Military Lawyers

Prosecution decisions in Article 120 cases, the Uniform Code of Military Justice provision at 10 U.S.C. 920 governing rape, sexual assault, and related offenses, have long been shaped by the unique command structure of the armed forces. The influence of command on these decisions has been one of the most debated subjects in military justice, and it has driven major structural reform in recent years. This article explains how command pressure has historically affected Article 120 prosecutions, how the law restricts that pressure, and how recent changes have shifted the charging authority away from commanders.

The traditional role of the commander

Historically, the authority to decide whether a service member would face a court-martial belonged to the accused’s commander, known as the convening authority. This arrangement placed prosecution decisions inside the chain of command rather than with an independent prosecutor. In Article 120 cases, that created a difficult dynamic. Commanders faced pressure from competing directions: pressure to take sexual assault allegations seriously and refer them to trial, and, in some instances, informal pressure rooted in unit cohesion or personal relationships. Critics argued that this structure could lead either to allegations being underprosecuted to protect valued service members or, conversely, to weak cases being referred to trial to demonstrate that a command was taking the issue seriously.

What the law prohibits: unlawful command influence

Article 37 of the UCMJ prohibits unlawful command influence, which is any improper attempt by a person subject to the code to coerce or influence the action of a court-martial or its members by unauthorized means. Unlawful command influence has long been described in military jurisprudence as a serious threat to the fairness of the system. In the context of Article 120, the concern is that senior leaders, responding to the intense scrutiny surrounding military sexual assault, might pressure subordinates or convening authorities toward a particular outcome, or might create an atmosphere in which panel members feel that leadership expects convictions. Where unlawful command influence is found, it can taint proceedings and provide grounds for relief, because it undermines the independence that the system requires.

The institutional pressure surrounding sexual assault cases

Article 120 prosecutions occur within an environment of heightened political, congressional, and public attention to military sexual assault. For years, reports and oversight bodies documented concerns that the rate of prosecution and the handling of these cases did not match the seriousness of the problem. …

Many service members are surprised to learn that the real career danger of nonjudicial punishment is not the punishment itself but what can follow it. Nonjudicial punishment, imposed under Article 15 of the Uniform Code of Military Justice, does not by itself separate a member from the service. Yet an administrative separation often follows, and that separation is where a discharge, sometimes an unfavorable one, can actually occur. The answer to the question is yes: a military attorney can help a service member work to avoid a discharge after nonjudicial punishment, by acting at both the nonjudicial punishment stage and the separation stage that may come next.

Understanding Nonjudicial Punishment

What Nonjudicial Punishment Is

Article 15 authorizes a commander to impose disciplinary punishment for minor offenses without convening a court-martial. It is one of the most common disciplinary tools in the armed forces and is known in the Navy and Coast Guard as captain’s mast. It allows a commander to address misconduct through measures such as reduction in rank, forfeiture of pay, extra duties, and restriction.

What Nonjudicial Punishment Is Not

Nonjudicial punishment is not a criminal conviction. Unlike a court-martial, an Article 15 does not result in a criminal record, and, importantly, a member cannot be separated from the service at nonjudicial punishment itself. The discharge risk comes from a separate administrative process that the command may start afterward.

Why the Distinction Matters

Because separation is not part of the Article 15 itself, the fight to avoid a discharge has two distinct phases: the nonjudicial punishment proceeding, where the underlying misconduct is established, and the administrative separation proceeding, where the actual discharge decision is made. An attorney can assist in both.

How a Discharge Can Follow Nonjudicial Punishment

The Link Between NJP and Separation

Although a member cannot be discharged at nonjudicial punishment, an administrative separation frequently follows it. The record created at the Article 15, including the finding of misconduct, can become the basis the command uses to initiate separation. In this sense, accepting and losing at nonjudicial punishment can set the stage for the discharge process.

The Stakes of the Separation Decision

An administrative separation decision determines whether the member is discharged and, if so, the characterization of service, which can range from honorable to a less favorable characterization. The characterization affects benefits, reputation, and future opportunities, which is why preventing or improving the outcome is so …

The United States and India both maintain large armed forces governed by dedicated bodies of military law, and both inherited legal traditions that shaped how they discipline soldiers. The American system is consolidated in a single statute, the Uniform Code of Military Justice, that covers all the armed forces. The Indian system is older in its roots and more fragmented, built on separate service statutes, principally the Army Act of 1950, supplemented by the Navy Act and the Air Force Act, with appellate oversight provided since 2007 by a specialized Armed Forces Tribunal. Comparing them shows two common-law-influenced democracies arriving at different structures for military justice.

The American framework: one code for all services

In the United States, military law is consolidated in the Uniform Code of Military Justice, or UCMJ, enacted by Congress and codified in Title 10 of the United States Code. A single code governs members of all the armed forces, and it contains both military-specific offenses, such as desertion and disobedience of a lawful command, and ordinary crimes, such as theft, assault, and murder, that can be tried under military jurisdiction.

The UCMJ is implemented through the Manual for Courts-Martial, a presidential document supplying the Rules for Courts-Martial and the Military Rules of Evidence. Article 16 sets out three tiers of court-martial, summary, special, and general. A general court-martial consists of a military judge and a panel of members, with the accused entitled to elect a judge-alone trial. The 2016 Military Justice Act, reflected in the 2019 edition of the Manual, fixed statutory panel sizes and modernized voting and sentencing.

The American system is administered internally by the military, applies jurisdiction based on military status across a wide range of offenses, and provides a self-contained appellate ladder running through the service Courts of Criminal Appeals to the civilian Court of Appeals for the Armed Forces, with possible Supreme Court review.

The Indian framework: service-specific acts and four kinds of court-martial

India’s military law reflects its origins in the British Indian Army and its post-independence statutory framework. Rather than a single unified code, India relies on separate statutes for each service: the Army Act of 1950, the Navy Act of 1957, and the Air Force Act of 1950. These acts define the offenses, the disciplinary structure, and the trial procedures for their respective services. The Army Act, the most prominent, defines a wide range of military offenses …

Comparing United States military law with Japanese military law produces one of the most striking contrasts in all of comparative military justice, because the two countries answer the foundational question so differently. The United States maintains a comprehensive military criminal code, the Uniform Code of Military Justice, enforced through military courts-martial. Japan, by deliberate constitutional design after the Second World War, has no court-martial system at all, and its Self-Defense Forces personnel are tried for crimes in the same civilian courts that try everyone else. Understanding why requires looking at each country’s constitutional foundations.

The American framework: a full military justice code

In the United States, military law is consolidated in the Uniform Code of Military Justice, or UCMJ, enacted by Congress and codified in Title 10 of the United States Code. The UCMJ governs members of all the armed forces and contains both military-specific offenses, such as desertion, absence without leave, and disobedience of a lawful order, and ordinary crimes, such as theft, assault, and murder, that can be tried under military jurisdiction.

The UCMJ is implemented through the Manual for Courts-Martial, a presidential document supplying the Rules for Courts-Martial and the Military Rules of Evidence. Article 16 establishes three tiers of court-martial, summary, special, and general. A general court-martial consists of a military judge and a panel of members, with the accused entitled to elect a judge-alone trial. The 2016 Military Justice Act, reflected in the 2019 edition of the Manual, fixed statutory panel sizes and modernized voting and sentencing.

The American system is administered internally by the military, exercises jurisdiction based on military status across a wide range of offenses, follows the force around the world, and provides a self-contained appellate ladder through the service Courts of Criminal Appeals to the civilian Court of Appeals for the Armed Forces, with possible Supreme Court review.

The Japanese framework: no court-martial by constitutional design

Japan stands almost alone among major military powers in having no military criminal court system. The reason lies in the postwar Constitution of 1947. Article 9 of that Constitution famously renounces war and the maintenance of war potential, and Japan accordingly does not maintain conventional armed forces in the ordinary sense but instead the Japan Self-Defense Forces (JSDF), established under the Self-Defense Forces Act.

Just as important for military justice is Article 76 of the Constitution, which vests all judicial power in the Supreme Court …

Conspiracy is one of the oldest tools in criminal law, and the military version codified at Article 81 of the Uniform Code of Military Justice carries its own distinct contours. A service member can be convicted of conspiracy even when the planned crime never happens. The agreement itself, paired with a single step toward the goal, is enough to expose someone to serious punishment. This guide explains what Article 81 actually requires, how the government proves it, what defenses exist, and why the offense matters so much in the day to day work of military criminal defense.

The Statute Itself

Article 81 is codified at 10 U.S.C. 881. Subsection (a) states: “Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.”

Subsection (b) addresses a narrower category, conspiracy to commit an offense under the law of war, and provides for punishment that can include death when death results to a victim. That law of war provision is rarely seen in ordinary practice and applies to a different class of cases tried before courts-martial or military commissions. The vast majority of Article 81 prosecutions proceed under subsection (a), so the discussion below focuses there.

The plain language of the statute makes two features clear right away. First, the agreement must be to commit “an offense under this chapter,” meaning another offense under the UCMJ. Second, conviction requires that at least one conspirator perform “an act to effect the object of the conspiracy,” commonly called the overt act.

The Elements the Government Must Prove

To obtain a conviction under Article 81, the prosecution must prove the following beyond a reasonable doubt.

First, that the accused entered into an agreement with one or more persons to commit an offense under the UCMJ. The agreement does not have to be formal or written. It can be silent, informal, or inferred from conduct, but a genuine meeting of the minds toward a shared criminal purpose must exist.

Second, that the accused entered the agreement with the intent that the underlying offense be committed. This is a specific intent requirement. Accidental association with wrongdoers, mere presence, or negligence is not enough. The accused must actually intend that the object offense occur.

Third, …

The offense of effecting an unlawful enlistment, appointment, or separation punishes a person who knowingly brings someone into the armed forces, into an appointment, or out of the service when that action is prohibited by law, regulation, or order. This article was historically known as Article 84 of the Uniform Code of Military Justice. Service members and researchers should know that the 2019 Military Justice Act renumbered this offense, a point explained directly below. The questions and answers that follow cover the elements, the renumbering, the punishment, and how the offense fits among related crimes.

Understanding the Offense and Its Numbering

What conduct does this offense punish?

It punishes any person subject to the code who effects an enlistment or appointment in, or a separation from, the armed forces of a person known to the accused to be ineligible for that action because it is prohibited by law, regulation, or order.

Is this offense still located at Article 84 today?

No, and this is the most important thing to understand. After the 2019 Military Justice Act reorganized the punitive articles, the unlawful enlistment, appointment, or separation offense was renumbered. The current home for the offense is Article 104b, codified at 10 U.S.C. 904b. The position formerly held by Article 84 now contains a different offense.

What offense now occupies Article 84?

The current Article 84, at 10 U.S.C. 884, is “Breach of medical quarantine.” It is an entirely different offense and is unrelated to enlistment, appointment, or separation. Anyone researching the older unlawful-enlistment offense by the number 84 should be careful not to confuse the two.

Why does the renumbering matter so much?

Because citing 10 U.S.C. 884 today would point to the medical quarantine offense rather than the enlistment offense. The substantive crime described in this article is now properly cited as Article 104b, 10 U.S.C. 904b. Using the right citation avoids serious legal error.

Did the substance of the offense change with the renumbering?

The core conduct remained the same: knowingly effecting an enlistment, appointment, or separation of an ineligible person. The reform was largely organizational, moving and renumbering the provision rather than redefining the underlying wrong.

The Elements

What are the elements of the offense?

The government must prove that the accused effected the enlistment, appointment, or separation of a certain person; that the person was ineligible for that enlistment, appointment, or separation because it was prohibited …

A service member convicted of what is commonly called adultery under the Uniform Code of Military Justice faces a range of possible consequences, and the most severe of them are significant. The offense is now formally titled extramarital sexual conduct and is prosecuted under Article 134, the general article, codified at 10 U.S.C. 934. The punishments fall into two broad categories: the formal penalties a court-martial can impose after a conviction, and the wide array of professional and collateral consequences that often accompany or substitute for a court-martial. Understanding both categories is essential to grasping what is actually at stake.

The Maximum Court-Martial Punishment

When extramarital sexual conduct is prosecuted at a court-martial and the accused is convicted, the maximum authorized punishment is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for one year. These three penalties can be imposed together, and each carries serious independent consequences.

A dishonorable discharge is the most severe form of separation from the military. It brands the member’s service record permanently and generally results in the loss of veterans’ benefits, including educational benefits and many forms of medical care. Forfeiture of all pay and allowances strips the member of military income. Confinement for up to a year means actual incarceration. For an officer, the equivalent of a punitive discharge is a dismissal, which ends the officer’s career with the same lasting stigma.

It is important to recognize that the one-year confinement figure is a maximum, not a typical or mandatory sentence. The actual sentence in any case depends on the facts, the member’s record, the circumstances of the offense, and the judgment of the court-martial.

Lesser and Intermediate Court-Martial Penalties

A court-martial is not limited to the maximum. Depending on the level of court-martial and the circumstances, a convicted member may receive a lesser sentence that could include a bad-conduct discharge rather than a dishonorable discharge, a shorter period of confinement, partial forfeiture of pay, reduction in rank for enlisted members, or a reprimand. The sentencing authority weighs the seriousness of the conduct and any aggravating or mitigating factors in arriving at the punishment.

Nonjudicial Punishment as an Alternative

Many allegations of extramarital sexual conduct never reach a court-martial. Commanders frequently address the misconduct through nonjudicial punishment under Article 15. Nonjudicial punishment is an administrative disciplinary tool that allows a commander to impose consequences without a criminal trial. Depending on the …

The United States and Brazil are the two largest countries in the Americas, and both maintain dedicated systems of military law. The systems differ in their sources, their courts, and the controversies that surround them. The American system is built on a single congressional code, the Uniform Code of Military Justice, enforced through commander-convened courts-martial. The Brazilian system rests on a Military Penal Code dating from 1969 and a permanent military judiciary that culminates in a Superior Military Court (Superior Tribunal Militar), one of the oldest courts in the country. Comparing the two reveals different relationships between military justice and a nation’s broader constitutional and historical experience.

The American framework: the UCMJ and courts-martial

In the United States, military law is consolidated in the Uniform Code of Military Justice, or UCMJ, enacted by Congress and codified in Title 10 of the United States Code. The UCMJ applies to members of all the armed forces and contains both military-specific offenses, such as desertion and disobedience of orders, and ordinary crimes, such as theft, assault, and murder, that can be tried under military jurisdiction.

The UCMJ is implemented through the Manual for Courts-Martial, a presidential document supplying the Rules for Courts-Martial and the Military Rules of Evidence. Article 16 sets out three tiers of court-martial, summary, special, and general. A general court-martial consists of a military judge and a panel of members, with the accused entitled to elect a judge-alone trial. The 2016 Military Justice Act, reflected in the 2019 edition of the Manual, fixed statutory panel sizes and modernized voting and sentencing.

The American system is administered internally by the military, applies jurisdiction based on military status across a wide range of offenses, and provides appellate review through the service Courts of Criminal Appeals to the civilian Court of Appeals for the Armed Forces, with possible Supreme Court review.

The Brazilian framework: a 1969 code and a permanent military judiciary

Brazil’s military justice (Justiça Militar) is distinctive in part because of its age and its constitutional standing. Brazil traces a military judicial body back to the early nineteenth century, and the modern Superior Military Court (Superior Tribunal Militar), headquartered in Brasilia, descends from that lineage, making it one of Brazil’s oldest standing courts. Unlike the American model, where courts-martial are convened as needed by commanders, Brazil maintains a permanent, standing military judiciary that is recognized in the Federal Constitution as part …

Article 88 of the Uniform Code of Military Justice, codified at 10 U.S.C. 888, is among the most unusual punitive articles because it applies to a narrow class of people and targets a narrow kind of conduct: a commissioned officer who uses contemptuous words against certain high government officials. The article reflects the principle that the armed forces remain firmly under civilian control and that officers, who hold positions of public trust, must not publicly hold the nation’s senior leaders in scorn. It is rarely charged, but it remains on the books and occasionally surfaces in public debate when an officer’s remarks draw attention.

What the Article Covers

Article 88 makes it an offense for a commissioned officer to use contemptuous words against a specifically listed group of officials. Those officials are 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. The list is exhaustive. Contemptuous words about officials not named in the article do not fall within Article 88, though they might raise concerns under other provisions depending on the circumstances.

The article protects the dignity and authority of these offices, not the personal feelings of the individuals who hold them. The concern is institutional. When an officer publicly expresses scorn for the civilian leaders who command the military, it undermines the subordination of the armed forces to civilian authority that lies at the heart of the constitutional order.

Who Can Be Charged

A defining limitation of Article 88 is that only commissioned officers can commit the offense. Enlisted members, warrant officers, and cadets or midshipmen who have not been commissioned are not subject to it. This narrowing reflects the special obligations of commissioned rank. An officer holds a commission from the President and occupies a position of leadership and example, so the law holds officers to a heightened standard regarding public expressions of contempt toward civilian leadership. Misconduct by enlisted members or others that resembles this behavior would have to be addressed under different articles.

The Elements

To obtain a conviction under Article 88, the government must prove three elements. First, that the accused was a commissioned officer of the United States armed forces. Second, that the accused used certain words against an official or legislature …

When a service member is lawfully apprehended, placed under arrest, or confined, the military justice system depends on that person submitting to the restraint rather than fighting it or running from it. The offenses of resisting apprehension, fleeing, breaking arrest, and escaping from custody enforce that expectation. For much of the UCMJ’s history these offenses lived together in Article 95. A reader researching them today should understand an important point about numbering before going further.

A note on the current numbering

The conduct described by the heading of this article, resistance, flight, breach of arrest, and escape, was historically prosecuted under Article 95 of the Uniform Code of Military Justice. The Military Justice Act of 2016, which took effect on January 1, 2019, reorganized and renumbered many punitive articles. As part of that reform, the resistance, flight, breach of arrest, and escape offenses were moved to Article 87a, codified at 10 U.S.C. section 887a. The designation “Article 95” was then reassigned to a different offense, “Offenses by sentinel or lookout.”

This means that anyone working with current charging documents or the present Manual for Courts-Martial will find these offenses under Article 87a, not Article 95. Older cases, references, and discussions still cite Article 95, and the substance of the offenses carried over largely intact. The discussion below describes that body of law as it currently stands under Article 87a, while preserving the familiar Article 95 heading by which many readers will know it.

The offenses covered

The article defines several related but distinct offenses. Resisting apprehension is actively opposing a person who is attempting to apprehend the accused. Fleeing apprehension is running or otherwise removing oneself to avoid being apprehended. Breach of arrest is going beyond the limits of a lawfully imposed arrest before being released. Escape from custody is freeing oneself from physical control imposed in connection with an offense. Escape from confinement is leaving lawful confinement without authority. Each describes a different way of defeating lawful restraint, and each has its own elements.

Elements of resisting and fleeing apprehension

Apprehension in the military is the equivalent of arrest in civilian terms: it is the taking of a person into custody. To prove resisting apprehension, the government must show that a person authorized to apprehend the accused attempted to do so, that the accused knew the person was attempting an apprehension, and that the accused actively resisted that apprehension. …