Military Lawyers

Service members facing a court-martial sometimes discover that the command has also begun, or is threatening to begin, an administrative separation based on the same conduct. That can feel like being attacked from two directions at once. The question is whether the command may pursue an administrative separation while the court-martial is still pending. The general answer is that the two systems are distinct, an administrative separation is not a criminal prosecution, and there is no blanket rule that forbids running them at the same time. There are, however, important practical and regulatory constraints, and one firm limit tied to acquittal.

Two different systems with two different purposes

A court-martial is a criminal proceeding. It can impose punishment, including confinement and a punitive discharge, and the government must prove guilt beyond a reasonable doubt. An administrative separation is not punishment in the legal sense. It is a personnel action used to remove a member from service, typically decided under a preponderance of the evidence standard, meaning the misconduct is more likely than not to have occurred. The characterization of service that can result, such as an other than honorable discharge, carries serious consequences, but the separation itself is administrative rather than penal.

Because the two systems serve different purposes and apply different burdens of proof, they are not mutually exclusive. The governing Department of Defense instruction on enlisted administrative separations and the service specific regulations, such as the Army’s separations regulation and its counterparts in the other branches, lay out when and how administrative separations proceed. Nothing in that structure makes a pending court-martial an automatic bar to administrative processing.

Why a command might run both, or choose one over the other

Administrative separation is often used as an alternative to court-martial, particularly when the government doubts it can prove a case beyond a reasonable doubt but believes the lower administrative standard can be met. In other situations the command may have a genuine charging case yet also want the option of separation if the prosecution does not result in a discharge.

It is common for a command, or its legal advisors, to sequence the two actions rather than run them in full parallel. The reason is practical. Statements a member makes in the administrative process can have consequences in the criminal case, and discovery and timing concerns cut both ways. Many commands will hold the separation in abeyance until …

When a military psychologist concludes that a service member is unfit for duty, that recommendation can carry enormous consequences, from separation and loss of career to changes in benefits and characterization of service. Judge advocates representing affected members are often asked to contest these recommendations. Doing it well requires understanding both the administrative process that produces the recommendation and the evidentiary tools available when a psychologist’s opinion surfaces in a contested proceeding.

Understand the Process Before Attacking the Conclusion

A fitness for duty recommendation does not exist in a vacuum. In the disability context, it is embedded in the Integrated Disability Evaluation System, governed by Department of Defense Instruction 1332.18 and service-specific regulations such as Army Regulation 40-501. A Medical Evaluation Board documents the member’s conditions and whether they meet retention standards, and a Physical Evaluation Board then determines fitness. The first task for a judge advocate is to identify precisely which body issued the recommendation, under which regulation, and at which stage, because the available challenges differ by stage.

Knowing the governing instruction matters because each process builds in formal rights to contest the result. A member who disagrees with a Medical Evaluation Board may submit a rebuttal that includes additional medical evidence or a personal statement, and the board, where practicable, reviews that rebuttal and either revises its report or adds comments. The member may also request an independent medical review by another physician. At the Physical Evaluation Board, the member generally has the right to submit a rebuttal for reconsideration and to elect a formal hearing. A successful challenge frequently begins by fully using these built-in procedural rights rather than skipping ahead to litigation.

Build the Counter-Record With Independent Evidence

A psychologist’s recommendation is only as strong as the record supporting it. One of the most effective things a judge advocate can do is develop an independent evidentiary record that gives the deciding authority a reason to reach a different conclusion.

That often means obtaining an independent evaluation from a qualified mental health professional whose findings can be placed alongside the original recommendation. It also means gathering the member’s complete treatment history, performance records, supervisor statements, and any documentation that contradicts the picture the recommendation paints. If the recommendation rests on a diagnosis, the judge advocate should obtain and scrutinize the underlying records to confirm the diagnosis is adequately supported and consistently documented. A rebuttal that simply …

A common assumption among service members facing allegations under Article 120 of the Uniform Code of Military Justice is that the government cannot prosecute without forensic proof, such as DNA, injuries, or other physical traces. That assumption is incorrect. Charges of abusive sexual contact, the offense most people mean when they say “unlawful sexual contact,” can and frequently do proceed entirely on testimony. Article 120 does not contain a corroboration requirement, and the testimony of a single complaining witness, if believed, can establish every element. Understanding why this is so, and what the absence of physical evidence does and does not mean, is essential to understanding how these cases work.

What abusive sexual contact is under Article 120

Article 120, codified at 10 U.S.C. 920, covers a range of offenses including rape, sexual assault, aggravated sexual contact, and abusive sexual contact. Abusive sexual contact is the contact-level offense. In general terms, it occurs when a person subject to the UCMJ commits or causes sexual contact with another person under circumstances that would amount to sexual assault if the contact had been a sexual act, for example without consent or by means of force, threat, or while the other person was incapable of consenting. The key point is that the offense is defined by the nature of the touching and the surrounding circumstances, not by whether the contact left any physical mark.

Because sexual contact often leaves no forensic trace at all, especially contact over clothing or brief touching, a rule requiring physical evidence would make many such offenses unprosecutable. The statute does not impose that rule.

Why testimony alone can be enough

In American criminal law generally, and in the military system specifically, the testimony of a witness is evidence. A panel of members, the military equivalent of a jury, is permitted to convict based on testimony it finds credible beyond a reasonable doubt. There is no general legal principle that a sexual offense must be corroborated by physical findings. So if a complaining witness testifies clearly and credibly that the accused touched them sexually without consent, that testimony, standing alone, can satisfy the government’s burden if the members believe it.

This does not mean such cases are easy for the government. It means the battleground is credibility rather than forensics. The defense can attack the consistency, plausibility, motive, and reliability of the testimony, and can present evidence of consent …

Unauthorized absence is governed by Article 86, Uniform Code of Military Justice (10 U.S.C. 886). The phrase “absence without leave,” or AWOL, is the common shorthand for several distinct forms of unauthorized absence the article covers. For a commander, the question is not simply when a service member is late or missing, but when that absence has matured into a status that must be documented and reported through the chain of command and to the appropriate authorities. The answer depends on the elements of the offense, the duration of the absence, and the circumstances suggesting whether the member intends to return.

What counts as unauthorized absence under Article 86

Article 86 reaches several situations: failing to go to an appointed place of duty at the prescribed time, going from that place of duty without authority, and absenting oneself from one’s unit, organization, or place of duty without authority. The common thread is that the absence is not authorized. To treat an absence as a violation, the basic elements are that the member was absent from the appointed place, unit, or duty where required to be, and that the absence was without proper authority. A member who has valid leave, a pass, or other authorization is not absent without leave, which is why a commander’s first inquiry is always whether authorization existed.

The role of duration

Article 86 does not impose a fixed waiting period before an absence is unlawful; an unauthorized absence is an offense from its inception. However, duration drives the administrative consequences and the reporting obligations. A brief, unexplained absence is handled very differently from a prolonged one. As an absence lengthens, the command must take formal steps to account for the member, document the absence, and, where appropriate, initiate the processes that flow from extended unauthorized absence. The longer a member is gone, the more the situation shifts from a unit-level accountability matter to a formally reportable status.

Distinguishing AWOL from desertion

A central judgment for any commander is whether the facts point toward simple unauthorized absence under Article 86 or toward desertion under Article 85. The difference is intent. AWOL under Article 86 does not require any intent to stay away permanently; the absence simply must be unauthorized. Desertion under Article 85 requires a specific intent, such as the intent to remain away permanently, to avoid hazardous duty, or to shirk important service. Because intent is …

Digital forensic examinations routinely produce metadata: timestamps, file paths, device identifiers, user attributions, and logs generated by the operating system and by the forensic tools themselves. When two tools, or two artifacts, disagree, for example a file system timestamp that conflicts with an application log, or extraction software that reports different creation times, the question is how a court-martial should treat that contradiction. The governing standards are the ordinary rules of evidence applied with care: authentication under Military Rule of Evidence (MRE) 901, expert reliability under MRE 702, the best evidence rules, and the balancing of MRE 403. Contradictory metadata does not automatically render the evidence inadmissible. More often it goes to the weight the factfinder gives the evidence, although in some circumstances it can defeat the foundation altogether.

Metadata as evidence produced by a process or system

Metadata is typically machine-generated. That places it within MRE 901(b)(9), which allows evidence produced by a process or system to be authenticated by describing the process and showing that it produces an accurate result. To lay a foundation for metadata, the proponent ordinarily presents a witness, often a forensic examiner, who can explain how the data was generated, how the tool extracted and reported it, and why the result can be relied on. The 2017 self-authentication provisions, MRE 902(13) and 902(14), reinforce this approach by allowing records generated by an electronic process, and certified copies of digital data verified by techniques such as hash values, to be authenticated by certification.

The authentication standard itself is not demanding. Under MRE 901(a), the proponent need only produce evidence sufficient to support a finding that the item is what it is claimed to be. That is a threshold question for admissibility, not a final determination of accuracy. The existence of some contradictory metadata does not necessarily mean the proponent has failed to meet this threshold; it means the reliability of the data is in dispute, which is generally a matter for the factfinder.

Why contradictions usually go to weight, not admissibility

There are sound technical reasons that metadata can appear to conflict without any of it being false. Different timestamps record different events. A file may carry separate created, modified, and accessed times, and these can reflect copying, syncing, time-zone settings, clock errors, or the behavior of the tool that read the file. Two forensic tools may interpret the same underlying data differently or report …

Voluntary intoxication is not a true defense in a court-martial, but it is not irrelevant either. The Rules for Courts-Martial treat it as evidence that can raise a reasonable doubt about a mental element the government must prove, specifically actual knowledge, specific intent, willfulness, or premeditation. So when the charged offense requires one of those heightened mental states, evidence that the accused was voluntarily intoxicated may keep the government from proving that the accused actually formed it. When the offense requires only a general intent, voluntary intoxication does not help. The distinction between specific and general intent offenses is therefore where the entire issue is decided.

Voluntary intoxication is evidence, not an excuse

The first point to understand is that getting drunk or high by choice does not excuse criminal conduct. The military justice system does not allow an accused to escape responsibility simply by claiming impairment. Under Rule for Courts-Martial 916, voluntary intoxication is not a defense in the sense of justification or excuse. What the rule does permit is the use of evidence of voluntary intoxication to raise reasonable doubt about whether the accused actually possessed a required mental state. That is a narrow but meaningful role. The accused is not arguing that intoxication makes the conduct lawful; the accused is arguing that the government has failed to prove an element of the crime.

This framing matters procedurally. Because it operates on an element the government must prove, voluntary intoxication evidence does not shift a burden onto the accused. The prosecution always bears the burden of proving every element beyond a reasonable doubt, including the mental element. If credible evidence of intoxication is in the record and it could create reasonable doubt about that mental element, the members may be instructed to consider it for that limited purpose.

Specific intent versus general intent

The reason voluntary intoxication only sometimes helps is the difference between specific intent and general intent offenses. A general intent offense requires only that the accused intended to do the prohibited act. A specific intent offense requires something more, an additional mental state such as an intent to achieve a particular result, actual knowledge of a fact, a willful state of mind, or premeditation. Voluntary intoxication can negate the additional, heightened mental state but cannot negate the basic intent to act.

A familiar illustration comes from homicide. Premeditated murder requires premeditation, a specific mental process …

Article 66, Uniform Code of Military Justice (10 U.S.C. 866), establishes the Courts of Criminal Appeals and defines when a court-martial judgment is reviewed by those courts. Some cases receive review automatically, without any action by the accused, while others reach the court only if the accused affirmatively appeals. The 2016 Military Justice Act, which took effect on January 1, 2019, reshaped these thresholds, so it is important to apply the current version of the article rather than the rules that governed before 2019.

The current automatic-review thresholds

Under the present version of Article 66, a Court of Criminal Appeals has jurisdiction over a court-martial in which the judgment includes a sentence of death, dismissal of a commissioned officer, cadet, or midshipman, a dishonorable discharge or a bad-conduct discharge, or confinement for two years or more. When a sentence reaches any one of these levels, the case is referred to the appropriate service Court of Criminal Appeals as a matter of course. The accused does not have to request review, and the review proceeds regardless of whether the accused wants it.

These categories reflect a judgment that the most serious outcomes warrant mandatory appellate scrutiny. A death sentence is the gravest punishment the system can impose. A dismissal is the officer equivalent of a punitive discharge and permanently ends a commissioned career. A dishonorable or bad-conduct discharge carries lasting stigma and collateral consequences. And confinement of two years or more represents a substantial deprivation of liberty. Each of these triggers automatic review.

What changed in 2019

The two-year confinement threshold is a product of the 2016 reforms. Before they took effect, automatic review under Article 66 extended to cases with confinement of one year or more, in addition to the death, dismissal, and punitive-discharge categories. The reforms raised the confinement threshold from one year to two years, which narrowed the set of cases that receive mandatory review. A case decided under the older rule, with confinement between one and two years, would have qualified for automatic review then but would not qualify under the current standard. This is why identifying which version of Article 66 applies to a given court-martial is essential.

Cases reviewed only on the accused’s appeal

The 2016 reforms also created a separate avenue for cases that fall below the automatic-review thresholds. In addition to the mandatory categories, the current framework allows an accused to appeal a …

A court-martial conviction does more than impose confinement, forfeitures, or a punitive discharge. For service members who hold or hope to hold a civilian professional license, the conviction can follow them into civilian life and threaten the credential that supports their career. The short answer is yes: professional licenses are frequently subject to review and, in some cases, revocation as a collateral consequence of a military conviction. Understanding why requires separating the criminal judgment of a court-martial from the independent administrative authority that state licensing boards hold over the professions they regulate.

What “collateral consequence” means here

A collateral consequence is a penalty that flows from a conviction but is imposed by an authority other than the sentencing court and is not part of the criminal sentence itself. Loss of voting rights, immigration consequences, and firearm restrictions are familiar examples. Professional license discipline belongs in this category. The court-martial does not revoke a nurse’s, physician’s, attorney’s, engineer’s, or contractor’s license. Instead, the conviction becomes a fact that a separate state board may act on under its own rules. Because it is collateral, it usually is not addressed at the court-martial itself, and a service member may not learn of the exposure until a licensing board opens an inquiry.

Why licensing boards care about a conviction

State licensing boards exist to protect the public, and most enabling statutes give a board authority to discipline a licensee for a criminal conviction. The trigger is often framed in terms of a felony, or a crime involving moral turpitude, or conduct that bears on the licensee’s fitness to practice. Moral turpitude is generally defined as conduct that is contrary to justice, honesty, or good morals, an act of baseness or depravity contrary to accepted standards between people. A conviction for an offense involving dishonesty, fraud, violence, or sexual misconduct is the kind of judgment a board is most likely to treat as disqualifying or as grounds for discipline.

A military conviction can satisfy these statutory triggers just as a civilian conviction would. Boards do not generally distinguish between a verdict from a state court and a finding of guilty by a court-martial when the underlying conduct falls within their disciplinary statutes. Some boards explicitly list convictions in any jurisdiction, including federal and military tribunals, as a basis for action.

How the review typically unfolds

Two pathways commonly bring a conviction to a board’s attention. …

Service members often want to know exactly when the warning requirement of Article 31 of the Uniform Code of Military Justice kicks in. A frequent version of the question is whether the protection applies when someone holds only a loose, unofficial, or “informal” suspicion about the soldier, as opposed to a formal accusation or a launched investigation. The short answer is that the level of formality of the suspicion is not the controlling question. What matters is whether the person doing the questioning meets the legal predicates that trigger the warning, and one of those predicates depends on the capacity in which the questioner is acting, not on whether anyone has filled out paperwork.

What Article 31(b) requires

Article 31, codified at 10 U.S.C. 831, prohibits compelling self-incrimination and, in subsection (b), requires that before interrogation a person be informed of the nature of the accusation and advised of the right to remain silent and that any statement may be used as evidence at a court-martial. Subsection (d) backs this up by making statements obtained in violation of the article inadmissible. The warning is the military counterpart to a Miranda warning, but its statutory roots make it in some respects broader, because it can apply to questioning by military personnel who are not police.

The four predicates that trigger the warning

The Court of Appeals for the Armed Forces has explained that Article 31(b) warnings are required when four conditions are met: a person subject to the UCMJ, who is conducting an interrogation or requesting a statement, from someone who is either accused or suspected of an offense, and the questioning concerns the offense of which that person is accused or suspected. This framework comes from decisions such as United States v. Jones and United States v. Cohen, which parse the article’s text into its component predicates.

The third predicate uses the words “accused or suspected.” Notice what those words do not say. They do not say “formally accused” or “officially under investigation.” A person can be a suspect for Article 31(b) purposes well before any charge is preferred or any formal investigation is opened. The test for suspicion is whether the questioner believes, or reasonably should believe, that the person committed an offense. That belief can exist informally, based on rumor, observation, or partial information. So informality of the suspicion does not, by itself, remove the soldier from the …

An Article 32 hearing is the preliminary hearing required by Article 32, Uniform Code of Military Justice (10 U.S.C. 832), before charges may be referred to a general court-martial. It is not a trial. Its purpose is narrow: to determine whether the specifications allege offenses under the UCMJ, whether there is probable cause to believe the accused committed those offenses, whether the convening authority has court-martial jurisdiction over the accused and the offenses, and to recommend a disposition for the case. Because the hearing answers those limited questions, the evidence introduced there looks different from the evidence a panel or military judge would later weigh at trial.

Why the rules of evidence matter less here

The single most important thing to understand about Article 32 evidence is that the Military Rules of Evidence generally do not apply to the preliminary hearing. With limited exceptions, such as rules governing privileges and certain protections for victims, the preliminary hearing officer may consider material that would be inadmissible at trial. This is a deliberate feature of the statute, which sets a low probable-cause threshold rather than a beyond-a-reasonable-doubt standard. As a practical consequence, the government can satisfy its burden largely on paper, and much of what is introduced is documentary rather than live testimony.

Documentary and written evidence

In most modern Article 32 hearings, the bulk of the record is documentary. The government commonly presents the charge sheet, sworn and unsworn statements from witnesses, law enforcement reports prepared by military criminal investigative organizations, and forensic or laboratory reports. Photographs, electronic records, message logs, medical records, and command paperwork frequently appear. Because hearsay limits do not bar this material at the preliminary hearing, written statements often stand in for witnesses who do not appear in person.

Witness testimony and cross-examination

Live testimony does occur, but it is more limited than at trial. The accused has the right to cross-examine witnesses who actually testify and to present additional evidence relevant to the determinations the hearing officer must make. The presentation of evidence and the examination of witnesses are confined to matters relevant to probable cause, jurisdiction, and disposition. One significant limitation reflects reforms made by Congress: an alleged victim may decline to testify at the preliminary hearing and cannot be compelled to do so. When a victim does not testify, the hearing officer typically relies on the victim’s prior statements and the investigative record.

Evidence

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