Military Lawyers

When an enlisted member or warrant officer is tried for disrespect toward a noncommissioned officer, warrant officer, or petty officer under Article 91 of the Uniform Code of Military Justice, the members who serve as the factfinders do not bring their own private definition of disrespect to the case. The military judge tells them what the law requires, walks them through each element the government must prove, and defines the key terms. Those instructions frame the entire deliberation, because the members may convict only if the government has proven every element beyond a reasonable doubt as the judge has defined it.

The disrespect branch of Article 91

Article 91 reaches several kinds of insubordinate conduct, including striking or assaulting, willfully disobeying, and treating with contempt or being disrespectful toward a warrant officer, noncommissioned officer, or petty officer. The disrespect branch is the one at issue here. Only enlisted members and warrant officers can commit this offense, and the person disrespected must be a warrant officer, noncommissioned officer, or petty officer.

The elements the judge lays out

The military judge instructs the members on the specific elements the prosecution must establish beyond a reasonable doubt for the disrespect branch. Those elements are that the accused did or said certain things toward and within the sight or hearing of a person who was a warrant officer, noncommissioned officer, or petty officer; that the accused then knew the person was a warrant officer, noncommissioned officer, or petty officer; that the victim was at the time in the execution of office; and that under the circumstances the accused’s behavior or language treated that person with contempt or was disrespectful.

By breaking the offense into these discrete elements, the instruction makes clear that disrespect alone is not enough. The members must also find the status of the victim, the accused’s knowledge of that status, and that the victim was acting in the execution of office, before the disrespect element even comes into play.

How the judge defines disrespect and contempt

The heart of the instruction is the definition of the operative terms. The judge explains that disrespectful behavior is that which detracts from the respect due to the authority and person of a superior. The judge further explains that such behavior may be shown through acts or through language, however expressed, and that it is immaterial whether the conduct refers to the person in an …

Yes, charges can be dismissed when the government fails to meet its discovery obligations, but dismissal is the most severe remedy available and military judges reserve it for the most serious violations. Rule for Courts-Martial (RCM) 701 governs discovery in the military justice system, and RCM 701(g)(3) gives the military judge a menu of remedies when a party fails to comply. Dismissal sits at the far end of that menu. Whether it is warranted depends on the nature of the violation, the prejudice to the accused, and whether any less drastic measure would cure the problem.

The discovery framework: Article 46 and RCM 701

Military discovery is unusually generous to the accused, and that breadth comes from the statute itself. Article 46 of the UCMJ requires that the trial counsel, the defense counsel, and the court-martial have equal opportunity to obtain witnesses and other evidence. RCM 701 implements that equal-access principle. Among other things, it requires the government, on defense request, to permit inspection of documents, papers, photographs, and tangible objects within the government’s control that are material to the preparation of the defense or that the government intends to use in its case-in-chief. The government also has obligations to disclose evidence favorable to the defense, which incorporates the constitutional duty recognized in Brady v. Maryland to turn over material exculpatory and impeachment evidence.

When the government does not meet these obligations, RCM 701 does not leave the accused without recourse. RCM 701(g)(3) supplies the enforcement mechanism.

The remedies available under RCM 701(g)(3)

When a party fails to comply with a discovery rule or order, the military judge may take a range of actions. The judge may order the delinquent party to permit the discovery, may grant a continuance to give the disadvantaged party time to absorb the late material, may prohibit the offending party from introducing the undisclosed evidence or calling the undisclosed witness, or may enter such other order as is just under the circumstances.

That last phrase is important. The plain language of RCM 701(g)(3) authorizing any order that is just under the circumstances is broad. Military courts have explained that this language does not strictly require the judge to craft the least drastic remedy in every instance. Crafting the least drastic remedy focuses narrowly on curing the prejudice to the aggrieved party, but the just-under-the-circumstances standard permits the judge to consider the broader context of the …

A common question in sexual offense cases under military law is whether contact must be skin to skin to count, or whether touching over a person’s clothes is enough. Under Article 120, UCMJ, the answer is clear: touching through the clothing can constitute sexual contact. The statute defines sexual contact in terms that expressly include touching done through the clothing, so the absence of skin-to-skin contact is not a defense to the contact element. What the statute does require, in addition to the touching, is that it reach a specified part of the body and be done with one of the specified intents.

The statutory definition

Article 120, UCMJ, is codified at 10 U.S.C. section 920 and addresses rape and sexual assault generally, including the lesser offenses of abusive sexual contact and aggravated or wrongful sexual contact. The statute supplies its own definition of sexual contact, and that definition controls. Sexual contact means touching, or causing another person to touch, either directly or through the clothing, certain enumerated body parts of any person, with one of two categories of intent. The phrase either directly or through the clothing is the operative language. By its terms, the definition treats contact made over clothing as the legal equivalent of contact made on bare skin for purposes of the offense.

This resolves the core question. Because the statute itself says the touching may be accomplished directly or through the clothing, a touching that occurs over a garment can satisfy the contact element of sexual contact. The factfinder is not required to find skin-to-skin contact.

The body-part requirement

Not every touch through clothing qualifies. The touching must involve one of the body parts the statute lists. Under the definition, the enumerated parts are the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person. A touch through clothing to one of these areas can be sexual contact; a touch to an area outside the list is not sexual contact under this definition, however it occurs. The clothing makes no difference to this requirement; what matters is which part of the body the touching reaches.

The statute is also broad about how the touching is accomplished. Touching may be done with any part of the body or with an object. So a touching through clothing using a hand, another body part, or an object can all satisfy the conduct element, provided it …

When a service member is convicted of several offenses arising from different incidents, the punishments do not simply add up without limit. Military law has developed a layered framework for deciding how much punishment is appropriate when conduct is broken into many charges. The evaluation turns on three related but distinct doctrines, multiplicity, unreasonable multiplication of charges, and the rules governing the maximum punishment, applied against the backdrop that a court-martial imposes a single, unitary sentence for all offenses together.

A single sentence, not stacked sentences

A core feature of military sentencing is that a court-martial returns one sentence covering all the offenses of which the accused was convicted, rather than separate consecutive terms for each specification the way many civilian courts do. The sentencing authority considers everything together and arrives at a unified result within the legal ceiling. This structure already moderates the cumulative effect of charging conduct in many pieces, because the question is not how many specifications there are but what total punishment fits the whole course of conduct.

That said, the number and labeling of charges still matter, because they set the maximum exposure and shape how the conduct is presented. That is why the doctrines below exist.

Multiplicity and double jeopardy

Multiplicity is the constitutional limit. It prohibits convicting and punishing an accused twice for what is, in law, a single offense, protecting against double jeopardy. The classic test asks whether each offense requires proof of an element the other does not. If one offense is simply a lesser-included version of another, or two specifications describe the same statutory wrong, punishing both can be multiplicious. When offenses are found multiplicious, the remedy generally affects both findings and sentence, because a multiplicious conviction cannot stand at all.

Multiplicity is most relevant when charges overlap as to the same act. It does less work when charges span genuinely separate incidents, because separate acts usually are separately punishable as a matter of law.

Unreasonable multiplication of charges

Even when offenses are legally separate and not multiplicious, military law recognizes a distinct protection unique to the system: the prohibition against unreasonable multiplication of charges. This doctrine guards against prosecutorial overreaching by limiting the practice of carving a single transaction into an exaggerated stack of specifications. The Court of Appeals for the Armed Forces has framed the analysis around several considerations: whether each charge is aimed at a distinctly separate …

A charge of missing movement under Article 87 of the Uniform Code of Military Justice turns on more than the fact that a service member failed to deploy with a ship, aircraft, or unit. The government must connect the accused’s mind to the movement. The knowledge element is the bridge between the physical fact that a movement occurred and the legal conclusion that the accused is criminally responsible for missing it. Without proof that the accused knew the movement was coming, a missing movement conviction cannot stand.

Where the knowledge requirement comes from

Article 87 makes it an offense for 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 elements the prosecution must prove beyond a reasonable doubt are that the accused was required in the course of duty to move with a ship, aircraft, or unit; that the accused knew of the prospective movement; that the accused actually missed the movement; and that the missing was through design or neglect.

The second element, knowledge of the prospective movement, is the focus here. It is a distinct element with its own proof burden, separate from the question of whether the accused acted by design or neglect. Even a service member who is grossly careless cannot be convicted unless the government also proves the accused knew the movement was scheduled.

What “knowledge” means in this context

Knowledge under Article 87 refers to the accused’s awareness of a prospective movement. The government does not have to prove that the accused knew the exact hour, or even the exact date, of the movement. It is enough that the accused was aware that a movement was scheduled to take place and that the accused was required to be part of it. The law treats general awareness of an impending movement as sufficient, because the gravamen of the offense is the failure to be present for a known obligation, not a failure to memorize a precise timetable.

This means the prosecution’s task is to show that the accused understood, before the movement, that the ship, aircraft, or unit was going to move and that the accused had a duty to go with it.

Actual knowledge versus constructive knowledge

Knowledge can be proven in two ways. The first is actual knowledge, meaning the accused in …

In a sexual assault prosecution under Article 120 of the Uniform Code of Military Justice (UCMJ), the credibility of the complaining witness is often the central issue. So defense counsel frequently want to show that the same person made a prior accusation that turned out to be false. The instinct is understandable, but the path to admitting that evidence is narrow and tightly controlled. The answer is that prior false allegations can be admitted in some cases, but only when the defense can actually establish the falsity and only after navigating the military’s rape shield rule, Military Rule of Evidence (MRE) 412.

Why MRE 412 is the starting point

MRE 412 is the military version of the rape shield law. In a case involving alleged sexual misconduct, it generally prohibits the defense from offering evidence to prove that the alleged victim engaged in other sexual behavior, or evidence offered to prove the alleged victim’s sexual predisposition. The rule exists to protect complaining witnesses from having their sexual history paraded before the factfinder and to keep trials focused on the charged conduct.

The threshold question with prior false allegations is whether the rule even applies. A genuinely false accusation, one the person knew was untrue, is not “sexual behavior” at all; it is a lie about an event that did not happen. Courts have recognized that a demonstrably false prior allegation is therefore not the kind of sexual-history evidence MRE 412 was designed to exclude. The difficulty is that this characterization depends entirely on proving falsity. If the prior allegation was true, or merely unproven, then introducing it slides back into offering evidence about the person’s actual sexual behavior, which MRE 412 bars.

The falsity must be established, not assumed

This is where most attempts fail. The fact that a prior complaint did not result in charges, or was not prosecuted, or ended without a conviction, does not make it false. Allegations are dropped for many reasons that have nothing to do with truth, including a victim’s reluctance to proceed, insufficient corroboration, or jurisdictional problems. To treat the evidence as a prior false allegation rather than barred sexual-history evidence, the defense generally must come forward with a basis to conclude the earlier accusation was actually untrue, such as a recantation, an admission, or objective proof that the claimed event could not have occurred.

Without that showing, the military judge will treat …

Service members in training, whether at basic training, a technical school, officer candidate programs, or follow-on skill courses, live under a tightly scheduled regime of formations, classes, and accountability checks. Article 86 of the Uniform Code of Military Justice, codified at 10 U.S.C. 886, governs unauthorized absence, and it applies to students just as it applies to operational units. The training environment, however, changes how the offense tends to arise and how commands and prosecutors prove it. This article explains how Article 86 reaches service members in student pipelines and what distinguishes a training-context absence from absence in a regular duty assignment.

What Article 86 Covers

Article 86 reaches three basic forms of unauthorized absence. A service member violates the article by failing, without authority, to go to an appointed place of duty at the prescribed time; by going from that appointed place of duty; or by absenting himself or remaining absent from his unit, organization, or place of duty without authority. The Army and Air Force commonly use the term absence without leave, or AWOL, while the Navy, Marine Corps, and Coast Guard use unauthorized absence, or UA. The underlying conduct is the same.

To convict, the government must prove the absence was without authority, meaning without approval from someone empowered to grant leave or excuse the member, and that it lasted for the charged period. The government typically must also establish, often through circumstantial evidence, that the member had actual knowledge of the appointed time and place of duty.

Why Training Pipelines Generate Frequent Failure-to-Go Cases

In a student environment, the most common Article 86 violation is the failure to go to an appointed place of duty rather than a long-term disappearance. Training schedules are dense and rigid. A student is expected to be at first formation, in a specific classroom, at physical training, or at a scheduled appointment. Missing any one of these can constitute failure to go.

This matters because the failure-to-go form of Article 86 is complete the moment the member misses the appointed time and place without authority. Unlike a prolonged absence, it does not require the member to leave the installation or vanish for days. A student who oversleeps and misses a mandatory formation, or who skips a required class without permission, has potentially committed the offense even though he never left the schoolhouse grounds.

The Knowledge Element in a Structured Schedule

Because …

Sexual offense prosecutions under Article 120, UCMJ, increasingly turn on digital images: photographs pulled from phones, screenshots of messages, and pictures shared across social platforms. These images can corroborate or contradict an account of what happened, but they do not come into evidence simply because they exist. They must clear the same evidentiary gates that govern any exhibit in a court-martial. The standards that guide admissibility of digital photographs in an Article 120 case are authentication under Military Rule of Evidence (MRE) 901, the best evidence rules in MRE 1001 through 1003, relevance under MRE 401 and 402, and the balancing and protective rules that apply with particular force in sexual offense trials, especially MRE 403 and MRE 412.

Authentication: proving the image is what it is claimed to be

The first hurdle is authentication. Under MRE 901(a), the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it to be. For a digital photograph, that usually means showing that the image accurately depicts the scene, person, or thing it purports to show, and that it has not been altered in a way that misleads.

There are several ways to meet this standard. A witness with knowledge can authenticate a photograph by testifying that it fairly and accurately represents what it depicts, which does not require the photographer to testify and does not even require the witness to have been present when the photo was taken, so long as the witness can vouch for its accuracy. Where no such witness is available, MRE 901(b)(9) allows authentication of evidence produced by a process or system by describing the process and showing that it produces an accurate result. Military courts have applied these principles to digital images; in United States v. Lubich, a digital image was held to be properly authenticated under MRE 901 through testimony establishing that it accurately represented the scene depicted.

Digital images also offer their own authenticating features. Distinctive characteristics under MRE 901(b)(4), such as identifiable people, locations, tattoos, or content known only to certain persons, can support authentication taken together with the circumstances. Metadata embedded in the file, including timestamps and device or location data, can corroborate when and where an image was created. And the 2017 self-authentication provisions, MRE 902(13) and 902(14), allow records generated by an electronic process and certified copies of digital data, often verified by …

Statements a person makes while drinking are not automatically excluded from a court-martial. As a general matter, what a service member says during an alcohol-fueled conversation can be admitted and can be used by the government to prove a mental state, including the intent to solicit another to commit an offense. Intoxication goes to how much weight the statements deserve, not to a blanket bar on their admission. That said, several evidentiary doctrines control whether and how such statements come in, and intoxication can become a powerful argument against relying on them.

The threshold: relevance

Under the Military Rules of Evidence, the first question is relevance. Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than it would be without the evidence. When the charged offense is solicitation, the accused’s intent that another person actually commit the solicited offense is a fact of consequence. A statement urging someone to obtain records, deliver material, or carry out an act, even one made during a night of drinking, tends to show that the speaker wanted that act done. On its face, such a statement clears the low relevance bar.

Intoxication does not strip a statement of relevance. A drunken declaration of purpose still tends to show purpose. The argument that the speaker did not mean it goes to weight, and that is an argument for the factfinder, not a reason to keep the evidence out at the threshold.

Hearsay and the party-opponent rule

The next question is hearsay. If the government offers the accused’s own words to prove the truth of what they assert, the words are still admissible because a statement offered against a party that is the party’s own statement is not barred by the hearsay rule. The military rules treat an opposing party’s own statement as admissible non-hearsay. So the accused cannot keep his own solicitation statements out merely by calling them hearsay. The fact that he was drinking when he spoke does not change that analysis.

When the solicitation statement is offered not for its truth but simply as a verbal act, the words that constitute the solicitation itself, the hearsay rule is not even implicated, because the statement is being offered to show that the solicitation was made, not to prove some separate assertion.

Voluntariness and the speaker’s condition

A separate consideration arises if the statement was made …

Yes. An accused in the military justice system has a robust right to remain silent, and that right applies at the formal hearing stage just as it applies during investigation and interrogation. In fact, the protection against compelled self-incrimination in the military is broader in some respects than the corresponding civilian protection. The accused cannot be forced to testify against himself or herself at a court-martial, and the decision whether to say anything is the accused’s alone.

The source of the right

In the armed forces, the right against self-incrimination flows from two reinforcing sources. The first is Article 31 of the Uniform Code of Military Justice, codified at 10 U.S.C. 831, which prohibits compelling any person to incriminate himself or to answer any question the answer to which may tend to incriminate him. The second is the Fifth Amendment to the United States Constitution, which protects against compelled self-incrimination and applies to service members.

Together these authorities establish that a service member facing court-martial cannot be called to the stand by the prosecution and forced to answer. The choice to testify rests entirely with the accused.

At trial: the accused chooses whether to testify

During the court-martial itself, the accused has three basic options regarding personal participation as a witness, and each reflects the right to remain silent.

First, the accused may decline to testify at all on the question of guilt. The prosecution cannot call the accused as a witness, and the panel may not draw an adverse inference from the accused’s silence. The military judge will instruct the members that the accused has an absolute right not to testify and that no negative conclusion may be drawn from the exercise of that right.

Second, the accused may choose to testify on the merits. If the accused elects to take the stand during the findings phase, the accused is then subject to cross-examination like any other witness on matters within the scope of that testimony. Testifying is therefore a deliberate, counseled decision because it waives silence as to the subjects addressed.

Third, the accused may make a limited statement during sentencing. The military system gives the accused a distinctive option at the presentencing stage to make an unsworn statement, which allows the accused to speak to the panel without being placed under oath and without being subject to cross-examination on the unsworn statement. The accused may also testify …