Military Lawyers

Few military offenses are as serious as leaving a post while in contact with the enemy. The Uniform Code of Military Justice (UCMJ) contains several articles that could conceivably apply to an absence from duty, and which one fits depends on the circumstances and the service member’s state of mind. The three most relevant here are Article 99 (misbehavior before the enemy), Article 85 (desertion), and Article 86 (absence without leave). Abandoning a post under enemy fire most naturally falls within Article 99, but the lines among these offenses turn on specific elements, and more than one article can be implicated by a single set of facts.

Article 99: misbehavior before the enemy

Article 99, codified at 10 U.S.C. 899, addresses a cluster of grave failures committed before or in the presence of the enemy. The statute reaches a person who, among other things, runs away; shamefully abandons, surrenders, or delivers up any command, unit, place, or military property; through disobedience, neglect, or intentional misconduct endangers the safety of a command, unit, place, or military property; casts away arms or ammunition; is guilty of cowardly conduct; quits a place of duty to plunder or pillage; causes false alarms; willfully fails to do his utmost to encounter, engage, capture, or destroy enemy forces; or fails to afford all practicable relief and assistance to friendly forces. Article 99 offenses carry the most severe penalties in the code, including the possibility of death.

The defining feature of Article 99 is the requirement that the conduct occur before or in the presence of the enemy. This element captures exactly the scenario in the question. Abandoning a post while under enemy fire is conduct in the presence of the enemy, and leaving that post can constitute running away or shamefully abandoning a place of duty. If the abandonment also endangered the unit or the position, the endangerment branch of the statute may apply as well. It is not necessary that the enemy be within sight or immediately in front of the accused; the controlling idea is that the person or the unit is engaged in or about to engage in combat. Because of this element, conduct that would be a comparatively minor absence in a garrison setting becomes a far graver offense when it happens under fire.

Article 85: desertion

Article 85 defines desertion. Its hallmark is intent. A service member commits desertion by being …

The traditional picture of military discipline placed a wide range of decisions in the commander’s hands. For most offenses, a commander surveys the options on a disposition ladder, from no action, to administrative measures, to nonjudicial punishment under Article 15, to preferral of charges and referral to a court-martial. For sexual offenses under Article 120, however, that picture changed fundamentally. A reform that took full effect across the armed forces on December 28, 2023 removed the charging decision for covered sexual offenses from commanders and placed it with independent military prosecutors. Understanding the current answer requires separating what commanders no longer decide from the disposition judgment they still exercise for other misconduct.

The major change: the Office of Special Trial Counsel

The 2023 reform created an independent Office of Special Trial Counsel in each service, staffed by specially trained judge advocates who report through their service’s special trial counsel chain rather than the operational chain of command. For a defined set of serious offenses, called covered offenses, the special trial counsel, not the commander, now holds the binding authority to decide whether to prefer charges, refer the case to court-martial, and negotiate any resolution. Article 120 rape and sexual assault are covered offenses, as are related attempts, conspiracies, and solicitations of those offenses.

The practical consequence is significant. A commander confronted with a credible report of an Article 120 offense does not weigh charges against nonjudicial punishment as a matter of personal discretion. The matter is referred for investigation, and the prosecutorial disposition is made by the special trial counsel after reviewing the evidence. The reform was designed precisely to remove the commander from this decision, to insulate it from real or perceived unlawful command influence, and to make charging judgments more consistent and professionally driven.

Nonjudicial punishment is generally unavailable for these offenses anyway

Even before the special trial counsel reform, nonjudicial punishment was a poor fit and largely off the table for serious penetrative sexual offenses. Nonjudicial punishment is designed for minor offenses and carries only limited consequences. A serious sexual assault is not minor, and disposing of such an allegation through Article 15 would be inconsistent with policy that channels these cases toward courts-martial. Under the current system, the disposition authority for a covered Article 120 offense lies with the special trial counsel, which forecloses a commander from quietly resolving such an allegation through nonjudicial punishment.

What

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Some of the most fragile evidence in a court-martial comes from the mouth of a co-accused. When the government alleges that a service member acted as an accessory, helping, encouraging, or assisting a principal offender, it often depends on the testimony of someone who was involved in the same misconduct and who may have struck a deal to testify. If that testimony stands alone, without corroboration, the question of how the fact finder should weigh it becomes central. Military law does not forbid a conviction resting on uncorroborated co-accused testimony, but it treats such testimony with structured caution, requiring that it be received with care and, when warranted, accompanied by a cautionary instruction directing the members to scrutinize it closely.

Why co-accused testimony is inherently suspect

A co-accused who testifies for the government usually has a powerful motive to shade the truth. The witness may be seeking leniency, a favorable pretrial agreement, immunity, or a reduced sentence, and may be tempted to minimize the witness’s own role while enlarging the role of the accused. The law’s distrust of such testimony rests on exactly this concern: that an accomplice might try to purchase leniency for himself by falsely accusing and helping to convict another. That suspicion is the reason the testimony is singled out for special handling rather than treated like any other witness account.

In an accessory case the danger is heightened. Accessory liability turns on what the accused knew and intended, whether the accused shared the principal’s purpose and took some act to assist or encourage the crime. Those are internal, hard-to-corroborate facts, and a self-interested co-accused is often the only direct source for them. The temptation to recast a bystander as a willing participant, or to attribute knowledge and intent the accused never had, is real.

The cautionary instruction and how military judges handle it

Military practice addresses this risk principally through instructions to the panel rather than through a rigid corroboration requirement. The Military Judges’ Benchbook contains an accomplice instruction, found at paragraph 7-10, which the military judge gives when the evidence tends to show that a witness was culpably involved in the crime charged against the accused. The instruction tells the members that the testimony of an accomplice, even though it may be competent evidence, should be considered with caution, and it directs their attention to the witness’s possible motives, including any leniency, immunity, or favorable …

Military operations increasingly bring together members of the Army, Navy, Air Force, Marine Corps, and Space Force under shared commands. When misconduct arises in that environment, a question naturally follows: how can a single court-martial handle accused members who belong to different armed forces? The answer lies in the jurisdictional framework of the Uniform Code of Military Justice and the Rules for Courts-Martial, which together permit courts-martial that cross service lines under defined conditions.

A Single Code Across All Services

The starting point is that the UCMJ is one body of law applicable to all the armed forces. Each service administers military justice, but the code itself is uniform. This shared foundation is what makes inter-service proceedings possible. Because every person subject to the UCMJ is governed by the same punitive articles and the same procedural rules, a properly convened court-martial can apply that single code to members regardless of which branch they serve.

Rule for Courts-Martial 201 addresses jurisdiction and includes the principle of reciprocal jurisdiction. Under this principle, each armed force has court-martial jurisdiction over all persons subject to the UCMJ. A court-martial is not confined to trying only members of the convening authority’s own service. A properly constituted court-martial may try any person subject to the code, even if the accused is not under the direct command of the convening authority.

Convening Authority in the Joint Environment

The key to a joint trial is the authority to convene it. The framework recognizes that commanders of joint and combatant organizations may exercise court-martial authority over members of different services. A commander of a unified or specified combatant command may convene courts-martial over members of any of the armed forces. Similarly, a commanding officer of a joint command or joint task force may convene general courts-martial for the trial of members of any of the armed forces who are assigned or attached to that combatant command or joint command.

This authority is what allows a single proceeding to reach accused members from more than one branch. When service members from different forces fall under a joint commander with court-martial authority, that commander can convene a court-martial that exercises jurisdiction over all of them, rather than requiring each service to prosecute its own members separately.

Composition of the Court-Martial

A distinct procedural concern arises when the accused belongs to a different armed force than the members detailed to sit in …

Article 120 of the Uniform Code of Military Justice covers rape and sexual assault offenses in the armed forces. A frequent question, both from people who witness or learn of an incident and from those who are accused, is whether someone other than the alleged victim can set the process in motion. The short answer is yes. The military justice system allows third parties to report alleged Article 120 violations, and the system is designed to investigate and, where appropriate, prosecute those allegations even when the named victim does not want to participate.

Reporting does not depend on the alleged victim

There is no rule requiring that a sexual assault allegation come from the alleged victim. A report can come from a friend, a roommate, a fellow service member, a medical provider, a supervisor, or anyone who witnessed conduct or learned of it. Once military authorities receive credible information that an offense may have occurred, they can act on it.

This reflects how the military treats sexual offenses as crimes against good order and discipline and against the institution, not merely private disputes between two people. The decision whether to investigate and prosecute belongs to the government, not to the person who was allegedly harmed.

Restricted versus unrestricted reporting

The military’s reporting structure is worth understanding because it shapes what happens after a third party speaks up. The Sexual Assault Prevention and Response framework recognizes two reporting options for victims themselves: a restricted report and an unrestricted report.

A restricted report allows an eligible victim to receive medical care, advocacy, and counseling confidentially, without triggering a law enforcement investigation or command notification. An unrestricted report initiates both command notification and a criminal investigation.

The restricted option is generally available to the victim. When a third party reports an allegation to the command or to law enforcement, that report is ordinarily treated as an unrestricted report, meaning it can trigger an investigation. In other words, a victim’s ability to keep a matter confidential through restricted reporting can be affected once a third party brings the matter to official attention.

What happens after a third party reports

When an allegation surfaces, the military activates a coordinated response. A Sexual Assault Response Coordinator and a victim advocate may become involved to support the alleged victim, and military criminal investigators open an inquiry. The services use a coordinated investigation and prosecution approach that brings …

In the military justice system, a victim of certain offenses, especially sex-related offenses, may be represented by an attorney known in the Army, National Guard, and Coast Guard as a Special Victims’ Counsel, in the Navy and Marine Corps as a Victims’ Legal Counsel, and in the Air Force as a Victims’ Counsel. That attorney represents the victim, not the government and not the accused. After charges are referred to a court-martial, trial counsel, the military prosecutor, often needs to coordinate with the victim about testimony, scheduling, and the victim’s statutory rights. The question is whether the prosecutor may meet privately with the victim’s lawyer once the case is referred. The answer is yes. A prosecutor not only may, but ordinarily should, deal with a represented victim through that victim’s counsel, and a private meeting between the two attorneys is a normal and proper part of trial preparation.

The victim’s counsel is a real lawyer with a real client

The relationship between victims’ counsel and the victim is a genuine attorney-client relationship, complete with the protections of the attorney-client privilege. The victim is the client; the prosecutor is not. That framing answers most of the question. When the government wants to communicate with a represented person about the matter, the natural and professionally correct route is to go through that person’s lawyer, exactly as in civilian practice.

This is the opposite of an ethical problem. The rule that creates friction is the rule against contacting a represented person directly, not the rule about talking to that person’s attorney. Communicating with the victim’s counsel is the safe channel, not the prohibited one.

The no-contact rule points toward, not away from, the victim’s lawyer

Each service’s rules of professional conduct contain a rule, patterned on Model Rule of Professional Conduct 4.2, that prohibits a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer, unless that other lawyer consents or the communication is authorized by law. The Army’s version appears in its rules of professional conduct for lawyers.

For trial counsel after referral, that rule cuts in a specific direction. Once the victim is represented and charges have been referred, the prosecutor’s cleanest course is to arrange contact with the victim through the victim’s counsel. Meeting privately with that counsel to discuss the victim’s anticipated testimony, availability, concerns, and rights is …

Senior enlisted members nearing retirement face a distinctive risk when allegations of misconduct surface. Because retired grade and retired pay are tied to the highest grade in which a member is determined to have served satisfactorily, an unresolved allegation that coincides with a planned retirement can place the member’s grade in jeopardy. The timing of retirement relative to the allegation and any resulting action can significantly affect the outcome. Understanding how the grade determination process works helps explain why timing matters.

Retired Grade Is Tied to Satisfactory Service

The governing principle is that a member generally retires in the highest grade in which the member is determined to have served satisfactorily, rather than automatically in the last grade held. Grade determination is the process by which the service decides what that satisfactory grade is. For most members with a clean record, this is a formality and the retired grade matches the grade held at the time of retirement. When misconduct is alleged, however, the determination becomes contested.

If a service determines that a member committed misconduct in a particular grade, the member may be deemed not to have served satisfactorily in that grade. The practical effect can be retirement at a lower grade, with corresponding consequences for retired pay, since the retired pay base is calculated by reference to the grade in which the member is found to have served satisfactorily. For a senior enlisted member, the difference between retiring at the top grade and retiring one grade lower can be substantial over the course of a retirement.

How Timing Enters the Picture

Timing matters because the grade determination process and the resolution of an allegation may not be complete when the member reaches the point of retirement. Several scenarios illustrate the effect.

If an allegation is fully resolved before retirement and results in no adverse finding, the member typically retires in the highest grade held, with no reduction. If an allegation is pending and unresolved as retirement approaches, the service is not obligated to ignore it simply because the calendar has reached the retirement date. The framework allows a service to address the open matter rather than allowing retirement to extinguish the grade question automatically.

In particular, the statutory scheme recognizes that when a member is under investigation for alleged misconduct or pending the disposition of an adverse personnel action at the time of retirement, the service may make …

Members of the armed forces are sometimes authorized to restrain others. Military police apprehend suspects, commanders order arrests, and supervisors confine personnel under defined rules. Article 97 of the Uniform Code of Military Justice makes it an offense to detain someone unlawfully, but the article does not punish authorized detention. The hard question in many cases is whether a particular detention fell within the accused’s authority or strayed outside it. A court-martial answers that question by examining the source and limits of the authority claimed and whether the accused exercised it lawfully.

What Article 97 Prohibits

Article 97 punishes a person subject to the Code who, except as provided by law, apprehends, arrests, or confines another, and who does so unlawfully. The article is aimed at the abuse of detention authority by those the military system entrusts with it. The offense generally requires that the accused apprehended, arrested, or confined a particular person and that the accused did so in the unlawful exercise of authority. The article does not reach ordinary private restraint by someone with no detention authority at all; it targets the misuse of the power to detain that military position can carry.

The Three Forms of Restraint

The article distinguishes among apprehension, arrest, and confinement. Apprehension is the taking of a person into custody, a restriction on freedom of movement. Arrest in the military sense is a moral restraint imposed by orders directing a person to remain within specified limits. Confinement is physical restraint, such as holding a person in a cell or comparable facility. Each form involves a different degree of intrusion, and each is governed by rules about who may impose it and under what conditions. A court-martial first identifies which form of restraint occurred, because the scope of authority differs depending on the type.

Locating the Source of Authority

The core of the analysis is whether the accused had authority to impose the restraint and acted within it. Courts-martial look to the rules that grant detention authority, including the provisions governing who may apprehend and confine, the position the accused held, and any orders or regulations defining the limits of that role. Detention authority is not unlimited; it is tied to status, duty, and circumstance. A detention is within scope when the accused had the authority to restrain the person in those circumstances and exercised it for a proper purpose. It moves outside scope …

When a service member is tried before a panel for an offense involving disrespect toward a superior, the members do not decide the case on their own sense of what disrespect means. The military judge instructs them on the law, supplying the elements the government must prove and the legal definitions that frame their deliberations. For disrespect offenses, those instructions come from the Military Judges’ Benchbook and track the punitive articles at issue, most commonly Article 89, disrespect toward a superior commissioned officer, and Article 91, insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer. The instructions identify the conduct alleged, define disrespect and contempt, require knowledge of the victim’s status, and channel the members away from convicting on subjective offense alone.

The judge lays out the elements

The first function of the instruction is to state what the government must prove beyond a reasonable doubt. The exact elements vary with the article and the type of misconduct, but they share a common architecture. For disrespect toward a superior commissioned officer under Article 89, the judge instructs that the government must prove that the accused did or omitted certain acts, or used certain language, toward or concerning the named officer; that the behavior or language was directed toward that officer; that the officer was the accused’s superior commissioned officer; that the accused knew the officer was the accused’s superior commissioned officer; and that under the circumstances the behavior or language was disrespectful to that officer.

For insubordinate conduct under Article 91, the parallel disrespect theory requires the judge to instruct that the accused treated with contempt or was disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer; that the accused knew the person held that status; and that the victim was then in the execution of office. Where the victim is alleged to be the accused’s superior noncommissioned or petty officer, the instruction adds that status and the accused’s knowledge of it. Telling the members each element separately ensures they understand that knowledge of the victim’s position is its own requirement, not an afterthought.

The judge defines the key terms

Lay intuition about rudeness is not the legal standard, so the instruction supplies definitions. The judge instructs the members that disrespectful behavior is behavior that detracts from the respect due the authority and person of the superior, and that it may consist of …

When a service member faces involuntary administrative separation, the case may be heard by an administrative separation board, sometimes called a discharge board or, for officers, a board of inquiry. These boards decide whether the member should be separated and, if so, what characterization of service should attach. A practical question that often arises is whether documents from a member’s civilian life, such as records from a civilian job, can be brought in to show good character. The short answer is generally yes, because discharge boards apply relaxed evidentiary rules. But there are important limits and strategic considerations.

How discharge boards differ from courts-martial

An administrative separation board is not a criminal trial. Enlisted separations are governed primarily by Department of Defense Instruction (DoDI) 1332.14, with officer separations governed by DoDI 1332.30, and each service has its own implementing regulations. Because these proceedings are administrative rather than criminal, they do not apply the Military Rules of Evidence that govern courts-martial. Instead, the rules of evidence are relaxed.

This relaxation cuts in more than one direction. It allows the government to introduce material that would be excluded at a court-martial, including hearsay and, in some cases, allegations that were never proven in a criminal forum. But it also benefits the respondent, because it lets the member present a broad range of favorable material without the strict foundation and authentication requirements of a trial. The board may consider evidence that is relevant and reliable, and it weighs that evidence for what it is worth rather than excluding it on technical grounds.

Where civilian records fit as character evidence

Character is squarely relevant at a discharge board. The board is deciding whether to retain or separate the member and how to characterize their service, and the member’s overall character, reliability, and rehabilitative potential bear directly on those questions. A member is entitled to present matters in extenuation, mitigation, and rehabilitation, which routinely include evidence of good character.

Civilian employment records can serve this purpose. Documents such as performance reviews from a civilian employer, letters of recommendation from supervisors or colleagues, records reflecting steady employment, recognition or awards from a civilian job, or evidence of responsibilities held outside the military can all speak to the member’s reliability, work ethic, and character. Because the board accepts character letters and written statements without requiring the author to testify in person, a respondent can assemble and submit …