Military Lawyers

A service member sometimes faces parallel tracks: an administrative proceeding such as a separation board or a board of inquiry on one side, and a court-martial on the other. A natural worry is whether declining to testify in the administrative forum can later be used against the member when a court-martial decides on a sentence. The protections against self-incrimination in the military are strong, and a proper exercise of the right to remain silent should not become a basis to increase punishment at a court-martial. The analysis, however, depends on understanding both the right itself and the distinct rules that govern sentencing.

The right to remain silent in the military

A service member’s protection against compelled self-incrimination is broad. It rests on the Fifth Amendment to the Constitution and on Article 31 of the Uniform Code of Military Justice, which provides protections that in some respects exceed those in the civilian system. A member generally cannot be compelled to make statements that could be used against the member in a criminal proceeding. This protection reaches across forums, which is why declining to testify at an administrative board does not, in itself, amount to misconduct. Exercising a recognized right is not wrongdoing, and it is not the kind of conduct that properly aggravates a sentence.

Silence at sentencing cannot be held against the accused

At a court-martial, the accused has several choices when it comes to sentencing. The accused may testify under oath, may make an unsworn statement, may do both, or may remain silent. When the accused chooses to remain silent, the finder of fact is not to draw any adverse inference from that silence. This rule reflects the constitutional principle that the exercise of the right against self-incrimination cannot be turned into evidence of guilt or used to justify a harsher punishment. The same logic disfavors treating a prior, lawful refusal to testify in another proceeding as an aggravating factor at sentencing.

What sentencing evidence is actually allowed

Sentencing at a court-martial is governed by specific rules about what each side may present. The government may offer evidence in aggravation that is directly related to or resulting from the offenses of which the accused has been found guilty, along with certain personal-data and prior-record matters the rules permit. The defense may present matters in extenuation and mitigation. The key point is that aggravation evidence must connect to the offense …

When a service member is accused of misusing a government email account, messaging platform, or other official communication system, the matter often moves into the administrative separation process rather than, or in addition to, a court-martial. An administrative separation board is the forum that decides whether the alleged conduct warrants discharge and, if so, how the service should be characterized. Understanding how a board approaches this kind of case helps a respondent prepare a focused defense, because the board is answering specific questions under a specific evidentiary standard, not simply judging whether someone made a mistake.

What kind of conduct triggers a board

Government communication systems are issued for official purposes and are governed by service regulations and acceptable use policies that members typically acknowledge when they receive access. Conduct that can lead to separation includes sending sexually explicit or harassing messages, transmitting prohibited or sensitive material, accessing systems for unauthorized personal or commercial reasons, misusing distribution lists, or using official channels to make statements that violate other standards of conduct. The alleged improper use is usually framed as misconduct, a pattern of minor disciplinary infractions, or commission of a serious offense, depending on the regulation the command relies on. The exact basis matters because it shapes what the government must prove and what discharge characterization is on the table.

The board’s core questions

A separation board generally decides three things. First, whether the factual allegations are supported. Second, whether those facts, if found, constitute a proper basis for separation under the cited regulation. Third, if separation is warranted, what characterization of service to recommend, typically Honorable, General (Under Honorable Conditions), or Other Than Honorable. The board may also recommend retention instead of separation. These are distinct determinations, and a respondent can prevail on any one of them. A member might concede that a single careless email occurred while still arguing that it does not rise to a separable offense, or that retention is appropriate given an otherwise strong record.

The standard of proof

Administrative separation boards do not apply the criminal standard of proof beyond a reasonable doubt. The government must establish the basis for separation by a preponderance of the evidence, meaning it is more likely than not that the alleged conduct occurred. This lower threshold is one of the most important features of the process. Conduct that could not be proven at a court-martial can still support …

Not every conversation with a superior, and not every military inquiry, triggers the warning requirements of Article 31 of the Uniform Code of Military Justice. The rights advisement under Article 31(b) attaches to a specific kind of questioning, and understanding which investigations fall inside that category, and which fall outside it, is one of the most practically important questions in military justice. Get it wrong and a statement may be suppressed; get it wrong the other way and a member may wrongly believe a protection applied when it did not.

The Triggering Standard

Article 31(b) provides that no person subject to the UCMJ may interrogate or request a statement from a person suspected of an offense without first informing that person of the nature of the accusation, the right to remain silent, and that any statement may be used as evidence against them in a trial by court-martial.

Two conditions drive the analysis. First, the person being questioned must be a suspect or an accused with respect to an offense. Second, the questioning must occur in a setting that amounts to a law enforcement or disciplinary inquiry. The Court of Appeals for the Armed Forces has explained that Article 31(b) applies to persons subject to the UCMJ and is triggered when someone interrogates or requests a statement from a person suspected of an offense regarding the offenses of which that person is suspected. The court has framed the test in objective terms, asking whether the questioner was acting, or could reasonably be considered to be acting, in an official law enforcement or disciplinary capacity, rather than focusing on the suspect’s subjective perception of the encounter. The decision in United States v. Cohen is central to this modern framework.

Investigations That Require Article 31 Compliance

The clearest cases requiring Article 31 warnings are formal criminal and disciplinary investigations. When military criminal investigators question a service member who is a suspect, the warning is required. The same is true when a commander, first sergeant, or noncommissioned officer questions a subordinate they suspect of an offense as part of a disciplinary inquiry. In these settings, the questioner is plainly acting in an official law enforcement or disciplinary role, and the person questioned is a suspect, so both triggering conditions are satisfied.

Likewise, questioning connected to a disciplinary investigation, an inquiry that could lead to nonjudicial punishment or court-martial, falls within the rule when …

Discipline depends on obedience, but the armed forces are not built on blind compliance. Service members retain the ability to question, to disagree, and in some cases to refuse, without committing a crime. Article 91 of the Uniform Code of Military Justice, codified at 10 U.S.C. 891, draws the line between punishable insubordination toward a warrant officer, noncommissioned officer, or petty officer, and conduct that, while it may express disagreement, does not cross into criminal insubordination. Understanding where that line falls is essential for anyone serving under, or exercising, military authority.

What Article 91 Prohibits

Article 91 protects warrant officers, noncommissioned officers, and petty officers from certain misconduct by their subordinates. It reaches three categories of behavior. The first is striking or assaulting such an officer while that officer is in the execution of office. The second is willfully disobeying a lawful order from such an officer. The third is treating with contempt or being disrespectful in language or deportment toward such an officer while that officer is in the execution of office. Article 91 fills the gap left by the articles that protect commissioned officers, extending similar protections to the noncommissioned and petty officer ranks that carry the daily burden of leadership.

The elements vary by the type of conduct. For willful disobedience, the government must establish that the accused was a warrant officer or an enlisted member, that the accused received a lawful order from a warrant, noncommissioned, or petty officer, that the accused knew the rank or status of the person giving the order, that the accused had a duty to obey, and that the accused willfully disobeyed. For contempt or disrespect, the government must show that the language or behavior was directed toward and within the sight or hearing of the officer, that the accused knew the officer’s status, that the officer was in the execution of office, and that the conduct treated the officer with contempt or was disrespectful.

The Word “Lawful” Is the Key

The single most important word in the disobedience branch of Article 91 is lawful. The article punishes willful disobedience of a lawful order. An order that is not lawful cannot supply the basis for a conviction. This is where the concept of dissent enters. A service member who declines to follow an unlawful order is not committing insubordination, because the obligation to obey extends only to lawful commands.

For an …

Soliciting another person to commit a crime is itself an offense under military law, and a recurring question is whether the government must show some further step beyond the asking. In other words, does the solicitation have to be accompanied by an overt act, or by the solicited person actually doing something, before it can be prosecuted? Under the Uniform Code of Military Justice (UCMJ), the answer is no. Solicitation is complete when the request, encouragement, or advice is communicated with the required intent. No overt act, no agreement by the person solicited, and no commission of the underlying offense is required.

The governing article

Solicitation is punished under Article 82, UCMJ, codified at 10 U.S.C. section 882. The article was amended generally by Public Law 114-328, and that amendment took effect on January 1, 2019. Before the amendment, Article 82 reached only solicitation of four specific offenses: desertion, mutiny, misbehavior before the enemy, and sedition. The amended statute is far broader. It now reaches a person subject to the Code who solicits or advises another to commit any offense under the chapter, while continuing to carry enhanced treatment for the most serious solicited offenses such as desertion, mutiny, misbehavior before the enemy, and sedition. The expansion matters because solicitation prosecutions are no longer confined to those four crimes.

The elements, and what is absent from them

To convict under Article 82, the government must prove that the accused solicited or advised a certain person or persons to commit an offense under the Code, and that the accused did so with the intent that the offense actually be committed. The act is the communication that urges, encourages, requests, advises, or otherwise seeks to induce another to commit the offense. The mental state is the specific intent that the solicited offense actually be carried out.

What is striking is what these elements do not include. There is no element requiring an overt act in furtherance of the scheme. There is no element requiring that the person solicited agree to do anything. And there is no element requiring that the solicited offense ever be attempted or committed. The crime is complete at the moment the solicitation is communicated with the intent that the offense be committed. If the solicited offense is later attempted or completed as a proximate result of the solicitation, that fact can increase the available punishment, but it is …

When a military investigator advises a service member of rights under Article 31 of the Uniform Code of Military Justice, codified at 10 U.S.C. 831, it is a signal that the member is suspected of an offense. The advisement is not a formality, and the moment carries lasting consequences. The question many service members ask is whether they should ever go ahead and explain themselves without first talking to a lawyer. The general answer, repeated by experienced military defense attorneys, is that you should not. This article explains what Article 31 rights are, why the protection exists, and why speaking without counsel is almost always the wrong choice.

What Article 31 Rights Are

Article 31 is the military’s protection against compelled self-incrimination. Under Article 31(b), no person subject to the UCMJ may interrogate or request a statement from a person suspected of an offense without first informing that person of the nature of the accusation, advising that he does not have to make any statement regarding the offense, and warning that any statement he does make may be used against him as evidence in a trial by court-martial.

These rights are broader in some respects than the warnings familiar from civilian arrests, because the Article 31 obligation can attach to questioning by someone acting in an official capacity, not only to formal police custody. When a service member hears this advisement, it means the questioner already views him as a suspect. That is precisely the moment when the protection matters most.

You Have the Right to Remain Silent and to Consult Counsel

Two rights anchor the decision about whether to speak. The first is the right to remain silent: a service member can decline to provide any information or statement that could be used against him. The second is the right to consult with counsel and to have counsel present during questioning. A member can invoke these rights by stating clearly that he is exercising his right to remain silent and that he wants to speak with a lawyer. Once that invocation is made, questioning is supposed to stop.

Just as important, invoking these rights cannot lawfully be held against the member. Exercising the right to remain silent is a protected action; it cannot be treated as evidence of guilt at a court-martial, and a member cannot be punished or given adverse paperwork simply for choosing to stay silent and …

Article 88 of the Uniform Code of Military Justice makes it an offense for a commissioned officer to use contemptuous words against certain high officials. What counts as contemptuous, however, often cannot be judged from the words alone. The same phrase can be a heated political opinion in one setting and a disdainful personal insult in another. That is why context is central to an Article 88 prosecution, and why the military judge’s instructions to the members tell them how to weigh it. Those instructions, drawn from the standard military judges’ benchbook, frame both the elements the members must find and the contextual judgments they must make.

The elements the members are told to find

For an Article 88 charge, the military judge instructs the members that they must be convinced beyond a reasonable doubt of each element. Those elements are that the accused was a commissioned officer; that the accused used certain words against an official or body named in the article; that by an act of the accused those words came to the knowledge of a person other than the accused; and that the words were contemptuous. The officials and bodies protected by the article are specifically enumerated: 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 instruction makes clear that the article applies to commissioned officers.

The instruction on contemptuous words and context

The pivotal instruction concerns the meaning of contemptuous. The military judge tells the members that contemptuous words are words that are insulting, rude, or disdainful, or that otherwise disrespectfully attribute to the official a quality of meanness, disreputableness, or worthlessness. Crucially, the judge instructs that words may be contemptuous either on their face or by the context in which they were used. That single phrase, by the context, is what directs the members to look beyond a literal reading and to consider the circumstances surrounding the statement.

In practice this tells the members that they may find words contemptuous even if the words are not facially insulting, provided the context supplies the contemptuous character, and conversely that words which might look harsh in isolation must still be evaluated in light of how and where they were said. The members are asked …

Solicitation in the military means urging, advising, or requesting another person to commit an offense. A reasonable question is whether the rank of the person being solicited changes the analysis: is it judged differently to solicit a superior than to solicit a peer? Under Article 82 of the Uniform Code of Military Justice (UCMJ), the answer is that the standard is the same. The rank of the person solicited is not an element of the offense. What matters is what offense the accused tried to bring about and the accused’s intent, not whether the listener outranked, equaled, or was junior to the accused.

What Article 82 punishes after the 2019 changes

The Military Justice Act of 2019 reshaped Article 82 into a general solicitation provision. As amended, Article 82 reaches any person subject to the UCMJ who solicits or advises another to commit an offense under the code. Subsection (a) is the general rule: soliciting or advising another to commit any UCMJ offense, other than the specifically enumerated ones, is punishable as a court-martial may direct. Subsection (b) addresses the four most serious targets, desertion, mutiny, misbehavior before the enemy, and sedition, with enhanced consequences, including that if the solicited offense is actually attempted or committed, the punishment can match that of the underlying offense.

The defining feature is the object of the solicitation, the offense the accused urged, not the identity or rank of the person urged. Nothing in the statute keys liability to whether the solicited person was a superior or a peer.

The elements focus on conduct and intent, not rank

To prove solicitation, the government must show that the accused solicited or advised another person to commit a UCMJ offense and did so with the intent that the offense be committed. For the enumerated offenses in subsection (b), the statute adds the possibility of enhanced punishment tied to whether the solicited crime was attempted or committed. In each case the analysis runs through the same questions: What did the accused ask the other person to do? Did the accused intend that it actually happen? Was the thing solicited an offense under the code? The relative rank of the listener does not appear among these elements.

This means a private who solicits a sergeant, a sergeant who solicits a private, and two peers of equal grade are all measured against the identical legal standard under Article 82. …

Command-directed questioning plays a central role in Article 31 analysis because questioning that comes from a member’s chain of command is exactly the kind of official, pressure-laden interaction the warning requirement was designed to address. When a commander, supervisor, or other superior questions a service member who is suspected of an offense for a disciplinary or law enforcement purpose, Article 31 of the Uniform Code of Military Justice ordinarily requires that the member be advised of his rights first. Understanding why this is so requires looking at what Article 31 protects and why rank and authority matter to the analysis.

The unique concern Article 31 addresses

Article 31, codified at 10 U.S.C. 831, prohibits compelling self-incrimination and requires that, before questioning a suspect, a person subject to the Code who is acting in an official capacity inform the suspect of the nature of the accusation, advise that the suspect need not make a statement, and warn that any statement may be used as evidence at a court-martial.

The reason Article 31 reaches further than civilian self-incrimination law is the structure of military life. A service member is trained to obey orders and to respond to superiors. Because of the effect of superior rank and official position on a person subject to military law, even the mere asking of a question by a superior can feel like a command to answer. Article 31 exists in part to counteract that pressure, ensuring that a suspect does not feel compelled to talk simply because the question came from someone in authority.

Why command questioning is at the heart of the rule

Command-directed questioning sits squarely within this concern. When the questioner is in the member’s chain of command, the implicit pressure to respond is at its strongest, and courts apply a strong presumption that questioning by someone in the chain of command is disciplinary in nature. That presumption matters because the warning requirement is triggered when a suspect is questioned for a disciplinary or law enforcement purpose by a person acting in an official capacity who is perceived as such by the suspect.

A commander looking into possible misconduct by a subordinate is almost always acting for a disciplinary purpose. As a result, if that subordinate is already a suspect, the commander generally must provide the Article 31 advisement before asking questions designed to elicit incriminating responses. Skipping the warning in that setting …

An officer can face two threats at once: a court-martial that can impose confinement and a punitive discharge, and a Board of Inquiry that can end a career through administrative separation. When both proceed at the same time over the same allegations, the officer must navigate two systems with different rules, different burdens of proof, and different consequences. Understanding the protections available in each, and how they interact, is essential to avoiding mistakes that help one proceeding hurt the other.

Two proceedings, two purposes

A court-martial is a criminal trial. It applies the Military Rules of Evidence, requires proof beyond a reasonable doubt, and can result in a federal conviction, confinement, forfeitures, and a dishonorable or other punitive discharge.

A Board of Inquiry, sometimes called a show-cause board, is an administrative hearing that decides whether a commissioned officer should be retained or separated, and if separated, with what characterization of service. It is governed by service regulations and Department of Defense instructions rather than the full criminal-trial framework. Its burden of proof is preponderance of the evidence, a far lower bar than the criminal standard, and the formal rules of evidence generally do not apply, so material excluded from a court-martial may still reach the board.

Because these are separate proceedings, neither outcome automatically controls the other. An acquittal at court-martial does not bar a Board of Inquiry on the same underlying allegations, since the board asks a different question under a lower standard. That reality shapes every protection discussed below.

The right against self-incrimination in both forums

The most important protection when the two run together is the privilege against self-incrimination. An officer cannot be compelled to testify at a Board of Inquiry, even though the board is administrative and cannot impose a conviction. The constitutional privilege, along with Article 31 of the UCMJ, protects the officer in both settings.

This matters because the board often happens on a faster timeline. An officer who testifies at the board to fight separation may create a sworn record that prosecutors can later use at the court-martial. The board allows an officer to testify under oath, to give an unsworn statement, or to remain silent, and that choice has consequences for the parallel criminal case. Strategy about what to say, where, and when is one of the central reasons officers facing both proceedings need experienced counsel coordinating across both.

Right to counsel

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