Military Lawyers

A service member facing an administrative separation board often worries that the government will dredge up testimony or statements from a previous assignment, sometimes years old and from people who never served alongside the member at the current unit. The question is whether that older, prior-unit evidence can be kept out. The honest answer is that administrative discharge boards operate under relaxed rules of evidence, so most prior-unit testimony will be admitted. But “relaxed” does not mean “anything goes.” There are still real grounds for exclusion, and a well-prepared respondent can sometimes succeed in limiting or discrediting that evidence even when it cannot be excluded outright.

Administrative boards are not courts-martial

The first thing to understand is the forum. An administrative separation board, called a board of inquiry for officers in some services, is an administrative proceeding, not a criminal trial. The Military Rules of Evidence that govern a court-martial do not control. Instead, the board applies relaxed evidentiary rules designed to let it consider a broad range of information in deciding whether the alleged basis for separation is supported.

Two consequences flow from this. First, hearsay is generally admissible. A board may consider written statements, reports, and summaries from people who do not appear in person, and there is no Sixth Amendment style right to confront accusers in the way a criminal defendant has at trial. Second, the government’s burden is a preponderance of the evidence, not proof beyond a reasonable doubt. Because the board can consider hearsay and second-hand accounts, the simple fact that testimony comes from a prior unit, or from witnesses who are no longer present, is not by itself a basis to exclude it.

The real limits: relevance and materiality

Relaxed rules are not the absence of rules. Evidence presented to a separation board must still be relevant and material to the issues the board has to decide. Relevance means the evidence has a direct bearing on a fact in question, helping to establish or disprove the alleged basis for separation. Material means it relates to the specific grounds on which separation is sought.

This is the most promising avenue for excluding prior-unit testimony. The board is convened to decide a defined question, typically whether the member committed the misconduct or exhibited the deficiency alleged in the notification of separation. If the prior-unit testimony does not bear on that specific allegation, it is neither relevant …

When a sexual offense under Article 120 of the Uniform Code of Military Justice, codified at 10 U.S.C. 920, is reported, one of the first practical questions is which military criminal investigative organization will run the case. The two organizations most often named are the Naval Criminal Investigative Service, known as NCIS, and the Air Force Office of Special Investigations, known as OSI. The choice between them is not a contest decided case by case. It is driven mainly by which service the people involved belong to, with a handful of additional factors shaping the outcome in cases that cross service lines. This article explains those factors.

The Primary Factor Is Service Affiliation

Each branch of the armed forces has its own designated felony-level investigative agency. NCIS investigates serious offenses involving the Navy and the Marine Corps. OSI investigates serious offenses involving the Air Force and the Space Force. The Army uses its Criminal Investigation Division, and the Coast Guard uses the Coast Guard Investigative Service. For most Article 120 cases, the identity of the lead agency follows directly from the service of the subject of the investigation.

So if the person suspected of the offense is a sailor or a Marine, NCIS ordinarily leads. If the suspected member is an airman or a Guardian, OSI ordinarily leads. This service-based division of responsibility is the single most important factor and resolves the great majority of cases without further analysis.

Where the Offense Occurred and Who Has Authority

The location of the alleged offense matters because investigative jurisdiction often tracks the installation and the command that controls it. An offense on a Navy or Marine Corps installation generally falls to NCIS, while an offense on an Air Force or Space Force base generally falls to OSI. The command that exercises authority over the suspect, and that would ultimately decide how to dispose of the charges, also influences which agency takes the lead, because the investigation supports that command’s eventual decision.

When an offense happens off base or in a location not controlled by a single service, the agencies coordinate based on the affiliation of the subject and the victim and on which command will handle disposition.

Cases That Cross Service Lines

The harder questions arise when the people involved belong to different services. A joint base, a deployed joint task force, or a training environment that mixes services can produce a …

In the military, allegations that a service member was dishonest often surface in a charged environment, where a supervisor’s account of events differs sharply from the subordinate’s. When a dishonesty accusation grows out of a disagreement over what a leader perceived or remembered, the legal evaluation becomes demanding, because not every inaccurate or disputed statement is a crime. The most common charge in this area is making a false official statement under Article 107, Uniform Code of Military Justice (10 U.S.C. 907). Understanding how that offense is proven explains why disputed perceptions, standing alone, rarely sustain a dishonesty conviction.

The elements that control the analysis

Article 107 criminalizes signing a false official document or making a false official statement, but only under tightly defined conditions. The government must prove that the accused made or signed an official statement or document, that the statement was false in a particular respect, that the accused knew it was false at the time, and that the accused acted with the intent to deceive. Each element is a separate hurdle. A statement that is merely mistaken, incomplete, or contestable does not satisfy the offense, because the law targets knowing, deceptive falsehoods, not honest errors or differences of recollection.

Why “official” matters

Not every statement a service member makes is “official” for purposes of Article 107. A statement is generally treated as official when the speaker is acting in the line of duty, when the statement relates directly to official military duties, or when the recipient is a service member or civilian carrying out a military function to which the statement pertains. There must be a clear and direct relationship to official duties, and an official government function must be implicated. When an allegation arises from an informal exchange or a personal dispute that lacks this connection, the threshold “official” requirement may not be met at all.

The problem with disputed perceptions

The core difficulty in these cases is that a leader’s perception is not the same as objective falsity. If a supervisor believes a subordinate misrepresented events, but the subordinate’s account reflects a genuine, good-faith understanding of what happened, the statement is not knowingly false. Article 107 requires proof that the accused knew the statement was false when it was made. A disagreement about what occurred, a difference in interpretation, or conflicting memories does not establish that knowledge. The government must show more than that …

When someone disrupts a court-martial, the natural assumption is that the disruption itself can become a fresh criminal charge. That assumption is mostly mistaken, and the confusion usually comes from mixing up three different provisions of the Uniform Code of Military Justice (UCMJ) that all use the word “contempt” or sound like they should. The short answer is that contemptuous behavior during the proceedings is handled primarily by Article 48, the contempt power of the court itself, and is not ordinarily prosecuted as a separate offense under Article 88 or the general article, Article 134. Understanding why requires separating what each article actually covers.

Article 48 is the provision aimed at the courtroom

Article 48 of the UCMJ gives a military judge, a judge of the Court of Appeals for the Armed Forces, a military magistrate, and certain other judicial officers the power to punish contempt. The conduct it reaches is specific: using any menacing word, sign, or gesture in the presence of the judicial officer during the proceeding; disturbing the proceeding by any riot or disorder; or willfully disobeying a lawful writ, process, order, rule, decree, or command issued with respect to the proceeding. The punishment is capped by statute and may not exceed confinement for 30 days, a fine of $1,000, or both.

This is the mechanism designed for misconduct that happens at trial. It lets the judge maintain order immediately and proportionately, without converting every outburst into a new referred charge requiring its own preferral, preliminary hearing, and trial. Because Article 48 already addresses courtroom disruption directly, it is the natural and intended home for that conduct.

Article 88 does not cover courtroom contempt

Article 88 is titled “Contempt toward officials,” and the word “contempt” in its name is what causes the mix-up. Article 88 has nothing to do with disrupting a trial. It punishes a commissioned officer who uses contemptuous words against a defined list of officials, namely the President, the Vice President, Congress, the Secretary of Defense, a 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.

Two features make Article 88 a poor fit for in-court behavior. First, it applies only to commissioned officers, so it could never reach an enlisted accused, a civilian witness, or a family member who disrupts a proceeding. …

When a court-martial convicts a service member of more than one offense in a single trial, the way those convictions translate into a sentence depends on several overlapping rules. Multiple convictions can increase the maximum punishment the accused faces, but military law contains doctrines that prevent the government from inflating punishment by charging the same conduct in several ways. The 2016 Military Justice Act, which took effect on January 1, 2019, also changed the mechanics of how sentences are calculated when there are several offenses. Understanding how these pieces fit together is essential to understanding sentencing exposure after a multi-offense conviction.

The baseline: maximum punishment accumulates across offenses

As a general rule, when an accused is found guilty of two or more separate offenses, the maximum authorized punishment may be imposed for each separate offense. The maximum confinement and other punishments for the individual offenses can therefore be added together, producing a larger total ceiling than any single conviction would carry. This is why a conviction on several specifications can dramatically raise the theoretical maximum exposure even if each individual offense is relatively minor.

Multiplicity: when two convictions are really one offense

The first doctrine that limits this accumulation is multiplicity. Multiplicity is a legal and constitutional concept rooted in the protection against double jeopardy. If one charged offense is necessarily included within another, so that the accused is in effect being convicted twice for the same offense, the convictions are multiplicious. When offenses are multiplicious for findings, they are also multiplicious for sentencing, and the affected specifications cannot each contribute a separate maximum punishment. The remedy is typically to merge the offenses, which reduces the punishment ceiling accordingly.

Unreasonable multiplication of charges

The second doctrine is the prohibition against unreasonable multiplication of charges. This is distinct from multiplicity and rests on different principles. Even when offenses are legally separate and not barred by double jeopardy, the military justice system guards against prosecutorial overreaching by allowing relief when the government has carved a single course of conduct into too many charges. Military courts evaluate such claims using the factors articulated in United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001). Those factors include whether the accused objected at trial, whether each charge and specification is aimed at distinctly separate criminal acts, whether the number of charges and specifications misrepresents or exaggerates the accused’s criminality, whether the number of charges and …

Yes. Under Article 45 of the Uniform Code of Military Justice, a military judge not only may but must reject a guilty plea when the accused raises a factual matter that is inconsistent with guilt and that inconsistency cannot be resolved on the record. This is one of the defining features of military criminal practice, and it sets the court-martial guilty plea apart from many civilian systems where a defendant may plead guilty while continuing to protest innocence.

What Article 45 actually requires

The text of Article 45, codified at 10 U.S.C. 845, is the starting point. It provides that if an accused, after a plea of guilty, sets up matter inconsistent with the plea, or if it appears that the accused entered the plea improvidently or through a lack of understanding of its meaning and effect, then a plea of not guilty must be entered in the record and the court proceeds as though the accused had pleaded not guilty. The statute is mandatory in its phrasing. It does not leave the judge discretion to accept a plea that is contradicted by the accused’s own words.

This requirement protects a value that the military justice system treats as fundamental: a court-martial should not convict a service member by guilty plea unless that service member genuinely believes, and can describe, that he or she committed the offense.

The providence inquiry and the source of the inconsistency rule

The procedural vehicle for testing a guilty plea is the providence inquiry, which traces to the Court of Military Appeals decision in United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969). Care held that the record must show not only that the elements of each charged offense were explained to the accused, but also that the military judge questioned the accused about what he did or did not do, and what he intended where intent is relevant, so that the judge can determine whether the accused’s acts actually constitute the offense.

Rule for Courts-Martial 910 carries this forward today. The judge must establish a factual basis for the plea in the accused’s own words and must personally address the accused to confirm the plea is knowing and voluntary. When the accused’s answers describe conduct that does not satisfy an element, or that supplies a complete defense, the plea is no longer provident.

When does an inconsistency require rejection?

Not every awkward …

Article 88 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. 888, is one of the most narrowly drawn punitive articles in the entire code. It punishes a commissioned officer who uses contemptuous words against certain public officials. Because the offense reaches speech, the question of how much proof the government must muster, and of what, carries unusual weight. The short answer is that the government must prove every element beyond a reasonable doubt, the same demanding criminal standard that governs any court-martial conviction. The more useful answer explains what those elements are and why the “contemptuous” element is where most Article 88 prosecutions are won or lost.

The governing burden of proof

There is no special or reduced burden for Article 88. Like every offense tried at a court-martial, contempt toward officials must be established beyond a reasonable doubt. The members or the military judge sitting alone must be convinced to that level on each separate element before returning a finding of guilty. This is the highest standard known to American law, and it applies with full force even though the conduct charged is verbal rather than physical.

What makes Article 88 distinctive is not the burden itself but the difficulty of carrying it. Speech is ambiguous, context dependent, and frequently protected. The government cannot satisfy its burden simply by showing that an officer criticized a covered official. It must prove that the words were contemptuous in a legal sense, and it must do so to a moral certainty.

The elements the government must prove

To obtain a conviction under Article 88, the prosecution must establish each of the following beyond a reasonable doubt.

First, that the accused was a commissioned officer of the armed forces. Article 88 applies only to commissioned officers. Enlisted members and warrant officers are not subject to it, although their similar conduct may be charged under other articles.

Second, that the accused used certain words against an official or legislature named in the statute. The statute lists a closed set of protected targets: 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.

Third, that by an act of the accused, the words came to the knowledge of a person …

A challenge to an Article 32 hearing officer for bias is not a formal motion decided by a judge. It is a structured objection that the defense raises directly with the preliminary hearing officer, who is judged by the same impartiality standard that governs military judges. If the officer refuses to step aside, the objection is preserved in the hearing report for the convening authority, and any error can later be litigated before the military judge once charges are referred. Understanding the sequence matters, because the Article 32 preliminary hearing is a screening proceeding, not a trial, and the tools available to the accused are correspondingly limited.

The legal standard for impartiality

Article 32 of the Uniform Code of Military Justice, as amended by the 2016 changes that took effect on January 1, 2019, requires that the preliminary hearing be conducted by an impartial hearing officer who, whenever practicable, is a judge advocate certified under Article 27(b). When a certified judge advocate cannot be appointed because of exceptional circumstances, a certified judge advocate must be available to advise the hearing officer on legal matters. Impartiality is the statutory baseline, so a credible showing of bias goes to the heart of the proceeding.

The governing manual provision, Rule for Courts-Martial 405, directs that the preliminary hearing officer’s impartiality be evaluated under the same standards that apply to a military judge under Rule for Courts-Martial 902. That rule has two prongs. The first requires recusal in any proceeding in which the officer’s impartiality might reasonably be questioned, an objective test measured by what a reasonable person knowing all the circumstances would conclude. The second lists specific disqualifying circumstances, such as personal bias toward a party, personal knowledge of disputed facts, or a prior role as counsel or witness in the same matter. Rule for Courts-Martial 405 separately disqualifies anyone who is an accuser, a witness, an investigating officer, or counsel in the case from serving as the hearing officer.

Step one: identify and document the basis

The first practical step is to articulate a concrete factual basis for the challenge rather than a general complaint about an unfavorable ruling. Adverse procedural decisions are not, by themselves, evidence of bias. Defense counsel should pin down specifics, such as a prior supervisory relationship with trial counsel, a personal connection to the accuser, prior involvement in the same investigation, or statements suggesting a prejudgment of …

A single eye roll or a muttered remark toward a sergeant may seem too trivial to matter. But what happens when those small moments add up over weeks or months? Service members and the leaders who supervise them often ask whether a pattern of minor disrespect toward a noncommissioned officer can be bundled together into a single charge under Article 91 of the Uniform Code of Military Justice. The answer is nuanced: the military can charge multiple disrespectful acts, but how those acts are combined into specifications is governed by rules that protect the accused from inflated or ambiguous charging.

What Article 91 Actually Covers

Article 91 prohibits insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer. It reaches three categories of conduct: striking or assaulting such an officer in the execution of office, willfully disobeying that officer’s lawful order, and treating that officer with contempt or being disrespectful in language or deportment while the officer is in the execution of office. The third category is where “insolence” lives.

For a disrespect or contempt offense under Article 91, the prosecution must prove that the accused was a warrant officer or enlisted member; that the accused used certain words or did certain acts; that the conduct was directed toward and was within the sight or hearing of a specific warrant, noncommissioned, or petty officer; that the accused then knew the person was such an officer; that the officer was then in the execution of office; and that, under the circumstances, the conduct treated the officer with contempt or was disrespectful. Contempt means insulting, rude, and disdainful conduct, and disrespect means behavior that detracts from the respect due the officer’s authority and person.

Notice how fact-specific each element is. Every alleged act of insolence has to be tied to a particular officer, a particular moment, and the requirement that the officer was then in the execution of office. That specificity matters when the question becomes whether many small acts can be combined.

Charging Multiple Acts: The “Divers Occasions” Approach

Military practice does allow a single specification to allege that an accused committed an offense “on divers occasions,” meaning on more than one occasion. In principle, this lets the government capture a course of disrespectful conduct toward the same noncommissioned officer within one specification rather than drafting a separate specification for every incident. So in that limited sense, yes, repeated acts …

Article 91 of the Uniform Code of Military Justice (UCMJ) punishes insubordinate conduct toward a warrant officer, noncommissioned officer (NCO), or petty officer. It is the counterpart to the offenses involving commissioned officers, but aimed at the enlisted leadership chain. A common misconception is that Article 91 is a strict-liability rule that punishes any friction with a sergeant or chief. In reality, intent and knowledge sit at the heart of the offense. What the accused meant to do, and what the accused knew about the other person’s status, often determines whether a violation occurred at all.

The three types of conduct Article 91 covers

Article 91 reaches three distinct kinds of misconduct: striking or assaulting a warrant officer, NCO, or petty officer who is in the execution of office; willfully disobeying the lawful order of such a person; and treating with contempt or being disrespectful in language or deportment toward such a person while that person is in the execution of office. Each type carries its own mental-state requirement, so the role of intent shifts depending on which form is charged. That is why a careful analysis always starts by identifying the precise theory of liability.

Knowledge of status is a foundation for every theory

Across all three types, the accused must have known that the victim held the protected status of warrant officer, NCO, or petty officer. This knowledge element is essential. Article 91 protects the authority of the enlisted and warrant leadership structure, and a person cannot be insubordinate toward a superior whose position they did not realize. If the accused genuinely and reasonably did not know the other person was an NCO, for example because the person was in civilian clothes and unidentified, that lack of knowledge defeats the charge. The prosecution therefore must prove not only the conduct but the accused’s awareness of who the recipient was.

Willful disobedience requires intentional defiance

The disobedience theory has the most demanding intent requirement. Willful disobedience means an intentional defiance of authority, a conscious refusal to comply with a known, lawful order. It is not satisfied by inability to perform, by misunderstanding the order, by confusion about what was being directed, or by a delayed or imperfect attempt to comply. A service member who tries to follow an order but fails, or who reasonably misreads an ambiguous instruction, has not willfully disobeyed.

This is where intent is frequently litigated. …