When a service member is suspected of an offense under Article 120 of the UCMJ, 10 U.S.C. 920, investigators frequently seek a DNA sample. DNA can connect a person to an encounter, exclude a person, or corroborate or contradict an account. Because a DNA swab is a search and seizure of the body, the collection is governed by constitutional and military legal protections. A service member under Article 120 suspicion is not without rights during this process, and understanding those rights is important both to protect the individual and to ensure that any evidence obtained is lawful.
DNA Collection Is a Search Under the Fourth Amendment
Taking a DNA sample, typically a buccal swab from the inside of the cheek, is a search subject to Fourth Amendment protection. The Supreme Court addressed cheek-swab DNA collection in Maryland v. King, recognizing it as a search while upholding collection in the context of a booking procedure following an arrest for a serious offense supported by probable cause. In the military, the same constitutional principles apply, filtered through the Military Rules of Evidence governing searches and seizures. The core consequence is that the government generally needs lawful authority to take a sample, and a service member has the right to insist that the proper legal basis exist.
Authorization: Consent, Command Authorization, or Probable Cause
There are several lawful avenues for DNA collection from a suspect. The government may seek the member’s voluntary consent. It may obtain a search authorization, which in the military is the functional equivalent of a warrant, issued by a commander with authority over the place or person or by a military magistrate, based on probable cause. In some circumstances a search may be justified by exigent or other recognized exceptions. A service member has the right to require that one of these lawful bases be present. If a sample is taken without consent and without proper authorization or an applicable exception, the defense can move to suppress the DNA and any evidence derived from it under the Military Rules of Evidence.
The Right to Decline Consent
A suspect is not required to consent to a DNA swab. Consent must be voluntary, and the government cannot obtain valid consent through coercion, deception about the purpose, or the implication that refusal is not an option. Declining to consent is not itself evidence of guilt and cannot be used as a substitute for the required legal authority. If a member declines, the government must rely on a search authorization supported by probable cause or another lawful basis. Knowing that consent can be refused is one of the most practical rights a suspect has, because a voluntary sample given without understanding the alternatives may foreclose later challenges.
The Right to Counsel and the Article 31 Privilege
A service member suspected of an Article 120 offense has the right to consult with a defense attorney, and the military provides military defense counsel at no cost. While the act of providing a DNA sample is generally treated as the production of physical, non-testimonial evidence rather than a statement, the surrounding interaction often involves questioning. Under Article 31 of the UCMJ, 10 U.S.C. 831, a person subject to the code who is suspected of an offense must be advised of the nature of the accusation, of the right to remain silent, and that any statement may be used against the person, before being interrogated. A suspect should not answer questions about the alleged conduct during the collection encounter without first speaking to counsel, even while the physical sample may be lawfully obtained on proper authority.
Limits on the Scope of the Search
The right against unreasonable searches includes a right to a search that is no broader than authorized. A search authorization for a DNA buccal swab does not authorize unrelated searches of the person’s property or person. The manner of collection must also be reasonable. These limits constrain how a sample may be taken and what else investigators may do under the guise of a DNA collection.
Statutory DNA Collection on Preferral of Charges
Separate from investigative collection, federal law and Department of Defense policy provide for DNA collection in connection with the military justice process. Under 10 U.S.C. 1565 and implementing Department of Defense instruction, DNA samples are collected from service members against whom charges are preferred, and from those convicted of qualifying offenses, for inclusion in the national index system. This statutory collection serves an identification purpose and is distinct from a probable-cause search for evidence in a specific investigation. A member should understand which type of collection is occurring, because the legal basis and the available challenges differ.
Challenging Unlawful Collection
If DNA was obtained in violation of these rights, the remedy is a motion to suppress before the military judge. The defense can argue that consent was involuntary, that no valid authorization existed, that probable cause was lacking, or that the scope or manner of the search was unreasonable. Evidence obtained through an unlawful search, and evidence derived from it, may be excluded. Preserving these challenges depends on identifying the defect early, which is another reason to involve defense counsel promptly.
Conclusion
A service member under Article 120 suspicion retains meaningful rights during DNA collection. The swab is a search, so the government generally needs voluntary consent, a search authorization based on probable cause, or another recognized exception. The member may decline consent, may consult military defense counsel at no cost, and is protected by the Article 31 privilege against self-incrimination during any questioning. The scope and manner of collection must be reasonable, and unlawful collection can be challenged through a motion to suppress. Statutory collection tied to preferral of charges under 10 U.S.C. 1565 is a separate process. Understanding these distinctions allows a suspect to protect both physical and statement-based rights during a sensitive stage of an investigation.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.