article 77, but it cannot be accessory after the fact.

That temporal line is the spine of the distinction. Conspiracy looks forward to a crime not yet completed. Accessory after the fact looks backward to a crime already done.

What the government must prove for conspiracy under Article 81

To convict under Article 81, the prosecution must establish that the accused entered into an agreement with one or more persons to commit an offense under the UCMJ, and that while the agreement continued to exist, and while the accused remained a party to it, one of the conspirators performed an overt act to effect the object of the agreement.

Several features follow from this. The crime is the agreement itself, not its success. The conspirators need not accomplish the planned offense; they need not even come close. A …

A service member who received a civilian driving-under-the-influence (DUI) conviction before or during service, and never disclosed it, sometimes worries that the old offense could surface and end a career long afterward. The honest answer is that it can, but the legal basis is rarely the DUI itself. The exposure usually comes from the concealment, not the underlying driving offense. This article explains the distinction, the mechanisms by which an old undisclosed DUI can lead to separation, and the limits on that exposure.

Separate the DUI from the failure to disclose

A civilian DUI from years ago is generally a civilian matter that has already been adjudicated in a civilian court. Standing alone and long in the past, it is usually not the kind of recent misconduct that drives a current discharge. What changes the analysis is whether the service member was required to disclose the conviction and failed to do so, or affirmatively denied it. That omission or false answer is the conduct that can carry forward and create military legal exposure even many years later.

In other words, the question is less about the DUI and more about a possible false statement, a concealed material fact, or a fraudulent entry into service. Those are independent wrongs that the military can act on regardless of how old the DUI is.

The criminal route: fraudulent enlistment under Article 104a

If a recruit was asked about prior criminal history during the enlistment process and knowingly concealed a DUI conviction, or knowingly misrepresented it, the service member may have committed fraudulent enlistment under Article 104a of the Uniform Code of Military Justice (UCMJ). The offense requires that the accused procured enlistment or appointment by knowingly making a false representation or by deliberately concealing a material fact about qualifications, and then received pay or allowances. A concealed conviction can qualify as a material fact, because it is the kind of information that bears on eligibility and on the waiver process recruiters use.

Because the offense is anchored in the act of obtaining enlistment, it does not necessarily expire simply because years have passed. The discovery of the concealment, often during a security clearance investigation, a background recheck, or an unrelated inquiry, can revive attention to the original false answer. A conviction under Article 104a can carry significant punishment and a punitive discharge, although whether a command pursues court-martial depends on the facts and …

Article 31 of the Uniform Code of Military Justice gives service members a powerful protection: the right to be advised of the nature of an accusation, the right not to be compelled to incriminate themselves, and the right to remain silent when questioned as a suspect. Many service members hesitate to use that right because they fear it will mark them in their commander’s eyes and quietly damage their career. The honest answer to whether invoking Article 31 can affect your standing with your command has two parts. As a matter of law, invoking the right cannot be held against you in any proceeding. As a matter of human reality, members often worry about perception, and it is worth understanding both the legal guarantees and the practical landscape.

What Article 31 actually protects

Article 31 is broader than the civilian Miranda rule. Under Article 31(b), a person subject to the code who is suspected of an offense must be warned of the nature of the accusation, advised of the right to remain silent, and told that any statement made may be used against them, before being interrogated or asked for a statement. Crucially, this warning requirement is not limited to custodial situations. It applies whenever a service member is officially questioned by someone acting in an official capacity who suspects the member of an offense.

The military guards this privilege even more closely than civilian courts guard the Fifth Amendment, precisely because of the coercive pressures built into the military environment. The Court of Appeals for the Armed Forces has recognized that the effect of superior rank or official position can make the mere asking of a question the practical equivalent of a command. Article 31 exists to neutralize that pressure so that a member’s choice to speak is genuinely voluntary.

The legal rule: invocation cannot be used against you

The core legal protection is unambiguous. Exercising the right to remain silent or to request counsel cannot be used as evidence of guilt. Statements taken in violation of Article 31(b) are generally inadmissible under Article 31(d) and Military Rule of Evidence 304. Just as important, courts have consistently held that the act of invoking the right, staying silent or asking for a lawyer, cannot itself be introduced to suggest the member must be guilty. Invoking your rights is a lawful choice, not an admission.

This rule reaches beyond the courtroom. …

Abuse of authority is one of those phrases that everyone in a unit understands instinctively but that resists a single, tidy legal definition. The reason is that abuse of authority is not, by itself, a numbered punitive article of the Uniform Code of Military Justice. It is a concept that runs through several different parts of military law, and when it is not tied to a specific criminal offense, it surfaces primarily in the administrative and inspector general systems. Understanding the definition means understanding where the concept lives when no court-martial charge attaches to it.

The core idea

At its center, abuse of authority means using a position of official power for a purpose other than the one the power was granted to serve. The inspector general system, which investigates this kind of conduct across the services, describes it in those terms: an arbitrary or capricious exercise of authority that injures someone or that produces a benefit the official was not entitled to. The defining feature is the gap between the legitimate purpose of the authority and the way it was actually used. A leader who orders extra duty to correct a genuine performance problem is exercising authority. A leader who orders the same extra duty to retaliate against a subordinate for a complaint is abusing it. The act may look identical from the outside; what separates them is purpose and justification.

Why it is often untethered from a specific offense

Many abuses of authority do not fit neatly inside a punitive article. The UCMJ punishes specific, defined conduct, and a great deal of authority-abusing behavior, such as petty favoritism, misuse of a subordinate’s time for personal errands, or heavy-handed but technically permissible orders, falls below the threshold of any single criminal article. When that happens, the conduct does not disappear from the legal radar. It moves into the administrative space, where the standard is not criminal guilt but fitness, judgment, and adherence to standards of conduct.

Where the definition gets applied administratively

Several administrative mechanisms give the concept teeth even when no charge is preferred.

The first is the adverse administrative action itself. A general officer memorandum of reprimand, a relief for cause, an adverse evaluation report, or a referred fitness report can all rest on a finding that an officer or noncommissioned officer abused a position of trust. These actions require only that the issuing authority reasonably conclude …

A missing movement charge under Article 87 of the Uniform Code of Military Justice (10 U.S.C. 887) is, at its core, a proof problem for the government. The prosecution must convince the members or the military judge beyond a reasonable doubt that a real movement occurred, that the accused was required to be part of it, that the accused knew it was coming, and that the accused failed to make it through design or neglect. Each of those elements draws on a recognizable category of evidence. Understanding which records and witnesses the government typically reaches for explains why these cases often turn on paperwork as much as on testimony.

Proving the Movement Itself Happened

The threshold question is whether a qualifying movement actually took place. Under the Manual for Courts-Martial, a movement for Article 87 purposes is a move, transfer, or shift of a ship, aircraft, or unit involving a substantial distance and a substantial period of time. A short shift of a vessel between berths in the same harbor or a unit relocating between barracks on the same installation generally does not qualify.

To establish a qualifying movement, trial counsel commonly introduces deployment orders, ship sailing schedules, flight manifests, load plans, and unit movement orders. For a naval deployment, the ship’s deck logs and the actual departure record show when the vessel got underway. For an aircraft, the passenger manifest and the flight schedule document the scheduled departure. For a unit, the operations order and the alert or recall roster establish that the formation was set to move as a body. These documents are usually admitted as business records or official records, with a custodian or unit administrator laying the foundation.

Proving the Accused Was Required to Move

The government must connect the accused personally to the movement. The most direct evidence is an order or assignment placing the service member on the manifest or roster for the move. Deployment orders naming the individual, a leave and earnings statement reflecting the gaining unit, or a personnel action showing the accused was attached to the deploying element all serve this purpose. Testimony from a first sergeant, a detailer, or a unit movement coordinator often supplements the records by explaining how the accused came to be obligated to travel.

Proving the Accused Knew of the Movement

Knowledge is frequently the contested element, so the government builds a record showing the accused …

Holding a leader criminally responsible for what happened on their watch is not as simple as pointing to a bad outcome. When the military charges a service member with dereliction of duty under Article 92 of the Uniform Code of Military Justice for failing to supervise subordinates, the government must prove a specific set of elements, and a poor result alone does not satisfy them. Understanding what the prosecution actually has to establish, and how supervisory failures fit into that framework, is essential for leaders and the counsel who advise them.

The Elements the Government Must Prove

Dereliction of duty is one of the offenses under Article 92. To convict, the government must prove three things: that the accused had certain duties; that the accused knew or reasonably should have known of those duties; and that the accused was derelict in the performance of those duties, either willfully, through neglect, or through culpable inefficiency.

Each element does real work. The first requires the prosecution to identify an actual duty, not a vague sense that a leader should have done better. The second requires a showing about the accused’s knowledge of that duty. The third requires proof of the manner of the failure. A supervisory dereliction case can fall apart at any of these points, so each deserves close attention.

Identifying the Duty to Supervise

The threshold question is whether the accused had a duty at all, and where that duty came from. A duty under Article 92 can be imposed by statute, regulation, lawful order, standard operating procedure, or the custom of the service. In a failure to supervise case, the government typically points to the source that assigned the accused responsibility over the subordinates in question, such as a regulation, a position description, a standing operating procedure, or an order placing the accused in charge.

This is often the most contested element. A supervisory relationship in the abstract is not enough; the prosecution must connect the accused to a defined duty to supervise in the relevant respect. If the duty the government invokes is poorly defined, was not actually assigned to the accused, or did not extend to the conduct at issue, the case is vulnerable from the outset.

Proving Knowledge of the Duty

The second element requires that the accused knew or reasonably should have known of the duty. This is an important limit. The standard is not …

Article 120 of the Uniform Code of Military Justice, codified at 10 U.S.C. 920, defines the military’s principal sexual offenses. Two concepts that often get tangled together in these cases are the mental state the government must prove to convict and the defense known as mistake of fact as to consent. They are related, because both turn on what the accused knew or believed, but they operate on opposite sides of the case. The government carries the burden on the mental state required by the offense, while mistake of fact is a defense the accused may raise. Understanding how Article 120 separates these ideas is essential to understanding how these cases are litigated.

The Mental State the Government Must Prove

Article 120 offenses are not strict-liability crimes. The government must prove that the accused acted with the mental state the statute and the Manual for Courts-Martial attach to the offense. The physical act, such as a sexual act or sexual contact, must be done intentionally rather than accidentally. Beyond the act itself, many Article 120 offenses are built around the absence of consent or the victim’s incapacity, and the law focuses on whether the accused knew or reasonably should have known of that lack of consent or that incapacity.

That standard combines an objective and a subjective dimension. The knew portion looks at the accused’s actual awareness. The reasonably should have known portion measures the accused’s perception against what a reasonable person in the same situation would have understood. This framing matters because it means the government does not always have to prove that the accused subjectively desired to act without consent. It can be enough that a reasonable service member in the accused’s position would have recognized the other person was not consenting or could not consent.

What Consent Means Under the Statute

Consent under Article 120 is a freely given agreement to the conduct at issue by a competent person. The law makes clear that the absence of verbal or physical resistance does not by itself establish consent, and that certain circumstances negate consent altogether. Submission produced by force, by threats, or by placing a person in fear is not consent. A person who is asleep, unconscious, or otherwise unaware that the act is occurring cannot consent. A person rendered incapable of appraising the nature of the conduct by intoxication, mental disease, or defect cannot consent. These rules …