Criminal Law 

Deskbook 

Practicing Military Justice 

March 2017 

Criminal Law Department 

The Judge Advocate General’s Legal Center and School 

U.S. Army 
 

 

 

 

 

 

 

 

 

 

 

 

 

Table of Contents
 Practicing Military Justice 

FOREWORD 

FACULTY 2016-2017 

THE MILITARY JUSTICE SYSTEM 

1.	 Overview 

2.	 Unlawful Command Influence 

3.	 Jurisdiction 

4.	 Professional Responsibility 

ALTERNATIVE DISCIPLINARY FORUMS 

5.	 Nonjudicial Punishment 

6.	 Summary Court-Martial 

MILITARY CRIMINAL PROCEDURE 

7.	 Pretrial Restraint & 

Confinement 

8.	 Charging & Instructions 

9.	 Court-Martial Personnel 

10. Speedy Trial 

11. Discovery & Production 

12. Expert Witnesses 

13. Article 32 – Preliminary 

Hearing 

14. Article 34 – Pretrial Advice & 

Referral 

15. Pretrial Agreements 

16. Motions 

17. Pleas 

18. Voir Dire & Challenges 

19. Sentencing & Credit 

MILITARY CRIMINAL LAW 

20. Crimes 

21. Sexual Offenses 

22. Defenses 

23. Mental Responsibility & 

Competence 

EVIDENCE 

24. Evidence 

25. Confrontation Clause 

26. Search & Seizure 

27. Self-Incrimination 

POST-TRIAL AND APPEALS 

28. The Post-Trial Process 

29. Appeals & Writs 

30. Corrections & Post-Conviction 

Remedies 

POLICY AND PROGRAMS 

31. Improper Relationships & 

Fraternization 

32. Victims’ Rights/Programs & 

Sexual Assault (SVC, FAP, 

SHARP, VWAP) 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Back to Table of Contents] 

FOREWORD
 3 March 2017 

The Criminal Law Department at The Judge Advocate General's Legal Center and 

School, US Army, (TJAGLCS) produces this deskbook as a resource for Judge 

Advocates and paralegals, in training and in the field. The deskbook is a treatise, 

practical guide, and training tool that covers the substantive and procedural aspects of 

military justice. It is a comprehensive resource and an excellent starting point for 

research. However, the deskbook is not an all-encompassing academic treatise. 

Readers must consult relevant primary sources and form their own opinions about the 

interpretation of precedent or policy. 

History of the Deskbook. Deskbooks at TJAGLCS exist in each of the academic 

departments, and all of them began generally as an outline for Basic and Graduate 

Course students. In the criminal law department in the 1990’s, the deskbook took many 

forms – one version for the Basic Course, another version for the Graduate Course, 

another version for the Criminal Law Advocacy Course, etc. A new deskbook would be 

generated and printed for each newly arriving course. 

In the mid-2000’s, the various versions of the deskbook were consolidated into two 

volumes of substantive and procedural criminal law. A third volume was added to 

address advocacy, and in 2011, a fourth volume was added to address special topics 

like capital and complex litigation. In 2013, the criminal law department combined all of 

the volumes into a single deskbook. That document was about 1500 pages in length 

and had several proposed new chapters to be added to subsequent editions. In 2015, 

the deskbook was updated, reformatted and edited resulting in a smaller document. In 

2017, the deskbook was reorganized to put chapters into chronological order more 

consistent with criminal procedure, and all of the advocacy chapters were removed. 

The advocacy chapters were edited and included in the 2017 update to “The Advocacy 

Trainer.” Also, all of the policies and programs related to SHARP, FAP, SVC, VWL, and 

victim’s rights were consolidated into one chapter. 

Moving forward, the criminal law academic department will continue to assess the 

usefulness and value of the deskbook chapters with the following factors in mind: (1) 

existing criminal law publications already available to the field; (2) the role of the 

TJAGLCS and the criminal law department in the training and development of judge 

advocates and paralegals; and (3) the vision of the criminal law department to provide 

quality ABA instruction to our L.L.M. students. 

We ask for your input. Readers are encouraged to note any discrepancies or 

make any suggestions to improve this deskbook. Please contact the TJAGLCS 

Criminal Law Department; contact information is provided on the following page of this 

deskbook. 

The deskbook does not reflect Army or Department of Defense policy. It was created and is 

managed by military personnel in an academic setting for use primarily by students as a 

reference tool. The deskbook does not speak for the agency. Military justice practitioners 

and military justice managers are free to reproduce from this deskbook as needed. 
 

 

 

 

 

 

 

 

 

 

 

 

 

[Back to Table of Contents] 

Criminal Law Faculty
 2016 – 2017
 

Chair and Professor 

COL Christopher A. Kennebeck 

christopher.a.kennebeck.mil@mail.mil 

434-971-3341 (DSN 521) 

Subjects: Overview of the Military Justice 

System 

Associate Professors 

Ms. Patti Sudendorf 

patricia.m.sudendorf.civ@mail.mil
 

434-971-3347 (DSN 521)
 

Subjects: Sexual Assault Prosecution & 

Defense; Trial Advocacy; Complex Litigation
 

LTC Vincent Shuler 

vincent.t.shuler.mil@mail.mil
 

434-971-3179 (DSN 521)
 

Subjects: Discovery; Production; Search &
 

Seizure; Self-Incrimination
 

MAJ Kristen Fricchione 

kristen.m.fricchione.mil@mail.mil
 

434-971-3345 (DSN 521)
 

Subjects: Family Advocacy Program (FAP);
 

Sexual Harassment & Assault Response &
 

Prevention (SHARP); Victim Witness Assistance 

Program (VWAP); Special Victim Counsel (SVC);
 

Improper Relationships & Fraternization
 

Maj Iain Pedden, USMC 

iain.d.pedden.mil@mail.mil
 

434-971-3276 (DSN 521)
 

Subjects: Confrontation Clause; Evidence; 

Expert Witnesses
 

MAJ Jason Nef 

alan.j.nef.mil@mail.mil 

434-971-3348 (DSN 521) 

Subjects: Nonjudicial 

Punishment (NJP); Summary Court-Martial 

(SCM); Appeals & Writs; Corrections; 

Sentencing 

Vice Chair and Professor 

LTC Christian Beese 

christian.e.beese.mil@mail.mil 

434-971-3342 (DSN 521) 

Subjects: Unlawful Command Influence 

LtCol Douglas Hatch, USMC 

douglas.c.hatch.mil@mail.mil
 

434-971-3349 (DSN 521)
 

Subjects: Crimes; Defenses; Charging; 

Instructions; Mental Responsibility & Competence
 

LTC Bradford Bigler 

bradford.d.bigler.mil@mail.mil
 

434-971-3343 (DSN 521)
 

Subjects: Court-Martial Personnel; Motions;
 

Pleas; Pretrial Advice; Pretrial Agreements;
 

Voir Dire & Challenges
 

MAJ Autumn Porter 

autumn.r.porter.mil@mail.mil
 

434-971-3346 (DSN 521)
 

Subjects: Case Analysis; Cross & Direct Exam;
 

Findings Argument; Interviewing Witnesses;
 

Opening Statement; Preparing Witnesses;
 

Professional Responsibility; Sentencing Argument
 

MAJ Trevor Barna 

trevor.i.barna.mil@mail.mil 

434-971-3344 (DSN 521) 

Subjects: Article 32; Jurisdiction; Pretrial 

Restraint; Speedy Trial; Post-Trial Process 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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CHAPTER 1
 

OVERVIEW OF MILITARY JUSTICE
 

I. Introduction 

II. Creation of the Military Justice System 

III. Jurisdiction 

IV. Types of Offenses 

V. Investigation of Offenses 

VI. Types of Courts-Martial 

VII. Procedural Safeguards 

VIII. Post-Trial Review 

IX. Appellate Review 

Appx A: Field Grade NJP vs. SCM Cheat Sheet (Enlisted Soldiers) 

Appx B: Maximum Punishment Cheat Sheet 

I. INTRODUCTION 

A. Basic Goals. A basic objective of any criminal law system is to discover the truth, acquit the 

innocent without unnecessary delay or expense, punish the guilty proportionately with their crimes, 

and prevent and deter future crime. Military justice shares these objectives in part, but also serves to 

enhance good order and discipline within the military. 

B. Separate System. A question that has been debated often, especially whenever there is a high 

profile case that captures the public’s attention, is why do we have a separate military justice system? 

Often, what comes out of those debates is that fact that “the military is, by necessity, a specialized 

society separate from civilian society.” Parker v. Levy, 417 U.S. 733 (1974). As the U.S. Supreme 

Court noted in Parker v. Levy, the “differences between the military and civilian communities result 

from the fact that ‘it is the primary business of armies and navies to fight or be ready to fight wars 

should the occasion arise.’” Id. at 743, citing United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 

(1955). The military is a “separate society” warranting military justice system. See Francis A 

Gilligan & Fredric I. Lederer, Court-Martial Procedure, Fourth Edition, 1-4 (2015) (foreword by 

former Chief Judge James E. Baker). The reasons often provided for a separate military justice 

system include: 

1. The worldwide deployment of military personnel; 

2. The need for instant mobility of personnel; 

3. The need for speedy trial to avoid loss of witnesses due to combat effects and needs; 

4. The peculiar nature of military life, with the attendant stress of combat; and 

5. The need for disciplined personnel. Id. 

C. Good Order and Discipline. Of all the rationales for a separate system, perhaps the most 

persuasive is the need for disciplined personnel. Members of the Armed Forces are subject to rules, 

orders, proceedings, and consequences different from the rights and obligations of their civilian 

counterparts. United States v. Watson, 69 M.J. 415 (2011). In the military justice system, discipline 

can be viewed as being as important as individual liberty interests. The Preamble to the Manual for 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Courts-Martial (MCM) recognizes the importance of discipline as part of military justice: “The 

purpose of military law is to promote justice, to assist in maintaining good order and discipline in the 

armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to 

strengthen the national security of the United States.” Manual for Courts-Martial, Preamble, I-1 

(2012). Given the need for discipline in the military, military justice is under the overall control of 

the commander. 

1. Commander’s Discretion. Commanders have a wide variety of options available to them to 

deal with disciplinary problems. These options include administrative actions ranging from an 

informal counseling, extra training, withdrawal or limitation of privileges, and administrative 

separations, to punitive options such as punishment under Article 15, UCMJ, and trial by courtmartial. 

2. Prosecutorial Discretion. Prosecutorial discretion lies with the commander and not the judge 

advocate, a concept unfamiliar to civilian practitioners who are more accustomed to prosecutorial 

discretion being entrusted to an attorney. In the military justice system, the commander, with the 

advice of his or her Staff Judge Advocate or legal advisor, decides whether a case will be 

resolved administratively or referred to a court-martial. If the case is to be referred to a general 

court-martial, Article 34, UCMJ, requires that a judge advocate make findings that there is 

probable cause to believe a UCMJ offense has been committed. In practice, this process is true 

for both special and general courts-martial. But technically, it is the commander who approves 

and signs the charging document and who ultimately makes the decision whether a case is to be 

referred to a court-martial for trial. 

D. Key References. 

1. Military Justice – Army Regulation 27-10 

2. Manual for Courts-Martial (MCM) 

3. Rule for Courts-Martial (R.C.M.) 

4. Military Rule of Evidence (M.R.E.) 

5. Uniform Code of Military Justice (UCMJ) 

6. Military Judges’ Benchbook – DA Pamphlet 27-9 

II. CREATION OF THE MILITARY JUSTICE SYSTEM 

A. Authority. In order to provide for the common defense, the Constitution gives Congress the 

power to raise, support and regulate the Armed Forces. U.S. Const., Preamble, art. I, § 8, cls. 11-14 

(War Power). Under this authority, Congress enacted the UCMJ in 1950. 10 U.S.C. §§ 801-946 

(Articles 1 - 146). The UCMJ is the code of military criminal law and procedure applicable to all 

U.S. military members worldwide. 

B. Implementation. The Constitution makes the President the Commander-in-Chief of the Armed 

Forces. U.S. Const., art. II, § 2, cl. 1. Also, Congress expressly delegated UCMJ authority to the 

President to make rules and set punishment limits for cases arising under the UCMJ. 10 U.S.C. §§ 

836, 856. Under these authorities, the President implements the UCMJ through Executive Orders. 

The MCM was created in 1984 by Executive Order 12473 (April 13, 1984), and it is intended to be an 

all-in-one practitioners manual for Judge Advocates and Commanders. The President also delegated 

authority to each of the Service Secretaries, including the Department of Homeland Security (for the 

Coast Guard), to further implement the UCMJ and the rules contained within the MCM. Each Sister 

Service supplements the MCM to meet its individual needs, the Army using Army Regulation 27-10. 

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The Navy and Marine Corps uses the Manual for the Judge Advocate General, and the Air Force uses 

Air Force Instructions. 

C. The Manual for Courts-Martial. The MCM contains the relevant statutes (UCMJ), rules (RCM 

and MRE), forms, scripts, and analysis for practitioners in the field. The MCM covers almost all 

aspects of military criminal law and is intended to serve as a portable manual to help facilitate 

military justice in remote and austere locations. The rules contained in Parts I-V of the MCM are 

directed from the President and serve as requirements. The other parts of the MCM include forms, 

scripts, discussion, and analysis which serve only as guidance. See Manual for Courts-Martial, 

Analysis of the Rules for Courts-Martial, A21-1 (2012). The different parts of the MCM are listed 

and explained below: 

1. NOTE: Practitioners should be advised that the MCM historically (from 1994-2012) has 

been updated every three or four years. Such updates are too infrequent to ensure precision, and 

users are reminded to conduct appropriate research before relying on the printed MCM. Online 

updates to the MCM can be found here: http://jsc.defense.gov/Military-Law/CurrentPublications-and-Updates/. 

2. NOTE: Practitioners must also remember that the MCM is only a reflection of the law and 

procedural rule – the actual statutory authority exists in 10 U.S.C. §§ 801-946, and the rules of 

procedure and evidence are found in Executive Orders from POTUS. The MCM is merely a 

user’s manual. It was created to improve efficiency and portability. While the MCM can be cited 

as authority and is vital to the day-to-day practice of military justice, practitioners must remember 

to seek out the original authority when required by motion or argument. The Executive Orders 

upon which the MCM is built are addressed below in paragraph C.14. 

3. Part I, Preamble. This part explains the sources of authority and the structure of the MCM. 

4. Part II, Rules for Courts-Martial. This part sets forth the rules that govern court-martial 

jurisdiction, command authorities, court-martial procedure, and post-trial requirements. For trial 

practice, including motions, depositions, subpoenas, and other pre-trial matters, the RCM are 

similar to the Federal Rules of Criminal Procedure. 

5. Part III, Military Rules of Evidence. This part establishes the evidentiary rules applicable in 

each court-martial. The MRE are modeled after and closely resemble the Federal Rules of 

Evidence (FRE), except with regard to Federal civil matters and military-specific provisions. For 

example, all of Section III of the MRE, rules 301-321, are military-specific, and there is no 

corollary in the FRE. The MRE are to be construed so as to administer every proceeding fairly, 

eliminate unjustifiable expense and delay, and promote the development of evidence law. M.R.E. 

102. Non-binding discussion paragraphs were added to Part III in 2012. 

6. Part IV, Punitive Articles. This part addresses the criminal offenses contained in the UCMJ. 

It is organized by paragraph and is intended to provide basic and necessary information about 

each criminal offense, as follows: (a) text of the statute; (b) elements of the offense; (c) 

explanation of the offense; (d) lesser included offenses; (e) maximum punishments; and (f) 

sample specifications. While Congress provides the text of the statute, the President provides the 

remaining portions of Part IV by Executive Order. This part also has non-binding discussion 

paragraphs to alert practitioners to case law and practical considerations. See Manual for CourtsMartial, Punitive Articles, IV-1 discussion (2012) 

7. Part V, Nonjudicial Punishment Procedure. Often overlooked, this part of the MCM 

establishes the basic requirements of and protections from nonjudicial punishment. In practice, 

each Service has promulgated regulations that implement Part V of the MCM. Practitioners are 

likely much more familiar with their Service regulation; however, it is wise to know from where 

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nonjudicial punishment authority is derived – Article 15 from Congress and Part V of the MCM 

from the President. 

8. U.S. Constitution, contained in Appendix 1. 

9. Uniform Code of Military Justice. Appendix 2 contains the entire UCMJ, Articles 1-146. 

10. Maximum Punishment Chart, contained in Appendix 12. 

11. **NEW IN 2016** Listing of Lesser Included Offenses. New Appendix 12A is intended to 

be the listing of all lesser included offenses, instead of putting this information in Part IV of the 

MCM, where it used to reside. The reason for the new Appendix 12A is to allow the Joint 

Service Committee to more conveniently update LIOs as they are impacted by appellate 

precedent and to conform to United States v. Jones, 68 M.J. 465 (C.A.A.F. 2011), and its 

progeny. 

12. Scripts and Forms, contained in various Appendices from 3-20. 

13. Analysis. The RCM, MRE and Punitive Articles (Parts II, III, and IV) each have analysis in 

Appendices 21, 22, and 23, respectively. While discussion paragraphs are meant to serve as 

guidance in the form of treatise, the analysis is more akin to legislative intent and historical 

record-keeping. The “intent” captured in the analysis is usually from the Joint Service 

Committee on Military Justice (JSC). JSC Website. The JSC is the entity that researches and 

proposes changes to the MCM and UCMJ. The JSC also drafts the Executive Orders that the 

President will sign to update the MCM. The analysis appendices in the MCM are a repository of 

notes from the JSC. On the spectrum of authority, the UCMJ is most powerful; then the rules 

prescribed by the President in Parts I-V of the MCM; then Service regulation and the discussion 

paragraphs in the MCM; and then the analysis. Discussion paragraphs and Service regulations 

are often cited by appellate courts as some form of authority, but the analysis is less compelling 

and cited less often. 

14. Historical Executive Orders. Appendix 25 of the MCM lists all of the Executive Orders that 

comprise the MCM. The MCM was first created in 1984 by a very large Executive Order and has 

since been updated, almost annually, by subsequent orders. These orders had originally been 

printed in Appendix 25 of the MCM but were removed in 2012. Copies of the actual Executive 

Orders that comprise the MCM are now available online at the JSC Website. 

15. Prior Versions of Article 120. Appendices 27 and 28 contain, respectively, the pre-2007 and 

the 2007 versions of Article 120. These appendices were added to the 2012 MCM to help 

practitioners in charging older sexual offenses. 

III. JURISDICTION 

A. Article 2, UCMJ, defines and establishes jurisdiction over all servicemembers (Army, Navy, Air 

Force, Marine, and Coast Guard). The UCMJ also provides for jurisdiction over several other 

categories of individuals, including but not limited to: Reserve Component and National Guard 

members, certain retired military members; military members serving a court-martial sentence; 

members of the National Oceanic and Atmospheric Administration and Public Health Service and 

other organizations when assigned to serve with the military; enemy prisoners of war in custody of 

the military; and, in times of declared war or contingency operations, persons serving with or 

accompanying an armed force in the field. Article 2, UCMJ; 10 U.S.C. § 802. 

B. Court-Martial Jurisdiction. Under the MCM, jurisdiction of a court-martial means “the power to 

hear a case and to render a legally competent decision.” See discussion to R.C.M. 201(a)(1). Under 

R.C.M. 201(b), a court-martial has jurisdiction if the following are all true: 

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1. The court-martial must be convened by an official empowered to convene it; 

2. The court-martial must be composed in accordance with the Rules for Courts-Martial with 

respect to number and qualifications of its personnel (military judge and members must have 

proper qualifications); 

3. Each charge before the court-martial must be referred to it by competent authority; 

4. The accused must be a person subject to court-martial jurisdiction (personal jurisdiction); and 

5. The offense must be subject to court-martial jurisdiction (subject matter jurisdiction). 

C. The nuances of court-martial jurisdiction are beyond the scope of this outline, however, it is 

enough to say generally that jurisdiction of a court-martial does not depend on where the offense was 

committed; it depends solely on the status of the accused. See Solorio v. United States, 483 U.S. 435, 

447 (1987). Also, a court-martial exists by order of a commander and is not a standing tribunal like 

an Article III federal court. A court-martial is derived from Article I authority in the Constitution: 

Congress created our court system with the UCMJ, and Congress gave commanders the authority to 

convene a court-martial. A court-martial is not a standing court; rather it comes into existence when a 

commander “refers” a case, and it ceases to exist after sentencing when the court-martial “closes”. 

IV. TYPES OF OFFENSES 

A. Overview: A court-martial may try any offense which is listed in the punitive articles of the 

UCMJ. The punitive articles run from Articles 77 through 134 of the UCMJ. 10 U.S.C. §§ 877-934. 

Some of the offenses listed within Articles 77 through 134 have a civilian analog, but some are 

exclusive to the military. 

1. Civilian Analog Offenses. Some examples of civilian analog offenses under the UCMJ 

would be conspiracy (Article 81); murder (Article 118); rape (Article 120) robbery (Article 122); 

and assault (Article 128). 

2. Military-Specific Offenses. Examples of military-specific offenses include desertion (Article 

85); absence without leave (Article 86); insubordinate conduct (Article 91); mutiny and sedition 

(Article 94); misconduct as a prisoner (Article 105); malingering (Article 115); and conduct 

unbecoming an officer (Article 133). 

B. General Article 134. In addition to the enumerated offenses above, a servicemember may be tried 

at a court-martial for offenses not specifically covered within the punitive articles. Under General 

Article 134, which states that all “crimes and offenses not capital, of which persons subject to this 

chapter may be guilty, shall be taken cognizance of by a general, special, or summary court martial, 

according to the nature and degree of the offense.” For more detail on Article 134, see Chapter 4 of 

this deskbook. 

1. Federal Assimilative Crimes Act (18 U.S.C. § 13). The military uses Article 134 to 

assimilate state and federal offenses for which there is no analogous crime in the UCMJ in order 

to impose court-martial jurisdiction. The potential punishments for violations generally match 

those applicable to the corresponding civilian offense. 

2. Preemption doctrine. The preemption doctrine prohibits application of Article 134 to conduct 

covered by Articles 80 through 132. 

V. INVESTIGATION OF OFFENSES 

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A. Report of misconduct. When a servicemember has reportedly committed an offense, his or her 

commander is usually notified by military law enforcement (via daily “blotter reports” from the 

installation Provost Marshal), or by a report from an alleged victim or through direct observation of 

the alleged misconduct. After receiving notification that a servicemember committed an offense 

triable by court-martial, the commander must direct a preliminary inquiry before disposing of a case. 

R.C.M. 303. 

B. Commander’s Inquiry. The inquiry by the command may range from an examination of the 

possible charges and an investigative report to a more extensive investigation depending on the 

offense(s) alleged and the complexity of the case. The investigation may be conducted by members 

of the command or, in more complex cases, military and civilian law enforcement officials. By 

policy, the Department of Defense and each Sister Service “requires” that allegations of sexual 

offenses be reported to the appropriate Military Criminal Investigative Organization (for the Army 

that is the Criminal Investigation Command, or CID; for Navy/Marine, NCIS; for Air Force, OSC). 

See DODI 6495. 

C. Commander’s Options. After the investigation is complete, the appropriate commander must 

make a disposition decision. By policy, the Secretary of Defense has withheld the disposition 

authority for all sexual offenses (Article 120 rape and sexual assault, and Article 125 forcible 

sodomy) to the first O-6 special court-martial convening authority in the chain of command. 

Commanders may make the following disposition decisions UP RCM 306(c): 

1. Taking no action; 

2. Initiating administrative action (which can include separation from the Army); 

3. Imposing non-judicial punishment (a form of punishment that is not considered a conviction, 

but can result of loss of rank, pay, and other privileges); 

4. Preferring charges (the process of formally charging a soldier with and offense for resolution 

at court-martial); or 

5. Forwarding to a higher authority for preferral of charges. 

D. Preferral of Charges. The first formal step in a court-martial, preferral of charges, consists of 

drafting a charge sheet containing the charges and specifications against the accused. A specification 

is a plain and concise statement of the essential facts constituting the offense charged. R.C.M. 

307(c)(3). The M.C.M. contains model specifications to assist trial counsel and the chain of 

command in drafting the specifications. The charge sheet must be signed by the accuser under oath 

before a commissioned officer authorized to administer oaths. R.C.M. 307(b). Any person subject to 

the UCMJ may prefer charges as the accuser. R.C.M. 307(a). 

E. Referral of Charges. After charges have been preferred, they may be referred to one of three 

types of courts-martial: summary, special, or general. R.C.M. 401(c). The process of “referral” is 

simply the order that states that charges against an accused will be tried by a specific court-martial. 

The Court Martial Convening Authority, a commander, determines which level of court-martial to 

which the charges are to be referred. R.C.M. 504. That commander must be advised by her Staff 

Judge Advocate or legal representative before making her determination (this is required for general 

courts-martial by Article 34, UCMJ; however, RCM 401 and 601 require legal advice for any referral 

to special or general court-martial). Usually, the seriousness of the offenses alleged determines the 

type of court-martial. 

VI. TYPES OF COURTS-MARTIAL 

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A. Unlike Article III federal courts, courts-martial are not standing courts. Courts-martial are 

created by individual Court-Martial Convening Orders (CMCO). Without a CMCO, there is no court 

and thus no authorization to adjudicate any charged offense. Congress, in creating the military justice 

system, established three types of courts-martial: (1) summary court-martial, (2) special court-martial, 

and (3) general court-martial. Article 16, UCMJ; 10 U.S.C. § 816. While the Rules of Courts-Martial 

and the Military Rules of Evidence are applicable to all courts-martial, the jurisdiction and authorized 

punishments vary among the different courts-martial types. 

B. Summary Courts-Martial. The function of the summary court-martial is to “promptly adjudicate 

minor offenses under a simple procedure” and “thoroughly and impartially inquire into both sides of 

the matter” ensuring that the “interests of both the Government and the accused are safeguarded and 

that justice is done.” R.C.M. 1301(b). The summary court-martial can adjudicate minor offense 

allegedly committed by enlisted servicemembers. 

C. Special Courts-Martial. Special courts-martial generally try offenses that are considered 

misdemeanors. The formality and procedural protections are much more involved in a special courtmartial as opposed to a summary court-martial. 

D. General Courts-Martial. A general court-martial is the highest trial level in military law and is 

usually used for the most serious offenses. 

E. See Chapter 6 of this Deskbook for more details about Summary Court-Martial. 

VII. PROCEDURAL SAFEGUARDS 

A. The Constitution specifically exempts military members accused of a crime from the Fifth 

Amendment right to a grand jury indictment. Based upon this exemption, the Supreme Court has 

inferred there is no right to a civil jury in courts-martial. See Ex Parte Milligan, 71 U.S. (4 Wall.) 2 

(1866). Despite this exemption, the military justice system has created, in most instances, equal if not 

greater procedural protections for military members. For instance, Congress has, in Article 32, 

UCMJ, provided for a pretrial hearing that performs the same basic function as a grand jury. 

However, the Article 32 has the added benefit of allowing the accused to call witnesses, present 

evidence, and cross examine government witnesses. Below are the various procedural safeguards for 

an accused in a court-martial. 

B. Constitutional Safeguard: Presumption of Innocence 

1. "The principle that there is a presumption of innocence in favor of the accused is undoubted 

law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of 

our criminal law." Coffin v. United States, 156 U.S. 432, 453 (1895) 

2. General Courts-Martial: If the accused fails to enter a proper plea, a plea of not guilty will be 

entered. R.C.M. 910(b). Members of a court-martial must be instructed that the "accused must 

be presumed to be innocent until the accused's guilt is established by legal and competent 

evidence beyond a reasonable doubt." R.C.M. 920(e). The accused shall be properly attired in 

uniform with grade insignia and any decorations to which entitled. Physical restrain shall not be 

imposed unless prescribed by the military judge. R.C.M. 804 

C. Constitutional Safeguard: Right to Remain Silent 

1. "No person... shall be compelled in any criminal case to be a witness against himself...." 

Amendment V. 

2. General Courts-Martial: Coerced confessions or confessions made without statutory 

equivalent of Miranda warning are not admissible as evidence. Article 31, UCMJ, 10 U.S.C. § 

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831. The trial counsel must notify the defense of any incriminating statements made by the 

accused that are relevant to the case prior to the arraignment. Motions to suppress such statements 

must be made prior to pleading. M.R.E. 304. 

D. Constitutional Safeguard: Freedom from Unreasonable Searches & Seizures 

1. "The right of the people to be secure... against unreasonable searches and seizures, shall not 

be violated; no Warrants shall issue, but upon probable cause...." Amendment IV. 

2. General Courts-Martial: "Evidence obtained as a result of an unlawful search or seizure... is 

inadmissible against the accused..." unless certain exceptions apply. M.R.E. 311. An 

"authorization to search" may be oral or written, and may be issued by a military judge or an 

officer in command of the area to be searched, or if the area is not under military control, with 

authority over persons subject to military law or the law of war. It must be based on probable 

cause. M.R.E. 315. Interception of wire and oral communications within the United States 

requires judicial application in accordance with 18 U.S.C. §§ 2516 et seq. M.R.E. 317. A search 

conducted by foreign officials is unlawful only if the accused is subject to "gross and brutal 

treatment." M.R.E. 311(c). 

E. Constitutional Safeguard: Assistance of Effective Counsel 

1. "In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of 

Counsel for his defense." Amendment VI. 

2. General Courts-Martial: The accused has a right to military counsel at government expense. 

An accused may choose individual military counsel, if that attorney is reasonably available, and 

may hire a civilian attorney in addition to military counsel. Article 38, UCMJ, 10 U.S.C. § 838. 

Appointed counsel must be certified as qualified and may not be someone who has taken any part 

in the investigation or prosecution, unless explicitly requested by the accused. Article 27, UCMJ, 

10 U.S.C. § 827. The military recognizes an attorney-client privilege. M.R.E. 502. 

F. Constitutional Safeguard: Right to Indictment and Presentment 

1. "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a 

presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or 

in the Militia, when in actual service in time of War or public danger...." Amendment V. 

2. General Courts-Martial: The right to indictment by grand jury is explicitly excluded in "cases 

arising in the land or naval forces." Amendment V. Whenever an offense is alleged, the 

commander is responsible for initiating a preliminary inquiry and deciding how to dispose of the 

offense. R.C.M. 303-06. Prior to convening a general court-martial, a preliminary hearing must 

be conducted. R.C.M. 405. This investigation, known as an Article 32 preliminary hearing, is 

meant to ensure that there is a basis for prosecution. R.C.M. 405(a). 

G. Constitutional Safeguard: Right to Written Statement of Charges 

1. "In all criminal prosecutions, the accused shall enjoy the right... to be informed of the nature 

and cause of the accusation...." Amendment VI. 

2. General Courts-Martial: Charges and specifications must be signed under oath and made 

known to the accused as soon as practicable. Article 30, UCMJ, 10 U.S.C. § 830 

H. Constitutional Safeguard: Right to be Present at Trial 

1. The Confrontation Clause of Amendment VI guarantees the accused's right to be present in 

the courtroom at every stage of his trial. Illinois v. Allen, 397 U.S. 337 (1970). 

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2. General Courts-Martial: The presence of the accused is required during arraignment, at the 

plea, and at every stage of the court-martial unless the accused waives the right by voluntarily 

absenting him or herself from the proceedings after the arraignment or by persisting in conduct 

that justifies the trial judge in ordering the removal of the accused from the proceedings. R.C.M. 

801. 

I. Constitutional Safeguard: Prohibition against Ex Post Facto Crimes 

1. "No... ex post facto law shall be passed." Art. I, § 9, cl. 3. 

2. General Courts-Martial: Courts-martial will not enforce an ex post facto law, including 

increasing amount of pay to be forfeited for specific crimes. United States v. Gorki, 47 M.J. 370 

(C.A.A.F. 1997). 

J. Constitutional Safeguard: Protection against Double Jeopardy 

1. "... [N]or shall any person be subject for the same offence to be twice put in jeopardy of life 

or limb...." Amendment V. 

2. General Courts-Martial: Double jeopardy clause applies. See Wade v. Hunter, 336 US 684, 

688-89 (1949). Article 44, UCMJ prohibits double jeopardy, provides for jeopardy to attach after 

introduction of evidence. 10 U.S.C. § 844. General court-martial proceeding is considered to be 

a federal trial for double jeopardy purposes and are subject to "dual sovereign" doctrine, i.e.: 

federal and state courts may prosecute an individual for the same conduct without violating the 

clause. Double jeopardy does not result from charges brought in state or foreign courts, although 

court-martial in such cases is disfavored. See United States v. Stokes, 12 M.J. 229 (C.M.A. 

1982). If military authorities turn over a Servicemember to civilian authorities for trial, military 

may have waived jurisdiction for that crime, although it may be possible to charge the individual 

for another crime arising from the same conduct. See 54 AM. JUR. 2D, Military and Civil 

Defense §§ 227-28. 

K. Constitutional Safeguard: Speedy & Public Trial 

1. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." 

Amendment VI. 

2. General Courts-Martial: In general, the accused must be brought to trial within 120 days of 

the preferral of charges or the imposition of restraint, whichever date is earliest. R.C.M. 707(a). 

The right to a public trial applies in courts-martial but is not absolute. R.C.M. 806. The military 

trial judge may exclude the public from portions of a proceeding for the purpose of protecting 

classified information if the prosecution demonstrates an overriding need to do so and the closure 

is no broader than necessary. United States v. Grunden, 2 M.J. 116 (CMA 1977). 

L. Constitutional Safeguard: Burden & Standard of Proof 

1. Due Process requires the prosecution to prove the defendant guilty of each element of a crime 

beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970). 

2. General Courts-Martial: Members of court martial must be instructed that the burden of 

proof to establish guilt is upon the government and that any reasonable doubt must be resolved in 

favor of the accused. R.C.M. 920(e). 

M. Constitutional Safeguard: Privilege Against Self- Incrimination 

1. "No person... shall be compelled in any criminal case to be a witness against himself...." 

Amendment V. 

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2. General Courts-Martial: No person subject to the UCMJ may compel any person to answer 

incriminating questions. Article 31(a) UCMJ, 10 U.S.C. § 831(a). The accused may not be 

compelled to give testimony that is immaterial or potentially degrading. Article 31(c), UCMJ, 10 

U.S.C. § 831(c). No adverse inference is to be drawn from an accused's refusal to answer any 

questions or testify at court-martial. M.R.E. 301(f). Witnesses may not be compelled to give 

testimony that may be incriminating unless granted immunity for that testimony by a general 

court-martial convening authority, as authorized by the Attorney General, if required. 18 U.S.C. 

§ 6002; R.C.M. 704. 

N. Constitutional Safeguard: Right to Examine or Have Examined Adverse Witnesses 

1. "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the 

witnesses against him...." Amendment VI. 

2. General Courts-Martial: Hearsay rules apply as in federal court. M.R.E. 801 et seq. In 

capital cases, sworn depositions may not be used in lieu of witness, unless court-martial is treated 

as non-capital or it is introduced by the defense. Article 49, UCMJ, 10 U.S.C. § 849. 

O. Constitutional Safeguard: Right to Compulsory Process to Obtain Witnesses 

1. "In all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process 

for obtaining witnesses in his favor...." Amendment VI. 

2. General Courts-Martial: An accused has the right to compel appearance of witnesses 

necessary to their defense. R.C.M. 703. Process to compel witnesses in a court-martial is to be 

similar to the process used in federal courts. Article 46, UCMJ, 10 U.S.C. § 846. 

P. Constitutional Safeguard: Right to Trial by Impartial Judge 

1. "The Judicial Power of the United States, shall be vested in one Supreme Court, and in such 

inferior courts as the Congress ... may establish. The Judges ... shall hold their Offices during 

good Behavior, and shall receive ... a compensation, which shall not be diminished during their 

continuance in office." Article III § 1. 

2. General Courts-Martial: A qualified military judge is detailed to preside over the courtmartial. The convening authority may not prepare or review any report concerning the 

performance or effectiveness of the military judge. Article 26, UCMJ, 10 U.S.C. § 826. Article 

37, UCMJ, prohibits unlawful influence of courts-martial through admonishment, censure, or 

reprimand of its members by the convening authority or commanding officer, or any unlawful 

attempt by a person subject to the UCMJ to coerce or influence the action of a court-martial or 

convening authority. Article 37, UCMJ, 10 U.S.C. § 837. 

Q. Constitutional Safeguard: Right to Trial by Impartial Jury 

1. "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury...." Art III § 2 cl. 

3 "In all criminal prosecutions, the accused shall enjoy the right to a... trial, by an impartial jury 

of the state...." Amendment VI. 

2. General Courts-Martial: A military accused has no Sixth Amendment right to a trial by petit 

jury. Ex Parte Quirin, 317 U.S. 1, 39-40 (1942) (dicta). However, "Congress has provided for 

trial by members at a court-martial." United States v. Witham, 47 MJ 297, 301 (C.A.A.F. 1997); 

Article 25, UCMJ, 10 U.S.C. § 825. The Sixth Amendment requirement that the jury be impartial 

applies to court-martial members and covers not only the selection of individual members, but 

also their conduct during the trial proceedings and the subsequent deliberations. United States v. 

Lambert, 55 M.J. 293 (C.A.A.F. 2001). 

R. Constitutional Safeguard: Right to Appeal to Independent Reviewing Authority 

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1. "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of 

Rebellion or Invasion the public Safety may require it." Article I § 9 cl. 2. 

2. General Courts-Martial: The writ of habeas corpus provides the primary means by which 

those sentenced by military court, having exhausted military appeals, can challenge a conviction 

or sentence in a civilian court. The scope of matters that a court will address is narrower than in 

challenges of federal or state convictions. Burns v. Wilson, 346 U.S. 137 (1953). However, 

Congress created a military court with all civilian justices (non-military retirees), the Court of 

Appeals for the Armed Forces, to review military cases. Articles 141-146, 10 U.S.C. §§ 141-146. 

S. Constitutional Safeguard: Protection against Excessive Penalties 

1. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual 

punishments inflicted." Amendment VIII. 

2. General Courts-Martial: Death may only be adjudged for certain crimes where the accused is 

found guilty by unanimous vote of court-martial members present at the time of the vote. Prior to 

arraignment, the trial counsel must give the defense written notice of aggravating factors the 

prosecution intends to prove. R.C.M. 1004. A conviction of spying during time of war under 

Article 106, UCMJ, carries a mandatory death penalty. 10 U.S.C. § 906. 

VIII. POST-TRIAL REVIEW 

A. Generally. Any conviction at a court-martial is subject to an automatic post-trial review by the 

convening authority. 

B. Process. The process starts with a review of the trial record by the staff judge advocate. R.C.M. 

1104. The accused is then given an opportunity to present matters to the convening authority. 

R.C.M. 1105. The accused may submit anything that he or she feels might influence the convening 

authority’s decision. Id. Beginning in 2013, the court-martial victims were permitted to submit 

matter to the convening authority as well. R.C.M. 1105A. After matters are submitted, the staff 

judge advocate for the convening authority provides a recommendation to the convening authority as 

to what action to take. R.C.M. 1106. Finally, the convening authority reviews the matters and legal 

advice and takes initial “action” on the court-martial before there is appellate review. R.C.M. 1107. 

1. The convening authority has broad powers in taking action; however, Congress limited that 

power in 2013 by amending the UCMJ to prevent convening authorities from overturning sexual 

assault convictions. See 10 U.S.C. § 860. Traditionally, the accused’s best hope for relief or 

clemency existed at post-trial, before appellate review. 

2. The convening authority may, among other remedies, suspend all or part of the sentence, 

disapprove a finding or conviction, or reduce the sentence. R.C.M. 1107. This power was 

limited in 2013 when Congress amended the UCMJ to prevent convening authorities from 

overturning sexual assault convictions. See 10 U.S.C. § 860. The convening authority does not 

have the authority to increase the sentence. 

3. See Chapter 28 of this deskbook to learn more about the post-trial process or the 

commander’s authorities to grant clemency. 

IX. APPELLATE REVIEW 

A. Generally. After the convening authority takes action, the case is ripe for appellate review. 

Convictions by special or general court-martial are subject to an automatic appellate review by a 

service Court of Criminal Appeals if the sentence includes confinement for one year or more, a bad1-11
 
 

 

 

 

 

 

 

 

 

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conduct or dishonorable discharge, death, or a dismissal in the case of a commissioned officer, cadet, 

or midshipman. R.C.M. 1203. 

1. Wavier. Military appellate courts are required to review cases over which they have 

jurisdiction unless the appellant waives his or her right to an appeal. An appellant may not waive 

his or her right to an appeal when the sentence includes death. R.C.M. 1110. 

2. Non-qualifying convictions. All court-martial convictions not reviewable by the service 

courts are reviewed by a judge advocate to determine if the findings and sentence, as approved by 

the convening authority, are correct in law and fact. Article 64, UCMJ, 10 U.S.C. § 864, R.C.M. 

1111, 1112, and 1306. 

B. Review. If the conviction is affirmed by the service court, the appellant may request review by 

the Court of Appeals for the Armed Forces (CAAF). R.C.M. 1204. The CAAF is a court composed 

of five civilian judges appointed by the President. Article 67 UCMJ; 10 U.S.C. § 867. With the 

exception of a case where the sentence is death, the review by the CAAF is discretionary. The 

appellant may also seek review by the U.S. Supreme Court. R.C.M. 1205. As with the review by 

CAAF, the review by the Supreme Court is discretionary. However, the Supreme Court review by 

writ of certiorari is limited to those cases where CAAF has conducted a review, whether mandatory or 

discretionary, or has granted a petition for extraordinary relief. The Court does not have jurisdiction 

to consider denials of petitions for extraordinary relief. R.C.M. 1205(a)(4). Service-members whose 

petitions for review or for extraordinary relief are denied by CAAF may seek additional review only 

through collateral means, for example, petitioning for habeas corpus to an Article III court, which 

could provide an alternate avenue for Supreme Court review. 

C. See Chapter 29 of this deskbook to learn more about the appellate process. 

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APPENDIX A
 

FIELD GRADE NJP v. SCM CHEAT SHEET
 

(Enlisted Soldiers)
 

NJP SCM 

Punishment: E1-E4 45 extra duty/45 restriction (60 if 

no extra duty); reduce to E1; 1⁄2 of 

one month’s pay for 2 months 

1 month confinement, or 45 extra 

duty/45 restriction (60 if no extra 

duty); reduce to E1; 2/3s pay for 

one month 

Punishment: E5-E6 45 extra duty/45 restriction (60 if 

no extra duty); reduce one grade; 

1⁄2 of one month’s pay for 2 

months 

2 months restriction; reduce one 

grade; 2/3s pay for one month 

Punishment: E7-E9 45 extra duty/45 restriction (60 if 

no extra duty); 1⁄2 of one month’s 

pay for 2 months 

2 months restriction; reduce one 

grade; 2/3s pay for one month 

UCI applies Yes Yes 

Soldier can turn down Yes Yes 

Considered a conviction No No 

Bring all known offenses at once Yes Yes 

Bring action after state conviction 

(DUIs) 

Yes (requires GCMCA approval) Yes (requires GCMCA approval) 

Double jeopardy attaches Yes for other NJP; No for courtmartial 

Yes 

Type of offense Minor (BCD, 1 year of less) Minor or Major (except capital 

offenses, mandatory minimum 

cases) 

Proof beyond a reasonable doubt Yes Yes 

Military Rules of Evidence apply No Yes 

Adversarial (cross-exam) No Yes 

Counsel rights Consult with counsel; spokesman 

at hearing (at own expense) 

Consult with counsel; lawyer at 

trial (at own expense) 

Appeal or clemency Soldier has 5 days to file; 

command acts within 5 days. 

Accused has 7 days to submit 

matters (may get an additional 20) 

Review A judge advocate (usually the 

TC) 

An independent judge advocate 

(usually an administrative law 

attorney) 

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APPENDIX B
 

MAXIMUM PUNISHMENT CHEAT SHEET
 

Type Restriction/Confinement Forfeitures Reduction Discharge 

Summarized 

Art. 15 

14 days extra 

duty/restriction 

None None None 

Company grade 

Art. 15 

14 days extra 

duty/restriction 

7 days 1 grade (E1­

E4) 

None 

Field grade Art. 

15 

45 days extra 

duty/restriction (60 days 

restriction if no extra 

duty) 

1⁄2 of 1 month’s 

pay for 2 

months 

1 or more 

grades (E1­

E4); 1 grade 

(E5-E6) 

None 

General officer 

Art. 15 

Same as field grade for 

enlisted; for officers, 60 

days restriction or 30 days 

house arrest 

Same as field 

grade 

Same as field 

grade 

None 

Summary CM 

(enlisted only) 

1 month confinement 

(E1-E4); or 45 days hard 

labor without 

confinement (E1-E4); 2 

months restriction (E1­

E9) (max combination of 

restriction/hard labor 

without confinement is 45 

days). 

2/3 pay for one 

month 

1 or more 

grades (E1­

E4); 1 grade 

(E5-E9) 

None 

Special CM 12 months (enlisted only) 2/3 pay per 

month for 1 

year 

Lowest enlisted 

grade. Officers 

may not be 

reduced 

BCD (enlisted 

only) 

General CM Maximum for the offense Total 

forfeitures of 

pay and 

allowances 

Lowest enlisted 

grade. Officers 

may not be 

reduced. 

DD (E1-E9, 

noncommissioned 

warrant officers); 

dismissal 

(commissioned 

officers) 

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[Back to Table of Contents] 

CHAPTER 2
 

UNLAWFUL COMMAND INFLUENCE
 

I. Introduction 

II. Adjudicative UCI 

III. Accusatory UCI 

IV. Litigating UCI Claims 

V. Remedial Actions 

VI. Waiver and Forfeiture 

VII. Further Reading 

Appx A: The 10 Commandments of UCI 

Appx B: Recurring Problem: The Policy Statement 

I. INTRODUCTION 

A. Basics 

1. Unlawful command influence (UCI) is the improper use, or perception of use, of superior 

authority to interfere with the court-martial process. See Gilligan and Lederer, Court-Martial 

Procedure § 18-28.00 (4th ed. 2015). 

2. The primary legal source for the prohibition against UCI is Article 37. This article is 

reproduced as Rule for Court-Martial (R.C.M.) 104. 

B. UCI is consistently called “the mortal enemy of military justice.” United States v. Thomas, 22 

M.J. 388, 393 (C.M.A. 1986); United States v. Gore, 60 M.J. 178 (C.A.A.F. 2004); United States v. 

Douglas, 68 M.J. 349 (C.A.A.F. 2010); United States v. Sal yer, 72 M.J. 415 (C.A.A.F. 2013). 

1. The mere appearance of UCI can be as devastating to public perception about the fairness of 

our system as actual UCI: “This Court has consistently held that any circumstance which gives 

even the appearance of improperly influencing the court-martial proceedings against the accused 

must be condemned.” United States v. Hawthorne, 22 C.M.R. 83, 87 (C.M.A. 1956). 

2. The values underlying the apparent versus actual distinction in the UCI context are the same 

as those behind implied versus actual bias in the voir dire context. In fact, the voir dire issue 

could be thought of as a subset of UCI analysis. The ability of the convening authority to pick 

panel members may make the public wonder if the convening authority is improperly influencing 

the court-martial. 

C. Accusatory v. Adjudicative UCI 

1. Unlawful command influenced is divided into two types: accusatory, that is, unlawful 

influence in how the case is brought to trial; and adjudicative, that is, unlawful command 

influence in how the case is tried. 

2. Accusatory UCI includes issues related to preferral, forwarding, and referral of charges. 

Adjudicative UCI relates to interference with witnesses, judges, members, and counsel. United 

States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995). 

D. Who can commit UCI 

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1. We are generally on alert for when commanders (or their staff) commit UCI – but anyone 

subject to the code can commit UCI. 

a. Convening authorities are prohibited from censuring members, the military judge, or 

counsel with respect to the findings or sentence or the exercise of their functions in the 

proceeding. Art. 37(a); R.C.M. 104(a)(2). 

b. Anyone subject to the code is prohibited from attempting to coerce or improperly 

influence the court-martial or the members, or a convening, reviewing, or approving authority 

in respect to his judicial acts. Art. 37(a); R.C.M. 104(a)(2). 

2. SJAs can commit UCI. To avoid committing UCI themselves, SJAs and legal advisors need 

to be clear with commanders when they are giving their personal legal views and when they are 

expressing the views of their commander. United States v. Hamilton, 41 M.J. 32 (C.M.A. 1994); 

see generally United States v. Kitts, 23 M.J. 105. 

3. CAAF has used a “mantle of authority” test. The best way to interpret these cases is to say 

that former leaders, peers, and subordinates of potential witnesses generally do not commit UCI 

when they discourage someone from supporting an accused. Someone needs to use their rank or 

status to try to influence the action – friendship, neutral mentorship, or peer pressure is not 

enough. 

a. United States v. Ayala, 43 M.J. 296 (C.A.A.F. 1995) 

(1) A friend of the appellant sought letters in support of clemency for the appellant from 

many members of his unit, and even though some promised him letters, all but one 

declined. According to the friend, the current command sergeant major had asked one 

witness to review the appellant’s counseling file, and then that person decided not to 

provide a letter; a former sergeant major said he would not provide a letter unless the 

current sergeant major was also providing one; the current sergeant major told the friend 

that what he was doing was putting the friend’s career at risk; the current and former 

company commanders did not want to provide a letter because that would be inconsistent 

with the chain of command; and the battalion commander did not want to speak out 

against the chain of command. The court said that the appellant did not sufficiently 

allege UCI because, among other things, he did not allege that anyone acting under a 

“mantle of authority” worked to influence these potential witnesses. 

(2) The court cited United States v. Strambaugh, 40 M.J. 208 (C.M.A. 1994) for that 

proposition. In that case, the alleged UCI came from the peers of a lieutenant. The court 

clearly included convening authorities, commanders, and staff judge advocates in the 

category of “mantle of authority” but excluded peers. 

(3) The dissent noted that the majority’s reasoning was “fatally flawed” because Article 

37(a) clearly states that anyone can commit this kind of UCI. 

E. CAUTION! When you go through the case law on UCI, recognize that our current framework 

for analyzing the problem arrived in 1999, in United States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999). 

Look to pre-Biagase cases for help on what types of facts constitute UCI, but look to post-Biagase 

cases for how to analyze the problem. The pre-Biagase case law contains inconsistent statements of 

law. 

F. CAUTION! The case law on whether an accused forfeits claims of accusatorial UCI if he does 

not raise it at trial changed in 1996, to where the accused does forfeit claims of accusatorial UCI if 

not raised at trial. United States v. Drayton, 45 M.J. 180 (C.A.A.F. 1996); United States v. Brown, 45 

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M.J. 389 (C.A.A.F. 1996). The pre-Drayton/Brown cases on accusatorial UCI cases may contain bad 

law on this point. 

G. Relationship of UCI to Pretrial Punishment. 

The facts of a case might implicate both Article 37 (UCI) and Article 13 (Pretrial Punishment). 

Generally, in order for facts that would satisfy Article 13 to also satisfy Article 37, there needs to 

be some connecting between the disparaging remarks or treatment and the reluctance of witnesses 

to appear, the accused feeling forced into entering a plea agreement, or an impact on the actual 

panel members. See United States v. Stamper, 39 M.J. 1097 (A.C.M.R. 1994); United States v. 

Cruz, 25 M.J. 326 (C.M.A. 1987). 

H. Relationship between UCI and convening authority disqualification in post-trial matters. 

If a convening authority has otherwise engaged in unlawful command influence, particularly for 

communicating an inflexible attitude toward punishment or clemency, then he or she might later 

be challenged on the post-trial action for lack of impartiality. See United States v. Glidewell, 19 

M.J. 797 (A.C.M.R. 1985); see generally United States v. Walker, 56 M.J. 617 (A.F. Ct. Crim. 

App. 2001); United States v. Davis, 58 M.J. 100 (C.A.A.F. 2003). Note that this disqualification 

is based on a different source of law than UCI. 

I. Someone who commits UCI in a court-martial could be punished under Article 98 

(Noncompliance with procedural rules). While UCI is a court-martial concept (see generally United 

States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009)), someone who commits something similar to 

adjudicative UCI in an administrative proceeding could be punished under Article 134 (Wrongful 

interference with an adverse administrative proceeding). 

J. While UCI is generally related to the trial itself, the accused can argue that documents submitted 

in sentencing (like Article 15s) were themselves tainted by UCI and so should not be admitted. The 

theory is that the admission of tainted documents might infect the later trial. United States v. 

Lorenzen, 47 M.J. 8 (C.A.A.F. 1997). During sentencing phase of trial, the defense litigated the 

admissibility of NJP based on a claim of unlawful command influence. The service court said that if 

the appellant had wanted to contest the UCI issue, he could have turned down the Article 15. CAAF 

disagreed. An accused does not waive UCI issues related to an Article 15 by accepting the Article 15 

as his forum. However, in this case, there was no prejudice 

II. ADJUDICATIVE UCI 

A. Witness Intimidation. 

1. Direct attempts to influence witnesses. 

a. United States v. Gore, 60 M.J. 178 (C.A.A.F. 2004). Prior to trial, the defense attempted 

to obtain character witnesses but was prevented from doing so due to unlawful command 

influence on the part of the convening authority, a naval commander. The military judge 

conducted Biagase analysis, found UCI, and applied the remedy of dismissal of the charges 

and specifications with prejudice. The NMCCA agreed that there was UCI, but “concluded 

that the military judge abused his discretion in fashioning a remedy,” and ordered the military 

judge to “select an appropriate remedy short of dismissal.” CAAF applied the abuse of 

discretion standard of review and “recognizes that a judge has a range of choices and will not 

be reversed so long as the decision remains within that range.” While the court has long held 

that dismissal is a drastic remedy, “dismissal of charges is appropriate when an accused 

would be prejudiced or no useful purpose would be served by continuing the proceedings.” 

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The MJ “precisely identified the extent and negative impact of the [UCI] in his findings of 

fact.” The MJ further concluded the Government failed to prove that the UCI had no impact 

on the proceedings and explained why other remedies were insufficient. 

b. United States v. Stombaugh, 40 M.J. 208 (C.M.A. 1994). An officer witness for the 

accused testified that members of the Junior Officers Protection Association (JOPA) 

pressured him not to testify. This did not amount to UCI because JOPA lacked “the mantle 

of command authority” but may have been obstruction of justice. A petty officer also was 

harassed by someone who outranked him and advised not to get involved. This did amount to 

UCI, but that UCI was harmless beyond a reasonable doubt. 

c. United States v. Gleason, 43 M.J. 69 (C.A.A.F. 1995). A sergeant major was put on trial 

for, among other things, contacting a retired soldier to kill the captain who reported him for 

misconduct. The service court found: “there was no single act on which to hang the label of 

unlawful command influence. Rather, it was a command climate or atmosphere created by the 

action of [the commander]. His actions of relieving the command structure of Company B 

without explanation; the characterization of the defense counsel as the enemy; returning the 

appellant to Okinawa in chains and under guard and placing him in the brig and requiring unit 

members to receive command permission to visit him; the inspections and unit lock downs 

without explanation; adverse officer efficiency reports and reliefs of individual [sic] without 

explanation shortly after testifying for the appellant created . . . a pervasive atmosphere in the 

battalion that bordered on paranoia. We find that the command climate, atmosphere, attitude, 

and actions had such a chilling effect on members of the command that there was a feeling 

that if you testified for the appellant your career was in jeopardy.” CAAF agreed, found that 

UCI pervaded entire trial, and set aside the contesting findings and sentence. 

d. United States v. Levite, 25 M.J. 334 (C.M.A. 1987). The chain of command briefed 

members of the command before trial on the “bad character” of the accused, to include 

disclosing his unit file. During trial, the 1SG “ranted and raved” outside the courtroom about 

NCOs condoning drug use. After trial, NCOs who testified for the accused were told “that 

they had embarrassed” the unit. Court found UCI necessitated setting aside findings of guilt 

and the sentence. 

e. United States v. Newbold, 45 M.J. 109 (C.A.A.F. 1996). Ship commander held all-hands 

formation at which he referred to four sailors accused of rape as “rapists,” “scumbags” and 

“low-lifes.” He repeated this at additional formations and in meetings with woman 

crewmembers. CAAF found no UCI because the commander was not a convening authority, 

no panel members were drawn from the ship in question, there was no allegation that the 

accused was deprived of witnesses, and the UCI did not cause the accused to plead guilty. 

f. United States v. Plumb, 47 M.J. 771 (A.F. Ct. Crim. App. 1997). The appellant was a 

captain in the Air Force Office of Special Investigations (AFOSI). He was accused of 

fraternization, adultery, and conduct unbecoming. AFOSI agents (in this case, members of 

the appellant’s chain of command or otherwise agents of the commander) pressured, 

harassed, targeted for prosecution, and otherwise interfered with and intimidated defense 

witnesses. The court agreed with the trial judge that the defense presented some evidence of 

UCI but said that the trial judge did not take enough remedial measures to ensure that there 

was no appearance that UCI affected the proceedings, and here, where there was such a large 

volume of potential UCI issues, that was needed. The court reversed the findings. 

g. United States v. Jameson, 33 M.J. 669 (N.M.C.M.R. 1991); United States v. Jones, 30 

M.J. 849 (N.M.C.M.R. 1990); United States v. Jones, 33 M.J. 1040 (N.M.C.M.R. 1991) 

(related cases). Two witnesses testified on behalf of an accused who was charged with 

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engaging in lesbian activities. The command distributed copies of transcripts of their 

testimony and they were relieved of drill sergeant duties and had their MOSs revoked. This 

was evidence of unlawful command influence that might have affected the action in the case. 

h. United States v. Bradley, 48 M.J. 777 (A.F. Ct. Crim. App. 1998) (following remand to 

Dubay hearing in United States v. Bradley, 47 M.J. 715 (A.F. Ct. Crim. App. 1997). A 

potential defense witness called the OSJA to find out where to go for trial. The person who 

answered the phone was the SJA, who identified himself. The defense witness then began 

asking questions about the case, which the SJA answered appropriately. After hearing about 

the case, the defense witness said that he might now not want to testify. The SJA then 

realized he was talking to a defense witness and said he had to testify and that it was not his 

intention to dissuade the witness from testifying. The court found that because the witness 

was the one that initiated the questions and because the SJA gave the witness appropriate 

instructions, there was no UCI. 

i. United States v. Clemons, 35 M.J. 770, 772 (A.C.M.R. 1992). Prior to the court-martial, 

the battalion commander called in three potential defense witnesses and told them that they 

needed to be careful who they were character references for. The military judge found UCI 

and ordered several remedies. The court found that the military judge’s remedies prevented 

the proceedings from being tainted. 

j. United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2010). The senior recruiter at the 

appellant’s office ordered the appellant not to talk to any potential witnesses; prohibited the 

appellant from contacting anyone in the unit for non-work related issues; openly disparaged 

the appellant and expressed his certainty of the appellant’s guilt in front of others; intimidated 

potential defense witnesses; and intimidated the appellant from filing an IG complaint about 

these activities. The military judge found UCI and implemented some remedies (the military 

judge did not follow Biagase analysis, though). CAAF reversed the findings and sentence 

because there was no evidence in the record that the remedies were actually implemented. 

2. Indirect or Unintended Influence. 

a. United States v. Treakle, 18 M.J. 646 (A.C.M.R. 1984). CG addressed groups over 

several months on the inconsistency of recommending discharge-level courts and then having 

leaders testify that the accused was a “good soldier” who should be retained. The message 

received by many was “don’t testify for convicted soldiers.” The guilty plea was affirmed 

but the sentence was reversed. See also United States v. Glidewell, 19 M.J. 797 (A.C.M.R. 

1985); United States v. Thomas, 22 M.J. 388 (C.M.A. 1986); United States v. Giarratano, 20 

M.J. 553 (A.C.M.R. 1985); United States v. Anderson, 21 M.J. 670 (A.C.M.R. 1985). 

b. United States v. Francis, 54 M.J. 636 (A. Ct. Crim. App. 2000). Accused’s squad and 

platoon leaders told other NCOs and soldiers in the unit to stay away from the accused and 

they feared “trouble by association.” Without ruling that those facts did or did not amount to 

some evidence of UCI, the court found that the government satisfied its burden under 

Biagase. 

c. United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998) (companion case to Griffin, 

discussed in the Accusatorial UCI section, below). In addition to a command policy letter 

that has UCI issues (but which was quickly remedied), the battery commander said at a PT 

formation that there were drug dealers in the battery and that Soldiers should stay away from 

those involved with drugs. The CG ordered a 15-6 investigation when he learned about that 

and the company commander retracted his statements at another formation. Later, the trial 

counsel directed that the command should interview some potential alibi witnesses and had 

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the commander read the witnesses their rights. The military judge conducted exhaustive fact 

finding and found no actual UCI. CAAF said that it had no reason to believe that the military 

judge was affected by UCI, and the appellant had not raised an issue that he chose a judge 

alone trial because he was concerned about having his panel tainted by UCI. While some 

evidence of UCI was raised, the court was satisfied beyond a reasonable doubt (particularly 

because of the thorough actions taken by the military judge) that the proceeding was not 

affected by UCI. 

d. United States v. Drayton, 45 M.J. 180 (C.A.A.F. 1996). The appellant was convicted of 

shoplifting from the PX. Two weeks after he was charged with shoplifting, the battalion 

commander held an NCOPD where he showed the NCOs security tapes from the PX (but not 

the ones he was in). Six witnesses testified for the appellant during sentencing. The court 

found that this amounted to just a bare allegation because there was no allegation that any 

witness was actually influenced. 

e. United States v. Ashby, 68 M.J. 108 (C.A.A.F 2009). The appellant did not show that 

comments made by senior officials following the Aviano gondola incident amounted to some 

evidence of UCI. 

B. Panel member composition. Court-martial stacking is a form of unlawful command influence. 

1. United States v. Upshaw, 49 M.J. 111 (C.A.A.F. 1998). The issue is the convening 

authority’s intent. If the motive for choosing a certain panel composition (even if mistaken) is 

benign, then systematic inclusion or exclusion of certain members may not be improper. In this 

case, the exclusion of some members was just a mistake, so no UCI. See also United States v. 

McKinney, 61 M.J.767, (A.F.Ct. Crim. App. 2005). 

2. United States v. White, 48 M.J. 251 (C.A.A.F. 1998). Convening authority’s memo directing 

subordinate commands to nominate “best and brightest staff officers,” and that “I regard all my 

commanders and their deputies as available to serve as members” did not constitute court 

packing. 

3. United States v. McClain, 22 M.J. 124 (C.M.A. 1986). The staff judge advocate excluded 

junior members because he believed that they were more likely to adjudge light sentences. This 

belief came from discussion with past panel members, and the convening authority considered 

recent, unusually light sentences at the time that he made his selections. The court reversed the 

sentence (the trial was a guilty plea before a panel). 

4. United States v. Redman, 33 M.J. 679 (A.C.M.R. 1991). After a series of results that they 

disagreed with, the SJA and trial counsel decided to try to exclude certain members from the 

panel through the use of peremptory challenges. When the military judge denied these 

challenges, the SJA decided to shuffle the panel. After an investigation, the higher level 

commander withdrew the original convening authority’s power to convene courts. While the 

initial convening authority’s actions were UCI, the accused was tried by a new panel that was not 

tainted by the UCI so no prejudice. 

5. United States v. Brocks, 55 M.J. 614 (A.F.Ct. Crim App. 2001). Base legal office 

intentionally excluded all officers from the Medical Group from the list of court member 

nominees sent to the convening authority. The SJA and chief of justice based this action on the 

fact that all four alleged conspirators to distribute cocaine and many witnesses came from the 

Medical Group. Decision to exclude came from desire to avoid conflicts and unnecessary 

challenges for cause. The exclusion of the Group nominees did not constitute UCI. Motive of 

SJA and staff was to protect the fairness of the court-martial, not to improperly influence it. 

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C. Influencing the panel members’ decisions. 

1. Article 37 says that the convening authority cannot censure the panel members based on their 

findings or sentence, and no one may consider a person’s service on the panel when preparing 

evaluation reports or when making assignment decisions. 

2. Through command or commander policy in the deliberation courtroom. 

a. United States v. Kirkpatrick, 33 M.J. 132, 133 (C.M.A. 1991). The military judge gave 

an explicit sentencing instruction on the Army’s policy regarding use of illegal drugs: “[H]ere 

we have a senior noncommissioned officer directly in violation of that open, express, 

notorious policy of the Army: Through[sic] shalt not [use marijuana].” The court noted that 

it has long condemned any reference to department or command policies being placed before 

members charged with sentencing responsibilities. This implicated UCI concerns and 

constituted plain error which was not waived by the defense’s failure to object; sentence set 

aside. 

b. United States v. Stoneman, 57 M.J. 35 (C.A.A.F. 2002). SPCMCA sent an email to 

subordinate commanders “declaring war on all leaders not leading by example.” The email 

also stated the following: “No more platoon sergeants getting DUIs, no more NCOs raping 

female soldiers, no more E7s coming up ‘hot’ for coke, no more stolen equipment, no more 

approved personnel actions for leaders with less than 260 on the APFT, ...., -- all of this is 

BULLSHIT, and I’m going to CRUSH leaders who fail to lead by example, both on and off 

duty.” At a subsequent leaders’ training session, the commander reiterated his concerns. 

After consulting with the SJA, the commander issued a second email to clarify the comments 

in the first. The commander stated that he was expressing his concerns about misconduct, but 

emphasized that he was not suggesting courses of action to subordinates, and that each case 

should be handled individually and appropriately in light of all circumstances. He 

specifically addressed duties as a court-martial panel member and witness. At trial, the 

defense counsel challenged all of the panel members from the brigade based on implied bias 

and potential for unlawful command influence. The military judge denied the challenge using 

R.C.M. 912 as the framework. CAAF remanded for a DuBay hearing, stating that the 

military judge should have used an unlawful command influence framework to determine the 

facts, decide whether those facts constituted unlawful command influence, and conclude 

whether the proceedings were tainted. 

c. United States v. Baldwin, 54 M.J. 308 (C.A.A.F. 2001). Nine months after her courtmartial, appellant filed an affidavit alleging that the GCMCA conducted OPDs where he 

commented that officer court-martial sentences were too lenient and stated that the minimum 

should be at least one year. Appellant also alleged that her court-martial was interrupted by 

one of these sessions (mandatory for all officers assigned to the installation). The court 

stated, “We have long held that the use of command meetings in determining a court-martial 

sentence violates Article 37.” The court found that this allegation was sufficient to raise a 

UCI issue and remanded for a limited hearing. 

d. United States v. Simpson, 58 M.J. 368 (C.A.A.F. 2003). Appellant was convicted of 

various offenses to include rape, indecent assaults, indecent acts, and maltreatment of trainees 

at Aberdeen Proving Ground. He contended that he was denied a fair trial because of 

apparent UCI related to pretrial publicity and official comments related to his case. As 

support, appellant cited the Army’s “zero tolerance” policy on sexual harassment; a chilling 

effect on the command decision-making process stemming from the Secretary of the Army’s 

creation of the Senior Review Panel to examine gender relations; public statements made by 

senior military officials suggestive of appellant’s guilt; and public comments by members of 

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Congress and military officials regarding the “Aberdeen sex scandal.” In preparation for 

filing motions at trial, the defense counsel interviewed the GCMCA and SPCMCA and crossexamined at trial, and conducted extensive voir dire of the panel members on this issue. The 

court held that there was no nexus between the purported unlawful or unfair actions of senior 

military officials and the convening authority’s decision to refer the case. Additionally, there 

was no nexus between acts complained of and any unfairness at trial and no evidence that 

court members were influenced to return guilty verdicts because that is what the Army or 

superiors wanted. CAAF listed several factors that existed in this case that showed that, in 

this case, the government proved beyond a reasonable doubt that UCI (if it existed) did not 

taint the proceeding. 

e. United States v. Dugan, 58 M.J. 253 (C.A.A.F. 2003). Junior panel member provided 

defense counsel with a letter after court-martial detailing her concerns regarding statements 

made during sentencing deliberations. Panel member alleged that another member reminded 

the panel that the GCMCA would review their sentence and they needed to make sure they 

sent a “consistent message.” (GCMCA held a “Commander’s Call” several weeks before 

during which drug use was discussed). Defense counsel requested a post-trial Article 39a 

session. Military judge denied the request. CAAF determined the defense counsel 

successfully raised unlawful command influence and the Government must rebut the 

allegation and remanded for DuBay hearing. Of note, CAAF pointed out the limitations in 

place in questioning the panel members during the DuBay hearing. 

f. United States v. Youngblood, 47 M.J. 338 (C.A.A.F. 1997). Staff meeting at which Wing 

commander and SJA shared perceptions of how previous subordinate commanders had 

“underreacted” to misconduct created implied bias among three senior court members in 

attendance. The court reversed the case because the military judge failed to grant challenges 

for cause against those members without reaching the UCI issue. The court noted that despite 

the member’s response that they could disregard the comments, it is “asking too much” to 

expect members to adjudge sentence without regard for potential impact on their careers. 

g. United States v. Martinez, 42 M.J. 327 (C.A.A.F. 1995). Wing commander’s “We Care 

About You” policy letter setting out reduction in grade and $500 fine “as a starting point” for 

first-time drunk drivers was clearly UCI, notwithstanding letter’s preface that “[p]unishment 

for DWI will be individualized.” However, the defense counsel was able to conduct 

extensive voir dire of the panel members and the military judge gave a proper curative 

instruction, so UCI was harmless beyond a reasonable doubt. 

h. United States v. Pope, 63 M.J. 68 (C.A.A.F. 2006). Appellant was an Air Force recruiter 

involved in unprofessional conduct with prospective applicants. The Military Judge 

admitted (over defense objection that this was injecting command policy into the deliberation 

process) a letter offered by the government at sentencing which argued Air Force core values 

and endorsed “harsh adverse action” for those who committed recruiter misconduct. CAAF 

held that admitting the letter (especially without a limiting instruction) raised the appearance 

of improper command influence because it conveyed the commander’s view that harsh action 

should be taken against an accused. CAAF was not convinced beyond a reasonable doubt 

that the members were not influenced by the letter. The sentence was set aside with a 

rehearing authorized. 

i. United States v. Reed, 65 M.J. 487 (C.A.A.F. 2008). In support of an unlawful command 

influence motion, appellant introduced an email from the convening authority to his 

subordinates addressing a variety of command management issues and containing a thirty-one 

page slideshow. One slide contained the following statement: “Senior NCO and Officer 

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misconduct – I am absolutely uncompromising about discipline in the leader ranks.” Some 

noted examples included: “BAH Fraud, Fraternization, DUI, Curfew violations, Soldier 

abuse, Sexual misconduct.” The appellant was charged with BAH fraud. Later, the CA, 

upon SJA advice, issued a clarifying email. The military judge allowed the defense to fully 

litigate the issue. The other convening authorities in transmittal chain testified that they had 

exercised independent judgment, and the military judge allowed extensive voir dire of the 

panel members. CAAF held that the government met its burden of demonstrating beyond a 

reasonable doubt that the proceedings were not affected by actual unlawful command 

influence or the appearance of unlawful command influence. 

j. United States v. Ayers, 54 M.J. 85 (C.A.A.F. 2000). The appellant engaged in 

misconduct with a trainee at Fort Lee about the same time that the trainee abuse scandal at 

Aberdeen Proving Ground was happening. He filed a UCI motion based on the news 

coverage that accompanied the Aberdeen Proving Ground incidents, saying that the senior 

leaders comments associated with that scandal and others around the country would also 

affect his trial, or at least cause the perception of UCI at his trial. Here, the court could find 

no facts that connected any of that coverage to his actual trial, so the appellant failed the first 

Biagase factor. 

3. By the commander physically being in the courtroom. 

a. United States v. Harvey, 64 M.J. 13 (C.A.A.F. 2006). During the government’s closing 

argument on findings, the convening authority was present in the courtroom wearing a flight 

suit. Based on the apparent recognition of the convening authority by several panel members, 

defense counsel moved for a mistrial, which was denied by the military judge. CAAF set 

aside the findings and sentence without prejudice, but limited the approved sentence at any 

rehearing to a punitive discharge. The military judge is the “last sentinel” in the trial process 

to protect a court-martial from UCI. The trial developments in this case raised “some 

evidence” of unlawful command influence and the military judge failed to inquire adequately 

into the issue. Specifically, the convening authority was present in the courtroom wearing a 

flight suit when the government’s argument characterized appellant’s conduct as a threat to 

the aviation community; the senior member of the panel was a subordinate member of the 

convening authority’s command (and the subject of an unsuccessful challenge for cause); and 

there was some evidence that the panel was watching the convening authority during 

argument. Further, the military judge failed to then conduct Biagase analysis. CAAF noted 

that a convening authority is not barred from attending a court-martial, “[b]ut as this case 

illustrates, the presence of the convening authority at a court-martial may raise issues.” 

b. United States v. Rosser, 6 M.J. 267 (C.M.A. 1979). The military judge abused his 

discretion in denying mistrial where accuser’s company commander’s presence throughout 

proceedings was “ubiquitous” and commander engaged in “patent meddling in the 

proceedings.” 

c. While it is not per se UCI for the commander to be in the courtroom, if the defense raises 

the issue, it is fair to say that the commander being in the courtroom will per se satisfy the 

first Biagase factor. The burden will now shift to the government to prove beyond a 

reasonable doubt that the commander being in the courtroom did not constitute UCI, or if it 

did, that it did not influence the proceeding. So, the ultimate question is, if the commander 

wants to be in the courtroom (or if the SJA wants to be in the courtroom), is it worth it? In 

Harvey, the court stated: “We share [the responsibility to guard against UCI] with military 

commanders, staff judge advocates, military judges, and others involved in the administration 

of military justice. Fulfilling this responsibility is fundamental to fostering public confidence 

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in the actual and apparent fairness of our system of justice.” Harvey, 64 M.J. at 17. Probably 

the best solution is to find a way to observe the court-martial without physically being in the 

courtroom, or save observation moments for contested judge-alone cases. 

4. By bringing the commander in the courtroom via argument. 

a.	 United States v. Mallett, 61 M.J.761 (A.F. Ct. Crim. App.2005). Trial counsel’s 

sentencing argument injected unlawful command influence into the proceedings 

because the TC referred to commanders in her argument. Specifically, the TC 

referred to “commander’s calls” where the commander “would warn us to stay away 

. . . not to use drugs.” After stating that the commander could not impose any 

particular punishment, but could only send the charges to court-martial, the TC then 

posited, “what would a commander say to get his unit’s attention and say, ‘I mean 

business about drugs,’ if he had the authority to be the judge and jury in a case 

where you are, in essence, the jury deciding this?” The TC concluded that, a 

sentence that would “get people’s attention” is “18 months [of] confinement and a 

bad conduct discharge.” Trial defense counsel did not object to the argument. The 

court held that the TC‘s comments were improper under R.C.M. 1001(g), which 

expressly prohibits making reference to a convening authority or command policy in 

sentencing arguments and amounted to plain error, despite the lack of defense 

objection at trial. The court found that the appellant suffered prejudice and so set 

aside the sentence. 

b.	 United States v. Sparrow, 33 M.J. 139 (C.M.A. 1991). The trial counsel argued that 

“General Graves has selected you. He said, “Be here. Do it. You have good 

judgment. I trust you. I know you’ll do the right thing.” The defense did not 

object. The court said that if there was UCI, it did not affect the proceeding. 

5.	 Through the exercise of rank in the deliberation room. 

a. Improper for senior ranking court members to use rank to influence vote within the 

deliberation room, e.g., to coerce a subordinate to vote in a particular manner. Discussion, 

Mil. R. Evid. 606. 

b. United States v. Accordino, 20 M.J. 102 (C.M.A. 1985) Allegation that senior officer cut 

off discussion by junior members, remanded to determine if senior officer used rank to 

“enhance” an argument. 

c. United States v. Lawson, 16 M.J. 38, 41 (C.M.A. 1983). Straw votes are informal votes 

taken by members to see where they stand on the issues. They are not authorized by the 

RCMs or the UCMJ but are not specifically prohibited by these sources. However, the use of 

straw votes allows rank to enter the courtroom because it works against the anonymity rules. 

d. United States v. Reynolds, 40 M.J. 198 (C.M.A. 1994). A split court could not agree 

whether the president of the panel (a major) made remarks (calling other members “captain” 

and using a tone of voice to impress inferiority of their rank) amounted to UCI. 

6. Through surrogate witnesses. United States v. Yerich, 47 M.J. 615 (A. Ct. Crim. App. 1997). 

Testimony from a government witness (SFC) that the accused had no rehabilitative potential in 

the military did not constitute unlawful command influence. Court rejects argument that SFC’s 

testimony was adopted, and therefore attributable to, the commanding officer. 

7.	 Through improper rehabilitation evidence in sentencing. United States v. Cherry, 31 M.J. 1, 5 

(C.M.A. 1990); United States v. Ohrt, 28 M.J. One of the problems (of many) with having a 

commander say, “No rehabilitation potential in the military” is that the commander has 

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essentially told the panel what he or she thinks is the appropriate punishment: one that includes a 

punitive discharge. 

8. Through the terms of a co-accused’s agreement with the convening authority. United States 

v. Schnitzer, 44 M.J. 380 (C.A.A.F 1996). Disclosure, during members trial, of the terms of coaccused’s pretrial agreement does not per se bring the CA into the courtroom, provided it is 

otherwise admitted for a valid purpose. 

D. Influencing the independent discretion of the military judge. 

1. Prohibition: “No person subject to [the UCMJ] may attempt to coerce or, by any 

unauthorized means, influence the action of a court-martial or any other military tribunal or any 

member thereof, in reaching the findings or sentence in any case . . . .” UCMJ, art. 37(a). 

2. Efficiency Ratings: “[N]either the convening authority nor any member of his staff shall 

prepare or review any report concerning the effectiveness, fitness, or efficiency of the military 

judge so detailed, which relates to his performance of duty as a military judge.” UCMJ art. 26(c). 

3. In cases involving the military judge, the pressure will often come from people other than the 

convening authority – like other military judges or staff judge advocates. 

a. United States v. Rice, 16 M.J. 770 (A.C.M.R. 1983). Improper for DSJA to request that 

the senior judge telephone the magistrate to explain the seriousness of a certain pretrial 

confinement issue. 

b. United States v. Mabe, 33 M.J. 200 (C.M.A. 1991). Senior judge’s letter, written to 

increase sentence severity, subjected judges to unlawful command influence. 

c. United States v. Ledbetter, 2 M.J. 37 (C.M.A. 1976). Commander and SJA inquiries that 

question or seek justification for a judge’s decision are prohibited. 

d. United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006). 

(1) The trial counsel, in concert with the staff judge advocate, attacked the character of 

the military judge in voir dire, accusing her of having a social interaction (a date) with the 

civilian defense counsel that was on the case. The MJ recused herself, and the fourth 

judge on the case granted a motion for a change of venue, disqualified the SJA and the 

convening authority from taking post-trial action in the case, and barred the SJA from 

attending the remainder of the trial. 

(2) CAAF found that improperly seeking recusal of the military judge was actual UCI. 

Because the same trial counsel remained an active member of the prosecution, the 

government’s later actions and remedial steps were undermined. Further, a reasonable 

observer would have significant doubt about the fairness of this court-martial in light of 

the government’s conduct. Neither actual nor apparent unlawful command influence 

have been cured beyond a reasonable doubt in this case. CAAF dismissed the case with 

prejudice. 

e. United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013). Unlawful command interference 

where trial counsel used the judge’s official personnel file to find personal family information 

to seek recusal of the military judge. The SJA also called the circuit military judge about the 

issue. The trial judge recused himself. CAAF dismissed the case with prejudice. 

f. United States v. Tilghman, 44 M.J. 493 (C.A.A.F. 1996). Unlawful command 

interference when commander placed accused into pretrial confinement in violation of trial 

judge’s ruling. 

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g. United States v. Campos, 42 M.J. 253 (C.A.A.F. 1995). The military judge said on the 

record that he believed he was relieved of his position as senior judge because his superiors 

believed he was giving lenient sentences. During voir dire, he said he thought he could still 

be fair. Based on extensive trial record, CAAF found no nexus between assignment of other 

judge and accused’s trial, that appearance taken care of at Art. 39(a) session and trial, and no 

abuse of discretion in not recusing himself. 

h. United States v. Allen, 33 M.J. 209 (C.M.A. 1991). When making the decision to detail a 

judge to a case, a senior judge made the comment that a judge that was under consideration 

had a reputation for being a light sentencer and pro-defense. At a conference of SJAs, one 

session discussed “Problems with the Judiciary” where one of the action items was to 

approach the TJAG about how to deal with “inappropriate” judges. The court found that this 

raised the appearance of UCI, however, the UCI did not affect the proceeding. 

E. Influencing the Defense Counsel. 

1. Article 37 prohibits the convening authority from censuring, reprimanding, or admonishing 

the defense counsel with respect to the exercise of his or her functions in the conduct of the 

proceeding. 

2. United States v. Fisher, 45 M.J. 159 (C.A.A.F. 1996). During a recess interview with the DC 

just before he was to be cross-examined on suppression motion, the CA told the DC that he 

questioned the ethics of anyone who would try to get results of urinalysis suppressed. The court 

found that this violated Art. 37, but found no effect on trial process because the defense counsel 

skillfully crossed the CA, and because defense never raised the claim until after trial. The court 

granted a remedy of sending the case back for a new action by a different convening authority. 

3. United States v. Crawford, 46 M.J. 771 (C.G.Ct.Crim.App. 1997). The convening authority 

“dressed down” the defense counsel, told her the sentence was too light, that the appellant had 

lied to her and encouraged her to put on false evidence. The defense counsel took offense and 

told him he better have proof of accusations like that. The convening authority turned to the 

appellant, who was also there, and said he was going to investigate whether he had perjured 

himself. The court found a violation of Art. 37. This happened after trial, so there was no effect 

on the trial. As a preventative matter, the convening authority withdrew himself from acting on 

the case. With him no longer involved in the case, the court could find no prejudice. 

F. Influencing a subordinate commander in the exercise of their clemency actions. United States v. 

Johnson, 54 M.J. 32 (C.A.A.F. 2000). The appellant alleged that the intermediate commander 

strongly supported a suspension of some punishment. The original convening authority left command 

and a new convening authority, with a tougher stance, came in. Then, the intermediate commander 

decided not to go to bat for him. Following a Dubay hearing, the Dubay military judge found no 

evidence of UCI and the court found that military judge’s findings were not clearly erroneous. 

G. Influencing the accused to plead guilty. 

1. If the accused enters his pleas of guilty because he is afraid to go to trial before a court that he 

believes has been unlawfully influenced (and so will not give him a fair trial), then courts may 

find that UCI has impacted the proceedings. United States v. Gleason, 43 M.J. 69 (C.A.A.F. 

1995); United States v. Thomas, 22 M.J. 388 (C.M.A. 1986); United States v. Kitts, 23 M.J. 105 

(C.M.A. 1986). 

2. Note that this is different than the accused negotiating for a better pretrial agreement in 

exchange for waiving an accusatorial UCI issue. United States v. Weasler, 43 M.J. 15 (C.A.A.F. 

1995); 

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III. ACCUSATORY UCI 

A. Independent discretion by each commander. 

1. Article 37(a) states that no one may attempt to coerce or influence the action of any 

convening, approving, or reviewing authority with respect to his judicial acts. 

2. R.C.M. 306 says that each commander has discretion to dispose of offenses, and that a 

superior commander may not limit the discretion of a subordinate commander to act on cases 

over which authority has not been withheld. 

3. The key to these problems is to recognize that if the superior commander disagrees with how 

the subordinate commander is disposing of the case, the superior commander should withhold 

that case to his or herself rather than trying to get the subordinate commander to change his or her 

mind. This may cause some logistical problems but that is the cost of preventing UCI. 

B. Cases. 

1. United States v. Martinez, 42 M.J. 327 (C.A.A.F. 1995). The UCI occurred after the 

GCMCA had referred the case, so no impact on the accusatorial process. 

2. United States v. Rivera, 45 C.M.R. 582, 583 (A.C.M.R. 1972). It was improper for a battalion 

commander to return a request for Article 15 to company commander with comment, “Returned 

for consideration for action under Special Court-Martial with Bad Conduct Discharge.” The court 

noted that “The fine line between lawful command guidance and unlawful command control is 

determined by whether the subordinate commander, though he may give consideration to the 

policies and wishes of his superior, fully understands and believes that he has a realistic choice to 

accept or reject them.” Here, the court found that the company commander did not and so 

reversed the case. 

3. United States v. Griffin, 41 M.J. 607 (A. Ct. Crim. App. 1994). The division commander 

issued a five-page policy letter on physical fitness and physical training and addressed other 

fitness considerations such as weight, smoking, drinking, and drugs, stating: “There is no place in 

our Army for illegal drugs or for those who use them. This message should be transmitted clearly 

to our soldiers, and we must work hard to ensure that we identify drug users through random 

urinalysis and health and welfare inspections.” The SJA took action when he learned about the 

letter and had the CG issue a new letter without the offensive language. The defense counsel 

further improved his client’s position by negotiating a waiver of the issue. While there could 

have theoretically been UCI in the referral process, the issue was waived. See also United States 

v. Rivers, 49 M.J. 434 (C.A.A.F. 1998) (arose out of the same facts as Griffin). 

4. United States v. Reed, 65 M.J. 487 (C.A.A.F. 2008). In support of an unlawful command 

influence motion, appellant introduced an email from the convening authority to his subordinates 

addressing a variety of command management issues and containing a thirty-one page slideshow. 

One slide contained the following statement: “Senior NCO and Officer misconduct – I am 

absolutely uncompromising about discipline in the leader ranks.” Some noted examples 

included: “BAH Fraud, Fraternization, DUI, Curfew violations, Soldier abuse, Sexual 

misconduct.” The appellant was charged with BAH fraud. The defense also presented evidence 

that a deputy commander of a subordinate unit addressed a “newcomer’s briefing” with a warning 

that “BAH fraud is an automatic court-martial here.” Further, the CA contacted the appellant’s 

rater and senior rater during the preferral process to ensure that the accused got bad remarks on 

his evaluation. Later, the CA, upon SJA advice, issued a clarifying email. The military judge 

allowed full litigation on the issue, and the other convening authorities in transmittal chain 

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testified that they had exercised independent judgment, and the military judge allowed extensive 

voir dire of the panel members. CAAF held that the government met its burden of demonstrating 

beyond a reasonable doubt that the proceedings were not affected by actual unlawful command 

influence or the appearance of unlawful command influence. 

5. United States v. Gerlich, 45 M.J. 309 (C.A.A.F. 1996). After a commander subordinate to 

the SPCMCA adjudged an Art. 15, the victim went to the IG, when then wrote to GCMCA, who 

told the SPCMCA that he needed to relook the case because he thought that the Art. 15 would not 

achieve the GCMCA’s justice goals. He told the SPCMCA to decide whether further action 

under the UCMJ was warranted. The SPCMCA then directed the lower commander to set aside 

the Art. 15. Charges were ultimately referred. The SPCMCA eventually testified and said that he 

used his independent judgment when deciding on the ultimate disposition and changed his mind 

based on what he learned in the subsequent investigation. CAAF stated, “[W]e have previously 

recognized the difficulty of a subordinate ascertaining for himself or herself the actual influence a 

superior has on that subordinate.” Here, the court thought that the SPCMCA considered all of 

the relevant information prior to being told to relook the case and only changed his mind after 

receiving a letter from the superior commander that suggested that he change his mind. CAAF 

found that the government had not met its burden to show no UCI and so reversed the findings. 

6. United States v. Wallace, 39 M.J. 284 (C.M.A. 1994). A company commander imposed Art. 

15 punishment on the accused. The battalion commander learned of additional misconduct by 

the accused and told subordinate commander, “You may want to reconsider the [company grade] 

Article 15 and consider setting it aside based on additional charges.” The company commander 

considered the new information, set aside the Article 15, preferred charges and recommended a 

court-martial. The company commander testified that he felt influenced to reconsider his original 

decision, but not to come to any certain conclusion after having reconsidered the new 

information, and that he did not feel any pressure related to making his final decision. CAAF 

said that these facts did not amount to UCI (note, this is a pre-Biagase case so that analysis was 

not used). The military judge had fully developed the record and CAAF agreed with the trial 

judge that the company commander had exercised independent discretion. 

7. United States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004). In a conference call with three 

subordinate officers, the senior officer “very clearly and forcefully made his opinion known” to 

one of the subordinates that the case was too serious for nonjudicial punishment and that article 

32(b) investigation was warranted. The military judge found that the subordinate officer knew 

that the disposition of the case was his to make. While in a void the conference call would look 

like UCI, however the military judge’s fact-finding filled in that void and showed that UCI did 

not actual occur. In particular, the subordinate commander was the one who initiated the 

conference call, and that after the conference call, it was clear that the subordinate commander 

was free to make his own decision. 

8. United States v. Treakle, 18 M.J. 646 (A.C.M.R. 1984). There was no evidence that the 

commander’s improper comments had any impact on any subordinate’s decision to swear to 

charges or recommend a particular disposition of charges. 

9. United States v. Johnston, 39 M.J. 242 (C.M.A. 1994). The appellant did not present any 

evidence that the subordinate commanders were pressured into preferring or transmitting charges. 

10. United States v. Drayton, 45 M.J. 180 (C.A.A.F. 1996). In a post-trial affidavit, the appellant 

asserted that when he talked to his company command, he said he thought that referral to a courtmartial was a bit harsh for shoplifting. The appellant said that the commander told him that he 

agreed but the battalion commander wanted a court-martial. The company commander, in an 

affidavit, said that he met with the battalion commander and discussed the case, but that he 

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exercised independent discretion. The court held that the appellant waived this claim by not 

raising it at trial. 

11. United States v. Brown, 45 M.J. 389 (C.A.A.F. 1996). The original brigade commander went 

on television and said that a group of Soldiers in his command had brought shame to the Brigade. 

The SJA advised him to step aside in the case and he did. The case was transferred to a different 

brigade commander. The court found no error, saying that no one presented any information that 

this subsequent commander did not exercise complete, independent control over his jurisdiction. 

12. United States v. Weasler, 43 M.J. 15 (1995). The company commander was going to go on 

leave. She told her subordinate (who would be the acting commander) to sign the papers when 

they came in. She testified that if he had done anything differently than she had directed, then she 

would have re-preferred the charges. The appellant waived the issue as part of a pretrial 

agreement but raised the ability to waive UCI in a pretrial agreement on appeal. The court found 

that this was UCI, but because it was accusatorial UCI, could be waived as part of a pretrial 

agreement. 

13. United States v. Hamilton, 41 M.J. 32 (C.M.A. 1994). The company commander gave the 

appellant an Article 15. The SJA, described as “aggressive,” believed the case should be resolved 

at a court-martial and directed his subordinates to tell the brigade commander to prosecute this 

case, or else they would take the case up a level (to the commanding general). The brigade 

commander’s first reaction was that the case probably should be at a field grade Art. 15. He 

eventually preferred charges and transmitted the case to the commanding general but said he did 

not feel pressured to do so. The court found that the SJA was expressing his personal opinion and 

not that of the superior commander and that the brigade commander’s decision was not tainted by 

UCI. 

14. United States v. Richter, 51 M.J. 213 (C.A.A.F. 1999). In a post-trial affidavit, the appellant 

alleged that the commander was coerced into preferring charges by the staff judge advocate’s 

office, who threatened to remove the command team from the command if they didn’t prefer 

charges. The court found that the accused forfeited this claim by not raising it at trial because 

there was no evidence that the appellant could not have found out about this problem before trial. 

15. United States v. Villareal, 52 M.J. 27 (C.A.A.F. 1999). The parties signed a pretrial 

agreement. Then, the convening authority withdrew from the agreement. He said that he 

received a lot of pressure from the victim’s family members so he sought the advice of a mentor, 

who happened to be the acting superior convening authority. The superior commander said, 

“what would it hurt to send the issue to trial,” and then the convening authority withdrew from 

the agreement. Following the withdrawal, the case was transferred to a new command. The court 

found that because the subordinate commander reached out for the advice, there was no actual 

UCI and even if there was apparent UCI, that was cured by the transfer of jurisdiction. (The court 

then examined if the withdrawal from the PTA was otherwise proper). 

IV. LITIGATING UCI CLAIMS 

A. Basic framework. United States v. Biagase, 50 M.J. 143, 150-51 (C.A.A.F. 1999). 

1. The defense has the burden to present sufficient evidence, which if true, constitute UCI, and 

which UCI has a logical connection to potential unfairness in the court-martial. 

a. The threshold is low – some evidence. 

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b. However, there must be more than a mere allegation or general speculation; something 

more than just “command influence in the air.” United States v. Johnston, 39 M.J. 242 

(C.M.A. 1994). 

2. The burden then shifts to the government to prove, beyond a reasonable doubt, that: 

a. The predicate facts do not exist; or 

b. If true, the facts do not amount to UCI; or 

c. If at trial, if the facts do amount to UCI, the facts will not prejudice the trial (by 

producing evidence that the UCI will not affect the proceedings). 

d. If on appeal, if the facts did amount to UCI, that the UCI had no prejudicial impact on the 

court-martial. 

B. CAUTION! Prior to Biagase, the case law is very inconsistent. Look to pre-Biagase cases for 

help on what types of facts constitute UCI, but look to post-Biagase cases for how to analyze the 

problem. 

C. If government fails to produce rebuttal evidence, the “military judge must find unlawful 

command influence exists and then take whatever measures are necessary . . . to ensure [beyond a 

reasonable doubt] that the findings and sentence” are not affected. United States v. Jones, 30 M.J. 

849, 854 (N.M.C.M.R. 1990). 

D. Any time before authentication or action the MJ or CA may direct a post-trial session to resolve 

any matter which affects the legal sufficiency of any findings of guilty or the sentence. See United 

States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998). 

E. The military judge needs to build the record. United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 

1994). “Where the issue of unlawful command influence is litigated on the record, the military 

judge’s findings of fact are reviewed under a clearly-erroneous standard, but the question of 

command influence flowing from those facts is a question of law that this Court reviews de novo.” 

V. REMEDIAL ACTIONS. 

A. If the defense raises sufficient evidence, which if true, constitute UCI, then the burden is going to 

shift to the government to prove that those facts did not exist; if they did, that the facts do not amount 

to UCI; or if the facts do amount to UCI, then the proceedings will not be affected by UCI. By taking 

remedial actions – either the convening authority before referral, or the military judge or convening 

authority after referral – the government may be able to prevent the UCI from tainting the 

proceedings. 

B. The remedies that follow are not mandatory for each case. United States v. Roser, 21 M.J. 883 

(A.C.M.R. 1986). Remedies should be appropriately tailored for each case. 

C. Before trial (directed by the convening authority or SJA). 

1. Adjudicative UCI. 

a. Rescind or clarify letters and pronouncements. See United States v. Rivers, 49 M.J 434. 

(C.A.A.F. 1998); United States v. Stoneman, 57 M.J. 35 (C.A.A.F. 2002); United States v. 

Reed, 65 M.J. 487 (C.A.A.F. 2008). 

b. Tell the witness that they need to testify and that no one is intending to influence him or 

her. See United States v. Bradley, 48 M.J. 777 (A.F. Ct. Crim. App. 1998). 

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c. Reprimand the offending official in front of the people that he tried to improperly 

influence. United States v. Roser, 21 M.J. 883 (A.C.M.R. 1986). 

2. Accusatorial UCI. 

a. Rescind or clarify letters and pronouncements. United States v. Griffin, 41 M.J. 607 (A. 

Ct. Crim. App. 1994). 

b. Tell the subordinate commander (in writing) that he or she is free to choose any 

disposition that he or she thinks is appropriate. See generally United States v. Stirewalt, 60 

M.J. 297 (C.A.A.F. 2004). 

c. The defense can seek to waive the issue in exchange for a favorable pretrial agreement. 

United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995). 

D. At trial (directed by the military judge or convening authority). 

1. Adjudicative UCI. 

a. Allow extensive voir dire. United States v. Stoneman, 57 M.J. 35 (C.A.A.F. 2002); 

United States v. Martinez, 42 M.J. 327 (C.A.A.F. 1995). 

b. Allow extensive fact finding, to include interviews and cross examination of those who 

may have committed UCI. United States v. Simpson, 58 M.J. 368 (C.A.A.F. 2003). 

c. Issue curative instructions. United States v. Martinez, 42 M.J. 327 (C.A.A.F. 1995). 

d. Order the government to retract the offending policy statement. United States v. Sullivan, 

26 M.J. 442 (C.M.A. 1998). 

e. Grant continuances to investigate the issue. United States v. Sullivan, 26 M.J. 442 

(C.M.A. 1998); United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2010). 

f. Issue a blanket order to produce all witnesses requested by the defense. United States v. 

Sullivan, 26 M.J. 442 (C.M.A. 1998). 

g. Advise each witness that it is his duty to testify and assure them that no adverse 

consequences would follow. United States v. Sullivan, 26 M.J. 442 (C.M.A. 1998); United 

States v. Douglas, 68 M.J. 349 (C.A.A.F. 2010) (the parties fashioned a letter that was to be 

given to potential witnesses). 

h. Order the government to transfer the person who committed UCI. United States v. 

Sullivan, 26 M.J. 442 (C.M.A. 1998); United States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999). 

i. Prevent the government from calling aggravation evidence. United States v. Clemons, 35 

M.J. 770 (A.C.M.R. 1992). 

j. Not allow the government to attacked the accused’s reputation by opinion or reputation 

testimony. United States v. Clemons, 35 M.J. 770 (A.C.M.R. 1992); United States v. 

Giarratano, 20 M.J. 553 (A.C.M.R. 1985). 

k. Give the defense wide latitude with witnesses. United States v. Clemons, 35 M.J. 770 

(A.C.M.R. 1992). 

l. Allow the accused to testify about what he thought witnesses might have said (as 

substantive evidence on merits or E&M). United States v. Clemons, 35 M.J. 770 (A.C.M.R. 

1992). 

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m. Preclude the government from presenting evidence through direct or cross examination 

about the accused’s rehabilitative potential. United States v. Souther, 18 M.J. 795, 796 

(A.C.M.R. 1984). 

n. Offer to sustain any challenge for cause against any member who was present in 

command during period of UCI. United States v. Souther, 18 M.J. 795, 796 (A.C.M.R. 1984); 

United States v. Giarratano, 20 M.J. 553 (A.C.M.R. 1985). 

o. Disqualify the offending official from any reviewing authority duties. United States v. 

Giarratano, 20 M.J. 553 (A.C.M.R. 1985); 

p. Dismiss the case with prejudice. 

(1) United States v. Gore, 60 M.J. 178 (C.A.A.F. 2004). CAAF upholds military judge’s 

decision to dismiss case with prejudice due to witness intimidation. 

(2) Dismissal should be the last resort. “If and only if the trial judge finds that command 

influence exists . . . and finds, further, that there is no way to prevent it from adversely 

affecting the findings or sentence beyond a reasonable doubt should the case be 

dismissed.” United States v. Jones, 30 M.J. 849, 854 (N.M.C.M.R. 1990). 

2. Accusatorial UCI. If a commander has been coerced into preferring charges that he does not 

believe are true, the charges are treated as unsigned and unsworn. United States v. Hamilton, 41 

M.J. 32 (C.M.A. 1994). 

E. Military judges: Remember to complete the Biagase analysis. United States v. Douglas, 68 M.J. 

349 (C.A.A.F. 2010). The military judge must follow up on the remedies and put it on the record that 

the remedies were fully implemented. Complete the Biagase analysis by saying what was done and 

that now the UCI that was found to exist will not prejudice the case beyond a reasonable doubt. If the 

military judge finds UCI but then does not complete the analysis, then the presumption still stands 

that the UCI will affect the proceeding. The record needs to reflect that the government has met its 

burden. 

VI. WAIVER AND FORFEITURE 

A. Accusatory UCI is forfeited if not raised at trial unless (1) the evidence was concealed from the 

accused at trial; or (2) the accused was deterred from raising it at trial by the UCI. United States v. 

Drayton, 45 M.J. 180 (C.A.A.F. 1996); United States v. Brown, 45 M.J. 389 (C.A.A.F. 1996); United 

States v. Richter, 51 M.J. 213 (1999). 

B. Accusatory UCI can be affirmatively waived by the defense as part of a pretrial agreement, if the 

waiver originates from the accused. United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995); see 

generally United States v. Bartley, 47 M.J. 182 (C.A.A.F. 1997). 

C. Adjudicative UCI is not forfeited if the defense fails to raise the issue at trial. United States v. 

Baldwin, 54 M.J. 308 (C.A.A.F. 2001); United States v. Richter, 51 M.J. 213 (C.A.A.F. 1999); United 

States v. Kirkpatrick, 33 M.J. 132 (C.M.A. 1991); United States v. Sparrow, 33 M.J. 139 (C.M.A. 

1991); United States v. Dykes, 38 M.J. 270 (C.M.A. 1993). 

D. It is unclear whether an accused can affirmatively waive adjudicative UCI or whether doing so as 

part of a pretrial agreement would violate public policy. See United States v. Reynolds, 40 M.J. 198 

(C.A.A.F. 1994) (no majority opinion, split on whether the defense could affirmatively waive an issue 

of superiority of rank in the deliberation room, which the defense did at trial). 

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VII. FURTHER READING 

A. Robert A. Burrell, Recent Developments in Unlawful Command Influence, Army Law., May 

2001. 

B. James F. Garrett, Recent Developments in Unlawful Command Influence, “I Really Didn’t Say 

Everything I Said,” Army Law., May 2002. 

C. James F. Garrett, Recent Developments in Unlawful Command Influence, Army Law., May 2004. 

D. Patricia A. Ham, Revitalizing the Last Sentinel: The Year in Unlawful Command Influence, Army 

Law., May 2005. 

E. Patricia A. Ham, Still Waters Run Deep? The Year in Unlawful Command Influence, Army Law., 

June 2006. 

F. Mark L. Johnson, Confronting the Mortal Enemy of Military Justice: New Developments in 

Unlawful Command Influence, Army Law., June 2007. 

G. Mark L. Johnson, Unlawful Command Influence--Still with Us; Perspectives of the Chair in the 

Continuing Struggle Against the "Mortal Enemy" of Military Justice, Army Law., June 2008. 

H. Daniel G. Brookhart, Physician Heal Thyself- How Judge Advocates Can Commit Unlawful 

Command Influence, Army Law., March 2010. 

I. James F. Garrett, Mark “Max “ Maxwell, Matthew A. Calarco, and Franklin D. Rosenblatt, 

Lawful Command Emphasis: Talk Offense, Not Offender; Talk Process, Not Results, Army Law., 

August 2014 

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APPENDIX A 

THE 10 COMMANDMENTS
 

OF
 

UNLAWFUL COMMAND INFLUENCE
 

COMMANDMENT 1 Do not stack the panel, nor select nor remove court-members in 

order to obtain a particular result in a particular trial. 

COMMANDMENT 2 Do not disparage the defense counsel or the military judge. 

COMMANDMENT 3 Do not communicate an inflexible policy on disposition or 

punishment. 

COMMANDMENT 4 Do not place outside pressure on the judge or court-members to 

obtain a particular decision. 

COMMANDMENT 5 Do not intimidate witnesses or discouraged them from 

testifying. 

COMMANDMENT 6 Do not order a subordinate to dispose of a case in a certain way. 

COMMANDMENT 7 Do not coach or mentor subordinate commanders on military 

justice without talking to your legal advisor first. 

COMMANDMENT 8 Do not disparage the accused or tell others not to associate with 

him, and do not allow subordinates to do so, either. 

COMMANDMENT 9 Ensure that subordinates and staff do not commit unlawful 

command influence, inadvertently or not. 

COMMANDMENT 10 If a mistake is made, raise the issue immediately and cure with 

an appropriate remedy. 

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APPENDIX B 

RECURRING PROBLEM: THE POLICY STATEMENT 

When commanders make policy statements about the military justice system, particularly about what 

types of offenses warrant what kinds of courts or sentences, commanders run the risk that they will 

commit both adjudicative UCI (some witnesses may not now come forward on the accused’s behalf, and 

some panel members may now punish in accordance with what they believe the convening authority 

believes) and accusatory UCI (some subordinate commanders may transmit a case because that is what 

they think their superior commander wants them to do, not because that is their independent decision). 

Commanders are accustomed to coaching and mentoring subordinates in all areas of command 

responsibility and leadership, but the law has carved out an exception for discussion that may unlawfully 

influence the action of a court. Judge Advocates must be diligent to insure that their supported 

commander seeks appropriate counsel before discussing criminal justice policy or the investigation or 

disposition of criminal matters within the command. 

Note that Article 37(a) exempts general instructional or informational courses on military justice if 

such courses are designed solely for the purpose of instructing members of the command in the 

substantive and procedural aspects of courts-martial. Commanders should consider asking their staff 

judge advocate to provide general instruction and should allow judge advocates to give advice on 

particular cases. 

The readings below help illuminate the line between mentorship and unlawful command influence. 

1. United States v. Treakle, 18 M.J. 646 (A.C.M.R. 1984) 

The duties of a division commander as a court-martial convening authority and as the primary leader 

responsible for discipline within the division are among the most challenging a commander can 

perform. On the one hand, effective leadership requires a commander to supervise the activities of 

his subordinates diligently and ensure that state of good order and discipline which is vital to combat 

effectiveness. On the other hand, he must exercise restraint when overseeing military justice matters 

to avoid unlawful interference with the discretionary functions his subordinates must perform. The 

process of maintaining discipline yet ensuring fairness in military justice requires what the United 

States Court of Military Appeals has called “a delicate balance” in an area filled with perils for the 

unwary. Many experienced line officers have expressed similar conclusions. Excerpts from two 

particularly useful and authoritative examples are reproduced below. 

Correction of procedural deficiencies in the military justice system is within the scope of a 

convening authority's supervisory responsibility. Yet in this area, the band of permissible activity by 

the commander is narrow, and the risks of overstepping its boundaries are great. Interference with 

the discretionary functions of subordinates is particularly hazardous. While a commander is not 

absolutely prohibited from publishing general policies and guidance which may relate to the 

discretionary military justice functions of his subordinates, several decades of practical experience 

under the Uniform Code of Military Justice have demonstrated that the risks often outweigh the 

benefits. The balance between the command problem to be resolved and the risks of transgressing 

the limits set by the Uniform Code of Military Justice is to be drawn by the commander with the 

professional assistance of his staff judge advocate. Although the commander is ultimately 

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responsible, both he and his staff judge advocate have a duty to ensure that directives in the area of 

military justice are accurately stated, clearly understood and properly executed. 

2. Excerpts from a letter which the Powell Committee recommended The Judge Advocate General of 

the Army send to officers newly appointed as general court-martial convening authorities. (Committee on 

the Uniform Code of Military Justice, Good Order and Discipline in the Army: Report to Honorable 

Wilber M. Bruckner, Secretary to the Army, 17–21 (18 Jan 1960)). 

Because it is of the utmost importance that commanders maintain the confidence of the 

military and the public alike in the Army military justice system, the following suggestions 

are offered you as a commander who has recently become a general court-martial 

convening authority, in the hope that they will aid you in the successful accomplishment 

of your military functions and your over-all command mission. 

A serious danger in the administration of military justice is illegal command influence. 

Congress, in enacting the Uniform Code of Military Justice, sought to comply with what it 

regarded as a public mandate, growing out of World War II, to prevent undue command 

influence, and that idea pervades the entire legislation. It is an easy matter for a convening 

authority to exceed the bounds of his legitimate command functions and to fall into the 

practice of exercising undue command influence. In the event that you should consider it 

necessary to issue a directive designed to control the disposition of cases at lower echelons, 

it should be directed to officers of the command generally and should provide for 

exceptions and individual consideration of every case on the basis of its own circumstances 

or merits. For example, directives which could be interpreted as requiring that all cases of 

a certain type, such as larceny or prolonged absence without leave, or all cases involving a 

certain category of offenders, such as repeated offenders or offenses involving officers, be 

recommended or referred for trial by general court-martial, must be avoided. This type of 

directive has been condemned as illegal by the United States Court of Military Appeals 

because it is calculated to interfere with the exercise of the independent personal discretion 

of commanders subordinate to you in recommending such disposition of each individual 

case as they conclude is appropriate, based upon all the circumstances of the particular 

case. The accused's right to the exercise of that unbiased discretion is a valuable pretrial 

right which must be protected. All pretrial directives, orientations, and instructions should 

be in writing and, if not initiated or conducted by the staff judge advocate, should be 

approved and monitored by him. 

The results of court-martial trials may not always be pleasing, particularly when it may 

appear that an acquittal is unjustified or a sentence inadequate. Results like these, however, 

are to be expected on occasion. Courts-martial, like other human institutions, are not 

infallible and they make mistakes. In any event, the Uniform Code prohibits censuring or 

admonishing court members, counsel, or the law officer with respect to the exercise of their 

judicial functions. My suggestion is that, like the balls and strikes of an umpire, a court's 

findings or sentence which may not be to your liking be taken as ‘one of those things.’ 

Courts have the legal right and duty to make their findings and sentences unfettered by 

prior improper instruction or later coercion or censure. 

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3. Excerpts from an article by General William C. Westmoreland discussing the relationship of military 

justice to good order and discipline in the Army. (Westmoreland, Military Justice—A Commander's 

Viewpoint, 10 Am.Crim.L.Rev. 5, 5–8 (1971)). 

As a soldier and former commander, and now as Chief of Staff of the Army, I appreciate 

the need for a workable system of military justice. Military commanders continue to rely 

on this system to guarantee justice to the individual and preserve law and order within the 

military. 

An effective system of military justice must provide the commander with the authority and 

means needed to discharge efficiently his responsibilities for developing and maintaining 

good order and discipline within his organization. Learning and developing military 

discipline is little different from learning any discipline, behavioral pattern, skill, or 

precept. In all, correction of individuals is indispensable.... The military commander should 

have the widest possible authority to use measures to correct individuals, but some types 

of corrective action are so severe that they should not be entrusted solely to the discretion 

of the commander. At some point he must bring into play judicial processes. At this point 

the sole concern should be to accomplish justice under the law, justice not only to the 

individual but to the Army and society as well. 

I do not mean to imply that justice should be meted out by the commander who refers a 

case to trial or by anyone not duly constituted to fulfill a judicial role. A military trial should 

not have a dual function as an instrument of discipline and as an instrument of justice. It 

should be an instrument of justice and in fulfilling this function, it will promote discipline. 

The protection of individual human rights is more than ever a central issue within our 

society today. An effective system of military justice, therefore, must provide of necessity 

practical checks and balances to assure protection of the rights of individuals. It must 

prevent abuses of punitive powers, and it should promote the confidence of military 

personnel and the general public in its overall fairness. It should set an example of efficient 

and enlightened disposition of criminal charges within the framework of American legal 

principles. Military justice should be efficient, speedy, and fair. 

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[Back to Table of Contents] 

CHAPTER 3
 

JURISDICTION
 

I. Introduction 

II. Jurisdiction over the Offense 

III. Jurisdiction over the Person 

IV. Jurisdiction over the Reserve Component 

V. Procedural Considerations 

VI. Jurisdiction over Civilians 

I. INTRODUCTION 

A. Jurisdiction means the power of a court to try and determine a case, and to render a valid 

judgment. Courts-martial are courts of special and limited jurisdiction. For example, courts-martial 

jurisdiction applies worldwide, but is limited in application to a certain class of people—members of 

the armed forces. In general, three prerequisites must be met in order for courts-martial jurisdiction 

to vest. They are: (1) jurisdiction over the offense, (2) personal jurisdiction over the accused, and (3) 

a properly convened and composed court-martial. 

B. Whether a court-martial is empowered to hear a case—whether it has jurisdiction—frequently 

turns on issues such as the status of the accused at the time of the offense, or the status of the accused 

at the time of trial. These issues of courts-martial jurisdiction relate to either subject matter 

jurisdiction (jurisdiction over the offense) or personal jurisdiction (personal jurisdiction over the 

accused). Subject matter jurisdiction focuses on the nature of the offense and the status of the 

accused at the time of the offense. If the offense is chargeable under the Uniform Code of Military 

Justice (UCMJ) and the accused is a servicemember at the time the offense is committed, subject 

matter jurisdiction is satisfied. Personal jurisdiction, however, focuses on the time of trial: can the 

government court-martial him? The answer is yes, so long as the accused has proper status; i.e., that 

the accused is a servicemember at the time of trial. 

C. Sources of Jurisdiction. 

1. The Constitution: Article I, section 8, clause 14 

2. UCMJ, Articles 2, 3 and 36 

3. MCM, 2012 ed., RCM 201 - 204 

4. Customary international law and treaties 

D. Five Elements of Court-Martial Jurisdiction, R.C.M. 201(b): 

1. Proper jurisdiction over the offense (subject matter jurisdiction). 

2. Proper jurisdiction over the person (personal jurisdiction). 

3. Properly composed court (military judge and members must have proper qualifications.) 

Absent evidence of coercion or ineffective assistance of counsel, accused’s request to be tried by 

military judge alone can be inferred from the record of trial (applying "substantial compliance" 

doctrine to Article 16. United States v. Turner, 47 M.J. 348 (C.A.A.F. 1997). Article 25 (request 

for enlisted members to serve on panel) is also satisfied by substantial compliance. United States 

v. Townes, 52 M.J. 275 (C.A.A.F. 2000). See also United States v. Morgan, 57 M.J. 119 

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(C.A.A.F. 2002). [See Tab E (Court-Martial Personnel) of this Deskbook for additional 

information] 

4. Proper convening authority. A properly constituted court-martial may try any person subject 

to the UCMJ, even if the accused is not under the command of the convening authority. United 

States v. Murphy, 30 M.J. 1040 (A.C.M.R. 1990), set aside, on other grounds, 36 M.J. 8 (C.M.A. 

1992); accord, United States v. Randle, 35 M.J. 789 (A.C.M.R. 1992). See also United States v. 

Cantrell, 44 M.J. 711 (A.F.Ct.Crim.App. 1996). [See Tab E (Court-Martial Personnel) of this 

Deskbook for additional information] 

5. Properly referred charges. United States v. Pate, 54 M.J. 501 (Army Ct. Crim. App. 1997). 

The PTA was not signed by the GCMCA, but instead the word "accepted" was circled and a 

notation made indicating a voco to the SJA. The accused argued that since the CA never signed 

the PTA, the "new" charge to which the accused was pleading guilty was never referred and, 

therefore, the court-martial lacked jurisdiction over that charge. The Army Court held that 

jurisdiction existed since a proper referral does not need to be in writing and the lack of signature 

was "insignificant." See also United States v. Williams, 55 M.J. 302 (C.A.A.F. 2001). But see 

United States v. Henderson, 59 M.J. 350 (C.A.A.F. 2004). [See Tab G (Initiation and Disposition 

of Charges) of this Deskbook for additional information] 

II. JURISDICTION OVER THE OFFENSE 

A. Historical Overview. 

1. O’Callahan v. Parker, 395 U.S. 258 (1969). The Supreme Court establishes the “serviceconnection” test. See also Relford v. Commandant, U.S. Disciplinary Barracks, 401 U.S. 355 

(1971) (the Court sets-forth the Relford factors as a template to determine “service-connection”). 

2. Solorio v. United States, 483 U.S. 435 (1987). The Supreme Court overrules O’Callahan, 

abandoning the “service-connection” test, and holds that jurisdiction of a court-martial depends 

solely on the accused’s status as a member of the Armed Forces. 

B. BOTTOM LINE: Subject matter jurisdiction is established by showing military status at the time 

of the offense. 

C. Administrative Double Jeopardy Policies. Generally, a member of the Armed Forces will not be 

tried by court-martial or punished under Article 15, UCMJ, for the same act for which a civilian court 

has tried the Soldier. This policy is based on comity between the federal government and state or 

foreign governments. See AR 27-10, para. 4-2; JAGMAN, para. 0124. 

D. Capital Cases. 

1. Loving v. United States, 116 S.Ct. 1737 (C.A.A.F. 1996). Justice Stevens (concurring) raised 

the question of whether a “service connection” requirement applies to capital cases. See also 

United States v. Simoy, 46 M.J. 601 (A.F. Ct. Crim. App. 1996) (a capital murder case in which 

the court made a specific finding that the felony murder was “service-connected”). 

2. United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999). The CAAF gives credence to Justice 

Stevens’ concurring opinion in Loving. The CAAF makes a specific finding that there are 

sufficient facts present in Gray, a capital case, to establish a service connection to warrant trial by 

court-martial, but does not answer the question of whether a “service connection” requirement 

applies to capital cases. 

E. Subject Matter Jurisdiction over Reservists/National Guard. 

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1. The offense must be committed while the reservist has military status. See United States v. 

Chodara, 29 M.J. 943 (A.C.M.R. 1990) (Reserve Component warrant officer ordered to AD for 

training; provided urine sample that tested positive for cocaine pursuant to a urinalysis 

administered within 36 hours of initiation of AD period. Held: no subject matter jurisdiction 

because the government failed to prove beyond a reasonable doubt that the accused was subject to 

the UCMJ at the time he “used” the cocaine); United States v. Morita, 74 M.J. 116 (C.A.A.F. 

2015) (Reserve Component officer who forged active duty and inactive duty training orders was 

not subject to jurisdiction under Article 2(a)(1), UCMJ, because that provision requires a reservist 

to be lawfully ordered to active duty or training in the armed forces; officer was not subject to 

jurisdiction under Article 2(c) for misconduct while he was not in a duty status because a reservist 

must be “‘serving with’ the armed forces at the time of the misconduct[] and meet the other four 

criteria set forth in the statute”). But see United States v. Lopez, 37 M.J. 702 (A.C.M.R. 1993) (in 

a case where accused on AD for several months before given urinalysis, the court, in dicta, 

questioned the validity of the Chodara decision). See also, United States v. Smith, Case No. 

9500065, WL35319910, (unpub.) (Army Ct. Crim. App. 1998) (holding there was no federal 

court-martial jurisdiction over an offense that the accused allegedly committed while he was 

enlisted in the Mississippi National Guard). 

2. Jurisdiction attaches at 0001 hours of the effective date of the orders to active duty. United 

States v. Cline, 29 M.J. 83 (C.M.A. 1989), cert. denied, 493 U.S. 1045 (1990). 

3. Jurisdiction may exist outside the parameters of the orders. United States v. Phillips, 58 M.J. 

217 (2003). The accused was a reserve nurse ordered to perform her two-week annual training 

from 12-23 July 1999. Her orders authorized her one travel day (11 July) to get to her duty 

station. The accused traveled to her duty station on 11 July and checked into her government 

quarters. That evening, she consumed some marijuana brownies that she had brought with her 

from home. The accused tested positive for marijuana as part of a random urinalysis test 

conducted on 16 July. On appeal, the accused argued that the court lacked jurisdiction over her 

wrongful use of marijuana, because the use occurred prior to the start of her two-week active duty 

period. The CAAF disagreed and affirmed AFCCA’s decision holding that jurisdiction existed 

over all of the offenses. The CAAF held that jurisdiction existed pursuant to Art 2(c), UCMJ, 

which “by its express terms, establishes a specific analytical framework.” Applying a two-step 

analysis, the CAAF first held that the accused was “serving with” the armed forces on 11 July, 

because she was a reservist traveling to her duty station pursuant to orders issued for the purpose 

of performing active duty, she occupied government quarters, and she received compensation in 

the form of travel reimbursement, retirement credit, and base pay and allowances. For the second 

step in the analysis, the CAAF applied Art 2(c)’s four-part test, finding that on 11 July the 

accused: (1) submitted voluntarily to military authority; (2) met the minimum age and mental 

qualifications; (3) received pay and allowances; and (4) performed military duties by traveling to 

her duty station. The CAAF emphasized that “[t]he fact that her orders did not require her to 

report to a specific organization until July 12 does not detract from her voluntary performance of 

the duty, pursuant to orders, to travel on July 11.” 

4. Jurisdiction outside of orders is limited. In Morita, the court held that being a member of 

the Reserve Component, by itself, is not enough to establish that the accused was “serving with 

the armed forces” for purposes of Article 2(c). It affirmed the Air Force Court of Criminal 

Appeals’ rejection of the military judge’s finding that the fact the accused committed the offenses 

in his capacity as a military officer was enough for jurisdiction. The court reversed the lower 

court’s determination that the accused was in an active duty status based on orders he forged, 

holding that forged orders do not place a reservist within an active duty or inactive duty training 

(IDT) – or drilling – status for purposes of Article 2(a)(1) and (3), UCMJ, especially since the 

record did not establish that he performed any military duties for the periods he was alleged to be 

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IDT status, thus failing to establish jurisdiction under Article 2(a)(3). Article 2(a)(1) requires the 

accused to be lawfully called to active duty, so the accused’s forged orders did not establish 

jurisdiction under that provision, for a “forgery is the antithesis of a lawful order.” Morita, 74 

M.J. at 122. As the government failed to demonstrate that the accused was receiving military pay 

or retirement credit for the days in question, or otherwise performed military duties during those 

times as required under Article 2(c), it failed to meet its burden to show personal jurisdiction over 

the accused for these offenses. 

5. If a member of the National Guard is performing duties in a Title 10 status, a unit or 

commander in Title 32 status does not have jurisdiction over him. In United States v. Dimuccio, 

61 M.J. 588 (A.F. Ct. Crim. App. 2005), the appellant was a member of the Air National Guard in 

Arizona who had been mobilized under Title 10 and was performing duty at Davis-Monthan Air 

Force Base. The commander of his Air National Guard unit, while in Title 32 status, ordered a 

unit urinalysis inspection of the appellant’s Air National Guard unit during a Unit Training 

Assembly. The appellant submitted to the inspection and had a positive result for cocaine 

metabolites. He subsequently confessed. The military judge suppressed the urinalysis and the 

confession, ruling that while in a Title 10 status and attached to a Title 10 unit, the appellant was 

not subject to an inspection ordered by a commander from a unit that was in Title 32 status. The 

AFCCA affirmed. 

6. Jurisdiction “is an interlocutory issue, to be decided by the military judge, with the burden 

placed on the Government to prove jurisdiction by a preponderance of the evidence.” United 

States v. Oliver, 57 M.J. 170, 172 (C.A.A.F. 2002). The CAAF found that the medical records 

submitted on appeal established that the accused had been retained on active duty beyond the 

expiration of his orders, thus satisfying subject-matter jurisdiction over the offense. 

F. Time of the Offense. 

1. United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009). Prior to joining the Navy, 

accused posted sexually explicit image of a child to his Yahoo! email account profile. The image 

was accessible to other Internet users. After accused enlisted, he continued to access his account 

and did not remove the image. NCIS investigators accessed the accused’s profile and viewed the 

image. Accused was charged and convicted at a court-martial with distributing child 

pornography. The C.A.A.F. held that the accused committed an offense while on active duty 

because he continued to maintain control over his account and others viewed the image he had 

posted on the account. 

2. Morita, 74 M.J. at 122. Where the accused was not lawfully called to active duty or 

performing duty in IDT status at the time of some of his offenses, the court-martial lacked 

jurisdiction over those offenses under Article 2(a). The court-martial also lacked jurisdiction 

under Article 2(c) because the Government did not present sufficient evidence to show either that 

the accused was “serving with the armed forces” at the time of those offenses or that any of the 

other criteria under Article 2(c) were met. 

III. JURISDICTION OVER THE PERSON 

A. General Rule: In general, a person becomes subject to court–martial jurisdiction upon enlistment 

in or induction into the Armed Forces, acceptance of a commission, or entry onto active duty pursuant 

to order. Court–martial jurisdiction terminates upon a valid discharge. 

B. General Provisions: UCMJ, Art. 2, provides jurisdiction over categories of persons with military 

status: 

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1. Enlistees; Inductees; Academy Cadets/Midshipmen 

2. Retirees 

a) Jurisdiction over retirees is constitutional. Pearson v. Bloss, 28 M.J. 376 (C.M.A. 1989); 

United States v. Hooper, 26 C.M.R. 417 (C.M.A. 1958); Sands v. Colby, 35 M.J. 620 

(A.C.M.R. 1992). 

b) United States v. Huey, 57 M.J. 504 (N-M. Ct. Crim. App. 2002). The accused had served 

20 years on active duty and was placed on the Retired List on 1 January 1989. In 1996 he 

worked as a Naval civilian employee in Okinawa. He confessed to engaging in sexual 

intercourse several times a week over a nine-month period with his 16-year old adopted 

daughter. By the time the raping stopped, the accused was 58 years old and his daughter was 

pregnant with his child. At trial, the accused moved to dismiss for lack of personal 

jurisdiction based upon a violation of constitutional due process under the Fifth Amendment. 

The accused cited to Toth v. Quarles, 350 U.S. 11 (1955) and argued that he had “obtained 

civilian status” and was being deprived of due process rights available only in a civilian 

courtroom. The service court disagreed stating that there “is no doubt that a court-martial has 

the power to try a person receiving retired pay.”∗

c) United States v. Stevenson, 65 M.J. 639 (N.M.Ct.Crim.App. 2006), rev’d on other 

grounds, 66 M.J. 15 (C.A.A.F. 2008). Accused was a sailor on the Temporary Disability 

Retirement List who waived his military disability pay in favor of Veteran’s Affairs disability 

compensation. Held: Court-martial had personal jurisdiction because accused was “entitled to 

pay”, even if he was not receiving pay. 

d) HQDA approval is required before prosecuting retirees (AR 27-10, para. 5-2). Failure to 

follow “policy” and obtain HQDA approval to try a retiree, however, is not jurisdictional 

error. United States v. Sloan, 35 M.J. 4 (C.M.A. 1992). 

e) The Article 2(d), UCMJ, involuntary recall process required for members of a reserve 

component, is not required to bring retirees and members of the Fleet Reserve or Fleet 

Marine Corps Reserve on to active duty in order to have jurisdiction over them. United 

States v. Morris, 54 M.J. 898 (N-M. Ct. Crim. App. 2001), petition for review denied, 55 M.J. 

161 (May 22, 2001). 

f) Involuntary Recall Retired Reservist. Morgan v. Mahoney, 50 M.J. 633 

(A.F.Ct.Crim.App. 1999). Air Force retired reserve officer was involuntarily recalled to 

active duty under Art. 2(d)(1). Court held that the accused was subject to court-martial 

jurisdiction because: [1] he was a “person lawfully called or ordered into...duty” under Art. 

2(a)(1); [2] he could be ordered involuntarily to AD under Art. 2(d)(1) & (2) for offenses 

committed while the accused was on AD or IDT (within the statute of limitations); [3] he was 

amenable to the UCMJ under Art. 3(d) despite the termination of AD/IDT; [4] the AF 

Reserve is a “reserve component of the armed forces;” [5] he was in a “retired status” under 

10 U.S.C. 10141(b); and [6] at the time of his recall, he was a member of the Retired Reserve. 

Practitioners should note that retired Reserve Component personnel who are receiving 

hospitalization from an armed force are subject to court-martial jurisdiction without being 

recalled to active duty. 

3. Persons in custody 

∗ The service court set aside the findings and sentence, dismissed the charges, and abated the proceedings in this 

case on 29 Aug 2002 due to the accused’s death on 2 July 2002 (ten days before the opinion was decided). See 

United States v. Huey, 2002 CCA LEXIS 186 (Aug. 29, 2002). 

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a) Jurisdiction terminates once an accused’s discharge is ordered executed (or enlistment 

expires) and he or she is released from confinement. The remaining suspended punishments 

are automatically remitted. United States v. Gurganious, 36 M.J. 1041 (N.M.C.M.R. 1993), 

rev. denied, 45 M.J. 13 (C.A.A.F. 1996). 

b) Fisher v. Commander, Army Regional Confinement Facility, 56 M.J. 691 (N-M. Ct. 

Crim. App. 2001). An accused that still has military confinement to serve pursuant to a 

court-martial sentence, is still a military prisoner subject to military jurisdiction under the 

concept of “continuing jurisdiction,” notwithstanding the execution of his punitive discharge 

and receipt of the DD Form 214. This is true even where the prisoner is serving time in a 

state civilian prison. The discharge merely terminated his status of active duty, but did not 

terminate his status as a military prisoner. 

4. P.O.W.s 

5. In time of declared war or a contingency operation, persons serving with or accompanying an 

armed force in the field. (covered in more detail in Part VI of this outline) 

6. Reservist Component includes USAR and Army National Guard of the United States 

(ARNGUS) soldiers in Title 10, U.S. Code, duty status. (See sections II.E. and IV. of this 

outline). 

C. Inception of Court-Martial Jurisdiction. 

1. Enlistment: A Contract Which Changes “Status.” UCMJ, Art. 2(b). The voluntary 

enlistment of any person who has the capacity to understand the significance of enlisting in the 

armed forces shall be valid for purposes of jurisdiction under subsection (a) and a change of 

status from civilian to member of the armed forces shall be effective upon the taking of the oath 

of enlistment. 

2. Involuntary enlistment: United States v. Catlow, 23 C.M.A. 142, 48 C.M.R. 758 (C.M.A. 

1974) (coercion); United States v. Lightfoot, 4 M.J. 262 (C.M.A. 1978),; and United States v. 

Ghiglieri, 25 M.J. 687 (A.C.M.R. 1987) (proposed enlistment as alternative to civil prosecution ­

no coercion). 

3. Constructive Enlistment. The codification of In Re Grimley, 137 U.S. 147 (1890). UCMJ, 

Art. 2(c) (as amended in 1979): 

Art. 2(c): Notwithstanding any other provision of law, a person serving with an armed force 

who— 

(1) Submitted voluntarily to military authority; 

(2) Met the mental competence and minimum age qualifications of sections 504 and 505 

of this title at the time of voluntary submission to military authority; 

(3) Received military pay or allowances; and 

(4) Performed military duties; 

is subject to this chapter until such person’s active service has been terminated in accordance 

with law or regulations promulgated by the Secretary concerned.” 

D. Termination of Jurisdiction over the Person. 

1. General Rule: Discharge Terminates Jurisdiction. 

2. ETS/EAS by itself does not terminate jurisdiction. 

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a) RCM 202(a) discussion: “Completion of an enlistment or term of service does not by 

itself terminate court-martial jurisdiction . . . court-martial jurisdiction normally continues 

past the time of scheduled separation until a discharge certificate or its equivalent is delivered 

or until the Government fails to act within a reasonable time after the person objects to 

continued retention.” 

b) United States v. Poole, 30 M.J. 149 (C.M.A. 1990). Jurisdiction to court-martial a 

servicemember exists despite delay—even unreasonable delay—by the government in 

discharging that person at the end of an enlistment. Even if the member objects, it is 

immaterial—the significant fact is that the member has yet to receive a discharge. Caveat: 

Unreasonable delay may provide a defense to “some military offenses.” 

c) RCM 202(c)(1): “Court-martial jurisdiction attaches over a person when action with a 

view to trial of that person is taken. Actions by which court-martial jurisdiction attaches 

include: apprehension; imposition of restraint, such as restriction, arrest, or confinement; and 

preferral of charges.” See United States v. Self, 13 M.J. 132 (C.M.A. 1982); United States v. 

Benford, 27 M.J. 518 (N.M.C.M.R. 1988). 

d) United States v. Lee, 43 M.J. 794 (N.M. Ct. Crim. App. 1995). Focusing investigation 

on accused as prime suspect is enough to establish a “view towards trial” and preserve 

military jurisdiction beyond ETS/EAS. The court cites to apprehension, imposition of 

restraint, and preferral of charges as other actions, which attach court-martial jurisdiction, i.e., 

indicate a “view towards trial.” See also Webb v. United States, 67 M.J. 765 (A.F.C.C.A. 

2009)(initiation of criminal investigation and SJA memorandum placing accused on 

administrative hold were each sufficient to trigger attachment of court-martial jurisdiction). 

e) Appellate Leave. United States v. Ray, 24 M.J. 657 (A.F.C.M.R. 1987) (jurisdiction 

upheld where accused, on appellate leave, was not provided discharge due to governmental 

delay in executing punitive discharge). 

3. When is discharge effective? 

a) On delivery. United States v. Melanson, 53 M.J. 1 (C.A.A.F. 2000). Jurisdiction existed 

because pursuant to AR 635-200, a discharge takes effect at 2400 hours on the date of notice 

of discharge to the soldier. See also United States v. Williams, 53 M.J. 316 (C.A.A.F. 2000). 

A valid legal hold had been placed on accused prior to expiration of the date that constituted 

the effective date of the discharge. United States v. Scott, 11 C.M.A. 646, 29 C.M.R. 462 

(C.M.A. 1960). A discharge takes effect at 2400 hours on the date of discharge; even if the 

discharge is delivered earlier in the day (unless it is clear that it was intended to be effective 

at the earlier time). 

b) Valid Discharge Certificate: Discharge Authority’s Intent. Early delivery of a discharge 

certificate for administrative convenience (e.g., command does not want to keep personnel 

office open until 2400) does not terminate jurisdiction when certificate is clear on its face that 

the commander did not intend the discharge to take effect until later. United States v. 

Batchelder, 41 M.J. 337 (C.A.A.F. 1994); see also United States v. Guest, 46 M.J. 778 (Army 

Ct. Crim. App. 1997). 

c) Final accounting of pay. Final accounting of pay is later than the final appointment at the 

local finance office. Jurisdiction may still exist several days after a servicemember has 

undergone a clearing process and received their DD214, since the local finance office is only 

the first of many steps required to accomplish a final accounting of pay. See United States v. 

Hart, 66 M.J. 273 (C.A.A.F. 2008). See also United States v. Howard, 20 M.J. 353 (C.M.A. 

1985) (jurisdiction terminates on delivery of discharge and final pay); United States v. Coker, 

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67 M.J. 571 (C.G. Ct. Crim. App. 2008) (finance office having all the information it needed 

to compute final pay did not make final pay “ready for delivery” within the meaning of the 

statute governing discharge); United States v. Wieczorek, NMCCA 201100036 (N.M. Ct. 

Crim. App. 2011) (unpub.)(No in personam jurisdiction where no final accounting of pay, 

even when lack of final accounting is due to government pay clerk’s negligence). 

d) Undergo a clearing process. United States v. King, 27 M.J. 327 (C.M.A. 1989) (sailor 

refused to complete re-enlistment ceremony after he received a discharge certificate). Three 

elements per King to effectuate an early discharge: 

(1) Delivery of a valid discharge certificate; 

(2) A final accounting of pay; and 

(3) Undergoing a “clearing” process as required under appropriate service regulations to 

separate the member from military service. 

4. Erroneous Delivery. Erroneous delivery will not terminate jurisdiction. United States v. 

Garvin, 26 M.J. 194 (C.M.A. 1988) (premature delivery of a BCD certificate); United States v. 

Brunton, 24 M.J. 566 (N.M.C.M.R. 1987) (early delivery of discharge, in violation of Navy 

regulations, meant discharge was not effective on receipt). 

5. Post-arraignment Discharge. A valid discharge of a soldier prior to trial operates as a formal 

waiver and abandonment of court-martial in personam jurisdiction, whether or not such 

jurisdiction had attached prior to discharge. Smith v. Vanderbush, 47 M.J. 56 (C.A.A.F. 1997). In 

personam jurisdiction was lost when accused was discharged after arraignment but before lawful 

authority resolved the charges. The court considered the intent of the discharge authority and 

found that there was no evidence to show that the discharge authority (not CA) did not intend to 

discharge accused on his ETS. In determining a valid discharge the court considered: 1) delivery 

of discharge certificate; 2) final accounting of pay; and 3) intent of discharge authority. Note: 

AR 27-10, para 5-16, now provides that after any charge is preferred, the DD Form 458 will 

automatically act to suspend all favorable action and that any issuance of a discharge certificate is 

void until the charge is dismissed or the convening authority takes initial action on the case (thus 

avoiding the issue raised in Smith v. Vanderbush). 

6. Post-conviction Discharge. 

a) Effect on Appellate Review and Power of Convening Authority 

(1) Steele v. Van Riper, 50 M.J. 89 (C.A.A.F. 1999). After a court-martial conviction, 

but before the convening authority took action, the government honorably discharged the 

accused. When the convening authority finally took action, he approved the findings and 

sentence (which included a punitive discharge), declared that the honorable discharge 

was erroneous, and placed the accused in an involuntary appellate leave status. The 

accused challenged the invalidation of his honorable discharge. In a supplemental brief, 

the government concurred. As such, the CAAF denied the accused’s writ-appeal, but 

advised that the honorable discharge does not affect the power of the convening authority 

or appellate tribunals to act on the findings and sentence. See also United States v. 

Stockman, 50 M.J. 50 (C.A.A.F. 1998). 

(2) United States v. Davis, 63 M.J. 171 (C.A.A.F. 2006). Held: Where the appellate 

courts are invoked by an appellant and a rehearing is authorized, an intervening 

administrative discharge does not serve to terminate jurisdiction over the person of the 

accused for purposes of that rehearing. The power of the court-martial over appellant 

was established at his initial trial, and the intervening administrative discharge does not 

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divest the appellate courts of the power to correct error, order further proceedings, and 

maintain appellate jurisdiction over the person during the pendency of those proceedings. 

b) Post-conviction but Pre-Initial Action. United States v. Estrada, 69 M.J.45 (C.A.A.F. 

2010). Accused sentenced to a BCD. Prior to initial action, accused erroneously issued an 

administrative honorable discharge. Issue: Whether the administrative (honorable) discharge 

resulted in remission of the bad-conduct discharge. Held. The honorable discharge was 

automatically voided in accordance with AR 27-10, para. 5-16. 

c) Post-conviction and Post-Initial Action. United States v. Watson, 69 M.J. 415(C.A.A.F. 

2011). The HRC Commander issued CPT Watson an administrative honorable discharge 

after a BCD was adjudged at her trial and after the Convening Authority took initial action. 

Despite an affidavit from the HRC Commander stating that she “did not intend the discharge 

to act...as a remission of the conviction” the CAAF held, 3-2, that the administrative 

discharge remitted the BCD. See also United States v. McPherson, 68 M.J. 526 (Army 

Ct.Crim.App. 2009). Accused sentenced to a BCD. Accused received two administrative 

honorable discharges from HRC – one before initial action, and one after initial action. Held: 

The honorable discharge given prior to initial action was void pursuant to AR 27-10, but the 

honorable discharge given after initial action served to remit the punitive discharge. 

7. Execution of Punitive Discharge. 

a) United States v. Keels, 48 M.J. 431 (C.A.A.F. 1998). Promulgation of a supplemental 

court-martial convening order that ordered executed a punitive discharge does not terminate 

court-martial jurisdiction. Even when there is a punitive discharge, jurisdiction does not 

terminate until delivery of the discharge certificate and final accounting of pay. There is not 

instantaneous termination of status upon completion of appellate review. 

b) United States v. Byrd, 53 M.J. 35 (C.A.A.F. 2000). In October 1996, the Navy-Marine 

Corps Court affirmed the accused’s conviction and sentence, which included a punitive 

discharge. The accused did not petition CAAF for review until 22 January 1997. On 2 

January 1997 the convening authority executed his sentence under Article 71. The service 

court held that since the accused did not petition CAAF for review within 60 days (a CAAF 

rule), the intervening discharge terminated jurisdiction. CAAF vacated the lower court's 

decision on the grounds that the Govt. failed to establish the petition for review as being 

untimely and, therefore, the sentence had been improperly executed. CAAF also held that 

jurisdiction existed notwithstanding execution of a punitive discharge under Article 71, and it 

was only a question of whether to consider the case under direct review or collateral review. 

See also United States v. Engle, 28 M.J. 299 (C.M.A. 1989). 

8. In Personam Jurisdiction in a Foreign Country. United States v. Murphy, 50 M.J. 4 

(C.A.A.F. 1998). The accused was convicted of premeditated murder and sentenced to death for 

murders he committed while stationed in Germany. The accused challenged the jurisdiction of 

the court-martial. He argued that the military investigators misled the German Government to 

believe that the United States had primary jurisdiction of the case under the NATO SOFA. Based 

on this information, the German Government waived its jurisdiction. Had the German 

Government asserted jurisdiction, the accused could not have been sentenced to death because the 

Constitution of Germany prohibits the death penalty. The CAAF held that the accused lacked 

standing to object to which sovereign prosecuted the case. The important jurisdictional question 

to answer is: Was the accused in a military status at the time of the offense and at the time of 

trial? The court found that the accused was. The case was set aside and remanded on other 

grounds. 

9. Exceptions to General Rule that Discharge Terminates Jurisdiction. 

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a) Exception: UCMJ, Art. 3(a). 

(1) a person is subject to the UCMJ at the time of the offense; 

(2) the person is discharged without trial; and 

(3) the person subsequently re-enters the service and is thus subject to the UCMJ at the 

time of trial. 

b) Willenbring v. Neurauter, 48 M.J. 152 (C.A.A.F. 1998). The CAAF holds that under the 

1986 version of Article 3(a), UCMJ, court-martial jurisdiction exists to prosecute a member 

of the reserve component for misconduct committed while a member of the active component 

so long as there has not been a complete termination of service between the active and 

reserve components. In dicta, however, the CAAF advises that the current version of Article 

3(a), UCMJ, “clearly provides for jurisdiction over prior-service offenses without regard to a 

break in service.” See also Willenbring v. United States, 559 F.3d 225 (4th Cir. 2009) 

(affirming District Court denial of Willenbring’s habeas corpus petition and reasoning that 

his service was not terminated because his early release and discharge from the regular 

component was conditioned upon a contractual obligation to immediately begin service in the 

reserve component); but see Murphy v. Dalton, 81 F.3d 343 (3d Cir. 1996) (holding that it is 

improper to involuntarily recall a member of the reserve component to active duty for an 

Article 32(b) investigation when the alleged misconduct occurred while the service member 

was a member of the active component). [Note: Murphy v. Dalton notwithstanding, the 

CAAF decision in Willenbring is controlling legal authority] 

c) Break-In-Service. United States v. Erickson, 63 M.J. 504 (A.F. Ct. Crim. App. 2006). 

Appellant was convicted of violating a lawful order, rape and sodomy of a female under the 

age of 12, and indecent acts and liberties with a female under the age of 16. The crimes were 

committed while he was on active duty in the Army, he was discharged, and subsequently 

enlisted in the Air Force. He was sentenced to a DD and confinement for life with the 

possibility of parole. Where appellant was on active duty in the Army when he committed 

misconduct, was discharged and subsequently enlisted in the Air Force, and was on active 

duty at the time of trial, as here, the court-martial had jurisdiction over the appellant by virtue 

of Article 3(a), UCMJ. 

d) Exception: UCMJ, Art. 3(b), person obtaining a fraudulent discharge. 

(1) Wickham v. Hall, 12 M.J. 145 (C.M.A. 1981). May the government prosecute a 

soldier whose delivered discharge (Chapter 8 - pregnancy) was revoked for being 

obtained by fraud? C.M.A. allowed the court-martial proceedings to continue. The 5th 

Circuit affirmed the district court’s denial of Wickham’s request for habeas corpus relief. 

The court-martial may proceed. Wickham v. Hall, 706 F.2d 713 (5th Cir. 1983). 

(2) United States v. Reid, 46 M.J. 236 (C.A.A.F. 1997). The government must secure a 

conviction for fraudulent discharge prior to prosecuting the accused for other offenses. 

Article 3(b) clearly requires a two-step trial process. QUERY: What about offenses 

committed after the fraudulent discharge? Article 3(b) does not confer jurisdiction over 

offenses committed after the fraudulent discharge. The service court, in dicta, reasoned 

that after conviction for the fraudulent discharge, jurisdiction would exist over offenses 

committed after the discharge under UCMJ, Art. 2. 

(3) United States v. Pou, 43 M.J. 778 (A.F. Ct. Crim. App. 1995). Accused faked his 

own death. Air Force initially designated him as “missing” before declaring him “dead.” 

Held: Declaring a missing person “dead” is not the equivalent of a discharge of that 

person, therefore, Art. 3(b) is inapplicable, and court-martial jurisdiction exists. 

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e) Exception: UCMJ, Art. 3(c) - Deserter obtaining discharge for subsequent period of 

service. United States v. Huff, 7 C.M.A. 247, 22 C.M.R. 37 (C.M.A. 1956). 

f) Exception: UCMJ, Art. 2(a)(7) - Persons in custody of the armed forces serving a 

sentence imposed by court-martial. United States v. Harry, 25 M.J. 513 (A.F.C.M.R. 1987) 

(punishment cannot include another punitive discharge); United States v. King, 30 M.J. 334 

(C.M.A. 1990) (prosecuted after BCD executed but still in confinement). 

g) Exception: UCMJ, Art. 3(d). Separation from Active Components to Reserve Status. 

Leaving a Title 10 status does not terminate court-martial jurisdiction. 

h) Exception: Intent of the Discharge Authority – When the command places a hold on the 

accused prior to 2359 on the date of discharge, even though the discharge certificate had been 

delivered earlier that day, the discharge does not terminate jurisdiction. In United States v. 

Harmon, 63 M.J. 98 (C.A.A.F. 2006), the appellant was scheduled to be administratively 

separated from active duty on 17 May 2001. Early in the morning of 17 May, he participated 

in the robbery of another servicemember. By 0815, NIS had identified him as a suspect. At 

0900, appellant received his DD 214 (which listed his effective discharge date and time as 

2359 on 17 May) and got on a bus to go home. At 1020, appellant’s command learned of his 

involvement in the robbery and revoked his administrative discharge. The CAAF held that 

because the command placed a hold on appellant prior to the time his discharge became 

effective, jurisdiction was never lost. 

IV. JURISDICTION OVER THE RESERVE COMPONENT 

A. BOTTOM LINE: Army policy states that Reserve Component soldiers are subject to the UCMJ 

whenever they are in a Title 10 status: Inactive Duty Training (IDT), Active Duty for Training 

(ADT), Annual Training (AT), Active Guard Reserve (AGR), or Active Duty (AD). See, AR 27-10, 

para. 20-2. 

1. United States v. Wall, 1992 WL 198418 (A.F.C.M.R. 1992) (unpub.) (jurisdiction existed 

over the accused who absented himself during second half of training day). 

2. United States v. Morse, No. ACM 33566, 2000 CCA LEXIS 233 (A.F. Ct. Crim. App. Oct. 4, 

2000) pet. for rev. den., 2001 CAAF LEXIS 1021 (Aug. 24, 2001) (accused’s duty was not 

complete until travel forms were signed even if he did not sign the fraudulent travel forms until 

after he completed his travel). 

3. See also, AR 27-10, Chp. 20; Air Force Instruction 51-201; and Paragraph II.E., this outline. 

B. UCMJ, Art. 3(d). Prevents the termination of court-martial jurisdiction over a member of a 

Reserve Component who violates the UCMJ while in a Title 10 status by the member’s release from 

active duty or inactive-duty training. Closes jurisdiction gaps recognized by Duncan v. Usher, 23 

M.J. 29 (C.M.A. 1986). 

C. Procedures and Restrictions: AR 27-10, Chapter 20 establishes procedures for taking punitive 

action (Art. 15, court-martial) against RC Soldiers. 

D. Procedure: Involuntary Recall to Active Duty. UCMJ, Art. 2(d), authorizes a member of a 

Reserve Component, who is the subject of proceedings under Articles 15 or 30, UCMJ to be ordered 

involuntarily to active duty for: Article 32 investigations, trial by court-martial, and nonjudicial 

punishment. 

1. Restrictions on the involuntary recall process. 

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a) A member may only be ordered to active duty by an active component general courtmartial convening authority (GCMCA). UCMJ, Art. 2(d)(4); AR 27-10, para. 21-3. 

b) Unless the order to involuntary active duty was approved by the appropriate Service 

Secretary, the member may not be: 

(1) sentenced to confinement; 

(2) forced to serve any punishment involving restriction on liberty except during a period 

of inactive duty training or active duty; or 

(3) placed in pretrial confinement. UCMJ, Art. 2(d)(5). 

c) General and Special Courts-Martial. Prior to arraignment the reservist must be on active 

duty. R.C.M. 204(b)(1). 

d) Summary Courts-Martial. Can be initiated and tried within the reserve structure and 

without active duty involvement. R.C.M. 204(b)(2). But the summary court-martial officer 

must be placed on active duty. UCMJ, Art. 25; R.C.M. 1301. 

E. Impact on the National Guard. 

1. 32 U.S.C. § 505 - Training in a state status - No federal military jurisdiction. 

2. 10 U.S.C. § 672 - Training in a federal status - Guard member is subject to jurisdiction and 

the reserve jurisdiction legislation’s major provisions. This includes involuntary recall. But see 

United States v. Dimuccio, 61 M.J. 588 (A.F. Ct. Crim. App. 2005) (holding that a Guard member 

in Title 10 status was not subject to an inspection under MRE 313 ordered by a commander in 

Title 32 status and suppressing the positive urinalysis resulting from that inspection). 

3. Federal status continues until the guard member has completed his federal service (excluding 

AWOL time) and federal jurisdiction exists notwithstanding state action to terminating 

jurisdiction. United States v. Wilson, 53 M.J. 327 (2000). 

V. PROCEDURAL CONSIDERATIONS 

A. Pleading Jurisdiction. See, R.C.M. 307(c)(3) Discussion at (C)(iv) and (F). 

B. Lack of Jurisdiction: Raised by Motion to Dismiss, R.C.M. 907. May be made at any stage of 

the proceeding. 

C. Burden of Proof. Although R.C.M. 905 states that the burden of proof in a motion contesting 

jurisdiction is a preponderance of the evidence, if contested at trial, the government must prove 

jurisdiction beyond a reasonable doubt. 

1. United States v. Bailey, 6 M.J. 965 (N.M.C.M.R. 1979); R.C.M. 905(c)(1)(preponderance); 

R.C.M. 905(c)(2)(B) (burden of persuasion on government); see also United States v. Hoxie, 14 

M.J. 713 (N.M.C.M.R. 1982) (burden is preponderance at motions hearing before the military 

judge, but if raised as a defense during trial the burden is beyond a reasonable doubt). 

2. United States v. Marsh, 15 M.J. 252 (C.M.A. 1983) (for “peculiarly military” offenses like 

AWOL, an accused’s military status is an element of the offense which must be proved beyond a 

reasonable doubt to the fact finders); see also United States v. Roe, 15 M.J. 819 (N.M.C.M.R. 

1983). 

3. United States v. Chodara, 29 M.J. 943 (A.C.M.R. 1990) (Reserve Component warrant officer 

ordered to AD for training; provided urine sample that tested positive for cocaine pursuant to a 

urinalysis administered within 36 hours of initiation of AD period. Held: no subject matter 

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jurisdiction because the government failed to prove beyond a reasonable doubt that the accused 

was subject to the UCMJ at the time he “used” the cocaine). 

VI. JURISDICTION OVER CIVILIANS 

A. MEJA. Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C. § 3261, Pub. L. No. 106-523. 

1. The MEJA was approved by Congress and signed into law by the President on 22 November 

2000. This legislation does not expand military jurisdiction; it extends federal criminal 

jurisdiction over certain civilians (DOD employees, contractors, and dependents thereof, and 

military dependents) accompanying the military overseas. The implementing regulations went 

into effect on 3 March 2005. The Act was amended in 2005 to cover civilian employees, 

contractors, and contractor employees of any Federal agency “to the extent such employment 

relates to supporting the mission of the Department of Defense overseas.” See 2005 NDAA, Sec. 

1088. 

2. The Act applies to felony level offenses that would apply under federal law if the offense had 

been committed within the "special maritime and territorial jurisdiction of the United States." 

3. The Act provides for an initial appearance proceeding, which may be carried out 

telephonically, conducted by a Federal magistrate judge. At this proceeding, the magistrate will 

determine if there is probable cause to believe a crime was committed and if the person 

committed it. If pretrial detention is an issue, the magistrate will also conduct a detention hearing 

as required by federal law. This detention hearing may also be conducted telephonically if the 

person so requests. 

4. The Act directly involves the military in two ways. 

a) The Act, depending on implementing rules, may authorize DOD law enforcement 

personnel to arrest those civilians covered by the Act. 

b) The Act entitles those civilians covered by the Act, to representation by military counsel 

(i.e. judge advocates) at the initial hearing, if determined by the Federal magistrate. 

5. MEJA Resources 

a) DODI 5525.11 (3 Mar 2005) 

b) DA Message (13 May 2005) 

c) OTJAG Info Paper (24 May 2005) 

d) AR 27-10, Ch. 26 (3 Oct 2011) 

e) Secretary of Defense Memorandum, “UCMJ Jurisdiction Over DoD Civilian Employees, 

DoD Contractor Personnel, and Other Persons Serving With or Accompanying the Armed 

Forces Overseas During Declared War and in Contingency Operations.” (10 March 2008) 

f) DoD General Counsel DTM 09-015 (16 February 2010) 

6. United States v. Brehm, 691 F.3d 547 (4th Cir. 2012) 

a) On Thanksgiving Day 2010, Sean Brehm (a South African), who was a contractor 

working for a U.S. company on Kandahar Airfield, Afghanistan (KAF), stabbed another 

contractor in the arm and stomach causing serious injuries. As part of his “Foreign Service 

Agreement” Brehm acknowledged and accepted that he may be subject to U.S. federal 

civilian criminal jurisdiction under MEJA (Military Extraterritorial Jurisdiction Act – passed 

in 2000 MEJA allows for the prosecution of civilians accompanying American troops 

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overseas), by virtue of the fact that he was accompanying the U.S. Armed Forces outside the 

United States. 

b) Brehm pleaded guilty in Federal District Court in the Eastern District of Virginia to 

assault resulting in serious bodily injury. In exchange he was allowed to challenge, through 

appeal, the jurisdictional basis of the indictment. On appeal Brehm argued: 1) The 

indictment’s reliance on MEJA was misplaced, in that the statute cannot be applied to him in 

a manner consistent with the Constitution, and 2) there lacked a sufficient nexus between 

himself and the United States to support the exercise of criminal jurisdiction. The court 

rejected Brehm’s arguments and affirmed the district court conviction. 

7. United States v. Santiago, 987 F. Supp. 2d 465 (S.D.N.Y. 2013) 

a) Defendant was a Marine corporal who had a reputation for playing quick-draw with his 

weapon and who shot a Navy Corpsman serving with him while on active duty in Iraq in 

2008. Agents from NCIS identified him as the shooter by obtaining statements from an Iraqi 

interpreter who witnessed the shooting and eventually obtaining a confession. The Marine 

Corps never initiated court-martial proceedings against him, and he was allowed to leave the 

service. In 2013, the United States Attorney’s Office in New York initiated a prosecution 

against him under MEJA. By that time, the interpreter had disappeared. The interpreter had 

denied that the defendant had been playing with his weapon prior to the shooting and made 

other statements favorable to the defendant. 

b) The District Judge hearing the case dismissed a count of reckless assault for the shooting 

based on a due process violation, and allowed to false statement counts to proceed. The 

prejudice was the loss of the interpreter’s testimony, which was favorable to the defendant. 

The Judge faulted the Marine Corps for recklessly delaying the case, In a previous order, 

United States v. Santiago, 966 F. Supp. 2d 247 (S.D.N.Y. 2013), she discussed how her 

research revealed very few MEJA cases against former military members, and this one 

appeared to be the only one where the military was aware of the misconduct and could have 

court-martialed the defendant. The Judge did not find that the Marine Corps intentionally 

delayed the case to avoid potential problems Article 31 might cause for the prosecution, and 

admitted the statements that would have likely been inadmissible under Article 31 because 

they were not inadmissible under Miranda. The Judge expressed deep concern, however, that 

the case was allowed to languish with such obviously time-sensitive issues given the drawdown in Iraq, the significance of the interpreter’s testimony, and the defendant’s looming 

EAS date. 

8. United States v. Bello Murillo, 826 F.3d 152 (4th Cir. 2016) 

a) The court employed the Brehm test to uphold the extraterritorial prosecution of a 

Colombian taxi driver who killed a DEA agent as part of a conspiracy among taxi drivers to 

rob affluent passengers. The due process inquiry for extraterritorial prosecutions from Brehm 

is similar to that in other circuits: whether there is a sufficient nexus between the defendant 

and the United States so that applying a particular statute to an accused would not be arbitrary 

or unfair. It is not arbitrary to prosecute a defendant in the United States if his actions 

affected significant American interests regardless of the defendant’s intent. The court relied 

on Brehm for the proposition that a prosecution was not fundamentally unfair even if the 

accused did not know that his victim was an American; the accused must only be on notice 

that his conduct was criminal and would subject him to prosecution somewhere. 

b) An accused has less of a due process concern where his conduct – like the kidnapping 

and murder in Bello Murillo – is self-evidently criminal, according to Brehm. The relevant 

treaty afforded Bello Murillo sufficient notice to satisfy due process, for where a treaty 

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provides “global notice” that certain generally-condemned acts could be prosecuted by any 

party to the treaty it satisfies due process. 

B. Patriot Act. Uniting and Strengthening America by Providing Appropriate Tools Required To 

Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107–56. 

One reason there was a jurisdictional gap prior to MEJA was that the definition of “special 

maritime and territorial jurisdiction of the United States,” (SMTJ) was interpreted as excluding 

U.S. military installations overseas. See United States v. Gatlin, 216 F. 3d 207 (2d Cir. 2000). In 

2001, the Patriot Act amended the definition to include military installations overseas, however 

the definition excludes anyone already covered by the MEJA. See 18 U.S.C. § 7. 

C. Court-martial Jurisdiction under Amended Article 2(a)(10), UCMJ. 

1. The 2007 National Defense Authorization Act amended Article 2(a)(10) as follows: 

a) OLD: In time of war, persons serving with or accompanying an armed force in the field. 

b) NEW: In time of declared war or a contingency operation, persons serving with or 

accompanying an armed force in the field. 

2. “Contingency Operation,” 10 U.S.C. Sec. 101(a)(13): The term “contingency operation” 

means a military operation thata) is designated by the SECDEF as an operation in which members of the armed forces are 

or may become involved in military actions, operations, or hostilities against an enemy of the 

United States or against an opposing military force; or 

b) results in the call or order to, or retention on, active duty of members of the uniformed 

services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of this title, chapter 15 

of this title, or any other provision of law during a war or during a national emergency 

declared by the President or Congress. 

c) Current operations in Afghanistan and Iraq clearly meet the definition of “contingency 

operation” above. 

3. The only significant guidance to date on implementation of the amended Article 2(a)(10), 

UCMJ, is contained in a SECDEF Memorandum dated 10 March 2008. This memo reserves the 

authority to prefer charges or initiate NJP against a civilian to the GCMCA level, however each 

case must be sent up to SECDEF and over to DOJ first, for a decision on whether to prosecute 

under the MEJA rather than under the UCMJ. See Memorandum from the Secretary of Defense 

to the Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, 

Undersecretaries of Defense and Commanders of the Combatant Commands, subject: UCMJ 

Jurisdiction Over DoD Civilian Employees, DoD Contractor Personnel, and Other Persons 

Serving With or Accompanying the Armed Forces Overseas During Declared War and in 

Contingency Operations (10 Mar. 2008). 

4. United States v. Ali, 70 M.J. 514 (Army Ct. Crim. App. 2011) 

a) There has been one civilian tried by court-martial using Article 2(a)(10) jurisdiction. The 

accused, a Canadian/Iraqi citizen, pled guilty to three specifications involving possessing, 

hiding, and lying about a knife (the original charge was aggravated assault for stabbing 

another interpreter in the chest), and was sentenced to five months confinement (time already 

served in PTC). The Judge Advocate General of the Army directed the Army Court of 

Criminal Appeals to review the case of United States v. Ali pursuant Article 69(d), UCMJ. 

TJAG requested that the court give attention to two issues: a) whether the court-martial had 

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martial had subject matter jurisdiction over the offenses. First, the Court held that appellant 

and his conduct fit within the statutory jurisdictional framework of the UCMJ. The Court 

found the offense and trial occurred during a “contingency operation,” finding that the 

offense and court-martial occurred during Operation Iraqi Freedom, a military operation that 

meets the definition of “contingency operation. The Court also found that appellant served 

“with or accompanied and armed force, finding that appellant had moved with a military 

operation and his presence was not merely incidental but directly connected with or 

dependent upon the activities of the armed force or its personnel. Article 2(a)(10), UCMJ is 

specifically drafted to limit military jurisdiction over civilians by requiring either a formal 

declaration of war by Congress or to the existence of “contingency operations” as defined by 

section 101(a)(13), Title 10. Moreover, jurisdiction over civilians is limited to only those 

civilians who are “serving with or accompanying an armed force” and that the civilian be “in 

the field.” (Practitioner’s note: It would seem that the commander would lose jurisdiction of 

this case by transferring it to the rear or the cessation of hostilities. Potentially, even 

transferring the case to a peaceful portion of Iraq would be fatal to the case.) 

b) In July of 2012 CAAF ruled that the court-martial had jurisdiction over Ali under the 

provisions of Article 2(a)(10), and that the application of 2(a)(10) to Ali did not violate the 

Constitution “under the circumstances of this case.” United States v. Ali, 71 M.J. 256 

(C.A.A.F. 2012). Significant to the CAAF’s resolution of the constitutional issues were the 

facts that Ali was not an American citizen, his crime occurred overseas, and his prosecution 

occurred overseas. 

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[Back to Table of Contents] 

CHAPTER 4
 

PROFESSIONAL RESPONSIBILITY
 

I. Introduction 

II. Conflicts Between the Applicable Rules 

III. Resolving Conflicts 

IV. The Lawyer-Client Relationship 

V. The Lawyer as an Advocate 

VI. Obligations to Third Parties 

VII. Duties of Subordinates and Supervisors 

VIII. Professional Responsibility Complaints 

I. INTRODUCTION 

A. Scope and Governing Standards 

1. Regulatory Standards Imposed by the Army. 

a. The Rules of Professional Conduct For Lawyers [hereinafter referred to as Army Rules] 

apply to: 

(1) All Army judge advocates; 

(2) Civilian attorneys employed by Department of the Army; 

(3) Civilian attorneys appearing before courts-martial (AR 27-1, para. 7-4; AR 27-10, 

para. 5-8 and App. C; Glossary, Army Rules), and 

(4) Army legal support personnel (i.e. 27Ds, interns, paralegals). 

2. Attorneys must adhere to both the letter and the spirit of the rule. 

3. Rules state a standard to be followed. 

a. Provide a basis for taking action should a lawyer fail to comply or meet the standard. 

Does not provide a basis for civil cause of action against either the Army or an attorney. 

b. Comments are non-binding guidance. 

B. State Rules. "Every lawyer subject to these Rules is also subject to rules promulgated by his or 

her licensing authority or authorities." (Comment, Army Rule 8.5). 

C. ABA Standards for Criminal Justice also apply to military judges, counsel, and clerical support 

personnel of Army courts-martial (AR 27-10, para. 5-8). 

D. Key Resources: 

1. Primary 

a. Army Regulation 27-26, Rules of Professional Conduct For Lawyers (1 May 92). 

b. The ABA Standards for Criminal Justice (2016). 

c. The ABA Code of Judicial Conduct (2011 edition). 

d. The Army Code of Judicial Conduct (2008 edition). 

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2. Secondary 

a. AR 27-1, Judge Advocate Legal Service (30 SEP 96; RAR 13 SEP 11). 

b. AR 27-3, The Army Legal Assistance Program (21 Feb 96; RAR 13 SEP 11). 

c. AR 27-10, Military Justice (11 MAY 16). 

d. American Bar Association Model Rules of Professional Conduct (Feb 2016). 

e. American Bar Association Model Code of Professional Responsibility (Aug 1980). 

f. Ingold, An Overview and Analysis of the New Rules of Professional Conduct for Army 

Lawyers, 124 Mil. L. Rev. 1 (1989). 

g. ABA/BNA Lawyers' Manual of Professional Conduct. 

h. The Legislative History of the Model Rules of Professional Conduct, ABA (2006). 

i. The Annotated Model Rules of Professional Conduct, ABA (8th ed.). 

3. Websites 

a. State ethics rules: http://www.abanet.org/cpr/links.html#States 

b. ABA Professional Conduct material: http://www.abanet.org/cpr/pubs/ethicopinions.html 

II. CONFLICTS BETWEEN THE APPLICABLE RULES. 

A. Army Rule 8.5 provides that if there is a conflict with state rules, the lawyer should seek
 

assistance from his or her supervisory lawyer. If not resolved, then:
 

1. Army Rules supersede rules of licensing jurisdiction in the performance of official duties. 

2. Army Rules do not control if attorney is practicing in state or federal civilian courts. 

a. The Basic Rule in conflicts is that the Army Rule Wins. The comments say that 

CONFLICTS are THEORETICAL, but may NOT be. For example, National Security 

Exemption to Confidentiality. So you may have to deal with a conflict between the Army 

rules and others. There is some help for you in the rule and we will discuss some practical 

methods of resolving the conflict. Remember, though, that the bottom line rule is that 

b. The PRIMARY THING, though, is to consult your supervisor. She may be able to help 

resolve the situation. 

c. SECOND, if you are in state or federal court follow those rules. 

d. So the Basics that come out of the Rule is that for official duties, the Army rules trump, 

for private matters, follow your state rules. 

B. ABA Model Rule 8.5. Disciplinary authority must make a choice of law: 

1. For conduct in connection with a court action, apply the rules of the jurisdiction where the 

court sits. 

2. For other conduct, apply the rules of the jurisdiction in which the lawyer principally 

practices. 

C. The ABA has amended its conflicts rule and the ARMY has not adopted it. However, your 

STATE may have. So there are a couple of things to consider. 

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1. FIRST, The Rule says that you apply the Courts rules if your in court and the rules of the 

place where you “principally practice” otherwise. PROBLEM: In Legal Assistance, where do 

you practice – where you are stationed? Where the client is from? Your home state? 

2. SECOND, an exception to that general rule is that other rules may apply if the “predominant 

effect” of your action is in that jurisdiction. An attorney’s state could ultimately apply/interpret 

the Army rules because that is where the predominant effect is. 

3. BOTTOM LINE: Know your state’s position. Otherwise, you won’t be able to effectively 

manage conflicts. 

4. NOW, let’s get to the practical - you understand the Army’s position and you are familiar 

with your state rules. There is a conflict, what do you do? 

III. RESOLVING CONFLICTS. 

A. Judge advocates should follow the most restrictive standard. If a course of conduct is permitted 

under one standard and mandatory under another, follow the mandatory standard. 

B. Employ practical alternatives, examples include: 

1. Find the client new counsel. 

2. Obtain exception from state bar. See, e.g., Oregon Informal Ethics Opinion 88-19, which 

provides that military lawyers will not be subject to discipline in Oregon as long as their conduct 

is not unethical under the applicable military code of ethics. NOTE: Discuss this option with 

your technical supervisory chain, to include the Standards of Conduct Office, if necessary. 

IV. THE LAWYER-CLIENT RELATIONSHIP. 

A. Scope of Representation (Army Rule 1.2). 

1. A client's decisions concerning the objectives of representation are controlling on counsel. 

Counsel shall consult with the client as to the means by which these decisions are to be pursued. 

A lawyer may, however, limit the objectives of the representation with the client's consent. 

2. Example: Representation by Defense Counsel. 

a. Client decides -­

(1) Choice of counsel. 

(2) What plea to enter. 

(3) Selection of trial forum. 

(4) Whether to enter into pretrial agreement. 

(5) Whether to testify. 

b. Defense counsel decides -­

(1) What motions to make. 

(2) Which court members to select. 

(3) Which witnesses to call. 

(4) How cross-examination will be conducted. 

(5) General strategic and tactical decisions. 

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c. Comment to Army Rule 1.2; see also Standards for Criminal Justice 4-5.2(b)). 

3. A lawyer should assume responsibility for technical and legal tactical issues. 

4. A lawyer shall not counsel a client to engage in conduct the lawyer knows is criminal. (Army 

Rule 1.2(d)) 

B. The Army as the Client (Army Rule 1.13). 

1. A judge advocate or other Army lawyer represents the Army acting through its authorized 

officials (e.g. commanders). 

2. The lawyer-client relationship exists between the lawyer and the Army. 

3. Regulations may authorize representation of individual clients. For example, legal assistance 

attorneys and defense counsel are authorized to represent individual clients, not the Army. See 

AR 27-1, para. 2-5 and AR 27-3, para. 2-3a. 

4. If not authorized to form an attorney-client relationship with the client, an Army lawyer must 

advise the individual that no such relationship exists between them. (Army Rule 1.13(b)). 

5. While an attorney may be permitted by law or regulation to form an attorney-client 

relationship, situations may arise in which doing so may lead to a conflict. Army attorneys 

should exercise considerable discretion in handling the personal legal problems of Army officials, 

and receiving client confidences, when the Army attorney is not assigned to a client service 

organization such as Legal Assistance or Trial Defense Service. 

6. Illegal Acts: If an official of the Army (e.g., a commander) is acting illegally or intends to act 

illegally, and the action might be imputed to the Army, the lawyer shall-­

a. Proceed as is reasonably necessary in the best interest of the Army. 

b. Consider utilizing the following measures: 

(1) Asking the official to reconsider. 

(2) Advising the official to get a separate legal opinion. 

(3) Advising the official that his or her personal legal interests are at risk and he or she 

should consult counsel. 

(4) Advising the official that counsel is ethically bound to serve Army interests and must 

discuss the matter with supervisory lawyers. 

(5) Referring the matter to or seeking guidance from higher authority in the technical 

chain of supervision. 

c. If unsuccessful, the lawyer may terminate representation with respect to the matter in 

question. 

C. Competence (Army Rule 1.1). 

1. Competence requires legal knowledge, skill, thoroughness, and preparation to the extent 

reasonably necessary for representation. 

a. The required proficiency is that generally afforded to clients in similar matters. 

b. Supervisor makes the initial determination as to competence for a particular assignment. 

c. United States v. Hanson, 24 M.J. 377 (C.M.A. 1987). Judge believed defense counsel 

incompetent; properly appointed another detailed counsel without severing existing attorneyclient relationship. 

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d. United States v. Weathersby, 48 M.J. 668 (Army Ct. Crim. App. 1998). Lack of defense 

sentencing case. 

e. United States v. Murphy, 50 M.J. 4 (C.A.A.F. 1998). Lack of defense sentencing case in 

capital case. 

2. Principles 

a. Know the law. 

b. Know the consequences of conviction 

c. United States v. Denedo, 2010 WL 996432 (UNPUBLISHED)
 

(N.M.Ct.Crim.App.). A civilian defense counsel’s bad advice on immigration consequences 

of guilty plea did not render plea involuntary. But see: U.S. v. Miller (duty to warn of sex 

registration offenses) and U.S. v. Rose (duty to answer questions about sex registration) infra.
 

d. Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Padilla is a U.S. permanent resident of forty
 

years who served in the U.S. military during Vietnam. He was charged with felony drug
 

trafficking, among other things. He asked his attorney if a guilty plea would impact his
 

immigration status, and his attorney told him he “did not have to worry about immigration 

status since he has been in the country so long.” Padilla’s attorney’s advice was incorrect and
 

but for his appeal that he pled guilty in reliance on his attorney’s advice, he would have been 

deported. While the Supreme Court did not decide the ultimate issue of whether there was 

prejudice in this case, they did grant a new entitlement under the Sixth Amendment that
 

Justice Scalia in his dissent terms a “Padilla warning” that now requires that where the law
 

“is truly clear,” as the court found in this case, “the duty to give correct advice is equally
 

clear.” See also: United States v. Vargaspuentes, 70 M.J. 501 (A.C.C.A. 2011) addressing
 

the need to properly advise in an immigration case. Because the court resolved the case on
 

other grounds, it did not substantively address counsel’s duty to investigate when a Soldier’s 

birthplace is listed as outside the U.S. on the ERB, but noted the point in passing.
 

e. United States v. Larson, 66 M.J. 212 (C.A.A.F. 2008). A defense counsel may concede 

guilt on lesser charges to gain credibility on the main charge despite an accused’s NG plea.
 

f. Psychotherapist-patient privilege. United States v. Paaluhi, 54 M.J. 181 (C.A.A.F. 2000). 

Trial Defense Counsel erroneously interpreted possible psychotherapist-patient privilege in
 

the military. The CAAF reversed lower court's judgment and set-aside appellant's conviction 

and sentence, because defense counsel rendered ineffective assistance in improperly
 

evaluating military privilege law. The resulting confession secured Paaluhi’s conviction.
 

Without his confession there might have been reasonable doubt as to his guilt. 

3. A lawyer can provide adequate representation in a wholly novel field through necessary study 

or consultation with a lawyer of established competence in the field in question. 

4. If a lawyer becomes involved in representing a client whose needs exceed either the lawyer’s 

competence or authority to act, the lawyer should refer the matter to another lawyer. 

5. Lawyers may give advice and assistance even if they do not have skill ordinarily required if 

referral or consultation with another lawyer is impractical. 

D. Diligence (Army Rule 1.3). 

1. Lawyers must act with reasonable diligence and promptness. 

a. United States v. Gibson, 51 M.J. 198 (C.A.A.F. 1999). Civilian defense counsel found 

ineffective where the CDC failed to pursue leads contained in the CID report that was 

provided by the trial counsel. The accused was charged with rape and adultery. The 

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undeveloped information in the CID report included summarized interviews with teachers 

and students at the 15 year old victim’s school, that she may have alleged rape to distract 

school officials from her behavior, that she had a record of exaggerating her sexual 

experience, that she related conflicting versions of the alleged rape, and that she did not enjoy 

a good reputation for truthfulness. 

b. Porter v. McCollum, 130 S. Ct. 447, 454 (2009). Attorney required to perform adequate 

background investigation and present evidence in sentencing even if client not helpful. 

Defendant’s status as a veteran and his struggles with posttraumatic stress disorder and 

subsequent substance, as well as his impaired mental capacity and abusive childhood is 

highly relevant mitigation evidence. 

c. United States v. Boone, 42 M.J. 308 (Army Ct. Crim. App. 1996), rev’d 49 M.J. 187 

(1998). In cases where the client has retained civilian defense counsel, military defense 

counsel must not be lulled into inactivity and complete deference to their civilian 

counterparts; military defense counsel are not relieved of professional or ethical obligations 

to the client. 

d. United States v. Sorbera, 43 M.J. 818 (A.F. Ct. Crim. App. 1996). Civilian defense 

counsel whose advice to accused led to an additional charge provided incompetent pretrial 

representation. 

e. United States v. McDuffie, 43 M.J. 646 (A.F. Ct. Crim. App. 1995); see also ABA 

Standard for Criminal Justice 4-4.3(b). Defense counsel has no professional obligation as 

part of trial preparation to discuss pertinent evidentiary rules with a witness. 

f. Post-trial submissions. United States v. Johnston, 51 M.J. 227 (C.A.A.F. 1999). The 

record of trial was returned to the convening authority for a new recommendation and action. 

The new post trial recommendation was served on the accused’s defense counsel, who was 

then a civilian. Substitute counsel was not appointed. The new recommendation was not 

served on the accused, nor did the defense counsel contact the accused. No matters were 

submitted by the accused or counsel. The court found the accused was not represented at a 

critical point in the proceedings against him in violation of Article 27 (b). 

g. United States v. Wean, 45 M.J. 461 (C.A.A.F. 1997). After post-trial 39a hearing, MJ 

concluded, “the collective failings and inactions . . . resulted in representation of the appellant 

that was lacking in legal knowledge, skill, thoroughness, and preparation.” 

h. United States v. Fordyce, 69 M.J. 501 (Army Ct. Crim. App. 2010). DC neglected to 

advise on waiver and Post Trial and Appellate Rights (PTAR) form did not cover it. The 

court has found this to be an ongoing problem and their “patience is at a limit.” There was 

also question whether client consulted on clemency submissions. Court highly encourages an 

accused co-sign R.C.M. 1105 and 1106 submissions, as well as putting it on the record the 

client has fully been advised of the post-trial submission process. Court did not find counsel 

ineffective but found error in the post-trial handling of the case because the court was not 

convinced the appellant was “afforded a full opportunity to present matters to the convening 

authority.” Consequently, the court set aside the action and returned it for a new one. 

i. Qualifications of Counsel. United States v. Williams, 51 M.J. 592 (N.M.Ct.Crim.App. 

1999). Appellant contended that his civilian defense counsel was ineffective per se because 

he was on “inactive status” with respect to his admissions to practice law in three states. The 

Navy- Marine Court disagreed and found nothing in R.C.M. 502(d)(3)(A) requiring the 

practitioner to be able to practice in the home state. 51 M.J. at 597. Counsel had submitted 

to the trial court various related documents to include one affirming that he was a “lawyer in 

good standing” in the state of Iowa. See also U.S. v. Morris, 54 MJ 898 (N.M.Ct.Crim.App. 

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2001). DC’s inactive status with his state bar does not make him per se ineffective or deprive 

the appellant of the right to counsel; U.S. v. Steele, 53 M.J. 274 (2000). CDC’s inactive 

status with his state bar does not make him per se ineffective or deprive the appellant of the 

right to counsel. 

j. Notification of requirement to register. United States v. Miller, 63 M.J. 452 (C.A.A.F. 

2006). Appellant averred that he was never told that pleading to an offense of possessing 

child pornography would require him to register as a TX sex offender. His failure to register 

led him to be incarcerated in TX. The court failed to find IAC for failure to inform the 

accused. The court did specify for cases tried after November 2006 that counsel must notify 

accused that any qualifying offense under DODI 1325.7 (sex + violence or minority) requires 

sex offender registration. 

k. Obligation to answer reasonable questions. United States v. Rose, __ M.J.__ (C.A.A.F. 

2012). IAC where defendant’s reasonable request for information regarding sex offender 

registration went unanswered which resulted in accused pleading guilty when he otherwise 

would not have if he had known the answer to his question. 

2. Lawyers must consult with clients as often as necessary. 

3. A lawyer should carry through to conclusion all matters undertaken for a client. 

E. The Lawyer as Advisor. 

1. A lawyer may refer to moral, economic, social, and political factors when rendering advice to 

clients (Army Rule 2.1). 

a. Purely technical legal advice may sometimes be inadequate. 

b. For a discussion of some ways such “beyond the law” topics can be integrated into client 

counseling, see these articles by CPT Evan Seamone: Attorney as First Responder: 

Recognizing the Destructive Nature of Posttraumatic Stress Disorder on the Combat 

Veterans’ Legal Decision-Making Process (202 Mil. L. Rev., 144-184 (2009)), Veterans’ 

Lawyer as Counselor: Using Therapeutic Jurisprudence to Enhance Client Counseling for 

Combat Veterans With Posttraumatic Stress Disorder (202 Mil. L. Rev., 185-257 (2009)), 

and Divine Intervention: The Ethics of Religion, Spirituality, and Clergy Collaboration in 

Legal Counseling (29 Quinnipiac L. Rev., 289-373 (2011)). 

2. Lawyers must exercise independent judgment when advising a client (Army Rule 5.4). 

a. Rule explicitly allows for individual representation when detailed or assigned. 

b. Unfettered loyalty & professional independence to the same extent as lawyers in private 

practice when assigned individual client. 

F. Communication (Army Rule 1.4). 

1. Lawyers have a duty to keep clients reasonably informed about the status of a matter and to 

comply with client requests for information. 

2. Lawyers also must explain matters to clients to permit them to make "informed decisions." 

G. Confidentiality (Army Rule 1.6). 

1. General rule. A lawyer shall not reveal any information relating to the representation of a 

client. 

a. Applies to all sources of information, not just that which comes from the client. 

b. Applies to information obtained prior to formation of attorney-client relationship. 

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c. The duty of confidentiality continues after the lawyer-client relationship has terminated. 

d. The duty also applies to Army legal support personnel. 

2. Exceptions to confidentiality. 

a. A client may consent to disclosure of confidences (Army Rule 1.6(a)). 

b. Disclosure may be impliedly authorized in order to carry out the representation (Army 

Rule 1.6(a)). (See, e.g. United States v. Province, 45 M.J. 359 (C.A.A.F. 1997). 

c. Disclosure is permitted to establish a claim or defense in a controversy with a client 

(Army Rule 1.6(b)). 

d. Intention to commit a crime. 

(1) Army Rule 1.6(b) mandates disclosure of information a lawyer reasonably believes 

necessary to prevent a client from committing a crime which is likely to: 

(a) result in imminent death or substantial bodily harm, or 

(b) significantly impair the readiness or capability of a military unit, vessel, aircraft, 

or weapon system. 

(2) There is no authority for revealing information of other potential offenses or past 

crimes under the Army Rules. Example: no obligation to reveal the whereabouts of a 

fugitive nor to disclose the location of contraband. This conforms to the ABA Rules; see 

ABA Formal Opinion 84-349 (1984). 

e. Compare to Mil. R. Evid. 502 - Lawyer-Client Privilege. 

(1) Protects against disclosure of privileged communication between attorney and client. 

(2) Does not protect against other disclosures (e.g., information gained from sources 

other than the client). 

(3) More narrow than Rule 1.6 (e.g., no restriction to just future crimes). 

H. Terminating the Relationship. (Army Rule 1.16) 

1. Notwithstanding any other provision of the rule, a lawyer shall continue the representation 

when ordered to do so by a tribunal or other competent authority. 

2. A lawyer SHALL seek withdrawal (or not commence representation) if ­

a. the representation will violate the rules; 

b. the lawyer’s physical or mental condition materially impairs her ability to represent the 

client; OR 

c. the lawyer is dismissed by the client. 

3. A lawyer MAY seek withdrawal if it can be accomplished without material adverse impact to 

the client’s interests OR ­

a. the client persists in a course of action which the lawyer reasonably believes to be 

criminal or fraudulent; 

b. the client has used the lawyer’s services to perpetrate a crime or a fraud; 

c. the client persists in pursuing an objective which the lawyer considers repugnant or 

imprudent; OR 

d. other good cause for withdrawal exists. 

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4. A lawyer must take reasonable steps to protect a client's interests upon termination of the 

relationship (Army Rule 1.16). 

5. Steps should include giving notice to the client, allowing time for employment of other 

counsel, and surrendering all papers and property. 

6. United States v. Spriggs, 52 M.J. 235 (C.A.A.F. 2000). TDS counsel represented Spriggs at a 

prior court-martial resulting in an acquittal. After additional charges were preferred, including 

perjury charges from his first court-martial, appellant made an IMC request for his first DC. DC 

had left active duty. The CAAF ruled that release of the TDS counsel from active duty constituted 

good cause for severance of the attorney-client relationship. Additionally, appellant did not 

establish that there was an ongoing attorney-client relationship. But see United States v. 

Hutchins, 69 M.J. 282 (C.A.A.F. 2011). Court faulted the judge for not establishing reason for 

DC withdraw prior to DC resigning from military service after being part of the trial defense team 

for a year. The court found there was not a knowing release and allowing the DC to EAS (ETS in 

the Army) because he had completed his commitment did not constitute “good cause.” Unlike 

NMCCA, however, CAAF was unwilling to presume prejudice and did not set aside the findings 

or approved sentence. CAAF has further opined, in the matter of Frank D. Wuterich, Appellant 

CCA 200800183, that in the event of a termination, particularly where there is a conflict 

involved, the military judge should ensure there is a verbatim transcript that reflects the facts, 

nature, type, and source of the conflict. 

I. Fees and Self-Referral (Army Rule 1.5). 

1. A lawyer shall not accept a gratuity, salary or other compensation from a client for services 

performed as an officer of the U.S. Army. 

2. A lawyer shall not receive compensation for making a referral of a client to a private 

practitioner. 

3. A legal assistance attorney shall not receive any actual or constructive compensation or 

benefit for referring to a private-practitioner (including himself) a matter the lawyer first became 

involved with in a military legal assistance capacity. Comment to Army Rule 1.5; see also AR 

27-3, para. 4-7d & d(1). 

a. Does not subsequently prohibit a reserve component lawyer from representing military 

personnel or dependents in a private capacity so long as the representation does not concern 

the “same general matter” that the attorney provided legal assistance on. AR 27-3, para. 4­

7d(2) & (3) “Same general matter” means 

(1) One or more types of cases within any one of the ten categories of legal assistance; 

OR 

(2) Which arises out of the same factual situation or course of events. 

b. Prohibits lawyer from using official position to solicit or obtain clients for private 

practice. 

J. Conflicts of Interest (Army Rules 1.7, 1.8 & 1.9). 

1. Directly adverse to the current client. A lawyer shall not represent a client if the 

representation of the client will be directly adverse to another client unless: 

a. The lawyer reasonably believes the representation will not adversely affect the other 

relationship, and 

b. Each client consents after consultation (Army Rule 1.7(a)). 

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c. If a conflict develops after representation has been undertaken, the attorney must seek to 

withdraw. The Army Rules adopt an objective approach. Relevant factors in determining 

whether multiple representation should be undertaken include: 

(1) duration and intimacy of the lawyer's relationship with the clients involved, 

(2) likelihood actual conflict will arise, and 

(3) likely prejudice to the client if conflict does arise. 

d. Potential conflicts in legal assistance: 

(1) Estate planning. 

(2) Debtor-creditor and seller-purchaser. Compare Atlantic Richfield Co. v. Sybert, 456 

A.2d 20 (1983) (no conflict) with Hill v. Okay Construction Co., 252 N.W. 2d 107 

(1977) (conflict). 

(3) Domestic relations. Coulson v. Coulson, 448 N.E.2d 809 (1983); Ishmael v. 

Millington, 241 Cal. App. 2d 520, 50 Cal. Rptr. 592 (1966). 

e. Potential conflict in criminal practice -- representing multiple accused. 

(1) Ordinarily a lawyer should refuse to act for more than one of several co-defendants 

(Comment to Army Rule 1.7). See Standards for Criminal Justice 4-3.5(b). 

(2) Consult Army Regulation 27-10 and US Army Trial Defense Service Standard 

Operating Procedures before handling a co-accused situation. Generally: 

(a) Co-accused will initially be contacted by separate defense counsel. 

(b) Co-accused may submit request for the same individual military counsel. 

(c) Chief, USATDS decides whether to grant the request. No request will be granted 

unless each co-accused has signed a statement reflecting informed consent to 

multiple representation and it is clearly shown that a conflict of interest is not likely 

to develop. 

2. Representation materially limited. A lawyer is also precluded from representing a client if 

the representation would be materially limited by the lawyer's responsibility to another client, a 

third party, or by the lawyer's own interests (Army Rule 1.7(b)). Example: Defense counsel 

materially limited by loyalty to Army. United States v. Bryant, 35 M.J. 739 (A.C.M.R. 1992). 

a. A possible conflict does not preclude representation. 

b. Representation is permitted if the lawyer reasonably believes that it will not be adversely 

affected by the interest and the client consents after consultation. 

3. Business transactions. A lawyer shall not enter into a business transaction with a client 

(Army Rule 1.8). 

4. Former client. A lawyer who has represented a former client shall not thereafter represent 

another person in the same matter or use information to the disadvantage of a former client (Army 

Rule 1.9). 

K. Imputed Disqualification (Army Rule 1.10). 

1. Lawyers working in the same military law office are not automatically disqualified from 

representing clients with conflicting interests. A functional analysis is required (Army Rule 1.10. 

Compare ABA Model Rule 1.10.) 

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2. Army policy may discourage representation of both parties in certain instances, e.g. AR 27­

3, para. 4-9c. (Representation of both parties in a domestic dispute discouraged). 

V. THE LAWYER AS AN ADVOCATE. 

A. Disclosure of Adverse Legal Authority (Army Rule 3.3). 

1. A lawyer shall not knowingly fail to disclose to the tribunal, legal authority in the controlling 

jurisdiction, known to the lawyer to be directly adverse to the position of the client and not 

disclosed by opposing counsel. 

2. A lawyer should disclose authority from a collateral jurisdiction if the judge "would 

reasonably consider it important to resolving the issue being litigated." (Comment to Army Rule 

3.3). ABA Formal Opinion 280 (1949); ABA Informal Opinion 84-1505 (March 1984). 

B. Disruption of the Tribunal (Army Rule 3.5(c)). 

C. Expressing Personal Opinion at Trial (Army Rule 3.4(e)). 

D. Trial Publicity (Army Rule 3.6). 

1. A lawyer shall not make public statements that will have a substantial likelihood of 

prejudicing a proceeding. See Gentile v. Nevada State Bar, 111 S. Ct. 2720 (1991). 

2. Other publicity considerations. 

a. TJAG Memorandum on Relations with News Media - OSJA attorneys must get approval 

from their SJA before any information is released to the media. 

b. USATDS SOP - Defense counsel must consult with their Regional Defense Counsel and 

the Office of the Chief, TDS, prior to release. The ultimate decision to release information 

rests with the defense counsel, however. 

3. Information that is releasable is listed at Rule 3.6(c). 

E. Ex Parte Discussions with Military Judge and Panel Members (Army Rule 3.5). 

1. A lawyer shall not communicate ex parte with a judge or juror except as permitted by law. 

See United States v. Copening, 34 M.J. 28 (C.M.A. 1992); United States v. Hamilton, 41 M.J. 22 

(C.M.A. 1994). 

2. It is unprofessional conduct for a prosecutor to engage in unauthorized ex parte discussions 

with or submission of material to a judge relating to a particular case that is or may come before 

the judge (Standards for Criminal Justice 3-2.8(c)). 

F. Prosecutorial Disclosure (Army Rule 3.8(d)). 

1. A lawyer prosecuting a criminal case shall make timely disclosure to the defense of all 

evidence or information known to the lawyer that tends to negate the guilt of the accused or 

mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged 

mitigation information known to the lawyer. 

2. This is commonly referred to as “Brady” material and failure to turn it over is a “Brady 

Violation” after the case Brady v. Maryland, 373 U.S. 83 (1963). 

G. Handling Evidence or Contraband (Army Rule 3.4(a)). 

1. If the client informs the lawyer of the existence of the evidence but does not relinquish 

possession. 

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a. Lawyer should inform the client of the lawyer's legal and ethical obligations regarding 

the evidence. 

b. Lawyer should refrain from either taking possession or advising the client what to do 

regarding the evidence. 

2. If the lawyer receives the evidence or contraband. 

a. A lawyer shall not -­

(1) Unlawfully obstruct another party's access to evidence 

(2) Unlawfully alter, destroy or conceal a document or other material having potential 

evidentiary value or 

(3) Assist another person to do so. 

b. A lawyer who receives an item of physical evidence implicating the client in criminal 

conduct shall disclose the location of or shall deliver that item to proper authorities when 

required by law or court order (Comment, Army Rule 3.4(a)). United States v. Rhea, 33 M.J. 

413 (C.M.A. 1991) (defense counsel have a duty to surrender evidence which implicates their 

clients to prosecution). But see also United States v. Province, 45 M.J. 359 (1997) (no duty 

where Government has equal access to evidence). 

c. If a lawyer receives contraband, the lawyer has no legal right to possess it and must 

always surrender it to lawful authorities (Comment, Army Rule 3.4). 

d. If a lawyer receives stolen property, the lawyer must surrender it to the owner or lawful 

authority to avoid violating the law (Comment, Army Rule 3.4). 

e. Concealment, destruction, alteration, etc. could be a violation of UCMJ art. 134, 

Obstruction of Justice. 

3. If the lawyer discloses the location of or delivers an item of physical evidence to proper 

authorities, it should be done in a way designed to protect the client's interests, including ­

a. Client's identity. 

b. Client's words concerning the item. 

c. Client's privilege against self-incrimination. 

d. Other confidential information. 

4. Advice on handling evidence or contraband: 

a. Do not accept the item!! 

b. Advise the client of the consequences of continued possession and voluntary turn-in. Do 

not advise the client of what to do regarding the evidence. Also advise the client of the 

lawyer's obligations regarding the evidence. 

c. If possession cannot be avoided, turn it over to the proper authorities. 

(1) Don't dispose of it or conceal it. 

(2) Don't destroy or alter the evidentiary quality. 

(3) Upon turn-in, refuse to disclose client identity and circumstances of your possession 

to the extent permitted by applicable case law. 

H. Client Perjury (Army Rule 3.3; ABA Formal Opinion 87-353 (1987)). 

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1. A lawyer who knows that his client intends to testify falsely should (must under ABA formal 

opinion): 

a. Advise the client not to do so and explain the consequences of doing so, including the 

lawyer's duty to disclose. 

b. Attempt to withdraw (if the lawyer's efforts to dissuade the client from testifying falsely 

are unsuccessful). 

c. Limit examination to truthful areas. 

d. If not possible, disclose to the tribunal the client's intention to commit perjury. 

e. A lawyer who knows that the client has already testified falsely must: 

(1) Persuade the client to rectify it. 

(2) Disclose the perjury if unsuccessful. 

f. A lawyer "knows" that a client intends to testify falsely if the accused has admitted facts 

to the lawyer which establish guilt and the lawyer's independent investigation establishes that 

the admissions are true, but the accused insists on testifying (Comment, Army Rule 3.3). 

2. United States v. Baker, 65 MJ 691 (C.A.A.F. 2007). Provides additional nonbinding 

guidance on how defense counsel and military trial judges should handle issues of client perjury 

at trial. Counsel should: 

a. Conduct an investigation into all evidence prior to taking any action with regard to the 

alleged perjury. 

b. Ethical obligations only exist if you have a “firm factual basis” to conclude that client has 

committed perjury. 

c. Review potential consequences with client. 

d. Request an on the record ex-parte discussion with the Military Judge to notify the 

military judge that the client will testify in narrative form without benefit of counsel without 

expressing why. 

e. Refrain from using the perjured testimony in any way (i.e. in argument, cross or direct of 

other witnesses.) 

I. Witness Perjury (Army Rule 3.3). 

1. Avoiding the use of perjured testimony. 

a. When evidence that a lawyer knows to be false is provided by a person who is not the 

client, the lawyer must refuse to offer it regardless of the client's wishes (Army Rule 3.3). 

b. "A lawyer may refuse to offer evidence that the lawyer reasonably believes is false." 

(Army Rule 3.3(c)). 

2. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall 

take reasonable remedial measures (Army Rule 3.3(a)(4)). This obligation ends at the conclusion 

of the proceeding. (Comment—Duration of Obligation). 

J. Prosecutorial Conduct. 

1. The duty of the prosecutor is to seek justice, not merely to convict. ABA Standard 3-1.2c. 

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a. A lawyer prosecuting a criminal case shall recommend to the convening authority that 

any charge or specification not warranted by the evidence be withdrawn. Military Rule 

3.8(a). 

b. A prosecutor should not intentionally avoid pursuit of evidence because he believes it 

will damage the prosecution’s case or aid the accused. ABA Standard 3-3.11c. 

c. Trial counsel should report to the convening authority any substantial irregularity in the 

convening orders, charges, or allied papers . . . bring to the attention of the convening 

authority any case in which trial counsel finds trial inadvisable for lack of evidence or other 

reasons (R.C.M. 502(d)(6) (Discussion)). 

2. The use of social media in trial preparation could implicate ethical obligations. Before using 

social media when conducting case investigation, discovery, or trial preparation, attorney’s 

should analyze, at minimum, whether their conduct would violate Rule 1.6 (Confidentiality of 

Information), Rule 4.1 (Truthfulness of Statements to Others), Rule 5.3 (Responsibility 

Regarding Nonlawyer Assistants), or Rule 8.4 (Misconduct). 

a. As of the date of this deskbook, the American Bar Association has not issued a formal 

ethics opinion on trial practitioner’s use of social media, and the Army Rules of Professional 

Conduct fall silent on the issue as well. ABA Formal Opinion 462 provides the ABA’s 

stance on judicial use of social media. 

b. Some state ethics committees have addressed whether attorneys may use social media in 

trial preparation. As a general rule, attorneys may access and review the public portions of a 

party’s social-networking pages without facing repercussions. State ex. Rel. State Farm Fire 

& Cas. Co. v. Madden. Unless your state ethics committee holds differently, attorneys 

should consider information as not “public” if the attorney needs to send a request to a third 

party, like a Facebook “friend request”, in order to access it. 

3. Cross-examination of a truthful witness. ABA Standard 3-5.7. 

a. Fair and objective cross-examination is permitted. 

b. Unnecessary intimidation and humiliation of witness on cross-examination is prohibited. 

c. If the prosecutor believes that the witness is truthful. 

(1) Cross-examination is not precluded. 

(2) But manner and tenor ought to be restricted. 

d. If the prosecutor knows that the witness is truthful, cross-examination may not be used to 

discredit or undermine the truth. 

4. It is unprofessional conduct for a prosecutor knowingly to make false statements or 

representations in the course of plea discussions. ABA Standard 3-4.1c. 

5. A prosecutor may argue to the jury all reasonable inferences from the evidence in the record, 

but it is unprofessional conduct for the prosecutor intentionally to misstate the evidence or 

mislead the jury as to the inferences it may draw. Rule 3.4(e); ABA Standard 3-5.8(a). 

6. It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion 

as to the truth or falsity of any testimony or evidence or the guilt of the defendant. Rule 3.4(e); 

ABA Standard 3-5.8(b).. 

7. Prosecutors should not: 

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a. Make arguments calculated to inflame the passions or prejudices of the jury. ABA 

Standard 3-5.8c. United States v. Diffoot, 54 M.J. 149 (2000). (Comments made by the trial 

counsel during closing argument regarding accused’s ethnicity and urging a conviction based 

on guilt by association amounted to plain error and materially prejudiced appellant's 

substantial rights.) 

b. Make arguments that would divert the jury from its duty to decide the case on the 

evidence. ABA Standard 3-5.8(d). United States v. Baer, 53 M.J. 235 (C.A.A.F. 2000). 

(The CAAF held that golden rule arguments asking the members to put themselves in the 

victim’s place are improper and impermissible in the military justice system. However, they 

did recognize the validity of an argument asking the members to imagine the victim’s fear, 

pain, terror and anguish. When improper argument is made, it must be looked at in context to 

determine whether it substantially impacted on the right of the accused to a fair and impartial 

trial. The CAAF held no such impact here and affirmed the case.) 

c. Ask the defendant during cross-examination to comment on the truthfulness of other 

witnesses. United States v. Harrison, 585 F.3d 1155 (9th Cir. 2009) (where the SAUSA 

asked the defendant to comment on the truthfulness of the MP’s he allegedly assaulted.) 

8. Threaten Criminal Prosecution 

a. Under ABA Code DR 7-105, lawyers could not present, participate in presenting, or 

threaten to present criminal charges "solely to gain an advantage in a civil matter." See Iowa 

State Bar v. Michelson, 345 N.W.2d 112 (Iowa 1984); TJAG Opinions, The Army Lawyer, 

March 1993 and May 1977. See also United States v. Edmond, 63 M.J. 343 (C.A.A.F. 2006) 

where a trial counsel threatened a civilian witness (former Soldier) with prosecution by the 

SAUSA if he testified and then had the SAUSA reiterate the threat of prosecution. 

b. There is no parallel provision in the Army Rules (or ABA Model Rules). Threatening or 

filing criminal charges may, however, violate more narrow provisions of Rules 3.1, 3.3, 3.4, 

3.5, 3.8, 4.4, 8.4(b), or 8.4(e). 

9. Prosecutors may refer to or argue facts outside the record only if the facts are matters of 

common public knowledge based on ordinary human experience. ABA Standard 3-5.9. 

10. Vindictive Prosecution. To support a claim of vindictive prosecution, one must show that (1) 

“others similarly situated” were not charged; (2) “he has been singled out for prosecution”; and 

(3) “his ‘selection . . . for prosecution’ was ‘invidious or in bad faith, i.e., based on such 

impermissible considerations such as race, religion, or the desire to prevent his exercise of 

constitutional rights.’” Failure to show any of the three prongs of the test must result in the failure 

of a claim of vindictive prosecution. Because the burden to establish a claim of vindictive 

prosecution falls on the moving party, challenging a case on grounds of vindictive prosecution 

can be difficult. See Unites States v. Martinez, 2009 WL 1508451 (A.F. Ct. Crim. App. 2009). 

Air Force Captain alleged that he had “identified problems with operating procedures, equipment 

and standard of care,” which he claimed irritated the SJA, convening authority, the Article 32 IO, 

the judge, TC, DC, “and a myriad of others.” 

K. Lawyer as a Witness (Army Rule 3.7). 

1. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary 

witness except where: 

a. The testimony relates to an uncontested issue; 

b. The testimony relates to the nature and quality of legal services rendered in the case; or 

c. Disqualification of the lawyer would work a substantial hardship on the client. 

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2. Unless the lawyer for the accused is prepared to forego impeachment of a witness by the 

lawyer's own testimony as to what the witness stated in an interview or to seek leave to withdraw 

from the case in order to present such impeaching testimony, the lawyer should avoid 

interviewing a prospective witness except in the presence of a third person. Standards for 

Criminal Justice 4-4.3(d). 

VI. OBLIGATIONS TO THIRD PARTIES. 

A. Truthfulness in Statements to Others. 

1. A lawyer shall not make a false statement of law or fact to third parties (Army Rule 4.1(a)). 

a. Knowledge of falsity generally required. 

b. Misrepresentations can occur if a lawyer affirms a false statement of another person. 

2. A lawyer may not fail to disclose a material fact when disclosure is necessary to avoid 

assisting a criminal or fraudulent act, unless disclosure is prohibited by Rule 1.6 (Army Rule 

4.1(b)). 

3. A lawyer also has an obligation to disclose prior misstatements. 

B. Respect for the Rights of Third Parties (Army Rule 4.4). 

1. A lawyer shall not use means that have no substantial purpose other than to embarrass, delay, 

or burden a third party or use methods of obtaining evidence that violate the rights of third parties 

(Army Rule 4.4). 

2. Other obligations to third parties: 

a. A lawyer has a duty of candor when dealing with third parties. People v Berge, 620 P.2d 

23 (Colo. 1980). 

b. A lawyer is forbidden from engaging in illegal, dishonest, and fraudulent conduct. Office 

of Disciplinary Counsel v Kissel, 442 A.2d 217 (Pa. 1982). 

c. Lawyers must not make derogatory remarks about opposing counsel or opposing parties. 

Professional Responsibility, The Army Lawyer (Sept. 1978) ("lowly, dishonest, welsher"). 

See also State v Turner, 538 P.2d 966 (Kan. 1975). 

C. Communications with Opposing Parties. 

1. A lawyer shall not discuss a case with another party who is represented by an attorney (Army 

Rule 4.2). See also ABA Code DR 7-104. 

a. A lawyer may not accomplish communication indirectly through an agent or encourage 

clients to contact opposing parties. (Trial counsel, following on the heels of military defense 

counsel, barged into a meeting between civilian defense counsel and accused. Trial counsel 

proceeded to tell the accused that his civilian lawyer had not interviewed witnesses and was 

ineffective. This was inappropriate contact with the accused. United States v. Meek, 44 M.J. 

1 (C.A.A.F. 1996).) 

b. Communication with a party concerning matters outside the representation is permissible. 

c. A lawyer may communicate with the commander of an opposing party even if the party is 

represented by counsel. 

2. A lawyer is not precluded from communicating with an unrepresented party (Army Rule 4.3). 

a. Lawyers may not state or imply that they are disinterested. 

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b. Lawyers should refrain from giving advice to unrepresented persons (Comment to Army 

Rule 4.3). See also ABA Code DR 7-104(A)(2). 

D. Threatening Criminal Prosecution. 

1. Under ABA Code DR 7-105, lawyers could not present, participate in presenting, or threaten 

to present criminal charges "solely to gain an advantage in a civil matter." See Iowa State Bar v. 

Michelson, 345 N.W.2d 112 (Iowa 1984); TJAG Opinions, The Army Lawyer, March 1993 and 

May 1977. See also United States v. Edmond, 63 M.J. 343 (C.A.A.F. 2006) where a trial counsel 

threatened a civilian witness (former Soldier) with prosecution by the SAUSA if he testified and 

then had the SAUSA reiterate the threat of prosecution. 

2. There is no parallel provision in the Army Rules (or ABA Model Rules). Threatening or 

filing criminal charges may, however, violate more narrow provisions of Rules 3.1, 3.3, 3.4, 3.5, 

3.8, 4.4, 8.4(b), or 8.4(e). 

3. Practical application. 

a. Attorneys should exercise caution when writing to collect support payments or debts on 

behalf of clients. See Iowa State Bar v. Michelson, 345 N.W.2d 112 (Iowa 1984); OTJAG 

Ethics Opinions, The Army Lawyer, March 1993, September 1978, and May 1977. 

b. Complaints to the opposing party's commander are permissible. 

c. Lawyers should avoid making threats of initiating criminal charges. A lawyer may not 

circumvent this rule by encouraging clients to make threats. In re Charles, 618 P.2d 1281 

(1980). 

d. Neutral statements of fact concerning criminal penalties are permissible. See TJAG 

Professional Responsibility Opinion 89-01. (Found on JAGCNET under Administrative and 

Civil Law, then click on “Ethics: Attorney Professional Responsibility,” click "By 

Category." One of the categories is "Ethics Opinions: TJAG's PRC." 

https://www.jagcnet2.army.mil/85256762006321e7) 

VII. DUTIES OF SUBORDINATES AND SUPERVISORS. 

A. Responsibilities of Supervisory Attorneys (Army Rule 5.1). 

1. Supervisors must make reasonable efforts to ensure subordinates comply with Rules (Army 

Rule 5.1). Includes nonlawyers under supervision (Army Rule 5.3). 

2. A supervisor assumes imputed responsibility for acts of subordinates if: 

a. The lawyer orders or ratifies a subordinate's violation, or 

b. The lawyer knows of and fails to take remedial action to avoid or mitigate the 

consequences of a violation. 

B. Responsibilities of Subordinate Attorneys (Army Rule 5.2). 

1. A subordinate is bound by the Rules of Professional Conduct even if he or she acts at the 

direction of another. 

2. Subordinate attorneys may rely on ethical judgment of a supervisor if the issue is subject to 

question. If the ethical question can be answered only one way, the subordinate must comply 

with the Rules. 

VIII. PROFESSIONAL RESPONSIBILITY COMPLAINTS. 

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A. Professional Misconduct (Army Rule 8.4). 

1. It is professional misconduct for a lawyer to violate or attempt to violate these rules, to do so 

through the acts of others, or to knowingly assist another in violating the rules. 

2. A lawyer is professionally answerable for criminal acts that indicate lack of a characteristic 

relevant to the practice of law. Examples include offenses involving violence, dishonesty, breach 

of trust, or interference with justice. 

3. A lawyer also commits professional misconduct by engaging in conduct (even if not criminal) 

involving dishonesty, fraud, deceit, or misrepresentation, or that is prejudicial to the 

administration of justice. 

B. Professional misconduct distinguished from personal misconduct. 

1. Cases normally in the scope of AR 27-1. 

a. Dishonesty – false claims, shoplifting, obtaining false official orders, firearms violations, 

stalking, or illegal surveillance. 

b. Sexual misconduct – Bigamy, sexual relationships involving a conflict of interest, sexual 

crimes. 

c. Insulting Behavior – Mismanaging by uttering insulting ethnic or sexual comments, 

displaying offensive visual material or by inappropriate touching of subordinates, clients, 

witnesses, or staff workers. 

d. Dealing with Subordinates – Mismanaging by having personal business transactions with 

subordinates or imposing on subordinates for personal favors. 

2. Cases normally not in scope of AR 27-1. 

a. Discretionary Administrative Action – OERs, NCOERs, award recommendations, pass, 

or leave actions. 

b. Personal misconduct or questionable sexual activity (including adultery) unless it 

involves mismanagement or is a criminal act that reflects on fitness to practice law (i.e. 

having sex with a married client). 

c. DWIs or minor traffic offenses. 

d. Insulting Behavior – rudeness and name-calling unless directed toward judges or 

investigating officers or as listed in C.1.c., above. 

e. Conduct is being investigated as criminal misconduct, punishable under the UCMJ. 

C. Reporting Misconduct (Army Rule 8.3). 

1. A lawyer with knowledge of a violation of a Rule of Professional Conduct that raises a 

substantial question as to the lawyer's honesty, trustworthiness, or fitness as a lawyer, must report 

the violation. 

2. Minor or inadvertent violations need not be reported. 

3. Disclosure of information protected under Rule 1.6 is not required. 

4. There is no requirement to confront a violator. 

5. Army system implemented in AR 27-1. 

a. Allegations are reviewed by several supervisory JAs up to and including DJAG before a 

formal preliminary screening inquiry (PSI) is ordered. 

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b. Increased due process protections for the accused attorney. 

c. Designed to protect the interests of both the Army and the attorney. 

d. OTJAG determines whether to report violation to state bar. 

D. Self-Reporting Requirement (AR 27-1). 

1. AR 27-1, para 7-10a. A JA is required to self-report to OTJAG (Professional Responsibility 

Branch) when he or she is first notified that he or she is being investigated by his or her licensing 

authority under circumstances that could result in being disciplined as an attorney or a judge. 

2. If a JA claimed they had never been notified as his or her defense for not self-reporting, 

TJAG could still, at his discretion, decide that he has lost faith and trust in the JA and could then 

discipline the JA IAW his authority under Art 27(b) and RCM 109(a) of the UCMJ and under 10 

USC 3037. 

E. Advisory Opinions (AR 27-1, para. 7-7). 

1. Requests should be forwarded through technical channels to the Executive, OTJAG. 

2. Opinions will be rendered only for important issues of general applicability to the JAG Corps. 

F. Determining Ineffective Assistance of Counsel (IAC). 

1. The Supreme Court has recognized that simply providing counsel is insufficient to meet the 

burden imposed by the Sixth Amendment of the U.S. Constitution. “That a person who happens 

to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the 

constitutional command. An accused is entitled to be assisted by an attorney... who plays the 

role necessary to ensure that the trial is fair.” Strickland v. Washington, 466 U.S. 668, 685 

(1984). 

2. The test for determining whether counsel’s conduct has fallen below the acceptable line is 

measured in a two-part test. First, the court evaluates whether counsel’s performance was 

deficient compared to what is expected of reasonably competent counsel, without the benefit of 

hindsight and using the standards in place at the time. Second, the court examines whether 

appellant was harmed by the deficiency, assuming there was one. If either prong of the test fails, 

then the court will not find IAC. 

3. In Harrington v. Richter, 562 U.S. 86 (2011), and Premo v. Moore, 562 U.S. 115 (2011), the 

Supreme Court used this analysis in examining whether defense counsel was deficient for not 

calling a blood spatter expert or failing to attempt to suppress an admission before entering into a 

guilty plea. 

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[Back to Table of Contents] 

CHAPTER 5
 

NONJUDICIAL PUNISHMENT
 

I. References 

II. Introduction 

III. Authority to Impose Nonjudicial Punishment 

IV. Who Can Receive Nonjudicial Punishment 

V. How to Decide What Offenses Are Appropriate for NJP 

VI. Types of Article 15s and Punishments 

VII. Notice Requirements (The “First Reading”) 

VIII. Soldier’s Rights 

IX. Hearing 

X. Clemency 

XI. Filing 

XII. Appeals 

XIII. Publicizing Article 15s 

XIV. Supplementary Action 

XV. The Relationship between Article 15s and Courts-Martial 

XVI. Advocacy Points 

I. REFERENCES 

A. UCMJ art. 15. 

B. Manual for Courts-Martial, United States pt. V (2016) [hereinafter MCM]. 

C. U.S. Dep't of Army, Reg. 27-10, Legal Services: Military Justice chs. 3, 4, 21 (11 May 2016) 

[hereinafter AR 27-10]. 

II. INTRODUCTION 

A. Purpose. Nonjudicial punishment (NJP) provides commanders with a prompt means of 

maintaining good order and discipline and promotes positive behavior changes in servicemembers 

without the stigma of a court-martial. MCM pt. V, para. 1c. 

B. Proceedings under Art. 15 are not criminal prosecutions. United States v. Mack, 9 M.J. 300, 312 

(C.M.A. 1980); Cf. Middendorf v. Henry, 96 S.Ct. 1281 (1976) 

C. For samples of the forms used in the Army (DA Form 2627) and how to properly complete them, 

see AR 27-10, current version. 

III. AUTHORITY TO IMPOSE NONJUDICIAL PUNISHMENT 

A. Who may impose? 

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1.	 Commanders. 

a) “Commanders” are commissioned or warrant officers who exercise primary command 

authority over an organization; is the person looked to by superior authorities as the 

individual chiefly responsible for maintaining discipline in the organization. AR 27-10, para. 

3-7a. 

b) Can include detachment commanders and commanders of provisional units. Whether an 

officer is a commander is determined by the duties he or she performs, not necessarily by the 

title of the position occupied. AR 27-10, para. 3-7a. 

2.	 Joint Commanders. See AR 27-10, para. 3-7b. 

B.	 Can Article 15 authority be delegated? AR 27-10, para. 3-7c. 

1.	 Article 15 authority may not be delegated. 

2. Exception: General court-martial convening authorities and commanding generals can 

delegate Article 15 authority to a deputy or assistant commander or to chief of staff (if general 

officer or frocked to general officer rank). Delegation must be written. 

C.	 Can Article 15 Authority Be Limited? Yes. 

1.	 Permissible limitations. AR 27-10, para. 3-4c & 3-7d. 

a) Superior commander may totally withhold. 

b) Superior commander may partially withhold (e.g., over categories of personnel, offenses, 

or individual cases). 

(1) No requirement that limitations be written but probably a good idea (e.g., write a 

memorandum or publish in post regulation). 

2.	 Impermissible limitations. MCM pt. V, para. 1d(2); AR 27-10, para. 3-4b. 

a) Superior commander cannot direct a subordinate commander to impose an Article 15. 

b) Superior commander cannot issue regulations, orders, or “guides” that either directly or 

indirectly suggest to subordinate commanders that -­

(1) Certain categories of offenders or offenses are to be disposed of under Article 15. 

(2) Predetermined kinds or amounts of punishment are to be imposed for certain 

categories of offenders or offenses. 

IV. WHO CAN RECEIVE NONJUDICIAL PUNISHMENT 

A.	 Military Personnel of a Commander's Command. AR 27-10, para. 3-8. 

1.	 Assigned. 

2.	 Affiliated, attached, or detailed. 

3.	 The “Beans and Bullets” Rule. AR 27-10, para. 3-8a(3)(b). 

B.	 Personnel of Other Armed Forces (services). AR 27-10, para. 3-8c. 

1. An Army commander is not prohibited from imposing NJP on members of his or her 

command that are from other services. However, if an Army commander imposes NJP on 

members of another service, he or she may only do so under the circumstances and procedures 

outlined for imposing NJP prescribed by that member’s parent service. 

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V. HOW TO DECIDE WHAT OFFENSES ARE APPROPRIATE FOR NJP 

A. Relationship to administrative corrective measures. 

1. NJP should be used when administrative corrective measures (for example, denial of pass 

privileges, counseling, extra training, administrative reductions in grade, administrative 

reprimands) are inadequate due to the nature of the minor offense or because of the 

servicemember’s service record. MCM pt. V, para. 1d(1). 

2. NJP is generally used to address intentional disregard of or failure to comply with standards 

of military conduct, while administrative corrective measures generally are used to address 

misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, 

sloppy habits, and similar deficiencies. AR 27-10, para. 3-3a. 

3. Commanders and supervisors need to ensure that extra training does not become extra duty 

(punishment) that was given without following NJP procedures. Extra training must relate 

directly to the deficiency observed and must be oriented to correct that particular deficiency, 

although extra training can occur after duty hours. AR 27-10, para. 3-3. 

B. NJP may be imposed for minor offenses. MCM pt. V, para. 1e; AR 27-10, para. 3-9. 

1. Whether an offense is minor depends on several factors: 

a) The nature of the offense and the circumstances surrounding its commission; 

b) The offender’s age, rank, duty assignment, record and experience; 

c) The maximum sentence imposable for the offense if tried by a general court-martial. 

2. A minor offense is one that does not authorize the imposition of a dishonorable discharge or 

confinement in excess of one year if tried at a general court-martial. MCM pt. V, para. 1e. 

However, the maximum punishment authorized for an offense is not controlling. United States v. 

Pate, 54 M.J. 501, 506 (Army Ct. Crim. App. 2000). 

3. Determining what is a minor offense versus a major offense is within the discretion of the 

imposing commander. MCM pt. V, para. 1e. 

C. Limitations. 

1. Double punishment prohibited. 

a) Once Article 15 punishment is imposed, cannot impose another Article 15 for same 

offense or substantially same misconduct. MCM pt. V, para. 1f(1); AR 27-10, para. 3-10. 

However, punishment imposed for a non-minor offense is NOT “a bar to trial by courtmartial for the same offense.” MCM pt. V, para. 1e, AR 27-10, para. 3-10. 

b) Commanders need to bring all known offenses that are determined to be appropriate for 

disposition by NJP and that are ready to be considered at that time. This includes all offenses 

arising from a single incident or course of conduct. MCM pt. V, para. 1f(3); AR 27-10, para. 

3-10. 

2. Statute of limitations. Except as provided Art. 43(d), UCMJ, NJP may not be used for 

offenses which were committed more than 2 years before the date of imposition. MCM pt. V, 

para. 1f(4); AR 27-10, para. 3-12. 

3. Civilian courts. NJP may not be used for an offense that has been tried by a federal court. 

NJP may not be used for an offense that has been tried by a state court unless AR 27-10, ch. 4 has 

been complied with. MCM pt. V, para. 1f(5). 

4. NJP should not be used when it is clear that only a court-martial will meet the needs of justice 

and discipline. MCM pt. V, para. 1d(1). 

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D. Preliminary inquiry. 

1. Commanders need to conduct a preliminary inquiry under R.C.M. 303. 

2. The inquiry can be informal and can be conducted personally or with someone else in the 

command. The person conducting the inquiry should gather all reasonably available evidence 

related to guilt or innocence, aggravation, and extenuation and mitigation. R.C.M. 303 

discussion. 

3. The inquiry should cover whether an offense was committed; whether the Soldier was 

involved; and the character and military record of the accused. AR 27-10, para. 3-14. However, 

note that the FY14 NDAA removed character and military service from the matters a commander 

can consider in deciding initial disposition. National Defense Authorization Act of 2014; 

Executive Order 13669. 

E. Decision to impose NJP. 

1. Having conducted an investigation and considering the above, the commander should decide 

whether to impose NJP by considering: 

a) The nature of the offense; 

b) The record of the servicemember; 

c) The needs for good order and discipline; 

d) The effect of NJP on the servicemember and the servicemember’s record. MCM pt. V, 

para. 1d(1). 

2. The commander needs to determine that the Soldier probably committed the offense and that 

NJP procedure is appropriate. AR 27-10, para. 3-14. 

3. NJP should be conducted at the lowest level of command commensurate with the needs of 

discipline. AR 27-10, para. 3-5a. 

4. If the commander believes that his or her authority is insufficient to impose proper NJP, then 

he or she should send the case to a superior using DA Form 5109. AR 27-10, para. 3-5. 

5. A superior commander may also return a case to a subordinate commander for appropriate 

disposition. AR 27-10, para. 3-4c. 

VI. TYPES OF ARTICLE 15S AND PUNISHMENTS 

A. Summarized Article 15. AR 27-10, para. 3-16. 

1. Only available for enlisted servicemembers. 

2. Punishment cannot exceed 14 days extra duty, 14 days restriction, oral admonition or 

reprimand, or any combination thereof. 

3. Can be imposed by company or field grade officers. 

4. Recorded on DA Form 2627-1. 

B. Formal Article 15. AR 27-10, para. 3-17. 

1. Appropriate if: 

a) Soldier is an officer, or 

b) Punishment (for any soldier) might exceed 14 days extra duty, 14 days restriction, oral 

admonition or reprimand, or any combination thereof. 

2. Classified as company grade Article 15s, field grade Article 15s, and general officer Article 

15s. Technically, “general officer Article 15s” are intended only for officers (general officers can 

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impose greater punishments on officers than other commanders can). General officers can 

impose Article 15s on enlisted personnel, too, but the available punishments are the same as those 

available to field grade officers. 

3. Recorded on DA Form 2627. 

C. The maximum available punishment is based on rank of imposing commander (company grade, 

field grade, or for officer offenders, general officer) and the rank of the soldier receiving the 

punishment. AR 27-10, para. 3-19, tbl. 3-1. Usually, commanding generals withhold authority over 

officer misconduct using the local AR 27-10. Company grade or field grade NJP over another officer 

is very rare. 

ENLISTED PUNISHMENTS 

Summarized 

14 days extra duty 

14 days restriction 

Oral reprimand/ 

admonition 

Company Grade 

Written 

reprimand/admonition 

30 days restriction 

D. Reduction in grade. 

Company Grade 

14 days extra duty 

14 days restriction 

7 days correctional 

custody (E1-E3) 

1 grade reduction (E1­

E4) 

7 days’ forfeiture 

Oral reprimand/ 

admonition 

OFFICER PUNISHMENTS 

Field Grade 

Written 

reprimand/admonition 

30 days restriction 

Field Grade 

45 days extra duty 

60 days restriction (45, 

if with extra duty) 

30 days correctional 

custody (E1-E3) 

1 or more grade 

reduction (E1-E4) 

1 grade reduction (E5­

E6) 

Forfeiture of 1⁄2 of 1 

month’s pay for 2 

months 

Oral/written reprimand/ 

admonition 

General Officer 

Written 

reprimand/admonition 

60 days restriction, or 

30 days arrest in 

quarters 

Forfeiture of 1⁄2 of 1 

month’s pay for 2 

months 

1. In general, a commander who can promote to a certain grade can also reduce from that grade. 

2. Officers and enlisted soldiers above the grade of E-6 cannot be reduced at an Article 15. 

E. Forfeiture of pay. 

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1. Forfeitures are based on grade to which reduced, whether or not reduction is suspended. 

2. Forfeitures may be applied against a soldier's retired pay. AR 27-10, para. 3-19b(7)(b). 

F. Admonition and reprimand. 

1. Officers admonitions and reprimands must be in writing. Enlisted admonitions and 

reprimands can be oral or in writing. MCM pt. V, para. 5c(1); AR 27-10, para. 3-19b(9)(d). 

2. Admonitions and reprimands imposed under NJP should state clearly that they were imposed 

as punishment under Art. 15. This is to contrast them with admonitions and reprimands given as 

an administrative matter, which have different procedures. See AR 600-37. 

3. Written admonitions and reprimands are prepared in memorandum format and attached to the 

DA Form 2627. AR 27-10, para. 3-19b(9)(d). 

G. Combination of punishments. AR 27-10, para. 3-19b(8) 

1. Commanders can combine punishments. 

2. No two or more punishments involving the deprivation of liberty may be combined to run 

either consecutively or concurrently, except that restriction and extra duty may be combined but 

not to run for a period in excess of the maximum duration allowed for extra duty. 

3. For officers, arrest in quarters may not be imposed in combination with restriction. MCM pt. 

V, para. 5d(1). 

H. Punishment generally begins on the day imposed. AR 27-10, para. 3-21. Unsuspended 

punishments of reduction and forfeiture take effect on the day imposed. Commanders can delay other 

punishments for up to 30 days for legitimate reasons (quarters, TDY, brief field problem). However, 

once commenced, deprivation of liberty punishments will run continuously unless the Soldier is at 

fault or is incapacitated (cannot pause deprivation of liberty once it has commenced because of a field 

problem). AR 27-10, para. 3-19b(8). 

VII. NOTICE REQUIREMENTS (THE “FIRST READING”) 

A. Soldier must be notified of the following (AR 27-10, paras. 3-16b and 3-18): 

1. Commander's intention to dispose of the matter under Article 15. 

2. Offense suspected of. 

3. Maximum punishment that the commander could impose under Article 15. 

4. Soldier's rights under Article 15. 

B. Delegating the notice responsibility. AR 27-10, para. 3-18a. 

1. Commander may delegate the notice responsibility to any subordinate who is a SFC or above 

(if senior to soldier being notified). The commander still needs to personally sign the DA Form 

2627 or 2627-1. 

2. Good way to involve first sergeant or command sergeant major. 

C. For a script that can be used during the first reading, see AR 27-10, app. B. 

VIII. SOLDIER’S RIGHTS 

A. Formal. AR 27-10, para. 3-18. 

1. A copy of DA Form 2627 with items 1 and 2 completed so defense counsel may review and 

properly advise soldier. 

2. Reasonable decision period and to consult with counsel (usually 48 hours). 

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a) Determined by the complexity of the case and the availability of counsel. 

b) Soldier can request a delay, the commander can grant for good cause. 

3. Right to remain silent. 

4. Demand trial by court-martial (unless attached to or embarked on a vessel). 

5. Request an open or closed hearing. AR 27-10, para. 3-18(g)(2). 

a) Ordinarily, hearings are open. An open hearing usually takes place in the commander’s 

office with the public allowed to attend. 

b) The commander should consider all facts and circumstances when deciding whether the 

hearing will be open or closed. 

6. Request a spokesperson. 

a) Need not be a lawyer. 

b) Soldier may retain a lawyer at own expense. 

7. Examine available evidence. 

8. Present evidence and call witnesses. AR 27-10, para. 3-18i. 

a) The commander determines if the witness is reasonably available, considering that 

witness and transportation fees are not available 

b) Reasonably available witnesses will ordinarily only be those at the installation concerned. 

9. Appeal. 

B. Summarized 

1. Reasonable decision period (normally 24 hours). 

2. Demand trial by court-martial. 

3. Remain silent. 

4. Hearing. 

5. Present matters in defense, extenuation, and mitigation. 

6. Confront witnesses. 

7. Appeal. 

IX. HEARING 

A. The hearing is non-adversarial. AR 27-10, para. 3-18g(2). Neither the Soldier nor spokesperson 

(or retained lawyer) may examine or cross-examine witnesses unless allowed by the commander; 

however, the Soldier or spokesperson or lawyer can indicate to the imposing commander the relevant 

issues or questions that they would like to be explored or asked. 

B. In the commander's presence unless extraordinary circumstances. AR 27-10, para. 3-18(g)(1). 

C. Rules of evidence. MCM, pt. V, para. 4c(3); AR 27-10, para. 3-18j. 

1. Commander is not bound by the formal rules of evidence, except for the rules pertaining to 

privileges. 

2. May consider any matter the commander believes relevant (including, e.g. unsworn 

statements and hearsay). 

3. But beware that if the Soldier turns down the Art. 15, the Military Rules of Evidence will 

apply at a court-martial. 

D. Proof beyond a reasonable doubt required. AR 27-10, para. 3-18l. 

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X. CLEMENCY 

A. The imposing commander, a successor in command, or the next superior authority may grant 

clemency. AR 27-10, para. 3-23. 

B. Suspension. AR 27-10, para. 3-24. 

1. The execution of a punishment of reduction or forfeiture may be suspended for no more than 

four months. Other punishments may be suspended for no more than six months. For summary 

Art. 15s, suspensions are for no more than three months. 

2. Automatically remitted if no misconduct during the suspension period. 

3. Vacation. 

a) If the Solder violates a punitive article of the UCMJ (or other stated condition) during the 

suspension period, the commander may vacate the suspension. 

b) If the vacation involves a condition on liberty, reduction in rank, or forfeiture of pay, the 

commander should hold a hearing as outlined in AR 27-10, para. 3-25. For the vacation of 

other punishments, the Soldier should be given notice and an opportunity to respond. If the 

Soldier is absent without leave when the commander proposes vacation, special rules apply. 

c) The conduct that led to the vacation can serve as a separate basis for a new NJP action. 

d) No appeal is authorized from the vacation of a suspended sentence. AR 27-10, para. 3­

29b. 

C. Mitigation. The commander can reduce the quantity or quality of the punishment. AR 27-10, 

para. 3-26. 

D. Remission. The commander can cancel any portion of the unexecuted punishment. AR 27-10, 

para. 3-27. 

E. Setting aside and restoration. AR 27-10, para. 3-28 

1. Commanders can set aside any part or amount of a punishment, whether executed or 

unexecuted, and restore whatever rights, privileges or property that was affected are restored. 

2. Should only be done when there was “clear injustice,” or an unwaived legal or factual error 

that clearly and affirmatively injured the substantial rights of the Soldier. 

3. Should generally occur within four months from the date that punishment was imposed. 

XI. FILING 

A. Summarized Article 15. AR 27-10, para. 3-16f. 

1. DA Form 2627-1 filed locally. 

2. Destroyed two years after imposition or upon transfer from the unit. 

B. Formal Article 15. AR 27-10, paras. 3-6, 3-37. 

1. Specialist/Corporal (E-4) and below. 

a) Original DA Form 2627 filed locally in unit nonjudicial punishment or unit personnel 

files, unless the Soldier has been found guilty of a sex-related offense, in which case, the 

document must be filed in the performance folder in the Soldier’s OMPF. 

b) Locally filed DA Form 2627 shall be destroyed two years after imposition or upon 

transfer to another general court-martial convening authority. 

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2. All other soldiers. 

a) Performance fiche or restricted fiche of OMPF. 

(1) Any record of nonjudicial punishment which includes a finding of guilty for having 

committed a sex-related offense will be filed as a sex-related offense in the performance 

folder of the Soldier’s OMPF. 

(2) Performance section is routinely used by career managers and selection boards for 

the purpose of assignment, promotion, and schooling selection. 

(3) Restricted section contains information not normally viewed by career managers or 

selection boards. 

b) A commander’s decision where to file is as important as the decision relating to the 

imposition of NJP itself. AR 27-10, para. 3-6a. Commanders should consider: 

(1) Interests of the Soldier’s career. 

(2) Soldier’s age, grade, total service, whether Soldier has prior NJP, recent 

performance. 

(3) Army’s interest in advancing only the most qualified personnel for positions of 

leadership, trust, and responsibility. 

(4) Whether the conduct reflects unmitigated moral turpitude or lack of integrity, 

patterns of misconduct, evidence of serious character deficiency, or substantial breach of 

military discipline. 

c) Imposing commander’s filing decision is subject to review by superior authority. 

d) Records directed for filing in the restricted fiche will be redirected to the performance 

fiche if the soldier already has an Article 15 received while he was a sergeant (E-5) or above, 

filed in his restricted fiche. AR 27-10, para. 3-6b. 

e) Superior commander cannot withhold subordinate commander's filing determination 

authority. 

XII. APPEALS 

A. Soldier only has right to one appeal under Article 15. AR 27-10, para. 3-29. 

B. Time limits to appeal. 

1. Reasonable time. 

2. After five calendar days, appeal presumed untimely and may be rejected. 

C. Who acts on an appeal? AR 27-10, para. 3-30. 

1. Successor in command or imposing commander can take action on appeal, and if he or she 

resolves the issue, may not have to forward. 

2. The next superior commander generally handles the appeal. 

3. Should act on appeal within five calendar days (three calendar days for summarized 

proceedings). While the punishment generally runs during the appeals period, if the command 

takes longer than the designated period, and the Soldier requests, the punishments involving 

deprivation of liberty will be interrupted until the appeal is completed. AR 27-10, para. 3-21b. 

D. Procedure for submitting appeal. 

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1.	 Submission of additional matters optional. 

2.	 Submitted through imposing commander. 

E.	 Action by appellate authority. 

1.	 May conduct independent inquiry. May take appellate action even if soldier does not appeal. 

2.	 Legal review. AR 27-10, para. 3-34. 

a) Must refer certain appeals to the SJA office for a legal review before taking appellate 

action. UCMJ art. 15(e); DA Form 2627, note 9 (on reverse of form). 

(1) Reduction in one or more pay grades from E4 or higher, or 

(2) More than 7 days arrest in quarters, 7 days correctional custody, 7 days forfeiture of 

pay, or 14 days of either extra duty or restriction 

b) May refer an Article 15 for legal review in any case, regardless of punishment imposed. 

c) Review is typically done by the trial counsel. 

(1) Must review the appropriateness of the punishment and whether the proceedings 

were conducted under law and regulations. 

(2) Not limited to the written matters in the record; may make additional inquiries. 

3. Matters considered. May consider the record of the proceedings, any matters submitted by 

the servicemember, any matters considered during the legal review, and any other appropriate 

matters. MCM pt. V, para. 7f. The rules do not require that the servicemember be given notice 

and an opportunity to respond to any additional matters considered. 

4.	 Options. AR 27-10, paras. 3-23 through 3-33.
 

a) Approve punishment.
 

b) Suspend. 

c) Mitigate.
 

d) Remit.
 

e) Set Aside. 

F. Petition to the Department of the Army Suitability Evaluation Board (DASEB). AR 27-10, para. 

3-43; AR 600-37. 

1. Sergeants (E-5) and above may petition to have DA Form 2627 transferred from the 

performance to the restricted fiche. 

2. Soldier must present evidence that the Article 15 has served its purpose and transfer would be 

in the best interest of the Army. 

3.	 Soldiers can petition for removal of the Article 15. AR 600-37, ch. 7. 

4.	 Petition normally not considered until at least one year after imposition of punishment. 

XIII. PUBLICIZING ARTICLE 15S 

A. Permissible, but must delete social security number of the soldier and relevant privacy 

information. AR 27-10, para. 3-22. 

B. Timing. At next unit formation after punishment is imposed, or, if appealed, after the decision on 

appeal. Can post on the unit bulletin board. 

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C. Commander considerations. Avoid inconsistent or arbitrary policy. Before publishing the 

punishments of sergeants and above, consider: 

1. The nature of the offense. 

2. The individual’s military record and duty position. 

3. The deterrent effect. 

4. The impact on unit morale or mission. 

5. The impact on the victim. 

6. The impact on the leadership effectiveness of the individual concerned. 

XIV. SUPPLEMENTARY ACTION 

A. Any action taken by an appropriate authority to suspend, vacate, mitigate, remit, or set aside a 

punishment under formal Art. 15 proceedings after action has been taken on an appeal or the DA 

Form 2627 has been distributed to agencies outside the unit (personnel, finance) must be recorded on 

a DA Form 2627-2. AR 27-10, para. 3-38. 

XV. THE RELATIONSHIP BETWEEN ARTICLE 15 AND COURTSMARTIAL 

A. Double jeopardy. 

1. Absent bad faith by the government, Soldiers can be court-martialed for a serious offense that 

has been the subject of NJP. Art. 15(f), UCMJ; United States v. Pierce, 27 M.J. 367 (C.M.A. 

1989). See also R.C.M. 907(b)(2)(D)(iv); AR 27-10, para. 3-10. 

2. The defense can move to dismiss specifications for minor offenses if the accused was 

previously punished under Article 15 for that offense. R.C.M. 907(b)(2)(D)(iv). 

a) When an Article 15 involves several offenses, if one of the offenses is a major offense, 

then the whole incident could be considered major offense and it might not be error to fail to 

dismiss the other minor offenses. If at trial, the court acquits on the major offense and all that 

is left are minor offenses, then the findings should not be approved. United States v. Bond, 

69 M.J. 701 (C.G. Ct. Crim. App. 2010). 

B. The defense serves as the gatekeeper for the admission in the presentencing proceeding of 

evidence of prior Article 15s where the NJP and the court-martial involve the same offense. Pierce, 

27 M.J. 367. 

1. The defense can allow the factfinder to see the Art. 15 as mitigation to show the factfinder 

that he or she has been previously punished. UCMJ art. 15(f); United States v. Gammons, 51 

M.J. 169 (1999). 

2. The defense can also ask the military judge to give sentencing credit based on the Art. 15 

without having the panel become aware of the Art. 15. The accused is entitled to “complete 

credit for any and all nonjudicial punishment suffered: day-for-day, dollar-for-dollar, stripe-forstripe.” Pierce, 27 M.J. at 369; Gammons, 51 M.J. 169. See U.S. Dep’t of Army, Pam 27-9, 

Military Judges’ Benchbook para. 2-7-21 (10 Sep. 2014) for the Table of Equivalent Punishments 

that is used to calculate “day-for-day, dollar-for-dollar, stripe-for stripe.” This is generally the 

option chosen. 

3. The defense can also ask for the panel members to consider the previous Art. 15 for 

mitigation, and have the military judge instruct on the specific credit that will be applied. U.S. 

Dep’t of Army, Pam 27-9, Military Judges’ Benchbook para. 2-7-21 (10 Sep. 2014). 

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C. Admitting nonrelated (other past misconduct) formal Article 15s during the presentencing 

proceeding. 

1. Admissible at trial by court-martial during presentencing as a record from "personnel 

records." R.C.M. 1001(b)(2). 

2. The record needs to be properly completed and properly maintained. Possible objections to 

the admissibility of records of nonjudicial punishment include: 

a) Record of nonjudicial punishment is incomplete. E.g., United States v. Rimmer, 39 M.J. 

1083 (A.C.M.R. 1994) (holding that record inadmissible because the form had no indication 

whether soldier appealed). See also United States v. Godden, 44 M.J. 716 (A.F. Ct. Crim. 

App. 1996) (holding that administrative errors on record did not affect any procedural due 

process rights of appellant and record admissible). 

b) Record not maintained in accordance with regulation. E.g., United States v. 

Weatherspoon, 39 M.J. 762 (A.C.M.R. 1994) (finding that record maintained in Investigative 

Records Repository was not a personnel record maintained in accordance with regulation 

because regulation specifically stated that records of courts-martial or nonjudicial punishment 

would not be maintained under its authority). 

c) Record does not indicate that the accused had the opportunity to consult with counsel and 

the accused waived his/her right to demand trial by court-martial. United States v. Booker, 5 

M.J. 238 (C.M.A. 1978); United States v. Kelley, 45 M.J. 259 (1996). 

d) Record does not have discernible signatures. United States. v. Dyke, 16 M.J. 426 

(C.M.A. 1983). 

e) Appeal incomplete. United States v. Yarbough, 33 M.J. 122 (C.M.A. 1991). 

f) Irregular procedure. United States v. Haynes, 10 M.J. 694 (A.C.M.R. 1981). 

3. May be considered in administrative proceedings. 

D. Summarized Article 15 (DA Form 2627-1). 

1. Not admissible at trial by court-martial. AR 27-10, para. 5-29b. 

2. May be considered in administrative proceedings. 

XVI. ADVOCACY POINTS 

A. NJP is the business of paralegals, trial counsel, and defense counsel. Chiefs of Justice and Staff 

Judge Advocates rarely get involved other than for general officer Article 15s. Watch for practices 

that might damage the system like having commanders offer waiver of counsel forms to Soldiers 

during the first reading. 

B. Trial counsel should review formal Article 15s. Remember, if the Soldier turns down the Article 

15, you will own the problem. A few minutes up front can save days of trial preparation later. 

C. Soldiers turn down Article 15s for lots of reasons. The key for defense counsel is to 

communicate with the trial counsel right away. Hold on to the file and call the trial counsel to avoid 

the natural response by the commander to what might seem like a challenge to his or her authority. A 

few minutes up front can save days of trial preparation later and prevent the parties from becoming 

entrenched in their positions. 

D. One of the major reasons that Soldiers turn down Article 15s is that they do not trust this 

particular commander to fairly hear their case. Often, the Soldier will be charged with offenses that 

arose out of a conflict with the commander who now wants to impose the Article 15, and the Soldier 

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may understandably feel that the commander will not give them a fair shake. If this is the case, the 

defense counsel should hold the file and call the trial counsel to see if the next higher commander 

would agree to conduct the Article 15 hearing or if the case could go to a summary court referred by 

the brigade commander to an officer outside of the Soldier’s battalion (if the Soldier is an E5 or 

above). 

E. As a general matter, if the government elects to charge offenses at a court-martial that were the 

subject of earlier NJP – the Soldier will likely receive sentencing credit for any punishment given by 

the NJP authority. Likewise, defense counsel should normally seek Pierce credit for previous Art. 

15s rather than seeking dismissal under R.C.M. 907(b)(2)(D)(iv). 

F. If trial counsel ensure that the record is properly completed and your office performs proper 

records maintenance, you should be able to admit the record of a previous Art. 15 (not related to 

current offenses) under R.C.M. 1001(a)(2). Defense counsel should nit-pick prior Art. 15s – pretty 

much any mistake in the record or in the maintenance of the record will keep it out of evidence. 

G. If the SJA is present during the Art. 15 hearing given by the commanding general, the Soldier’s 

trial defense counsel should be notified and permitted to be present, too. 

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[Back to Table of Contents] 

CHAPTER 6
 

SUMMARY COURTS-MARTIAL
 

I.	 Introduction 

II. Summary Court-Martial Convening Authority 

III. Referral to a Summary Court-Martial 

IV. The Summary Court-Martial Process 

I.	 INTRODUCTION 

A. Summary Court-Martial. A summary court-martial (SCM) is the least formal of the three types of 

courts-martial and the least protective of a soldier’s rights. The SCM is a streamlined trial process 

involving only one officer who theoretically performs the prosecutorial, defense counsel, judicial, and 

panel member (juror) functions. The purpose of this type of court-martial is to dispose promptly of 

relatively minor offenses. The one officer assigned to perform the various roles incumbent on the 

SCM must inquire thoroughly and impartially into the matter concerned to ensure that both the United 

States and the accused receive a fair hearing. Since the SCM is a streamlined procedure providing 

somewhat less protection for the rights of the parties than other forms of court-martial, the maximum 

possible punishment is very limited. Furthermore, it may try only enlisted personnel and only those 

who consent to be tried by SCM. 

B.	 Key References. 

1.	 Army Regulation (AR) 27-10, Military Justice 

2.	 Department of Army (DA) Pamphlet (Pam) 27-7, Summary Court-Martial Officer’s Guide 

3.	 Uniform Code of Military Justice (UCMJ), Articles 20 and 24 

4.	 Manual for Courts-Martial (MCM) Provisions 

a) Rules for Courts-Martial (R.C.M.) 1301 – 1306. 

b) Military Rule of Evidence (M.R.E.) 101 – applying the rules of evidence to SCMs. 

c) Appendix 4 – Charge sheet. 

d) Appendix 9 – Guide for SCM (script) 

e) Appendix 15 – Record of Trial by SCM 

5.	 DA Pam 27-17, Military Judges’ Benchbook 

C.	 Unique to the Military. 

1. The SCM has no civilian equivalent. It is strictly a creature of statute within the military 

system. 

2. Although it is a proceeding at which the technical rules of evidence apply, and at which a 

finding of guilty can result in loss of liberty and property, there is no constitutional right to 

representation by counsel. 

D. Supreme Court Review. The United States Supreme Court examined the SCM procedure and 

held that a SCM was not a “criminal prosecution” within the meaning of the Sixth Amendment. As 

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such, there is no right to counsel at a SCM. Middendorf v. Henry, 425 U.S. 25 (1976). The Court 

cited its rationale previously expressed in Toth v. Quarles, 350 U.S. 11 (1955). 

II. Summary Court-Martial Convening Authority 

A. Authority to Convene. A SCM is convened (created) by an individual authorized by law to 

convene SCMs. Article 24, of the Uniform Code of Military Justice (UCMJ) and R.C.M. 1302(a), 

specify those persons who have the power to convene an SCM. 

B. Commanding officers authorized to convene a General Court-Martial (GCM) or Special CourtMartial (SPCM) are also empowered to convene a SCM. Thus, the commanding officer of an 

installation and commanding officers of brigades have this authority. Additionally, unless withheld 

by a superior competent authority, a field grade officer in command of a battalion or squadron may 

convene a SCM. Finally, the MCM states that a commanding officer of a detached company or other 

detachment of the Army also has the authority to convene a SCM. 

1. Court-Martial Convening Authority Generally 

a) Battalion/Squadron commander (Lieutenant Colonel): summary court-martial convening 

authority (SCMCA). 

b) Brigade commander (Colonel): special court-martial convening authority (SPCMCA). 

c) Division commander (Major General): general court-martial convening authority 

(GCMCA). 

2. Options of SCMCA [Articles 20 and 24 UCMJ] 

a) Dismiss charges. Dismissal does not bar subsequent action under R.C.M. 306(c) [R.C.M. 

403(b)(1)]. 

b) Alternative disposition. The SCMCA could handle the matter with a Field Grade Article 

15. 

c) Return to subordinate commander. The SCMCA may return to a subordinate commander 

for her independent discretion on how the case should be handled. No recommendation may 

be made by the SCMCA [R.C.M. 401(c)(2)(B) and 403(b)(2)]. 

d) Forward to superior commander with recommendation [R.C.M. 403(b)(3)]. Recording 

the receipt of charges on charge sheet, discussed infra; tolls statute of limitations [R.C.M. 

403(a)]. 

e) Refer to a SCM [R.C.M. 403(b)(4)]. 

f) Direct an Article 32 investigation [R.C.M. 403(b)(5)] 

C. Mechanics of convening. Before any case can be brought before a SCM, the court must be 

properly convened (created). It is created by the order of the convening authority detailing the SCM 

officer to the court. R.C.M. 504(d)(2) requires that the convening order specify that it is a SCM and 

designate the SCM officer. Additionally, the convening order may designate where the court-martial 

will meet. 

D. SCM officer. A SCM is a one-officer court-martial. As a jurisdictional prerequisite, this officer 

must be a commissioned officer, on active duty, and of the same armed force as the accused. Where 

practicable, the officer’s grade should not be below a captain (O-3). 

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1. The SCM should be best qualified by reason of age, education, experience, and judicial 

temperament as his performance will have a direct impact upon the morale and discipline of the 

command. 

2. Where more than one commissioned officer is present within the command or unit, the 

convening authority may not serve as SCM. When the convening authority is the only 

commissioned officer in the unit, however, she may serve as SCM and this fact should be noted 

in the convening order attached to the record of trial. In such a situation, the better practice 

would be to appoint a SCM officer from outside the command, as the SCM officer need not be 

from the same command as the accused. 

3. The SCM officer assumes the burden of prosecution, defense, judge, and jury as she must 

thoroughly and impartially inquire into both sides of the matter and ensure that the interests of 

both the government and the accused are safeguarded and that justice is done. While she may 

seek advice from her legal advisor on questions of law, she may not seek advice from anyone on 

questions of fact, since she has an independent duty to make these determinations. R.C.M. 

1301(b). 

E. Jurisdictional limitations. 

1. Over the Person. Article 20, UCMJ, and R.C.M. 1301(c) provide that a SCM has the power 

(jurisdiction) to try only those enlisted persons who consent to trial by SCM. The right of an 

enlisted accused to refuse trial by SCM is absolute. No commissioned officer, warrant officer, 

cadet, or person not subject to the UCMJ (Article 2, UCMJ) may be tried by SCM. The accused 

must be subject to the UCMJ at the time of the offense and at the time of trial; otherwise, the 

court-martial lacks jurisdiction over the person of the accused. 

2. Over the Offense. A SCM has the power to try all offenses described in the UCMJ except 

those for which a mandatory punishment beyond the maximum imposable at a SCM is prescribed 

by the UCMJ. Cases for which the maximum penalty is death are capital offenses and cannot be 

tried by SCM. See R.C.M. 1004 for a discussion of capital offenses. 

a) Any minor offense can be disposed of by SCM. For a discussion of what constitutes a 

minor offense, refer to Part V, MCM under Section 1(e). 

b) In 1977, the United States Court of Military Appeals ruled that the jurisdiction of SCMs 

is limited to “disciplinary actions concerned solely with minor military offenses unknown in 

the civilian society.” United States v. Booker, 3 M.J. 443 (C.M.A. 1977). Read literally, this 

would have precluded SCMs from trying civilian crimes such as assault, larceny, drug 

offenses, etc. Following a reconsideration of that decision, the court rescinded that ruling 

and affirmed that “with the exception of capital crimes, nothing whatever precludes the 

exercise of summary court-martial jurisdiction over serious offenses in violation of the 

Uniform Code of Military Justice.” United States v. Booker, 5 M.J. 246 (C.M.A. 1978). 

III. Referral to a Summary Court-Martial 

A. Preliminary inquiry. Every court-martial case begins with either a complaint by someone that a 

person subject to the UCMJ has committed an offense or some inquiry that results in the discovery of 

misconduct. In any event, R.C.M. 303 imposes upon the officer exercising immediate Nonjudicial 

Punishment (NJP) authority over the accused the duty to make, or cause to be made, an inquiry into 

the truth of the complaint or apparent wrongdoing. This investigation is impartial and should touch 

on all pertinent facts of the case, including extenuating and mitigating factors relating to the accused. 

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Either the preliminary investigator or other person having knowledge of the facts may prefer formal 

charges against the accused if the inquiry indicates such charges are warranted 

B. Preferral of charges. R.C.M. 307. Charges are formally made against an accused when signed 

and sworn to by a person subject to the UCMJ (known as “the accuser”). This procedure is called 

“preferral of charges.” Charges are preferred by executing the appropriate portions of the charge 

sheet. MCM, Appendix 4-1. Implicit in the preferral process are several steps. 

1. Personal data. Block I of page 1 of the charge sheet should be completed first. The 

information relating to personal data can be found in pertinent portions of the accused’s service 

record or other administrative records. 

2. The charges. Block II of page 1 of the charge sheet is then completed to indicate the precise 

misconduct involved in the case. Each punitive article found in Part IV, MCM, contains sample 

specifications. A detailed treatment of pleading offenses is contained in the Criminal Law 

Deskbook, Volume II, Crimes and Defenses. 

3. Accuser. The accuser is a person subject to the UCMJ who signs item 11d in block III at the 

bottom of page 1 of the charge sheet. The accuser should swear to the truth of the charges and 

have the affidavit executed before an officer authorized to administer oaths. 

4. Oath. The oath must be administered to the accuser and the affidavit so indicating must be 

executed by a person with proper authority. Article 136, UCMJ, authorizes all judge advocates, 

summary courts-martial officers, all adjutants, and legal officers to administer oaths for this 

purpose. No one can be ordered to prefer charges to which she cannot truthfully swear. Often, 

the trial counsel will administer the oath. When the charges are signed and sworn to, they are 

“preferred” against the accused. This step also starts the speedy trial clock. 

5. Informing the accused. After formal charges have been signed and sworn to, the preferral 

process is completed when the charges are submitted to the accused’s immediate commanding 

officer. The first step which must be taken is to inform the accused of the charges against him. 

The purpose of this requirement is to provide an accused with reasonable notice of impending 

criminal prosecution in compliance with criminal due process of law standards. R.C.M. 308 

requires the immediate commander of the accused to have the accused informed as soon as 

practicable of the charges preferred against him, the name of the person who preferred them, and 

the person who ordered them to be preferred. The important aspect of this requirement is that 

notice must be given through official sources. The accused should appear before the immediate 

commander or other designated person giving notice and should be told of the existence of formal 

charges, the general nature of the charges, and the name of the person who signed the charges as 

accuser. A copy of the charges should also be given to the accused. After notice has been given, 

the person who gave notice to the accused will execute item 12 at the top of page 2 of the charge 

sheet. If not the immediate commander of the accused, the person signing on the “signature” line 

should state their rank, component, and authority. 

6. Formal receipt of charges. R.C.M. 403(a). Item 13 in block IV on page 2 of the charge sheet 

records the formal receipt of sworn charges by the officer exercising SCMCA. Often this receipt 

certification and the notice certification will be executed at the same time, although it is not 

unusual for the notice certification to be executed prior to the receipt certification. The purpose 

of the receipt certification is to establish that sworn charges were preferred before the statute of 

limitations operated to bar prosecution. Article 43, UCMJ, sets forth time limitations for the 

prosecution of various offenses. If sworn charges are not received by an officer exercising SCM 

jurisdiction over the accused within the time period applicable to the offense charged, then 

prosecution for that offense is barred by Article 43, UCMJ. The time period begins on the date 

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the offense was committed and ends on the date appropriate to that offense. Where the accused is 

absent without leave at the time charges are sworn, it is permissible and proper to execute the 

receipt certification even though the accused has not been advised of the existence of the charges. 

In such cases, a statement indicating the reason for the lack of notice should be attached to the 

case file. When the accused returns to military control, notice should then be given to him. The 

receipt certification need not be executed personally by the SCM convening authority and is often 

completed for her by the adjutant. 

C. Referral of Charges. Once the charge sheet and supporting materials are presented to the 

SCMCA and she makes her decision to refer the case to a SCM the case is referred. The procedure to 

accomplish referral is by completing item 14 in block V on page 2 of the charge sheet. The referral is 

executed personally by the SCMCA. 

1. The referral should explicitly detail the type of court to which the case is being referred. 

Thus, the referral might read “referred for trial to the summary court-martial convened by my 

summary court-martial convening order XX dated 15 January 201X.” This language precisely 

identifies a particular kind of court-martial and the particular SCM to try the case. 

2. In addition, the referral on page 2 of the charge sheet should indicate any particular 

instructions applicable to the case such as “confinement at hard labor is not an authorized 

punishment in this case” or other instructions desired by the convening authority. If no 

instructions are applicable to the case, the referral should so indicate by use of the word “none” in 

the appropriate blank. Once the referral is properly executed, the case is “referred” to trial and 

the case file forwarded to the proper SCM officer. 

IV. The Summary Court-Martial Process 

A. Pretrial Preparation. 

1. General. After charges have been referred to trial by SCM, all case materials are forwarded 

to the proper SCM officer, who is responsible for thoroughly preparing the case for trial. 

2. Preliminary Preparation. Upon receipt of the charges and accompanying papers, the SCM 

officer should begin preparation for trial. The charge sheet should be carefully examined, and all 

obvious administrative, clerical, and typographical errors corrected. See R.C.M. 1304. The SCM 

officer should initial each correction she makes on the charge sheet. 

a) If the errors are so numerous as to require preparation of a new charge sheet, re-swearing 

of the charges and re-referral is required. See generally R.C.M. 603. 

b) If the SCM officer changes an existing specification to include any new person, offense, 

or matter not fairly included in the original specification, R.C.M. 603 requires the new 

specification to be re-sworn and re-referred. The SCM officer should continue her 

examination of the charge sheet to determine the correctness and completeness of the 

information on the charge sheet. 

c) The SCM, with her legal advisor, should review the charge(s) and specification(s). The 

SCM officer should check for proper form and determine the elements of the offense. 

“Elements” are facts which must be proved in order to find the accused guilty of any offense. 

Part IV, MCM, contains some guidance in this respect, but for more detailed guidance consult 

the Military Judges’ Benchbook, DA Pam. 27-9. The SCM officer should also review the 

evidence relating to the charges. 

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3. Pretrial Conference. The SCM officer should meet with the accused in a pretrial conference. 

The accused’s right to counsel is discussed later in this chapter. However, if the accused is 

represented by counsel, all dealings with the accused should be conducted through his counsel. 

Thus, the accused’s counsel, if any, should be invited to attend the pretrial conference. At the 

pretrial conference, the SCM officer should follow the suggested guide found in Appendix 9, 

MCM, and should document the fact that all applicable rights were explained to the accused by 

completing blocks 1, 2, and 3 of the form for the record of trial by SCM found at Appendix 15, 

MCM. 

4. Advice to the accused. R.C.M. 1304(b) requires the SCM to advise the accused of the 

following matters: 

a) That the officer has been detailed by the convening authority to conduct a SCM; 

b) That the convening authority has referred certain charge(s) and specification(s) to the 

summary court for trial. The SCM officer should serve a copy of the charge sheet on the 

accused, and complete the last block on page 2 of the charge sheet noting service on the 

accused; 

c) The general nature of the charges and the details of the specifications; 

d) The names of the accuser and the convening authority, and the fact that the charges were 

sworn to before an officer authorized to administer oaths; and 

e) The names of any witnesses who may be called to testify against the accused at trial and 

the description of any real or documentary evidence to be used and the right of the accused to 

inspect the allied papers and immediately available personnel records. 

5. Additional Rights. The accused should then be advised that he has the following legal rights: 

a) The right to refuse trial by SCM; 

b) The right to plead “not guilty” to any charge and/or specification and thereby place the 

burden of proving his guilt, beyond reasonable doubt, upon the government; 

c) The right to cross-examine all witnesses called to testify against him or to have the SCM 

officer ask a witness questions desired by the accused; 

d) The right to call witnesses and produce any competent evidence in his own behalf and 

that the SCM officer will assist the accused in securing defense witnesses or other evidence 

which the accused wishes presented at trial; 

e) The right to remain silent, which means that the accused cannot be made to testify against 

himself nor will the accused’s silence count against him in any way should he elect not to 

testify; 

f) Rights concerning representation by counsel (see subparagraph 6 below); 

g) That, if the accused refuses SCM, the convening authority may take steps to dismiss the 

case or refer it to trial by special or general court-martial, or dispose of the case at NJP; 

h) The right, if the accused is found guilty, to call witnesses or produce other evidence in 

extenuation or mitigation and the right to remain silent or to make a sworn or unsworn 

statement to the court; and 

i) The maximum punishment which the SCM could adjudge if the accused is found guilty 

of the offense(s) charged. 

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(1) E-4 and below. The jurisdictional maximum sentence that a SCM may adjudge in the 

case of an accused who, at the time of trial, is in pay grade E-4 or below, is the following: 

(a) Reduction to the lowest pay grade (E-1); 

(b) Forfeiture of two-thirds of one-month’s pay; 

(c) Confinement not to exceed one month or hard labor without confinement for 

forty-five days (in lieu of confinement) or restriction to specified limits for two 

months. If confinement is adjudged with either hard labor without confinement or 

restriction in the same case, the rules concerning apportionment found in R.C.M. 

1003 (b)(6) and (7) must be followed. Given this requirement, it is unusual for a 

SCM officer to adjudge a combination of confinement and hard labor or restriction. 

(2) E-5 and above. The jurisdictional maximum that a SCM could impose in the case of 

an accused who, at the time of trial, is in pay grade E-5 or above is to the following: 

(a) Reduction to the next lower pay grade; 

(b) Restriction to specified limits for two months (cannot adjudge confinement); 

(c) Forfeiture of two-thirds of one month’s pay. 

(3) The effective date of restriction and/or extra duties is the date the convening authority 

(CA) approves the sentence and orders it executed. This means that the CA can neither 

impose not require immediate service of such punishment on the date it is adjudged by 

the SCM officer unless the member waives the seven day period to submit clemency 

matters and the CA takes his/her action immediately. See R.C.M. 1105(c)(2). Ordinary 

confinement, however, begins to run from the date the sentence was adjudged by the 

SCM officer. However, the accused may request that the CA defer confinement until 

action or as part of a clemency request. See R.C.M. 1306(a). 

(4) Maximum Punishment Chart. 

E5 AND E4 AND PUNISHMENT ABOVE BELOW 

Confinement for 1 month or less. X 

Hard labor without confinement for 45 days or less. X 

Restriction for two months or less. X X 

Forfeiture of 2/3 pay per month for one month or less. X X 

Reduction to the lowest enlisted grade. One grade only X 

6. Rights to Counsel. 

a) In 1972, the Supreme Court held, with respect to “criminal prosecutions,” that “absent a 

knowing and intelligent waiver, no person may be imprisoned for any offense, whether 

classified as petty, misdemeanor or felony, unless he was represented by counsel at this trial.” 

Argersinger v. Hamlin, 407 U.S. 25, 37 (1972). 

b) The Supreme Court, in Middendorf v. Henry, 425 U.S. 25 (1976), held that a SCM was 

not a “criminal prosecution” within the meaning of the Sixth Amendment, reasoning that the 

possibility of loss of liberty does not, in and of itself, create a proceeding at which counsel 

must be afforded. Rather, it reasoned that a SCM was a brief, nonadversary proceeding, the 

nature of which would be wholly changed by the presence of counsel. It found no factors that 

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were so extraordinarily weighty as to invalidate the balance of expediency that has been 

struck by Congress. 

c) In United States v. Booker, 5 M.J. 238 (C.M.A. 1977), reconsidered at 5 M.J. 246 

(C.M.A. 1978), the C.M.A. considered the Supreme Court’s decision in Middendorf and 

concluded that there existed no right to counsel at a SCM. See also United States v. 

Kahmann, 59 M.J. 309, 315 (C.A.A.F. 2004) 

d) While the Manual for Courts-Martial created no statutory right to detailed military 

defense counsel at a SCM, the convening authority may still permit the presence of such 

counsel if the accused is able to obtain such counsel. The Manual has created a limited right 

to civilian defense counsel at SCM, however. R.C.M. 1301(e) provides that the accused has a 

right to hire a civilian lawyer and have that lawyer appear at trial, if such appearance will not 

unnecessarily delay the proceedings and if military exigencies do not preclude it. The 

accused must, however, bear the expense involved. If the accused wishes to retain civilian 

counsel, the SCM officer should allow him a reasonable time to do so. 

e) Booker Warnings - Although holding that an accused had no right to counsel at a SCM, 

the C.M.A. ruled in Booker, supra, that if an accused was not given an opportunity to consult 

with independent counsel before accepting a SCM, the SCM will be inadmissible at a 

subsequent trial by court-martial. The term “independent counsel” has been interpreted to 

mean a lawyer qualified in the sense of Article 27(b), UCMJ, who, in the course of regular 

duties, does not act as the principal legal advisor to the convening authority. Under the 

Booker Rule, the government needs to show that the accused either exercised his right to 

confer with counsel or made a voluntary, knowing, and intelligent waiver of this right. 

Without such a showing, a SCM will not be considered a “criminal conviction” and will not 

be admissible as a prior conviction under R.C.M. 1001(b)(3), nor for purposes of 

impeachment under M.R.E. 609, MCM. See United States v. Booker, 3 M.J. 443, 448 

(C.M.A. 1977). See also United States v. Kelly, 45 M.J. 259 (C.A.A.F. 1996). While these 

cases would seem to allow a prior SCM’s use as a “conviction” to trigger the increased 

punishment provisions of R.C.M. 1003(d) if the accused had been actually represented by 

counsel or had rejected the services of counsel provided to him, the discussion following 

R.C.M. 1003(d) opines that convictions by SCM may not be used for this purpose. As the 

discussion and analysis sections of the MCM, it has no binding effect and represents only the 

drafters’ opinions. Thus, this issue remains unresolved. 

7. Final pretrial preparation. At the conclusion of the pretrial interview, the SCM officer should 

determine whether the accused has decided to accept or refuse trial by SCM. If more time is 

required for the accused to decide, it should be provided. The SCM officer should obtain from 

the accused the names of any witnesses or the description of other evidence which the accused 

wishes presented at the trial if the case is to proceed. She should also arrange for a time and place 

to hold the open sessions of the trial. These arrangements should be made through the legal 

advisor to the SCM officer, and the SCM officer should ensure that the accused and all witnesses 

are notified of the time and place of the first meeting. 

a) An orderly trial procedure should be planned to include a chronological presentation of 

the facts. The admissibility and authenticity of all known evidentiary matters should be 

determined and numbers assigned all exhibits to be offered at trial. These exhibits, when 

received at trial, should be marked “received in evidence” and numbered (prosecution 

exhibits) or lettered (defense exhibits). 

b) The evidence reviewed should include not only that contained in the file as originally 

received, but also any other relevant evidence discovered by other means. The SCM officer 

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has the duty of ensuring that all relevant and competent evidence in the case, both for and 

against the accused, is presented. It is the responsibility of the SCM officer to ensure that 

only legal and competent evidence is received and considered at the trial. Only legal and 

competent evidence received in the presence of the accused at trial can be considered in 

determining the guilt or innocence of the accused. Additionally, the Military Rules of 

Evidence apply to the SCM and must be followed. See M.R.E. 101. 

c) Subpoena of witnesses. The SCM is authorized by Article 46, UCMJ, and R.C.M. 

703(e)(2)(C) and 1301(f) to issue subpoenas to compel the appearance at trial of civilian 

witnesses. In such a case, the SCM officer will follow the same procedure detailed for a 

SPCM or GCM trial counsel in R.C.M. 703(c). Appendix 7 of the MCM contains an 

illustration of a completed subpoena. 

d) Depositions – The SCM officer may also use a deposition to capture testimony if 

necessary. However, the SCM should seek assistance from her legal advisor to accomplish 

this task. See Article 49, UCMJ; R.C.M. 702. 

B. Trial Procedure. See Appendix 9, MCM and DA Pam 27-7. 

1. Benefits of SCM Process. The main benefit of a SCM proceeding is that it is not considered 

a federal conviction. Depending upon the offense(s) charged, this fact alone may provide the 

basis for an accused to consent to trial by SCM. 

a) Limited punishment. A SCM allows a soldier to limit his exposure to punishment if 

found guilty. Referral of the case to a higher court-martial may provide an accused with 

greater rights, but this comes at a price by also opening up the accused to greater punishment 

and the possibility of a federal conviction. 

b) Independent Arbiter. A SCM permits someone other that the accused’s commander to 

hear and decide his case. Often times, an accused will feel his commander has it out for him. 

This feeling may cause the accused to turn down an Article 15. A SCM, however, gives the 

accused the ability to address his case to someone other than his commander and presumably 

someone with no previous history with him. 

2. Article 15. In contrast, an Article 15, otherwise known as Nonjudicial Punishment (NJP), is 

imposed by an accused’s commander. Additionally, any soldier, not just enlisted, may receive 

NJP. 

a) NJP is not a conviction. As its name suggests, it is not a court-martial. Usually, NJP will 

either remain in a soldier’s local file or be place in the soldier’s permanent record. While 

this may affect future promotions and duty assignments, it will have no impact on the soldier 

in civilian life should she decide to leave the service. 

b) Unlike a SCM, the maximum available punishment for NJP is based on the rank of the 

imposing commander (company grade, field grade, or for officer offenders, general officer) 

and the rank of the soldier receiving the punishment. AR 27-10, paragraph 3-19, table 3-1. 

Usually, commanding generals withhold authority over officer misconduct using the local AR 

27-10. Consequently, company grade or field grade NJP over an officer is very rare. 

Another key difference between NJP and a SCM is that regardless of the level of NJP, 

confinement is not a possible punishment. 

c) For additional information on NJP see Chapter 7. 

C. Post-Trial responsibilities of the SCM. After the SCM officer has deliberated and announced 

findings and, where appropriate, the sentence, she then must fulfill certain post-trial duties. The 

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nature and extent of these post-trial responsibilities depend upon whether the accused was found 

guilty or innocent of the offenses charged. 

1. Accused acquitted on all charges. In cases in which the accused has been found not guilty as 

to all charges and specifications, the SCM must: 

a) Announce the findings to the accused in open session [R.C.M. 1304(b)(2)(F)(i)]; 

b) Inform the CA as soon as practicable of the findings [R.C.M. 1304(b)(2)(F)(v)]; 

c) Prepare the record of trial in accordance with R.C.M. 1305, using the record of trial form 

in Appendix 15, MCM; 

d) Cause one copy of the record of trial to be served upon the accused [R.C.M. 1305(e)(1)], 

and secure the accused’s receipt; and 

e) Forward the original and one copy of the record of trial to the CA for her action [R.C.M. 

1305(e)(2)]. 

2. Accused convicted on some or all of the charges. In cases in which the accused has been 

found guilty of one or more of the charges and specifications, the SCM must: 

a) Announce the findings and sentence to the accused in open session [R.C.M. 

1304(b)(2)(F)(i) and (ii)]; 

b) Advise the accused of the following appellate rights under R.C.M. 1306: 

(1) The right to submit in writing to the CA any matters which may tend to affect his 

decision in taking action (see R.C.M. 1105) and the fact that his failure to do so will 

constitute a waiver of this right (Additionally, the accused may be informed that he may 

expressly waive, in writing, his right to submit such written matters [R.C.M. 1105(d)].); 

and 

(2) The right to request review of any final conviction by SCM by the Judge Advocate 

General in accordance with R.C.M. 1201(b)(3). 

c) If the sentence includes confinement, inform the accused of his right to apply to the CA 

for deferment of confinement [R.C.M. 1304(b)(2)(F)(iii)]; 

d) Inform the CA of the results of trial as soon as practicable. Such information should 

include the findings, sentence, recommendations for suspension of the sentence, and any 

deferment request [R.C.M. 1304(b)(2)(F)(v)]; 

e) Prepare the record of trial in accordance with R.C.M. 1305, using the form in Appendix 

15, MCM; 

f) Cause one copy of the record of trial to be served upon the accused [R.C.M. 1305(e)(1)], 

and secure the accused’s receipt; and 

g) Forward the original and one copy of the record of trial to the CA for action [R.C.M. 

1305(e)(2)]. 

D. After Action Review. Article 64, UCMJ, and R.C.M. 1112 require that all summary courtsmartial be reviewed by a judge advocate who has not been disqualified by acting in the same case as 

an accuser, investigating officer, member of the court-martial, military judge, or counsel, or has 

otherwise acted on behalf of the prosecution or defense. 

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1. R.C.M. 1112 states, however, that no review under this section is required if the accused has 

not been found guilty of an offense or if the convening authority disapproved all findings of 

guilty. 

2. The judge advocate’s review is a written document containing the following: 

a) A conclusion as to whether the court-martial had jurisdiction over the accused and over 

each offense for which there is a finding of guilty which has not been disapproved by the 

convening authority; 

b) A conclusion as to whether each specification, for which there is a finding of guilty 

which has not been disapproved by the convening authority, stated an offense; 

c) A conclusion as to whether the sentence was legal; and 

d) A response to each allegation of error made in writing by the accused. 

3. After the judge advocate has completed the review, most cases will have reached the end of 

mandatory review and will be considered final within the meaning of Article 76, UCMJ. If this is 

the case, the judge advocate review will be attached to the original record of trial and a copy 

forwarded to the accused. 

4. The review is not final, however, and a further step is required if the judge advocate 

recommends corrective action. If this is the case, it will require the Staff Judge Advocate (SJA) 

to forward the record of trial to the GCMCA. With the SJA’s review in hand, the GCMCA will 

take action on the record of trial in a document similar to CA’s action. He will promulgate it in a 

similar fashion as well. He may disapprove or approve the findings or sentence in whole or in 

part; remit, commute, or suspend the sentence in whole or in part; order a rehearing on the 

findings or sentence or both; or dismiss the charges. 

5. If, in her review, the judge advocate stated that corrective action was required as a matter of 

law, and the GCMCA did not take action that was at least as favorable to the accused as that 

recommended by the judge advocate, the record of trial must be sent to the Office of The Judge 

Advocate General (OTJAG) for resolution. In all other cases, however, the review is now final 

within the meaning of Article 76, UCMJ. 

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CHAPTER 7
 

PRETRIAL RESTRAINT AND CONFINEMENT
 

I. Pretrial Restraint 

II. Pretrial Confinement 

III. Sentence Credit for Pretrial Confinement 

I. Pretrial Restraint. UCMJ art. 9(a); R.C.M. 304. 

A. Types of Pretrial Restraint. R.C.M. 304(a). 

1. Conditions on liberty. “[O]rders directing a person to do or refrain from doing specified 

acts.” 

2. Restriction in lieu of arrest. “[O]rders directing the person to remain within specified limits.” 

Restricted person normally performs full military duties. 

United States v. Blye, 37 M.J. 92 (C.M.A. 1993). Servicemember may be lawfully ordered to 

abstain from alcohol as a condition of pretrial restriction 

3. Arrest. “[R]estraint . . . directing the person to remain within specified limits. . . . [P]erson in 

status of arrest may not be required to perform full military duties . . . . ” 

4. Pretrial Confinement. “Pretrial confinement is physical restraint . . . ” 

B. When a Person May Be Restrained 

1. A Soldier may be placed under pretrial restraint when there is a reasonable belief that: 

a. An offense triable by court-martial has been committed; 

b. The person to be restrained committed it; and 

c. The restraint ordered is “required by the circumstances.” R.C.M. 304(c); Article 9(d) 

(probable cause); Article 10 (“as circumstances may require”). Note that the person ordering 

restraint should consider the provisions of R.C.M. 305(h)(2)(B), before ordering restraint. 

These provisions further elaborate on when restraint is “required by the circumstances” 

because it is foreseeable that: 

(1) The Soldier will not appear at trial, pretrial hearing, or investigation, or; 

(2) The Soldier will engage in serious criminal misconduct, and; 

(3) Lesser forms of restraint are inadequate. 

2. BUT, unless and until a Soldier is placed in pretrial confinement: 

a. “An accused pending charges should ordinarily continue the performance of normal 

duties within the accused’s organization while awaiting trial.” AR 27-10, para. 5-15a (3 Oct 

2011). 

b. While an accused's mental condition is an appropriate consideration in deciding whether 

to place or maintain an accused in pretrial confinement (PTC), SM should not be placed in 

PTC solely to protect against the risk that an accused might kill himself. U.S. v. Doane, 54 

M.J. 978 (A.F.Ct.Crim.App., 2001). 

C. Who May Order Pretrial Restraint? Article 9(b) and; R.C.M. 304(b). 

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1. Of officers. “Only a commander to whose authority” they are subject. This authority may 

not be delegated. 

2. Of enlisted personnel. “Any commissioned officer.” Authority may be delegated by a 

commanding officer to warrant, petty, and noncommissioned officers of his/her command. 

3. Authority for subordinates to order restraint may be withheld by a superior competent 

authority. 

D. Procedures for Ordering Pretrial Restraint. Article 9(b) and (c); R.C.M. 304(d). 

1. Confinement is “imposed pursuant to orders by a competent authority by the delivery of a 

person to a place of confinement.” 

2. Other types of pretrial restraint are “imposed by notifying the person orally or in writing of 

the restraint, including its terms or limits.” 

E. Notice. A person placed under restraint “shall be informed of the nature of the offense which is 

the basis for such restraint.” R.C.M. 304(e). 

F. Restraint is Not Punishment. Article 13; R.C.M. 304(f). Persons restrained pending trial may not 

be punished for the offense that is the basis of the restraint. Prohibitions include “punitive duty hours 

or training,” “punitive labor,” or “special uniforms prescribed only for post-trial prisoners.” 

II. Pretrial Confinement. UCMJ Art. 9-13; R.C.M. 305. 

A. Basis for Pretrial Confinement. R.C.M. 305(d). Probable cause (reasonable belief) that: 

1. An offense triable by a court-martial has been committed; 

2. The person confined committed it; and 

3. Confinement is required by the circumstances. Again, consider R.C.M. 305(h)(2)(B), that it 

is reasonably foreseeable that the Soldier: 

a. Will not appear at trial, pretrial hearing, or investigation, or; 

b. Will engage in serious criminal misconduct, and; 

c. Lesser forms of restraint are inadequate. 

B. Regulatory Requirements. “In any case of pretrial confinement, the SJA concerned, or that 

officer’s designee, will be notified prior to the accused’s entry into confinement or as soon as 

practicable afterwards.” AR 27-10, paragraph 5-15a. Also consider requirements of local policies / 

regulations (for example, no PTC without the concurrence of the SJA). 

C. Advice to Accused Upon Confinement. Article 10; R.C.M. 305(e). “Each person confined shall 

be promptly informed of: 

1. The nature of the offenses for which held; 

2. The right to remain silent and that any statement may be used against the person; 

3. The right to retain civilian counsel at no expense to the United States, and the right to request 

assignment of military counsel; and 

4. The procedures by which pretrial confinement will be reviewed.” 

D. Military Counsel. R.C.M. 305(f); AR 27-10, para. 5-15. 

1. Prisoner must request military counsel and request must be known to military authorities. 

Counsel is to be made available prior to R.C.M. 305(i) review, or within 72 hours of request, 

whichever occurs earlier. R.C.M. 305. BUT: AR 27-10, para. 5-15 imposes duty on SJA to 

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request TDS appointment of counsel. If no TDS counsel available within 72 hours the SJA may 

appoint government counsel for this limited purpose. 

2. “Consultation between the accused and counsel preferably will be accomplished before the 

accused’s entry into confinement.” If not possible, every effort will be made to have consultation 

within 72 hours of accused’s entry into confinement. AR 27-10, para. 5-15b. 

3. No right to military counsel of the prisoner’s own selection. Counsel “may be assigned for 

the limited purpose of representing the accused only during the pretrial confinement proceedings 

before charges are referred.” R.C.M. 305(f). 

E. R.C.M. 305(i)(1) 48-hour Review: 

1. Embodiment of the Constitutional review from County of Riverside v. McLaughlin, 111 S.Ct. 

1661 (1991) and United States v. Rexroat, 38 M.J. 292 (C.M.A. 1993), cert. denied, 127 L. Ed. 2d 

648, 114 S. Ct. 1296 (1994). 

2. History: 

a. Gerstein v. Pugh, 420 U.S. 103 (1975). Fourth Amendment (“right of the people to be 

secure in their persons . . . against unreasonable . . . seizures”) requires a “prompt” judicial 

determination of probable cause as a prerequisite to an extended pretrial detention following a 

warrantless arrest. Gerstein is binding upon the military. Courtney v. Williams, 1 M.J. 267 

(C.M.A. 1976). 

b. What is "prompt?" County of Riverside v. McLaughlin, 111 S.Ct. 1661 (1991). “Taking 

into account the competing interests articulated in Gerstein, we believe that a jurisdiction that 

provides judicial determinations of probable cause within 48 hours of arrest will, as a general 

matter, comply with the promptness requirement of Gerstein.” 

c. County of Riverside v. McLaughlin applies to the military. United States v. Rexroat, 38 

M.J. 292 (C.M.A. 1993), cert. denied, 127 L. Ed. 2d 648, 114 S. Ct. 1296 (1994). 

3. Review must be by a "neutral and detached officer," e.g. an “independent” 

commander/officer, a military magistrate, or a military judge. The accused’s commander may do 

the review under either R.C.M. 305(d) or R.C.M. 305(h) if truly neutral and detached. 

a. United States v. McLeod, 39 M.J. 278 (C.M.A. 1994). Both the brigade commander’s 

and SJA’s review of company commander’s initial decision to impose pretrial confinement 

were neutral and detached. Neither was directly or particularly involved in command’s law 

enforcement function. 

b. United States v. Bell, 44 M.J. 677 (N.M. Ct. Crim. App. 1996). A ship’s command duty 

officer can be neutral and detached, and constitutionally qualified to make a judicial probable 

cause determination which satisfies United States v. Rexroat. 

4. The substance of the review is a probable cause review by a neutral and detached officer. 

There must be a reasonable belief that: 

a. An offense triable by a court-martial has been committed; 

b. The prisoner committed it; and 

c. Confinement is necessary because it is foreseeable that: 

d. The prisoner will not appear at a trial, pretrial hearing, or investigation, or 

e. The prisoner will engage in serious criminal misconduct; and 

f. Less severe forms of restraint are inadequate. 

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F. Commander’s 72-hour Review. Article 11; R.C.M. 305(h). 

1. Report of confinement to prisoner’s commander within 24 hours, if ordered by someone other 

than the commander. 

2. Commander shall review confinement not later than 72 hours after ordering confinement, or 

receiving notice of confinement, and shall order release “unless the commander believes upon ... 

reasonable grounds, that: 

(i) An offense triable by a court-martial has been committed; 

(ii) The prisoner committed it; and 

(iii) Confinement is necessary because it is foreseeable that: 

(a) The prisoner will not appear at a trial, pretrial hearing, or investigation, or 

(b) The prisoner will engage in serious criminal misconduct; and 

(iv) Less severe forms of restraint are inadequate.” 

3. Can be completed immediately after ordering PTC. R.C.M. 305(h)(2)(A). 

4. What Constitutes Serious Criminal Misconduct? 

a. Serious criminal misconduct: “includes intimidation of witnesses or other obstruction of 

justice, seriously injuring others, or other offenses which pose a serious threat to the safety of 

the community or to the effectiveness, morale, discipline, readiness, or safety of the 

command....” R.C.M. 305(h)(2)(B)(iv). 

b. “[T]he ‘quitter’ who disobeys orders and refuses to perform duties” can have an 

“immensely adverse effect on morale and discipline.” “[A]lthough the ‘pain in the neck’ 

[Soldier]... may not be confined ... solely on that basis, the accused whose behavior is not 

merely an irritant to the commander, but is ... an infection in the unit may be ... confined.” 

Analysis of Rules for Courts-Martial, MCM, p. A21-18. 

c. United States v. Rosato, 29 M.J. 1052 (A.F.C.M.R. 1990), rev’d in part, 32 M.J. 93 

(C.M.A. 1991). Accused who was willfully disobedient and disrespectful to superiors in the 

presence of 10-15 members of a student squadron was properly placed in pretrial confinement 

“to protect the unit’s discipline and morale from the accused’s disruptive behavior.” Unit 

consisted of new, junior personnel, accused had a history of disciplinary problems, student 

representatives complained about him, and the accused ignored first sergeant’s admonitions. 

d. United States v. Savoy, 65 M.J. 854 (A.F. Ct. Crim. App. 2008) While suicide prevention 

is an improper basis for continued pretrial confinement, a detainee’s status as a suicide risk 

may be considered in evaluating the detainees likelihood to be a flight risk or commit other 

serious misconduct. 

5. Procedure: 

a. Commander shall prepare written memorandum stating the reasons for conclusion that 

requirements for confinement have been met. (Need not be done if such a memo written 

PRIOR to ordering PTC). Memorandum is forwarded to reviewing officer (military 

magistrate). (See AR 27-10, para. 9-5b(2): DA Form 5112-R, Checklist for Pretrial 

Confinement, will be completed and serves as “memorandum.”) 

b. United States v. Shelton, 27 M.J. 540 (A.C.M.R. 1988). The only timeliness requirement 

attached to this memorandum is that it must be available for the military magistrate’s review. 

G. R.C.M. 305(i)(2) 7-day Review. AR 27-10, Chapter 8 (Military Magistrate Program). 

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1. Review of “probable cause determination and necessity for continued pretrial confinement" 

by a "neutral and detached officer appointed in accordance with regulations prescribed by the 

Secretary concerned" within 7 days of imposition of confinement. (Time can be extended by the 

reviewing officer to 10 days for good cause). 

2. Reviewing officer reviews commander’s memorandum and any additional written matters, 

including any submitted by accused. Prisoner and counsel “shall be allowed to appear before the 

reviewing officer and make a statement, if practicable.” Representative of command may appear 

to make a statement. 

a. United States v. Bell, 25 M.J. 676 (A.C.M.R. 1987), petition denied, 27 M.J. 161 (C.M.A. 

1988). Ex parte discussion by magistrate with prisoner’s commander and trial counsel held 

not prohibited, at least when defense counsel was given access to all the information and an 

opportunity to respond. 

b. United States v. Fisher, 37 M.J. 812 (N.M.C.M.R. 1993). Magistrate (and commander) 

should utilize a “totality-of-the-circumstances” test in determining whether pretrial 

confinement is warranted. 

3. Military Rules of Evidence do not apply. Requirements for confinement must be shown by 

preponderance. 

4. Reviewing officer “shall approve continued confinement or order immediate release.” 

Magistrate must decide within 7 days of imposition of confinement. United States v. McCants, 

39 M.J. 91 (C.M.A. 1994). Method for calculating total number of days of pretrial confinement: 

count both the initial date of confinement and date of magistrate review. R.C.M. 305(i)(2). 

5. Reviewing officer shall make written memorandum of factual findings and conclusions. 

Memorandum, and all documents considered must be available to parties on request. R.C.M. 

305(i)(2)(D). Note that AR 27-10, para. 8-5, requires the magistrate to serve a copy of the 

memorandum upon the SJA and the accused. 

a. Failure to serve copy of reviewing officer’s memo after defense request violates RCM 

305(i). See United States v. McCants, 39 M.J. 91 (C.M.A. 1994). 

b. United States v. Williams, 29 M.J. 570 (A.F.C.M.R. 1989), petition denied, 30 M.J. 106 

(C.M.A. 1990). “[T]here is no specified format for the contents [of the reviewing officer’s 

memorandum] other than it must state the reviewing officer’s conclusions and the factual 

findings on which they are based.” Failure to precisely state the reasons for continued 

pretrial confinement is not an abuse of discretion requiring additional credit. 

6. Reviewing officer shall, after notice to parties, reconsider the decision to approve continued 

confinement, upon request based upon any significant information not previously considered. 

R.C.M. 305(i)(2)(E). 

H. Review by Military Judge. R.C.M. 305(j). 

1. Once charges are referred, military judge may review propriety of confinement on motion for 

appropriate relief. 

2. Military judge may order release only if: 

a. Reviewing officer’s decision was abuse of discretion and no information presented to 

military judge justifying confinement; or 

b. Information not presented to reviewing officer establishes that prisoner should be 

released; or 

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c. There has been no initial review and the military judge determines that the requirements 

for confinement have not been met. 

3. The military judge can order day-for-day administrative credit for any pretrial confinement 

served as a result of failure to comply with subsection (f), (h), (i) or (j) of R.C.M. 305. The MJ 

may order additional credit for any pretrial confinement that involves the abuse of discretion or 

unusually harsh circumstances. When simultaneous noncompliance with multiple provisions 

occurs, only day-for-day credit will be applied. In other words, a pretrial confinee is not entitled 

to extra additional days of credit when multiple provisions of R.C.M. 305 are violated on one day 

or over the same period. United States v. Plowman, 53 M.J. 511, 514 (N.M. Ct. Crim. App. 

2000). See also, United States v. Huey, 57 M.J. 504 (N-M. Ct. Crim. App. 2002), for the 

proposition that once the case is referred, the military judge has the authority to review the 

propriety of pretrial confinement regardless of whether the IRO has conducted his review. 

I. Who May Direct Release. R.C.M. 305(g). 

1. Any commander of the prisoner. United States v. Shelton, 27 M.J. 540 (A.C.M.R. 1988). 

The following commanders may review pretrial confinement and direct the accused’s release: the 

accused’s unit commander, the confinement facility commander, the commander of the unit to 

which the accused is attached while serving confinement, or the commander of the installation on 

which the confinement facility is located. 

2. Officer appointed to review confinement (military magistrate). 

3. The detailed military judge, once charges have been referred. 

J. Confinement After Release. R.C.M. 305(1). Once release from confinement is directed by a 

commander, a reviewing officer, or a military judge, the accused may not be confined again before 

completion of trial except upon discovery, after release, of evidence or misconduct which either alone 

or in conjunction with all other evidence, justifies confinement. 

III. Sentence Credit for Pretrial Confinement. 

A. Allen Credit. United States v. Allen, 17 M.J. 126 (C.M.A. 1984). Day for day credit for any 

military pretrial confinement. “[A]ny part of a day in pretrial confinement must be calculated as a 

full day for purposes of pretrial confinement credit . . . except where a day of pretrial confinement is 

also the day the sentence is imposed.” United States v. DeLeon, 53 M.J. 658, 660 (Army Ct. Crim. 

App. 2000) (abrogating the court’s decision in United States v. New, 23 M.J. 889 (A.C.M.R. 1987)). 

1. What about civilian confinement? The CAAF has never squarely addressed the issue of Allen 

credit for time spent in civilian confinement. While the Army Court intimated that such credit 

“must be given ... for time spent in pretrial confinement in state or federal civilian confinement 

facilities," United States v. Ballesteros, 25 M.J. 891 (A.C.M.R. 1988), aff’d, 29 M.J. 14 (C.M.A. 

1989), the Court of Military Appeals decided the case on other grounds. 

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2. United States v. Chaney, 53 M.J. 621 (N.M. Ct. Crim. App. 2000). Appellant was 

apprehended by civilian police based on information that he was a deserter from the Marine 

Corps. Marijuana was found on him during the apprehension. The appellant was placed in 

confinement based on offenses for which he later received a sentence at a court-martial 

(marijuana possession and unauthorized absence). The pending state charges against him were 

dismissed and he was then transferred to military authorities. He was not given credit under 

United States v. Allen, 17 M.J. 126 (C.M.A. 1984) at trial for the 40 days he spent in pretrial 

confinement imposed by civilian authorities. Ultimately, the accused never received any credit 

for the 40 days (civilian or military credit). The appellate court concluded that he was entitled to 

40 days credit because “[h]e was placed in official detention prior to the date his court-martial 

sentence commenced as a result of the offense for which the sentence was imposed and due to 

another charge for which he was arrested after the commission of the offense for which the 

sentence was imposed.” 

3. United States v. Murray, 43 M.J. 507 (A.F. Ct. Crim App. 1995). Relying on a DoDD 1325.4 

and 18 U.S.C. Section 3585(b), the Air Force Court determined that an accused who had been 

arrested and held by civilian authorities prior to his court-martial was entitled to administrative 

credit for the time spent in civilian confinement. 

4. Additional R.C.M. 305(k) credit does not apply to a Soldier in civilian confinement unless the 

Soldier is in that confinement solely for a military offense and with notice and approval of 

military authorities. United States v. Lamb, 47 M.J. 384 (1998). However, a Coast Guard sailor 

received credit for an unrelated civilian confinement because he was arrested by the state and 

temporarily imprisoned after the commission of the offense for which the sentence was imposed 

by the military and had not received credit against another sentence for the temporary 

imprisonment. United States v. Yanger, 68 M.J. 540, (C.G.C.C.A. 2009). 

B. Mason Credit. United States v. Mason, 19 M.J. 274 (C.M.A. 1985) (summary disposition). Day 

for day credit given for “pretrial restriction equivalent to confinement.” The calculation for Mason 

credit includes any partial day of restriction tantamount to confinement. United States v. Chapa, 53 

M.J. 769 (Army Ct. Crim. App. 2000). 

1. The test: United States v. Smith, 20 M.J. 528 (A.C.M.R. 1985), petition denied, 21 M.J. 169 

(C.M.A. 1985). “The determination whether the conditions of restriction are tantamount to 

confinement must be based on the totality of the conditions imposed.” 

2. Factors to be considered include: limits of the restricted area; physical restraints; escort 

requirements (occasional v. constant and armed v. unarmed); sign-in requirements; circumstances 

of duty; assigned duties; degree of privacy enjoyed; location of sleeping accommodations; access 

to visitors, telephones, recreational, religious, medical, and educational facilities, entertainment, 

civilian clothing, personal property, etc. See also King infra., 58 M.J. 110. 

3. Restriction tantamount to confinement. 

a. United States v. Smith, supra. 56 days of “restriction” found tantamount to confinement 

and credit given; accused was restricted to barracks building and was prohibited, among other 

things, from performing normal duties and leaving the building without permission and an 

escort; required to sign in every 30 minutes during non-duty hours and to remain in room 

after 2200 hours. 

b. United States v. Regan, 62 M.J. 299 (C.A.A.F. 2006). Officer who repeatedly tested 

positive for cocaine was offered inpatient drug treatment or pretrial confinement. She opted 

for inpatient treatment. The court awarded 21 days of Mason credit because the conditions of 

inpatient treatment constituted significant restriction and it was suffered upon threat of being 

confined. 

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4. Restriction not tantamount to confinement. 

a. Washington v. Greenwald, 20 M.J. 699 (A.C.M.R. 1985) pet. denied 20 M.J. 324 

(C.M.A. 1985). 88 days of pretrial restriction found not tantamount to confinement; credit 

denied. Washington was restricted to company area, place of duty, dining facility, and 

chaplain’s office; he performed normal duties; was restricted to room after 2200 hours; 

signed in every hour at CQ’s office when not at work; could travel to any place on post he 

needed to go during duty hours without an escort if he obtained permission and during nonduty hours with an escort. 

b. United States v. Delano, 2008 WL 5333565 (A.F.Ct.Crim.App.). Servicemember’s 

pretrial restriction was not tantamount to confinement but was implemented to maintain good 

order and discipline and not imposed as punishment for the Airmen in the Transition Flight. 

The court held that, “while strict, the restrictions were not equivalent to confinement and 

were not punishment under Article 13, UCMJ.” 

5. Waiver. 

a. United States v. King, 58 MJ 110 (C.A.A.F. 2003). If the issue is not raised at trial, it is 

waived and cannot be raised at the appellate level. Note particularly Judge Baker’s 

concurrence in which he advises MJs to ask on the record whether the accused seeks any 

pretrial confinement credit beyond simple Allen credit. 

b. United States v. Barrett, 2009 WL 295012 (A.F.Ct.Crim.App.). Barrett explicitly waived 

his right to raise the issue that his treatment was tantamount to confinement at trial and on 

appeal as part of his plea agreement. Thus, the appellate court held the issue is waived. 

C. R.C.M. 305(k) Credit. Remedy for noncompliance with subsection (f), (h), (i) or (j), is 

administrative credit (day-for-day) against the sentence adjudged. Military judge may also award 

additional credit (not limited to day-for-day) if the pretrial confinement involves abuse of discretion 

or unusually harsh circumstances. Applies in addition to Allen or Mason credit. However, when 

simultaneous non-compliance with multiple provisions of R.C.M. 305 occurs, only day-for-day credit 

will be applied. United States v. Plowman, 53 M.J. 511, 514 (N.M. Ct. Crim. App. 2000). 

1. Restriction tantamount to confinement. 

a. United States v. Gregory, 21 M.J. 952 (A.C.M.R. 1986), aff’d, 23 M.J. 246 (C.M.A. 

1986) (summary disposition). When restriction is tantamount to confinement, the procedures 

for pretrial confinement in R.C.M. 305 apply, and when they are not complied with, day-forday credit under 305(k) is required in addition to Allen-Mason credit. 

b. United States v. Rendon, 58 M.J. 221 (C.A.A.F. 2003). CAAF “clarified” Gregory in that 

RCM 305 is only implicated by restriction tantamount to confinement in which actual 

physical restraint is imposed. The court did not offer a definition or give many useful 

examples. 

c. But: 48-hour review does not apply to simple restriction. United States v. Perez, 45 M.J. 

323 (1996) (Court refuses to “[e]xtend the requirement for a probable cause hearing to 

pretrial restriction,” noting a “world of difference between restriction and confinement”). 

However, if restriction is tantamount to confinement it would trigger Rexroat and R.C.M. 

305 review requirements. 

2. Rexroat Violations. United States v. Stuart, 36 M.J. 747 (A.C.M.R. 1993). Accused entitled 

to day-for-day credit under R.C.M. 305(k) for lack of 48-hour probable cause review. 

3. Civilian Confinement. 

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a. “If the prisoner was apprehended by civilian authorities and remains in civilian custody at 

the request of military authorities, reasonable efforts will be made to bring the prisoner under 

military control in a timely fashion” R.C.M. 305(i)(1). 

b. R.C.M. 305(k) credit provisions only apply to a Soldier in civilian confinement if the 

Soldier is in confinement: a) solely for a military offense and b) his confinement is with 

notice and approval of military authorities. Burden is on the accused to allege that R.C.M. 

305 applies and that the civilian authorities did not conduct the required 48-hour probable 

cause review. United States v. Lamb, 47 M.J. 384 (C.A.A.F. 1998). 

c. United States v. Durbin, 2008 CCA LEXIS 486 (A.F.Ct.Crim.App.). “[C]onfinement in 

violation of AFI 31-205 (Air Force Instruction on confinement requiring pretrial detainees in 

civilian confinement be treated in a manner consistent with a presumption of innocence 

standard) does not create for the appellant a per se right to sentencing credit; it only provides 

the military judge with the discretion to award additional sentencing credit for abuse of 

discretion by pretrial confinement authorities.” 

4. Confinement after release. United States v. Williams, 47 M.J. 621 (Army Ct. Crim. App. 

1997). Even though a violation of R.C.M. 305(l) is not listed as a basis for awarding R.C.M. 

305(k) credit, a violation of R.C.M. 305(l) and Keaton v. Marsh, 43 M.J. 757 (A.C.C.A. 1996), 

results in additional credit under R.C.M. 305(k). 

5. Waiver. United States v. Chapa III, 57 M.J. 140 (C.A.A.F. 2002). At trial, was awarded 136 

days sentence credit due to a violation of Article 13, UCMJ. On appeal, appellant alleged for the 

first time an entitlement to additional credit for the Government’s failure to comply with R.C.M. 

305(h) and (i) (i.e., the 72-hour and 48-hour pretrial confinement review requirements 

respectively). The ACCA held that the appellant failed to properly raise the issue at trial and 

therefore waived any entitlement to credit. 53 M.J. 769 (Army Ct. Crim. App. 2000). The CAAF 

held that appellant waived any issue regarding credit and no plain error by the MJ for failing, sua 

sponte, to award R.C.M. 305(k) credit. 

D. Credit for Violations of Article 13. Two parts: "Unduly harsh circumstances" and pretrial 

punishment. 

1. Unduly harsh circumstances of pretrial confinement (was under United States v. Suzuki, 14 

M.J. 491 (C.M.A. 1983), but is now incorporated into R.C.M. 305(k)). 

a. United States v. Avila, 53 M.J. 99 (C.A.A.F. 2000). By brig policy, based solely on the 

serious nature of his pending charges, appellant was housed in windowless cell; not allowed 

to communicate with other pretrial confinees; given only one hour of daily recreation; made 

to wear shackles outside of his cell, and; only allowed to see visitors separated by a window. 

The court agreed with the lower court’s holding that the brig policy of assigning all pretrial 

confinees facing a possible sentence of 5 or more years to maximum (solitary) confinement 

was unreasonable. Appellant was given an additional 140 days credit for the period of 

pretrial confinement he already served. However, the court found that these conditions did 

not amount to cruel and unusual punishment under the Eighth Amendment. But see United 

States v. James, 28 M.J. 214 (C.M.A. 1989) (finding no Article 13 violation for accused who 

was confined with sentenced prisoners, wore an orange jumpsuit instead of uniform and rank, 

enjoyed limited recreational facilities, and had visitation privileges narrower than those 

required by AR 190-47). 

b. United States v. Gilchrist, 61 M.J. 785 (Army Ct. Crim. App. 2005). Gilchrist was placed 

in pretrial confinement (PTC) prior to his plea of guilty for various offenses. The 

government transported Gilchrist from Fort Knox where he was in PTC to his Article 32 at 

Fort Bliss. The detention cell was full at Fort Bliss so the command shackled him to a cot in 

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“The Ice House” overnight to prevent him from fleeing. Article 13 credit was denied at trial 

for the cot incident. ACCA determined the shackling of Gilchrist was not per se unduly 

harsh. However, they awarded Article 13 credit because other methods could have been used 

to insure Gilchrist’s presence at trial. 

c. United States v. Yunk, 53 M.J. 145 (C.A.A.F. 2000). Reviewing the same unreasonable 

brig policy in Avila, the court commented that the appropriate time to raise matters of illegal 

pretrial confinement is with the magistrate considering the imposition of pretrial confinement. 

However, the court refused to find waiver of the issue when it is raised for the first time on 

appeal. Citing United States v. Huffman, 40 M.J. 225 (C.M.A. 1994). 

d. United States v. King, 61 M.J. 225 (C.A.A.F. 2005). King was placed in pretrial 

confinement and classified as a “maximum security” prisoner. He was placed in a double 

occupancy cell with another pretrial confinee. The following conditions governed King’s 

pretrial confinement: remain in the cell with the exception of appointments or emergencies; 

eat all meals in the cell (meals were delivered to the cell); no library or gym privileges (books 

& gym equipment were delivered to the cell); no sleeping during duty hours; must wear a 

yellow jumpsuit and shackles when released for appointments; must have two escorts, one of 

whom was armed, when King was moved to appointments; and may only watch a TV placed 

outside the cell. King’s cellmate was subsequently convicted at a court-martial and for some 

time, the two continued to reside in the same cell. For administration purposes 

(overcrowding and prohibition on mixing pre- and post-trial confinees), King spent fifteen 

days by himself in a windowless segregation cell. At trial, the military judge denied Article 

13 relief, finding that “[t]he conditions were based on legitimate non-punitive reasons. The 

conditions of [King’s] confinement were not more rigorous than necessary.” The CAAF 

awarded Article 13 credit for his time spent in the segregated cell. However, no credit was 

given for the conditions of his pretrial confinement prior to being segregated. The CAAF 

stated it was “reluctant to second-guess the security determinations of confinement officials.” 

e. United States v. Crawford, 62 M.J. 411 (C.A.A.F. 2006). Marine officer accused was 

segregated for a week of observation and then retained as a “maximum custody” prisoner for 

almost nine months, the entire time he was in pretrial confinement. This did not establish that 

he was confined in conditions more rigorous than those required to assure his presence at trial 

in violation of pretrial confinement regulations. The court considered that there were serious 

charges pending against the accused, there was a potential for lengthy confinement, the 

accused had made threats and had an apparent ability to execute those threats, his access to 

unknown quantities of weapons and explosives, and his professed willingness to resort to 

violent means against what he viewed as government oppression provided sufficient reason to 

classify the accused as a high-risk inmate. 

f. United States v. Adcock, 65 M.J. 18 (C.A.A.F. 2007). 1LT Adcock received credit under 

R.C.M. 305(k) for “abuse of discretion” when she was housed in a civilian confinement 

facility that did not conform to USAF Regulations (AFI 31-205 forbids pretrial detainees 

from being commingled with post-trial inmates and mandates that detainees retain rank 

insignia, conditions violated by the civilian jail in Solano County, CA.) 

g. United States v. Gomez, 66 M.J. 663 (C.G. Ct. Crim. App. 2008). The Coast Guard court 

declined to give relief to an accused who wasn’t visited regularly by his chain of command, 

despite Coast Guard regulation requiring regular visits. 

h. United States v. Williams, 68 M.J. 252 (C.A.A.F. 2010). Accused, who was placed on 

suicide watch when he was confined prior to trial, received sentencing credit for the entire 

period, but did not receive additional credit based on conditions of confinement. (He was 

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denied books, radio, and CD player, subjected to 24 hour lighting, and required to wear a 

suicide gown.) This is because there was a non-punitive objective—suicide watch status. 

2. Pretrial punishment: Generally. 

a. Does NOT depend upon the Soldier being in pretrial confinement. United States v. 

Combs, 47 M.J. 330 (C.A.A.F. 1997). Air Force E-6, whose conviction for homicide was 

overturned on appeal, was required to serve 20 months on active duty as an E-1. CAAF held 

that reduction is a punishment and rejected the Government argument that Article 13 only 

applies in pretrial confinement situations. 

b. United States v. Smith, 53 M.J. 168 (C.A.A.F. 2000) (citing Francis A. Gilligan & Fredric 

I. Lederer, Court-Martial Procedure sect. 4-900.00 at 6-37 (2d ed. 1999)). Reviewing 

previous cases dealing with pretrial punishment, the court identified the following factors to 

assist in determining whether pretrial restraint amounts to pretrial punishment: 

(1) Similarities between sentenced persons and those awaiting disciplinary disposition in 

daily routine, work assignments, clothing attire, and other restraints and control 

conditions; 

(2) relevance of those similarities to customary and traditional military command and 

control measures; 

(3) the relation of requirements and procedures to command and control needs, and; 

(4) if there was an intent to punish or stigmatize the person pending disciplinary action. 

c. United States v. Mosby, 56 M.J. 309 (C.A.A.F. 2002). Appellant was convicted of 

involuntary manslaughter of his five-week old son and sentenced to reduction to E-1, nine 

years confinement and a BCD. Prior to trial, the appellant was placed in solitary confinement 

at the Marine Corps Base Brig at Camp Lejeune, North Carolina. At trial, the Military Judge 

denied a Defense Article 13 motion for additional sentence credit based on illegal pretrial 

punishment finding that: there was no intent to punish appellant by placing him in solitary 

confinement; the conditions were not “unduly rigorous” or “so excessive as to constitute 

punishment”; and the conditions were “reasonably related to legitimate governmental 

objectives.” Held – The military judge’s findings of no intent to punish were not clearly 

erroneous; appellant was NOT entitled to additional sentence credit. See also United States 

v. Fulton, 55 M.J. 88 (C.A.A.F. 2001) and United States v. Coreteguera, Jr., 56 M.J. 330 

(C.A.A.F. 2002). 

d. United States v. Fischer, 61 M.J. 415 (C.A.A.F. 2005). Fischer was placed in pretrial 

confinement on 4 May 2001. On 29 June 2001 his pay and benefits were terminated based on 

him reaching his end of obligated service (ETS or EAS). The defense counsel tried 

unsuccessfully to have his pay continued past his ETS date. This attempt was unsuccessful. 

On appeal, Fischer argued that the government violated Article 13, UCMJ, when it refused to 

pay him past his ETS. The CAAF disagreed. In refusing to award Article 13 credit, the 

CAAF stated there was a neutral non-punitive policy that allowed for refusing to pay a 

pretrial confine that has reached his ETS and is not performing duties. 

3. Pre-trial punishment: Public humiliation or degradation. 

a. United States v. Starr, 53 M.J. 380 (C.A.A.F. 2000). While under investigation, 

appellant, a member of the Security Forces (SF) Squadron, was ordered by his First Sergeant 

to surrender his SF beret. The First Sergeant also assigned appellant to “X Flight,” a group of 

other SF personnel who, for a variety of reasons, were not authorized to bear arms or to 

perform other normal SF duties. Members of X Flight could not wear berets but those 

members assigned there for medical reasons could wear their berets to other squadron 

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functions. According to the First Sergeant, custom in the SF career field prohibits one unable 

to perform SF work from wearing the beret. For 275 days the appellant wore no beret and 

remained in X Flight. The court found no intent to punish or stigmatize him while 

disciplinary action was pending and that the limitations were imposed for legitimate, 

operational and military purposes. 

b. United States v. Cruz, 25 M.J. 326 (C.M.A. 1987). Cruz and about 40 other Soldiers 

suspected of drug offenses were called out of a mass formation, escorted before the 

DIVARTY commander who did not return their salute, called “criminals” by the commander, 

searched and handcuffed, billeted separately pending trial, and assembled into what become 

known as the “Peyote Platoon.” Held: the “public denunciation by the commander and 

subsequent military degradation before the troops prior to courts-martial constitute[d] 

unlawful pretrial punishment prohibited by Article 13.” 

c. United States v. Stamper, 39 M.J. 1097 (A.C.M.R. 1994). Company commander’s 

disparaging remarks to accused such as “don’t go out stealing car stereos this weekend” and 

“getting any five-finger discounts lately, Stamper?” constituted pretrial punishment. 

d. United States v. McLean, 70 M.J. 573 (A.F.C.C.A. 2011). Air Force NCO was convicted 

of aggravated assault on his child. Prior to trial, he was ordered to live in enlisted quarters 

and share their latrine and laundry facilities. The court found the issue was waived because 

not raised at trail, but even if not waived, it was not analogous to the “shaming ritual” in 

Cruz. 

4. Other examples. 

a. "Incorrective" training. United States v. Hoover, 24 M.J. 874 (A.C.M.R. 1987), petition 

denied, 25 M.J. 437 (C.M.A. 1987). After damaging his barracks room, Hoover was required 

to sleep in a pup tent for 3 weeks between 2200 and 0400 hours. Held: Art 13 violation; 

“corrective or extra training” must be “directly related to the deficiency” and “oriented to 

improve . . . performance in the problem area.” See also United States v. Fitzsimmons, 33 

M.J. 710 (A.C.M.R. 1991). Court set aside BCD as a consequence of “pup tent” pretrial 

punishment. 

b. Violating the Order of the Military Judge. United States v. Tilghman, 44 M.J. 493 

(C.A.A.F. 1996). Accused convicted at end of day; government desires to put him in 

confinement until sentencing hearing next day. MJ determines insufficient basis for 

confinement. Commander nevertheless orders accused into pretrial confinement. MJ orders 

additional 10 day credit for each day of illegal pretrial confinement. At post-trial 39a session 

Chief Judge awards additional 18 months credit. 

c. Constitutional Deprivation. United States v. Mack, 65 M.J. 108 (C.A.A.F. 2007). While 

the appellate case does not address this issue directly and faulted the trial judge in other areas, 

CAAF seemed to support the trial judge’s decision to award credit for Constitutional 

violations. These included the accused’s commanding officer ordering him to have no 

unsupervised visits with his wife, even though she had no involvement with the case, 

something the judge found “not directly linked to a valid, governmental purpose and intruded 

on the sanctity of his marriage, a right which is often protected under a number of rights in 

the Constitution of the United States.” The judge also took exception that the accused’s 

telephone conversations to his counsel were monitored which “chilled his ability and freedom 

to speak in a protected environment under the attorney/client relationship, intruding upon 

[Appellant's] ... Fifth and Sixth Amendment rights to counsel.” Accordingly, the trial judge 

found these restrictions were violations of his constitutional rights and warranted day for day 

credit. 

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5. Waiver. In United States v. Inong, 58 M.J. 460 (2003), CAAF held that an accused must 

raise illegal pretrial punishment at trial, or the issue will be waived for appellate purposes, absent 

plain error. In doing so it specifically overruled United States v. Huffman, 40 M.J. 11 (C.M.A. 

1994, as well as the “tantamount to affirmative waiver” rule established by United States v. 

Tanksley, 54 M.J. 169 (2000) and United States v. Southwick, 53 M.J. 412 (2000). 

E. Applying credits. 

1. Adjudged v. Approved sentence. Pretrial confinement credit applies to the approved 

sentence. Originally, CAAF held that pretrial confinement credit applies to adjudged sentence, 

unless there is a PTA that provides for lesser sentence, in which case it applies to lesser sentence. 

United States v. Rock, 52 M.J. 154 (C.A.A.F. 1999). However, in United States v. Spaustat, 57 

M.J. 256 (C.A.A.F. 2002), the court confirmed its ruling in Rock and clarified it by stating: “this 

court will require the convening authority to direct application of all confinement credits for 

violation of Article 13 or RCM 305 and all Allen credit against the approved sentence; i.e., the 

lesser of the adjudged sentence or the sentence that may be approved under the pretrial 

agreement.” See also United States v. King, 58 M.J. 110 (C.A.A.F. 2003), Judge Baker’s 

concurrence, for a succinct discussion of the state of this issue. 

2. When a SM is tried after receiving NJP for the same offense, the SM must get complete 

credit for any prior punishment, “day-for-day, dollar-for-dollar, stripe-for-stripe,” according to 

United States v. Pierce, 27 M.J. 367 (C.M.A. 1989, which in footnote 5 lays out a method to 

reconcile punishments that do not directly convert. “Extra duty for 45 days is equivalent to 60 

days' restriction (1 1/2 for 2); add the 45 days' restriction also imposed = 105 days' restriction. 

Confinement for 1 day is equivalent to 2 days' restriction, so 105 days' restriction = 52 1/2 days' 

confinement.” 

3. When Receiving More Credit than Imposed Punishment. Soldier received 119 days for 

PTC credit plus an additional 476 days for unusually harsh PTC conditions. United States v. 

Zarbatany, 70 MJ 169 (C.A.A.F. 2011). With adjudged confinement of only six months, 

Zarbatany was released at the conclusion of the trial. CAAF held that illegal Art. 13 confinement 

credit can be applied toward a punitive discharge. While the court noted that “conversion of 

confinement credit to forms of punishment other than those found in R.C.M. 305(k) is generally 

inapt,” it can be done, potentially allowing the conversion of a discharge. It also noted, however, 

that while “meaningful relief” is required, it must not come where it would be “disproportionate 

to the harm suffered.” 

F. Litigating Issues Related to Pretrial Restraint. 

1. Pretrial. 

a. Violation of Article 13. CAAF specified the issue of whether a pretrial agreement 

requiring the accused to waive his right to challenge a violation of Article 13 violates public 

policy. United States v. McFayden, 51 M.J. 289 (C.A.A.F. 1999). The court held that 

R.C.M. 705(c)(1)(B) does not specifically prohibit an accused from waiving his right to make 

such a deal. However, as this can be done only with the accused’s full knowledge of the 

implications of the waiver, the military judge should inquire into the facts and circumstances 

of the pretrial confinement as well as the voluntariness and understanding of the accused of 

the waiver before accepting the plea. 

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b. Judicial Review. Whenever reviewing the legality of confinement already served, the 

military judge should apply an abuse of discretion standard & limit the examination to the 

evidence previously considered by the magistrate at the R.C.M. 305(i) hearing. R.C.M. 

305(j)(1)(A). When determining whether to release the prisoner, the military judge should 

hold a de novo hearing. R.C.M. 305(j)(1)(B). See United States v. Gaither, 45 M.J. 349 

(C.A.A.F. 1996). 

c. Other Violations. Article 12 (which forbids American Soldiers from being confined in 

“immediate association” with Enemy prisoners or other foreign nationals) should be 

interpreted to forbid placement of EPW’s, as well as illegal aliens commonly held in local 

confinement facilities waiting for deportation, and Americans in the same cell. United States 

v. Wise, 64 M.J. 468 (C.A.A.F. 2007). 

2. At Trial. 

a. “Trial counsel shall inform the court-martial of the data on the charge sheet relating to . . . 

the duration and nature of any pretrial restraint. . . . If the defense objects to the data as being 

materially inaccurate or incomplete . . . the military judge shall determine the issue. 

Objections not asserted are waived.” R.C.M. 1001(b)(1). 

b. Mason credit. Failure by defense counsel to raise the issue of administrative credit for 

restriction tantamount to confinement by timely and specific objection to the presentation of 

data at trial concerning the nature of such restraint will waive consideration of the issue on 

appeal. United States v. Ecoffey, 23 M.J. 629 (A.C.M.R. 1986). But see United States v. 

Guerrero, 28 M.J. 223 (C.M.A. 1989) (where Court considered request for Mason credit 

made for first time on appeal, but rejected claim). 

c. R.C.M. 305(k)/Rexroat credit. United States v. Rollins, 36 M.J. 795 (A.C.M.R. 1993). 

Failure to raise Rexroat/48 hour review issue at trial constitutes waiver. Accord, United 

States v. Sanders, 36 M.J. 1013 (A.C.M.R. 1993). 

3. Informing the Panel. When the defense opts to introduce evidence of pretrial government 

action that resulted in administrative credit, the military judge has an obligation to instruct the 

members of the administrative credit awarded for them to consider during sentence deliberation. 

The instruction, however, should be general in nature and not “expressly or by inference invite 

the members to award extra confinement time to compensate for the administrative confinement 

credit awarded by the military judge. United States v. Barnett, 70 M.J. 568 (A.F.C.C.A. 2011), 

affirmed in, United States v. Barnett, 71 M.J. 248 (C.A.A.F. 2012). 

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Charging & Instructions 

CHAPTER 8 

CHARGING & INSTRUCTIONS 

I. Overview. 

II. The Charging Decision 

III. Pleadings Generally 

IV. Multiplicity 

V. Unreasonable Multiplication of Charges (UMC) 

VI. Instructions Generally 

VII. Counsel’s role in drafting instructions 

VIII. Procedural Instructions 

IX. Elements of the Offenses 

X. Instructions on Defenses 

XI. Evidentiary instructions 

XII. Sentencing Instructions 

XIII. General Findings in the Military – RCM 918(a) 

XIV. What May / May Not Be Considered in Reaching Findings? RCM 918(c). 

XV. Deliberations and Voting on Findings. RCM 921. 

XVI. Instructions on Findings. RCM 920. 

XVII. Announcement of Findings. RCM 922. 

XVIII. Reconsideration of Findings. UCMJ art. 52, RCM 924. 

XIX. Defective Findings. 

XX. Impeachment of Findings. RCM 923. 

XXI. Special Findings 

I. OVERVIEW 

This chapter focuses on how the theoretical issues of military criminal law become tangible concerns 

with which practitioners must contend regularly. The chapter first discusses the charging decision: 

the point at which concepts and theory become reality via a charge sheet (hence the chapter title 

“substance to form”). The chapter then addresses those issues that must be considered at the time of 

charging because they generally flow directly from the charging decision – pleadings, multiplicity, 

unreasonable multiplication of charges, lesser included offenses, instructions, and findings. 

II. THE CHARGING DECISION 

A. One Method for Making the Charging Decision. 

1. Prosecutorial Discretion. Even in the absence of any formal limitations, it is important to 

remember that there is no ethical or legal obligation to plead all possible charges that the evidence 

might support. Compare ABA Standards, Standard 3-3.9(b) (listing factors properly considered 

in exercise of prosecutorial discretion) with R.C.M. 306(b) discussion (listing factors to be 

considered by commanders in making an initial disposition of offenses). 

2. How To Make the Charging Decision: A Method. 

a) Review all the evidence. 

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b) Develop a theory of the case.
 

c) List possible charging options.
 

d) Conduct elements/proof analysis of each charge.
 

e) Consider ethical and legal limitations.
 

f) Consider prudential/tactical factors.
 

(1) Theory of the case. 

(2) Nature and degree of harm. 

(3) Panel’s perception and sense of fairness. 

(4) Exigencies of proof and intentional multiplicity. 

(5) Use of “mega-specs”. 

(6) Preservation of LIOs. 

(7) Maximum punishments. 

(8) Uncharged misconduct / MRE 404(b) issues. 

(9) Cooperation of accused. 

(10) Improper motives of witnesses or victims. 

(11) Reluctance of victim to testify.
 

g) Draft the Charges. Consider these basic principles:
 

(1) Charge the most serious offense consistent with the evidence. See United States v. 

Foster, 40 M.J. 140, 144 n. 4 (C.M.A. 1994) (“[T]here is prosecutorial discretion to 

charge the accused for the offense(s) which most accurately describe the misconduct and 

most appropriately punish the transgression(s).”). 

(2) Err on the side of liberal charging and be prepared to withdraw as the case develops. 

See R.C.M. 401(c) and R.C.M. 604 concerning withdrawal of charges and specifications. 

(3) United States v. Leahr, 73 M.J. 364 (C.A.A.F. 2014). Convening authority properly 

dismissed charges in order to investigate new misconduct and refer all known charges to 

the same court-martial. Doing so did not violate the accused’s speedy trial rights and was 

not an improper withdrawal of the charges. 

(4) If charging conspiracy, ensure that it is important/necessary for your theory of the 

case. 

(5) The facts alleged in the specification define the entire universe of facts that the 

government can use to establish the accused’s criminality. Findings by exceptions and 

substitutions can render a specification defective if it is drafted too sparsely. Consider 

United States v. Plant, 74 M.J. 297 (C.A.A.F. 2015), where the accused was charged with 

child endangerment “by using alcohol and cocaine.” The panel excepted the words “and 

cocaine,” and the CAAF held that the only basis for establishing the accused’s 

endangerment of his thirteen-month-old son was his drinking alcohol while responsible 

for his care. The CAAF also held it could not consider whether the accused endangered 

his son by having a party at his off-post quarters, allegedly using cocaine during the 

party, inviting virtual strangers into his home while his son was there, or by sexually 

assaulting two young women in his quarters while his son was sleeping there. The CAAF 

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found the evidence legally insufficient to sustain the specification because the accused’s 

intoxication did not cause a reasonable probability that the child would be harmed. 

B.	 Ethical and Legal Limitations. 

1.	 Ethical Limitations.
 

a) Charges must be warranted by the evidence.
 

(1) Army Reg. 27-26, Rule 3.8(a), provides that a trial counsel shall “recommend to the 

convening authority that any charge or specification not warranted by the evidence be 

withdrawn.” 

(2) ABA Standards, Standard 3-3.9(a), provides that “a prosecutor should not . . . cause 

to be instituted, or permit the continued pendency of criminal charges” in two 

circumstances: 

(a) When the prosecutor knows that the charges are not supported by probable cause, 

or 

(b) In the absence of sufficient admissible evidence to support a conviction. 

b) A supervising prosecutor cannot compel a subordinate to prosecute an offense about 

which the supervisor has a reasonable doubt as to the guilt of the accused. ABA Standards, 

Standard 3-3.9(c). Cf. R.C.M. 307(a) discussion. 

c)	 Charges should not be unreasonably multiplied. 

(1) Nature of Charges. What is substantially one transaction should not be made the 

basis for an unreasonable multiplication of charges against one person. R.C.M. 

307(c)(4). Cf. ABA Standards, Standard 3-3.9(f) (A prosecutor should not “seek charges 

greater in number or degree . . . than are necessary to fairly reflect the gravity of the 

offense”). 

(2) Prosecutorial Motive. A prosecutor should not “pile on” charges to “unduly leverage 

an accused to forego his or her right to trial.” ABA Standards, Standard 3-3.9 

commentary. 

2.	 Constitutional Limitations. 

a) A prosecutor cannot selectively prosecute an individual because of “race, religion, or 

other arbitrary classification.” Wayte v. United States, 470 U.S. 598 (1985). Accused must 

show more than a mere possibility. United States v. Hagen, 25 M.J. 78 (C.M.A. 1987). 

b) A prosecutor cannot vindictively prosecute to penalize an individual’s exercise of 

constitutional or statutory rights. Blackledge v. Perry, 417 U.S. 21 (1974). 

C.	 The Defense Response to the Charging Decision. 

1.	 Motions to dismiss.
 

a) Failure to state an offense. R.C.M. 907(b)(1)(B).
 

b) Statute of limitations. R.C.M. 907(b)(2)(B).
 

c) Defective or misleading specifications. R.C.M. 907(b)(3)(A).
 

d) Unreasonable multiplication of charges. R.C.M. 907(b)(3)(B).
 

2.	 Motions for appropriate relief.
 

a) Determination of multiplicity. R.C.M. 906(b)(12).
 

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b) Bill of particulars. R.C.M. 906(b)(6).
 

c) Sever duplicitous specifications. R.C.M. 906(b)(5).
 

d) Sever offenses. R.C.M. 906(b)(10).
 

e) Vindictive or selective prosecution. Fifth Amendment; United States v. Hagen, 25 M.J.
 

78 (C.M.A. 1987).
 

III. PLEADINGS GENERALLY 

A.	 Introduction. 

1.	 Military pleadings follow the format of charge and specification. R.C.M. 307(c)(1). 

2.	 Charge: The article of the UCMJ or law of war which the accused is alleged to have violated. 

R.C.M. 307(c)(2). 

3. Specification: plain, concise, and definite statement of the essential facts constituting the 

offense charged. R.C.M. 307(c)(3). 

B.	 Charges and Specifications. 

1.	 Charges. Generally R.C.M. 307(c)(2). 

a) A single charge is not numbered (“The Charge:”). 

b) If more than one charge, use Roman numerals (“Charge I:” “Charge II:”). 

c) Additional charges follow the same format and may be added until arraignment. 

d) Error in, or omission of, the designation of the charge shall not be a ground for dismissal 

of a charge or reversal of a conviction unless the error prejudicially misleads the accused. 

R.C.M. 307(d); see United States v. Bluitt, 50 C.M.R. 675 (A.C.M.R. 1975). 

2.	 Specifications. R.C.M. 307(c)(3) and discussion.
 

a) Numbering. 

(1) A single specification is not numbered (“The Specification:”). 

(2) Multiple specifications use Arabic numbers (“Specification 1:” “Specification 2:”). 

b) Drafting the Language. 

(1) Model specifications may be found in either: 

(a) MCM, part IV; or, 

(b) Dep't of Army, Pam. 27-9, Military Judges' Benchbook, Chapter 3 (15 Sep 2002). 

Note: Be sure to check for approved interim updates found on the Trial Judiciary 

page on JAGCNET. 

(2) Legally Sufficient Specifications. See infra Chapter 7, Appendix A; see also R.C.M. 

907(b)(1)(B), and R.C.M. 307(c)(3). 

(3) Describe the accused. 

(a) Name and rank. 

(b) Armed force. 

(c) Social security number of accused should not be stated in specification. 

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(4) Place of offense. “At or near . . .” 

(5) Date and time of offense. “On or about . . . ” 

c) Novel Specifications. 

(1) Counsel are unlikely to have novel specifications for most offenses. However, 

counsel may have to draft novel specifications for general disorders or servicediscrediting conduct that are charged as violations of UCMJ art. 134, or for many forms 

of conduct unbecoming that are charged as violations of UCMJ art. 133. 

(2) Designing a novel specification. See United States v. Sell, 11 C.M.R. 202 (C.M.A 

1953). 

(a) Identify and expressly plead the elements of the offense. 

(i) Consult civilian case law or pattern jury instructions for the elements of 

crimes and offenses not capital integrated from federal law or assimilated from 

state law. 

(ii) Conduct prejudicial to good order and discipline and service discrediting 

conduct not specifically listed as crimes by the President are more problematic. 

(iii) The MCM provides that there are only two elements to such offenses: act or 

omission by accused, and a prejudicial or discrediting effect. MCM, pt. IV, para. 

60.b. 

(iv) Words of Criminality. If the act alleged is not inherently criminal, but is 

made an offense only by operation of custom, statute, or regulation, the 

specification must include words of criminality appropriate to the facts of the 

case, e.g., “without authority,” “wrongfully,” or “unlawfully.” See R.C.M. 

307(c)(3) discussion. 

(b) Describe the offense with sufficient specificity to inform the accused of the 

conduct charged, to enable the accused to prepare a defense, and to protect the 

accused from subsequent reprosecution for the same offense. Notice pleading 

nevertheless remains the rule. 

(c) Allege in the specification only those facts that make the accused’s conduct a 

crime. 

(d) Evidence supporting the allegation should ordinarily not be included in the 

specification. 

C. General Rules of Pleading 

1. Principals. All principals are charged as if they were the perpetrator. R.C.M. 307(c)(3) 

discussion at (H)(i). For a thorough discussion of principals, see UCMJ art. 77; MCM, pt. IV, ¶ 

1; and Chapter 1 of the Crimes and Defenses Deskbook. The theory of liability does not need to 

be specified. See United States v. Vidal, 23 M.J. 319 (C.M.A. 1987) 

2. Duplicity. 

a) General. Duplicity is the practice of charging two or more offenses in one specification. 

Distinguish this from multiplicity, which is the practice of charging one offense in two or 

more separate charges or specifications. 

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b) Rule. Each specification shall state only one offense. R.C.M. 307(c)(4). If an accused is 

found guilty of a duplicitous specification, his maximum punishment is that for a single 

specification of the offense. Exception: “mega-specs;” see below. 

c) Remedy. The sole remedy for duplicity is severance into separate specifications. R.C.M. 

906(b)(5). United States v. Hiatt, 27 M.J. 818 (A.C.M.R. 1988) (conspiracy specification that 

alleged both conspiracy to commit larceny and to receive stolen property was duplicitous, but 

failure at trial to move to sever or strike constituted waiver). As a practical matter, severance 

is rarely requested, because it exposes the accused to multiple punishments. 

d)	 Applications. 

(1) “Mega-specs.” The CAAF has held that the maximum punishment for some 

duplicitous specifications may be calculated as if each offense alleged in a duplicitous 

specification had been charged separately. 

(a) Bad checks. United States v. Mincey, 42 M.J. 376 (C.A.A.F. 1995) (holding that 

maximum punishment in a bad-check case is calculated by the number and amount of 

checks as if they had been charged separately, regardless of whether Government 

joined multiple offenses in one specification). 

(b) Check forgery. United States v. Dawkins, 51 M.J. 601 (A. Ct. Crim. App. 1999) 

(extending the Mincey rule to check forgery). 

(2) Larceny. 

(a) See pleading principles for value infra at Part II.C.4. 

(b) United States v. Rupert, 25 M.J. 531 (A.C.M.R. 1987) (accused charged under 

one specification for larceny of different items "on divers occasions" over a 17-month 

period having a combined value of over $100). To be convicted of larceny over $100 

either: 

(i)	 One item must have that value, or 

(ii) Several items taken at the same time and place must have that aggregate 

value. 

Note: With the 2002 MCM Amendments, the threshold for increased punishment 

was raised to $500. 

3.	 Matters in aggravation (i.e., punishment enhancers). 

a) Must be alleged and proven beyond a reasonable doubt. R.C.M. 307(c)(3). 

b) Examples. 

(1) Over 30 grams of marijuana. MCM, pt. IV, ¶ 37e(1). 

(2) Value over $500; military property. MCM, pt. IV, ¶ 46e(1). 

(3) Use of a firearm. MCM, pt. IV, ¶ 47e(1). 

(4) Age of the victim. MCM, pt. IV, ¶ 54e(7). 

4.	 Value. 

a) Pleading value. ("of a value greater than . . .," "of a value not less than . . .," "of some 

value"). 

b) Proving value. Value is a question of fact to be determined by all of the evidence
 

admitted. MCM, pt. IV, ¶46c(1)(g).
 

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(1) Government property. Listed in official publications. 

(2) Other property. Legitimate market value. 

(3) United States v. Trisler, 25 M.J. 611 (A.C.M.R. 1987) (hearsay testimony admissible 

to show value of stereo equalizer and two speakers absent defense objection). 

c)	 Value in larceny cases. 

(1) Multiple items taken at substantially the same time and place are a single larceny, 

even if the items belonged to more than one victim. In such cases, a single specification 

is used to allege theft of all items, and the values of the items are combined to determine 

the maximum punishment. See MCM, pt. IV, ¶47c(1)(h)(ii). The specification should 

state the value of each item followed by a statement of the aggregate value. R.C.M. 

307(c)(3) discussion at (H)(iv). 

(2) Cannot combine or aggregate values of items stolen from different places or on 

different dates. 

(3) To be convicted of larceny over $500 either: 

(a) One item must have that value (over $500.00), or 

(b) Several items taken at the same time and place must have that aggregate value. 

See MCM, pt. IV, ¶47c(1)(h)(ii). 

5.	 Joinder of offenses. 

a) All offenses against an accused may be referred to the same court-martial for trial. 

R.C.M. 601(e)(2). 

b) The military judge may sever offenses “only to prevent manifest injustice.” R.C.M. 

906(b)(10); United States v. Duncan, 53 M.J. 494 (C.A.A.F. 2000); see also United States v. 

Simpson, 56 M.J. 462 (C.A.A.F. 2002). 

c) Joinder of perjury charges resulting from accused’s testimony at previous trial. United 

States v. Giles, 59 M.J. 374 (C.A.A.F. 2004) (holding the military judge abused his discretion 

by failing to sever the perjury charge from the of attempted use and distribution charges at 

retrial; the instructions given were insufficient to prevent a manifest injustice). 

d) After arraignment, charges cannot be added without the consent of the accused. R.C.M. 

601(e)(2). 

D.	 Amendments. R.C.M. 603. 

1.	 Types of changes. R.C.M. 603(a). 

a) Major change. Adds a party, offense, or substantial matter not fairly included in those
 

previously preferred, or which is likely to mislead the accused.
 

b) Minor changes. All other changes.
 

2.	 Making minor changes. 

a) Before arraignment. Any person forwarding, acting upon, or prosecuting the charges can 

make minor changes before arraignment. R.C.M. 603(b). 

b) After arraignment. After arraignment, the military judge may, upon motion, permit 

minor changes any time before findings. R.C.M. 603(c). 

3.	 Making Major Changes. 

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a) Changes other than minor changes may never be made over the objection of the accused 

unless the charge or specification is preferred anew. R.C.M. 603(d). 

b) Applications. 

(1) Conspiracy. United States v. Moreno, 46 M.J. 216 (C.A.A.F. 1997) (holding that 

accused’s ability to prepare a defense was not prejudiced by a change to conspiracy 

specification the day before trial despite major change). 

(2) Matters in aggravation. United States v. Smith, 49 M.J. 269 (C.A.A.F. 1998) 

(holding that amendment to larceny specification adding “military property” was a major 

change, but error was not prejudicial). 

(3) Disobedience. United States v. Longmire, 39 M.J. 536 (A.C.M.R. 1994) (change to 

person issuing order and document used to issue order was major change). 

(4) General Article. United States v. Sullivan, 42 M.J. 360 (C.A.A.F. 1995) (change 

from clause three to clause two offense on day of trial was a minor change). 

E. Variance. R.C.M. 918(a)(1) 

1. A variance between pleadings and proof exists when evidence at trial establishes the 

commission of a criminal offense by the accused, but the proof does not conform strictly with the 

offense alleged in the charge. United States v. Allen, 50 M.J. 84, 86 (C.A.A.F. 1999). 

2. Findings by exceptions and substitutions may not be used to substantially change the nature 

of the offense or to increase the seriousness of the offense or the maximum punishment for it. 

R.C.M. 918(a)(1). 

3. The specification and the findings may differ, provided the accused is not prejudiced. United 

States v. Collier, 14 M.J. 377 (C.M.A. 1983). 

4. Test for prejudice. United States v. Lee, 1 M.J. 15 (C.M.A. 1975); United States v. Wray, 17 

M.J. 375 (C.M.A. 1984). 

a) The variance misled the accused to the extent that he was unable to adequately prepare 

for trial; or 

b) The variance puts accused at risk of another prosecution for the same offense; or 

c) The variance changes the nature or identity of the offense and the accused has been 

denied the opportunity to defend against the charge. 

5. Applications. 

a) Substantially different offense. United States v. Lovett, 59 M.J. 230 (C.A.A.F. 2004) 

(holding variance was fatal when finding of guilt for solicitation to obstruct justice was 

substantially different from the charged solicitation to murder). 

b) Different date. United States v. Parker, 59 M.J. 195 (C.A.A.F. 2003) (holding two-year 

variance in date of rape fatal); United States v. Wray, 17 M.J. 375 (C.M.A. 1984) (holding 

variance in date of larceny fatal). But see United States v. Hunt, 37 M.J. 344 (C.M.A. 1993) 

cert. denied, 114 S. Ct. 1052 (1993) (holding three-week variance in date of rape not fatal). 

c) Different victim. United States v. Marshall, 67 M.J. 418 (C.A.A.F. 2009) (holding 

variance fatal in an Art. 95 prosecution when specification alleged that the accused escaped 

from the custody of “CPT Kreitman” and military judge entered findings by exceptions and 

substitutions convicting the accused of escaping the custody of “SSG Fleming”). 

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d) Different injury. United States v. Dailey, 37 M.J. 1078 (N.M.C.M.R. 1993) (holding 

variance not fatal). 

e) Different unit. United States v. Atkinson, 39 M.J. 462 (C.M.A. 1994) (holding variance 

in alleging unit of assignment rather than temporary place of duty not fatal). 

f) Violation of different paragraph of general order. United States v. Teffeau, 58 M.J. 62 

(C.A.A.F. 2003) (holding variance fatal where accused was charged with violating a lawful 

general order by providing alcohol to a recruit but convicted of violating of a different 

paragraph of the same order by engaging in a personal relationship with the recruit). 

g) Statute of limitations—divers occasions. United States v. Rollins, 61 M.J. 338 (C.A.A.F. 

2005). Appellant was charged with numerous offenses including attempted rape on divers 

occasions, and indecent acts on divers occasions. The panel found appellant not guilty of 

attempted rape, but guilty of indecent assault on divers occasions, and guilty of the divers 

occasions indecent act specification. Both of these specifications included periods which 

would later be time-barred by the holding in United States v. McElhaney, 54 M.J. 120 

(C.A.A.F. 2000). The convening authority modified the findings to include only the dates not 

affected by the statute of limitations. HELD: The military judge erred by not providing the 

panel with instructions that focused their attention on the period not barred by the statute of 

limitations. The convening authority’s action did not cure this prejudice and the affected 

findings were set aside. See also United States v. Thompson, 59 M.J. 432 (C.A.A.F. 2004). 

6. Continuing course of conduct "on divers occasions." 

a) On findings, when the phrase “on divers occasions” is removed from a specification, the 

effect is that the accused has been found guilty of misconduct on a single occasion and not 

guilty of the remaining occasions. See United States v. Trew, 68 M.J. 364 (C.A.A.F. 2010); 

United States v. Augsberger, 62 M.J. 189 (C.A.A.F. 2005). 

b) Where the findings do not disclose the single occasion on which the conviction is based, 

appellate courts cannot conduct a factual sufficiency review or affirm findings because it 

cannot determine which occasion the servicemember was acquitted of. See United States v. 

Trew, 68 M.J. 364 (C.A.A.F. 2010); United States v. Augsberger, 62 M.J. 189 (C.A.A.F. 

2005). 

c) “Both trial practitioners and military judges need to be aware of the potential for 

ambiguous findings . . . and take appropriate steps through instruction and pre-announcement 

review of findings to ensure no ambiguity occurs.” United States v. Trew, 68 M.J. 364 

(C.A.A.F. 2010). 

d) While a Court of Criminal Appeals may not review the record to determine which 

incident most likely formed the basis for the conviction, the court “may review the record to 

determine if there was only a single possible incident that met ‘all the details of the 

specification’ for which the [accused] was convicted. United States v. Trew, 68 M.J. 364 

(C.A.A.F. 2010); United States v. Ross, 68 M.J. 415 (C.A.A.F. 2010). However, Government 

may prevail on appeal if legal sufficiency review reveals only one occasion that is legally 

sufficient. “Under those circumstances, . . . the verdict would be unambiguous.” See United 

States v. Ross, 68 M.J. 415 (C.A.A.F. 2010). 

e) Applications. United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003) (holding variance 

fatal where specification alleged wrongful drug use on “divers occasions” and findings by 

exceptions and substitutions removed the “divers occasions” language; the substituted 

language must clearly reflect the specific instance of conduct upon which the modified 

findings are based); see also United States v. Trew, 68 M.J. 364 (C.A.A.F. 2010) (accused 

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charged with indecent acts upon a child on divers occasions, military judge convicted of 

assault consummated by battery on one occasion without clarification, ambiguous findings); 

United States v. Ross, 68 M.J. 415 (C.A.A.F. 2010) (charged with possession of child 

pornography on divers occasions, military judge excepted words “on divers occasions” 

without additional comment,” ambiguous findings); United States v. Wilson, 67 M.J. 423 

(C.A.A.F. 2009) (error for military judge to fail to identify the specific instance of conduct 

forming the basis for the conviction); United States v. Seider, 60 M.J. 36 (C.A.A.F. 2004) 

(fatal variance); United States v. Augspurger, 61 M.J. 189 (C.A.A.F. 2005) (fatal variance); 

and United States v. Scheurer, 62 M.J. 100 (C.A.A.F. 2005) (partially affirmed and partially 

set aside). 

IV. MULTIPLICITY 

A. Practitioners should note that there have been substantial changes proposed to the Manual for 

Courts-Martial discussing and attempting to clarify multiplicity and unreasonable multiplication of 

charges (for findings and sentencing). This is a result of United States v. Campbell, 71 M.J. 19 

(C.A.A.F. 2012). As of January 2013, the Executive Order reflecting these changes is awaiting 

Presidential signature, and the 2013 edition should reflect these substantial revisions. 

B. Defined: “[T]he practice of charging the commission of a single offense in several counts.” 

Black's Law Dictionary 1016 (6th ed. 1990). 

C. The doctrine of Multiplicity rests on a Constitutional Basis. 

1. "No person shall . . . be subject, for the same offense, to be twice put in jeopardy of life and 

limb." U.S. Const. amend. V. 

2. This prohibition extends to multiple punishments for the same offense at a single criminal 

trial. Ohio v. Johnson, 467 U.S. 493 (1984); Ball v. United States, 470 U.S. 856 (1985). 

D. The Fundamental Rule. United States v. Teters, 37 M.J. 370 (C.M.A. 1993). 

1. An accused may not be convicted of multiple offenses arising out of a single criminal 

transaction unless there is a clear expression of legislative intent to the contrary. 

2. Legislative intent to allow multiple convictions for offenses arising out of a single criminal 

transaction may be inferred if each offense requires proof of a fact that the other does not. The 

determination that each offense requires proof of a unique fact is made by comparing the 

elements of the offenses. See United States v. Dillon, 61 M.J. 221 (C.A.A.F. 2005) (holding that 

separate specifications for different controlled substances used at the same time not multiplicious; 

Congress clearly intended separate specifications for each controlled substance and this complies 

with the statutory elements test under Teters.). 

3. "[T]hose elements required to be alleged in the specification, along with the statutory 

elements, constitute the elements of the offense for the purpose of the elements test." United 

States v. Weymouth, 43 M.J. 329, 340 (C.A.A.F. 1995). 

4. The inference of legislative intent to allow separate convictions may be overcome if there are 

indications of contrary legislative intent. See, e.g., UCMJ art. 120(b) (prior to 1 Oct. 2007) (2008 

MCM, App. 27) (limiting carnal knowledge to “circumstances not amounting to rape”). 

5. Offenses found to be "separate" under this analysis may be considered separate for all 

purposes, including sentencing. United States v. Morrison, 41 M.J. 482 (1995). 

6. Charges reflecting both an offense and a lesser included offense are impermissibly 

multiplicious. United States v. Hudson, 59 M.J. 357 (C.A.A.F. 2004); United States v. Savage, 

50 M.J. 244 (C.A.A.F. 1999). 

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E. Multiplicity does not apply to sentencing. If an offense is multiplicious for sentencing, then it 

is necessarily multiplicious for findings. United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) 

(eliminating the doctrine of multiplicity for sentencing, but affirming the application of 

unreasonable multiplication of charges for sentencing). 

F. Multiplicity and Waiver. 

1. Absent plain error, an unconditional guilty plea waives a multiplicity claim. United States 

v. Lloyd, 46 M.J. 19 (C.A.A.F. 1997). However, if two specifications are facially duplicative, 

i.e., “factually the same,” then they are multiplicious, and it is plain error not to dismiss one of 

them. United States v. Hudson, 59 M.J. 357 (C.A.A.F. 2004) (holding, under the facts, that 

breaking restriction and AWOL are not factually the same, so the military judge did not commit 

plain error by not dismissing the AWOL charge as a lesser included offense). 

2. Failing to object to charges as multiplicious waives the issue absent plain error. See United 

States v. Britton, 47 M.J. 195 (C.A.A.F. 1997); United States v. Savage, 50 M.J. 244 (C.A.A.F. 

1999); but see United States v. Hanks, 74 M.J. 556 (A. Ct. Crim. App. 2014) (addressing 

multiplicity without plain error analysis despite accused’s not raising it at trial; rejecting 

government concession that maiming and aggravated assault by intentionally inflicting grievous 

bodily harm specifications were multiplicious, holding that the aggravated assault offense was not 

a lesser included offense of maiming despite the MCM listing it as such and disagreeing with a 

case from the Navy-Marine Corps Court of Criminal Appeals holding that it was). 

G. Suggested References for Multiplicity. Articles that may assist in understanding these principles 

include: Captain Gary E. Felicetti, Surviving the Multiplicity/LIO Family Vortex, Army L., Feb. 

2011, 46; Major Christopher S. Morgan, Multiplicity: Reconciling the Manual for Courts-Martial, 63 

A. F. L. Rev. 23 (2009); Lieutenant Colonel Michael Breslin & Lieutenant Colonel LeEllen Coacher, 

Multiplicity and Unreasonable Multiplication of Charges: A Guide to the Perplexed, 45 A. F. L. Rev. 

99 (1998); Major William T. Barto, Alexander the Great, the Gordian Knot, and the Problem of 

Multiplicity in the Military Justice System, 152 Mil. L. Rev. 1 (1996). 

V. UNREASONABLE MULTIPLICATION OF CHARGES (UMC) 

A. General. Even if offenses are not multiplicious, courts may apply the doctrine of unreasonable 

multiplication of charges (UMC). 

1. “What is substantially one transaction should not be made the basis for an unreasonable 

multiplication of charges against one person.” R.C.M. 307(c)(4); see also R.C.M. 1003(c)(1)(C). 

Cf. R.C.M. 906(b)(12). 

2. Military judges must ensure that prosecutors do not needlessly “pile on” charges against a 

military accused. United States v. Foster, 40 M.J. 140, 144 n.4 (C.M.A. 1994). 

B. The Doctrine. United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001). 

1. Multiplicity and UMC are founded on distinct legal principles. The prohibition against 

multiplicity complies with the constitutional and statutory restrictions against double jeopardy. 

The prohibition against UMC addresses features of military law that increase the potential for 

overreaching in the exercise of prosecutorial discretion. After considering these factors, if the 

court finds the “piling on” of charges to be unreasonable, it will fashion an appropriate remedy on 

a case by case basis. 

2. In Quiroz, the CAAF endorsed the N-MCCA's non-exclusive list of factors to consider in 

weighing a claim of UMC: 1) Did accused object at trial? 2) Is each charge and specification 

aimed at a distinctly separate act? 3) Does the number of charges misrepresent or exaggerate 

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accused’s criminality? 4) Is there any evidence of prosecutorial overreaching in drafting? 5) 

Does number of charges and specifications unreasonably increase accused’s punitive exposure? 

C. Trial Judges may dismiss unreasonably multiplied charges on findings. United States v. 

Roderick, 62 M.J. 425 (C.A.A.F. 2006). 

D. Service courts may consider UMC claims waived or forfeited if not raised at trial. United States 

v. Butcher, 56 M.J. 87 (C.A.A.F. 2001). 

E. On appeal, service courts may may disapprove findings, even if they are correct in law and fact, 

in order to remedy what it finds to be an unreasonable multiplication of charges. United States v. 

Bond, 69 M.J. 701 (C.G. Ct. Crim. App. 2010). 

F. Unreasonable multiplication of charges can occur across multiple prosecutions. See United 

States v. Raynor, 66 M.J. 693 (A.F. Ct. Crim. App. 2008) (after the AFCCA ordered a rehearing on 

two charges, the government added charges for indecent liberties, sodomy, assault, and enticing 

minors to engage in sexually explicit conduct under 18 U.S.C. § 2251, which arose from the same 

conduct at issue at the first trial; held: not an unreasonable multiplication of charges). 

G. Applications. 

1. Although CAAF eliminated the doctrine of multiplicity for sentencing, courts may still apply 

the the unreasonable multiplication of charges test during sentencing. United States v. Campbell, 

71 M.J. 19 (C.A.A.F. 2012). 

2. United States v. Mazer, 58 M.J. 691 (N-M. Ct. Crim. App. 2003). A commissioned officer 

exchanged sexually suggestive and explicit e-mail and “chat” messages with a 14-year-old girl. 

Four specifications of an Article 133 charge was not UMC, because they did not reflect the same 

act or transaction. Each specification identified a discrete and unique communication. 

3. United States v. Esposito, 57 M.J. 608 (C.G. Ct. Crim. App. 2002). Appellant made a false 

statement about the source of injuries sustained in a fight and asked a fellow crewmember to do 

the same. Charging appellant with false official statement and obstructing justice by making the 

same false statement was UMC. Also, charging appellant with soliciting a false official statement 

and obstructing justice by that same solicitation was UMC. 

4. United States v. Clarke, 74 M.J. 627 (A. Ct. Crim. App. 2015). Assault under Article 128, 

UCMJ, is a continuous course-of-conduct offense such that each blow in an altercation should not 

be the basis for a separate finding of guilty. Separate aggravated assault convictions for the 

accused’s hitting his wife in the head with a metal stool – causing grievous bodily harm – and in 

the elbow with a means likely to cause death or grievous bodily harm, to wit: the same metal 

stool (during the same beating) was unreasonable. 

5. United States v. Elespru, 73 M.J. 326 (C.A.A.F. 2014). Accused was charged in the 

alternative with abusive sexual contact and wrongful sexual contact based on exigencies of proof. 

The panel convicted him of both offenses, and the MJ combined them for sentencing. The CAAF 

held that the military judge should have dismissed the wrongful sexual contact specification, but 

the error did not prejudice the sentence. 

a) The appellate courts recognize that Article 120 cases often lend themselves 

to charging in the alternative. See United States v. Elespru, 73 M.J. 326 

(C.A.A.F. 2014). Military judges should ordinarily dismiss one of the charges 

based on the principle of unreasonable multiplication of charges only after 

findings have been reached. Id. Practitioners are advised to request the military 

judge to conditionally dismiss until such time as appellate review has been 

completed. See, e.g., United States v. Hines, 2016 CCA LEXIS 439 (A. Ct. 

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Crim. App. July 27, 2016) fn 4 (MJ “should clearly state that the dismissal of the 

one specification is conditioned on a second specification surviving appellate 

review.”). See also United States v. Thomas, 74 M.J. 563 (N-M. Ct. Crim App. 

2014), United States v. Parker, 2016 CCA LEXIS 83 (N-M.Ct.Crim.App. Feb. 

18, 2016). Consolidation of specifications may also be appropriate as an 

alternative to dismissal. See United States v. Nelms, 2016 CCA LEXIS 227 83 

(N-M.Ct.Crim.App. Apr. 14, 2016). 

6. United States v. Chandler, 74 M.J. 674 (A. Ct. Crim. App. 2015). Where there is only one 

agreement, there is only one conspiracy. Charging two conspiracies for one agreement (here one 

conspiracy to steal military property and one to sell military property from the same agreement 

and course of events) is an unreasonable multiplication of charges. 

VI. INSTRUCTIONS GENERALLY 

A. Three essential presumptions underlie the use of instructions at trial: 

1. The panel or jury hears and listens to the instructions. United States v. Smith, 25 C.M.R. 86 

(C.M.A. 1958). 

2. The panel or jury understands the instructions. United States v. Quintanilla, 56 M.J. 37, 83 

(C.A.A.F. 2001). 

3. The panel or jury follows the instructions. Quintanilla, 56 M.J. at 83. 

B. Instructions should be written in plain language that is easy for lay people to understand. See 

Carolyn G. Robbins, Jury Instructions: Plainer is Better, Trial, Apr. 1996, at 32. 

C. Instructions should be carefully tailored to the specific facts in each case. United States v. 

Harrison, 41 C.M.R. 179 (C.M.A. 1970). 

D. Instructions must provide meaningful legal principles for the courts-martial’s consideration. 

United States v. Dearing, 63 M.J. 478, 483 (C.A.A.F. 2006). 

E. Instructions must be given orally on the record in the presence of all parties and members. 

Written copies of the instructions or, unless a party objects, portions of them may also be given to the 

members for their use during deliberation. R.C.M. 920(d). 

F. Further readings. 

1. Colonel R. Peter Masterton, “Instructions: A Primer for Counsel” Army Law., Oct. 2007, at 

85. 

2. The Army Trial Judiciary publishes an annual update on instructions in The Army Lawyer. 

See, e.g., Colonel Timothy Grammel and Lieutenant Colonel Kwasi L. Hawks, Annual Review of 

Developments in Instructions, Army Law., Feb. 2010, at 52. 

VII. COUNSEL’S ROLE IN DRAFTING INSTRUCTIONS 

A. “Although judges have the responsibility for giving proper instructions, counsel may request 

specific instructions, and, indeed, subject to ethical considerations, competent counsel should always 

seek to do so unless the applicable standard instruction is at least as favorable as any reasonable 

proposed instruction would be.” 22 Francis A. Gilligan & Fredric I. Lederer, Court-Martial Practice § 

31.00 (3d ed. 2006). 

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B. At the close of the evidence or at such other time as the military judge may permit, any party may 

request that the military judge instruct the members on the law as set forth in the request. R.C.M. 

920(c). 

C. A military judge is required to give requested instructions “as may be necessary and which are 

properly requested by a party.” RCM 920(e)(7); United States v. Damatta-Olivera, 37 M.J. 474, 478 

(C.M.A. 1993). Requested instructions are necessary when: 

1. The issue is reasonably raised; 

a) A matter is “in issue” when some evidence, without regard to its source or credibility, has 

been admitted upon which members might rely if they chose. R.C.M. 920(e) discussion; 

United States v. Terry, 64 M.J. 295, 299 (C.A.A.F. 2007). 

b) Whether an issue is raised is a matter for the judge to decide; the judge should not permit 

the court members to decide if the issue was raised. United States v. Jones, 7 M.J. 441 

(C.M.A. 1979). 

2. The issue is not adequately covered elsewhere in anticipated instructions; and 

a) See United States v. Briggs, 42 M.J. 367 (C.A.A.F. 1995); United States v. Carruthers, 64 

M.J. 340 (C.A.A.F. 2007); see also R.C.M. 920(c) discussion (the military judge is not 

required to give the specific instruction requested by the counsel as long as the issue is 

adequately covered in the instructions). 

3. The proposed instruction accurately states the law concerning facts in the case. 

D. When counsel draft instructions or request instructions that are not required, the standard of 

review on appeal is abuse of discretion. United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 

1993); United States v. Acosta-Zapata, 65 M.J. 811 (A. Ct. Crim. App. 2007). 

1. However, if the instruction is otherwise required, the fact that the defense submitted a 

proposed but erroneous instruction does not excuse the military judge from his duty to instruct 

correctly. United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006). In those cases, use the 

standard of review for required instructions. See section IVC below. 

2. Waiver of error (R.C.M. 920(f)) does not really apply. Here, the defense counsel is active. 

VIII. PROCEDURAL INSTRUCTIONS 

A. The military judge may make such preliminary instructions as may be appropriate. R.C.M. 

913(a). 

1. These instructions are generally found in Chapter 2 of U.S. Dep’t of Army, Pam 27-9, 

Military Judges’ Benchbook (1 Jan. 2010) [hereinafter Benchbook]. 

B. Mixed plea cases. 

1. The military judge should ordinarily defer informing the members of the offenses to which 

the accused pled guilty until after the findings on the remaining contested offenses have been 

entered. R.C.M. 913(a). 

2. Exceptions to this rule include when the accused requests otherwise, and when the accused’s 

plea was to lesser-included-offense and the prosecution intends to prove the greater offense. See 

R.C.M. 913(a) discussion. 

C. Required instructions. Art. 51(c), R.C.M. 920(e)(5) and (6). 

1. The accused is presumed innocent. 

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2. If there is reasonable doubt, the accused must be acquitted. 

3. If there is a lesser included offense and there is reasonable doubt as to the greater offense, the 

finding must be to an offense to where there is not reasonable doubt. 

4. The burden of proof is on the government (except for certain defenses). 

5. Instructions on deliberations and voting. 

IX. ELEMENTS OF THE OFFENSES 

A. Instructions on findings shall be given before or after arguments by counsel, or at both times. 

R.C.M. 920(b). 

1. Chapter 3 of the Benchbook contains the instructions on the elements of the offense. 

2. The timing is within the sole discretion of the military judge. R.C.M. 920(b) discussion. 

B. Required instructions. Art. 51(c), R.C.M. 920(e)(1) and (2). 

1. Charged offenses. A description of the elements of each offense charged (unless the accused 

pled guilty to that offense). 

2. Lesser included offenses. A description of the elements of each lesser included offense, 

unless trial on the lesser included offenses is barred by the statute of limitations. 

a) The military judge has a sua sponte duty to instruct on all lesser-included-offenses 

reasonably raised by the evidence. United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000); 

United States v Griffin, 50 M.J. 480 (C.A.A.F. 1999); United States v. Wells, 52 M.J. 126 

(C.A.A.F. 1999). 

b) Whether an issue is raised is a matter for the judge to decide; the judge should not permit 

the court members to decide if the issue was raised. United States v. Jones, 7 M.J. 441 

(C.M.A. 1979). 

c) A matter is “in issue” when some evidence, without regard to its source or credibility, has 

been admitted upon which members might rely if they chose. R.C.M. 920(e) discussion. See 

United States v. Hibbard, 58 M.J. 2003 (C.A.A.F. 2003) (contains a thorough analysis of this 

problem done in the context of a defense instruction). 

d) Any doubt about whether the evidence is sufficient to raise the need to instruct on a lesser 

included offense must be resolved in favor of the accused. United States v. Gillenwater, 43 

M.J. 10 (C.A.A.F. 1995); United States v. Rodwell, 20 M.J. 264 (C.M.A. 1985). But see 

United States v. Vasquez, 48 M.J. 426 (C.A.A.F. 1998) (the court appears to weigh the 

evidence on one aspect of the defense of duress). 

e) The defense may affirmatively waive instruction on lesser included offenses. United 

States v. Strachan, 35 M.J. 362 (C.M.A. 1992). 

f) However, the defense does not have an “all or nothing” option. If the prosecution (or the 

military judge) wants the instruction on the lesser included offense, the military judge can 

read that instruction. 

(1) Either party may request a lesser included offense instruction. United States v. 

Miergrimando, 66 M.J.34 (C.A.A.F. 2008). 

(2) The military judge can instruct on a lesser included offense even over defense 

objection. United States v. Emmons, 31 M.J. 108 (C.M.A. 1990)(the prosecution should 

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not be denied of a conviction of the lesser included offense if the prosecution has met its 

burden on that lesser offense). See also United States v. Toy, 60 M.J. 598 (N-M. Ct. 

Crim. App. 2004); United States v. Miergrimando, 66 M.J.34 (C.A.A.F. 2008) (no error 

when military judge gave lesser included offense instruction and defense planned to use 

an “all or nothing” strategy, and military judge gave the defense an option to continue the 

case to remedy defense’s mistaken strategy). 

g) Lesser included offenses include attempts. United States v. Brown, 63 M.J. 735 (A. Ct. 

Crim. App. 2006) (error not to instruct on attempted murder when the evidence showed that 

the victim may have already been dead when shot). 

h) The military judge may instruct on lesser included offenses in order of severity of 

punishment or severity of the elements of the offenses. United States v. Emmons, 31 M.J. 

108 (C.M.A. 1990). 

i) A service court may, after disapproving a conviction for an offense due to an error, 

approve a conviction for the lesser included offense whose instruction was not considered, 

and instructed upon at the trial and in fact had been waived by both parties. The court’s 

authority comes from Article 66(c), UCMJ which allows the court to consider the entire 

record. United States v. Upham, 66 M.J. 83 (C.A.A.F. 2008). 

j) Where some LIOs may be time-barred by the statute of limitations, the military judge has 

an affirmative duty to personally discuss the issue with the accused, and if not waived by the 

accused, to modify the instructions to include only the period of time for those LIOs that are 

not time-barred by the statute of limitations. United States v. Thompson, 59 M.J. 432 

(C.A.A.F. 2004). 

C. Standard of review for required instructions. 

1. “The propriety of the instructions given by a military judge is reviewed de novo.” United 

States v. Quintanilla, 56 M.J. 37, 83 (C.A.A.F. 2001); United States v. Dearing, 63 M.J. 478, 482 

(C.A.A.F. 2006). 

2. Erroneous instructions and lack of proper instructions are reviewed for prejudice. Art. 59(a). 

a) When the erroneous instruction is of a constitutional dimension (undermines the 

fundamental trial structure), the test for prejudice is harmless beyond a reasonable doubt. 

United States v. Cowan, 42 M.J. 475 (C.A.A.F. 1995). 

(1) If the military judge omits an element entirely, the error is per se prejudicial. United 

States v. Mance, 26 M.J. 244 (C.M.A. 1988). 

(2) However, if the judge adequately identifies the element but gives an erroneous 

instruction on it, that error may be tested for prejudice, with the prejudice test being 

determined by whether the error was of a constitutional dimension or not. Mance, 26 

M.J. 244; United States v. Cowan, 42 M.J. 475 (C.A.A.F. 1995). 

b) When the erroneous instruction is not of a constitutional dimension, the test for prejudice 

is harmless error. United States v. Cowan, 42 M.J. 475 (C.A.A.F. 1995). 

c) Effect of failure to object to erroneous instructions or to request certain instructions. 

(1) R.C.M. 920(f) states that failure to object to an instruction or to the omission before 

the members close to deliberate constitutes waiver of the objection in the absence of plain 

error. 

(2) However, in United States v. Taylor, 26 M.J. 127, 128 (C.M.A. 1988), the court 

restricted that language to only those instructions that relate to R.C.M. 920(e)(7) (“such 

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other” instructions). The court held that this rule does not apply to required instructions, 

such as those on elements, defenses, and due process principles. See also United States v. 

Wolford, 62 M.J. 418 (C.A.A.F. 2006); United States v. Smith, 50 M.J. 451 (C.A.A.F. 

1999) (failure to object to erroneous instructions given by the military judge does not 

waive appellate review of the instructions given; affirmative waiver on the record is 

required). 

(3) Failure to object does not result in plain error analysis; rather, the test for error is de 

novo and the test for prejudice is determined by whether the error was of a constitutional 

dimension or not. United States v. Cowan, 42 M.J. 475 (C.A.A.F. 1995). 

(4) However, failure to give an amplifying instruction on the element (fully defining 

“wrongfulness,” for example) is tested for plain error if the defense counsel does not 

request that instruction or fails to object to an incorrect amplifying instruction. United 

States v. Glover, 50 M.J 476 (C.A.A.F. 1999); United States v. Simpson, 58 M.J. 368 

(C.A.A.F. 2003); United States v. Brewer, 61 M.J. 425 (C.A.A.F. 2005). 

X. INSTRUCTIONS ON DEFENSES 

A. Instructions on findings shall be given before or after arguments by counsel, or at both times. 

R.C.M. 920(b). 

1. Chapter 5 of the Benchbook contains the instructions on special and other defenses. Chapter 

6 contains the instructions for lack of mental responsibility and partial mental responsibility. 

2. The timing is within the sole discretion of the military judge. R.C.M. 920(b) discussion. 

B. Required instructions. Art. 51(c), R.C.M. 920(e)(3). 

1. A description of any special defense under R.C.M. 916 in issue. 

a) Special defenses are those defenses that, while not denying that the accused committed 

the acts charged, seek to deny criminal responsibility for those acts. R.C.M. 916(a). 

b) Alibi and good character are not special defenses; rather, they are failure of proof 

offenses. R.C.M. 916(a) discussion. 

c) Partial mental responsibility (Instruction 6-5) and evidence that negates mens rea 

(Instruction 5-17) are failure of proof defenses but the military judge has a sua sponte duty to 

instruct on them. The partial mental responsibility instruction is only read if the evidence has 

raised a lack of mental responsibility defense and there is evidence that tends to negate mens 

rea. Note that both instructions will be read. If the evidence has not raised the lack of mental 

responsibility defense, use Instruction 5-17. 

d) Voluntary intoxication is considered a special defense for purposes of requiring an 

instruction. United States v. Hearn, 66 M.J. 770 (A. Ct. Crim. App. 2008). The court found 

that some evidence of severe intoxication is required to trigger an instruction. The court 

developed a three-prong test to determine whether a voluntary intoxication is required: 

(1) The crime charged includes a mental state; 

(2) There is evidence of impairment do to the ingestion of alcohol or drugs; 

(3) There is evidence that the impairment affected the defendant’s ability to form the 

required intent or mental state. 

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e) The description must adequately cover the concepts of the defense so that the panel can 

fairly consider the defense theory. United States v. Dearing, 63 M.J. 478, 483 (C.A.A.F. 

2006). 

2. The military judge has a sua sponte duty to instruct on special defenses reasonably raised by 

the evidence. 

a) Whether an issue is raised is a matter for the judge to decide; the judge should not permit 

the court members to decide if the issue was raised. United States v. Jones, 7 M.J. 441 

(C.M.A. 1979). 

b) The test for whether a special defense is reasonably raised is whether the record contains 

some evidence to which the court members may attach credit if they so desire. United States 

v. Davis, 53 M.J. 202 (C.A.A.F. 2000); United States v. Hibbard, 58 M.J. 2003 (C.A.A.F. 

2003) (applying thorough analysis to this problem, using a totality of the circumstances 

approach, when finding that an instruction was not required). 

c) In determining whether to give a requested instruction on a defense, the judge may not 

weigh the credibility of the defense evidence. United States v. Brooks, 25 M.J. 175 (C.M.A. 

1987). 

d) The military judge also has the sua sponte duty to read the instruction on the defense of 

lack of mental responsibility if some evidence has raised the defense. Benchbook para. 6-4. 

Preliminary instructions may be read when the evidence is introduced so that the panel can 

put the evidence in context. Benchbook para. 6-3. 

3. Defense counsel may affirmatively waive an affirmative defense instruction. United States v. 

Gutierrez, 64 M.J. 374 (C.A.A.F. 2007). 

C. Failure of proof defenses. 

1. The military judge ordinarily has no sua sponte duty to instruct on defenses which deny the 

accused’s commission of the acts charged. United States v. Stafford, 22 M.J. 825 (N.M.C.M.R. 

1986). 

2. Alibi and good character are not special defenses; rather, they are “failure of proof” defenses. 

R.C.M. 916(a) discussion. 

a) The Benchbook contains an instruction on alibi (Benchbook, para. 5-13). See also United 

States v. Jones, 7 M.J. 441 (C.M.A. 1979) (instruction that defense of alibi “may or may not” 

have been raised was improper; military judge must determine if defense has been raised and 

instruct accordingly). 

b) The Benchbook also contains direction to the military judge on good character defenses. 

See Benchbook, para. 5-14. 

c) The Benchbook contains instructions on other “failure of proof” defenses. See 

Benchbook, para. 5-17. 

3. For a discussion of voluntary intoxication as a failure of proof defense, see United States v. 

Hensler, 44 M.J. 184, 187 (C.A.A.F. 1996); United States v. Hearn, 66 M.J. 770 (A. Ct. Crim. 

App. 2008) (voluntary intoxication is a required instruction). 

D. Standard of review. 

1. The analysis for the standard of review is the same as that for instructions on the elements of 

the offense. United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006). See generally, United States 

v. Gillenwater, 43 M.J. 10 (C.A.A.F. 1995); United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000). 

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2. For that analysis, go to section IV.C, above. 

3. Failure of proof defenses fall under R.C.M. 920(e)(7) so are subject to the waiver rules of 

R.C.M. 920(f). 

XI. EVIDENTIARY INSTRUCTIONS 

A. Duty to provide instructions. 

1. The military judge ordinarily has no sua sponte duty to give these instructions. (Exceptions 

to this rule are found below). 

2. However, when the evidence relates to a central issue at trial, in some cases it may be plain 

error for the military judge not to give a sua sponte evidentiary instruction. See United States v. 

Kasper, 58 M.J. 314 (C.A.A.F. 2003) (when the government introduced “human lie detector” 

testimony through an OSI agent, it was plain error for the judge not to give a sua sponte curative 

instruction, even though defense counsel did not request one, because the testimony involved a 

central issue at trial -- the appellant’s credibility). 

3. Evidentiary instructions are found in chapter 7 of the Benchbook. 

B. Summarizing the evidence. R.C.M. 920(e) discussion. 

1. The military judge may summarize and comment upon evidence. However, the military 

judge should: 

a) Present an accurate, fair, and dispassionate statement of what the evidence shows; 

b) Not depart from an impartial role;
 

c) Not assume as true the existence or nonexistence of a fact in issue when the evidence is 

conflicting or disputed, or when there is no evidence to support the matter;
 

d) Make clear that the members must exercise independent judgment as to the facts. 

2. See generally United States v. Figura, 44 M.J. 308 (C.A.A.F. 1996). 

C. Standard of review. 

1. The military judge’s ruling to issue or not issue an instruction that is not required is tested for 

abuse of discretion. United States v. Thompson, 31 M.J. 125 (C.M.A. 1990); United States v. 

Forbes, 61 M.J. 354 (C.A.A.F. 2005). 

2. Failure to object to an erroneous instruction or to request an omitted (non-mandatory) 

instruction constitutes waiver. R.C.M. 920(f). This triggers plain error analysis, United States v. 

Kasper, 58 M.J. 314 (C.A.A.F. 2003). 

3. The test for prejudice depends on whether the error was of constitutional dimension. See 

generally United States v. Forbes, 61 M.J. 354 (C.A.A.F. 2005). 

D. Judicial notice. Benchbook, para. 7-6. 

1. The military judge shall give an instruction whenever he or she takes judicial notice of any 

matter. See Mil. R. Evid. 201 and 201A. 

E. Credibility of witnesses. Benchbook, para. 7-7. 

1. This instruction should be given upon request or when appropriate and must be given when 

the credibility of a principal witness or witness for the prosecution has been assailed by the 

defense. 

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F. Failure to testify. Benchbook, para. 7-12. 

1. General rule. When the accused does not testify at trial, defense counsel may request that the 

members of the court be instructed to disregard that fact and not to draw any adverse inference 

from it. Defense counsel may request that the members not be so instructed. Defense counsel’s 

election shall be binding upon the military judge except that the military judge may give the 

instruction when the instruction is necessary in the interests of justice. Mil. R. Evid. 301(g). 

2. In United States v. Forbes, 61 M.J. 354 (C.A.A.F. 2005), the court adopted the following 

analysis. The military judge is bound by the defense election unless the judge performs a 

balancing test that weighs the defense concerns against the case-specific interests of justice. This 

is the same balancing test that is found in M.R.E. 403. Something more than just a generalized 

fear that the panel will hold it against the accused must be present. If the military judge follows 

that analysis, she will be granted abuse of discretion on review. If she does not, the test will be de 

novo. If there is error, then the test for prejudice is: a presumption of prejudice, where the burden 

shifts to the government to prove by a preponderance of the evidence that no prejudice exists. 

3. If the members ask a question that implicates the accused’s silence, the military judge has an 

affirmative duty to give the instruction. United States v. Jackson, 6 M.J. 116 (C.M.A. 1979). 

G. Uncharged misconduct. Benchbook, para. 7-13. 

1. The military judge is required to instruct on the limited use of uncharged misconduct “upon 

request.” Mil. R. Evid. 105. 

2. Instruction may be required even absent defense request. United States v. Barrow, 42 M.J. 

655 (A.F. Ct. Crim. App. 1995) (despite defense request not to give limiting instruction regarding 

uncharged misconduct, one was required because “[n]o evidence can so fester in the minds of 

court members”). 

3. Timing of instruction. United States v. Levitt, 35 M.J. 114 (C.M.A. 1992). Instruction 

should be given immediately following introduction of evidence and repeated before 

deliberations. 

H. Spill-over effect of charged misconduct. Benchbook, para. 7-17. 

1. This instruction should be given, and might be required, whenever unrelated but similar 

offenses are tried at the same time. See United States v. Myers, 51 M.J. 570 (N-M. Ct. Crim. 

App. 1999) (failure to give requested spill-over instruction was of constitutional dimension). 

I. Cross-racial identification (as it relates to Benchbook para. 7-7-2, eyewitness identification). 

1. This instruction should be given if cross-racial identification is in issue. The mere fact that an 

eyewitness and the accused are of different races does not require instruction – cross-racial 

identification must be a “primary issue” in the case. United States v. Thompson, 31 M.J. 125 

(C.M.A. 1990). 

J. Variance. Benchbook, paras. 7-15 and 7-16. 

1. This instruction should be given if the evidence indicates that the offense occurred but the 

time, place, amount, etc. is different than that charged. 

a) United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003). The appellant was tried for 

wrongful use of ecstasy on “divers occasions.” The government presented evidence of six 

uses, and after being instructed on variance, the panel found him guilty of use on “one 

occasion.” The court reversed, holding that where a specification alleges wrongful acts on 

“divers occasions,” any findings by exceptions and substitutions that remove the “divers 

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occasions” language must specify the particular instances of conduct upon which the findings 

are based. 

b) See also United States v. Seider, 60 M.J. 36 (C.A.A.F. 2004) (citing Walters and holding 

that the lower court could not conduct an Art. 66 review when the members excepted the 

words “divers occasions” from their findings and did not indicate which of the two instances 

the accused was guilty); United States v. Augspurger 61 M.J. 189 (C.A.A.F. 2005). 

2. However, a factfinder may enter a general verdict of guilt even when the charge could have 

been committed by two or more means, as long as the evidence supports at least one of those 

means beyond a reasonable doubt. United States v. Brown, 65 M.J. 356 (C.A.A.F. 2007); United 

States v. Hardy, 46 M.J. 67, 73 (C.A.A.F. 1997). 

XII. SENTENCING INSTRUCTIONS 

A. Instructions on sentencing shall be given after arguments by counsel on sentencing and before the 

members close to deliberate. The military judge may, upon request of the members, any party, or sua 

sponte, give additional instructions at a later time. Instructions must be given orally, but may, in 

addition, be in writing. R.C.M. 1005(b) and (d). 

1. Chapter 2 of the Benchbook contains the sentencing instructions. 

B. Required Instructions. R.C.M. 1005(e). 

1. Maximum punishment. 

a) Military judge must instruct on the correct maximum punishment, but not how the 

amount was reached (unitary sentencing). United States v. Purdy, 42 M.J. 666 (A. Ct. Crim. 

App. 1996). See also United States v. Reyes, 63 M.J. 265 (2006) (reversing where the 

military judge incorrectly instructed that a dishonorable discharge was available). 

b) Punishments other than the maximum. The military judge has no sua sponte duty to 

instruct on other punishments. Instruction on the maximum punishment plus a proper 

sentence worksheet is sufficient. United States v. Brandolini, 13 M.J. 163 (C.M.A. 1982). 

2. A statement of the effect any sentence announced that includes a punitive discharge and 

confinement, or confinement in excess of six months, will have on the accused’s entitlement to 

pay and allowances. 

3. Procedures for deliberations and voting. 

a) Failure to give instruction that members are to begin voting with the lightest proposed 

sentence is not plain error. United States v. Fisher, 21 M.J. 327 (C.M.A. 1986). However, in 

capital cases, this is error. United States v. Thomas, 46 M.J. 311 (C.A.A.F. 1997); United 

States v. Simoy, 50 M.J. 1 (C.A.A.F. 1999). 

b) Collecting and counting votes. 

(1) United States v. Truitt, 32 M.J. 1010 (A.C.M.R. 1991). Failure to instruct that junior 

member collects and counts the votes and the president shall check the count was 

harmless in the absence of evidence that the panel actually voted incorrectly. 

(2) But see United States v. Harris, 30 M.J. 1150 (A.C.M.R. 1990). Failure to give 

instructions that voting was to be by secret written ballot and that the junior member was 

to collect and count the ballots was error. The court declined to presume that the correct 

procedures were followed and reversed. 

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4. The members are solely responsible for selecting the sentence and they cannot rely upon 

mitigating action by the convening authority. 

5. Members must consider all matters in extenuation, mitigation and aggravation. R.C.M. 

1005(e)(5). If the accused states irrelevant matters in her unsworn statement, the military judge 

may give a Friedmann instruction (based on United States v. Friedmann, 53 M.J. 800 (A. F. Ct. 

Crim. App. 2000)); see also United States v. Barrier, 61 M.J. 482 (C.A.A.F. 2005). 

C. Requested instructions. 

1. After presentation of matters relating to sentence or at such other time as the military judge 

may permit, any party may request that the military judge instruct the members on the law as set 

forth in the request. R.C.M. 1005(c). 

2. The analysis is the same as described in section II above. United States v. Simmons, 48 M.J. 

193 (C.A.A.F. 1998). 

3. Often, defense requests relate to identifying certain things as being mitigating. 

a) United States v. Simmons, 48 M.J. 193 (C.A.A.F. 1998). When there is a dispute as to 

whether the mitigator exists, the preferable method is for the judge to modify a requested 

instruction to say that the members can consider the matter in mitigation if they decided the 

mitigator exists. 

b) United States v. Perry, 48 M.J. 197 (C.A.A.F. 1998). Accused convicted of forcible 

sodomy and other offenses. Defense wanted an instruction in sentencing about the fact that 

the accused dismissal may cause the accused to pay back his education. The judge refused to 

give the instruction, claiming that it was collateral and there were too many factors to know 

for certain whether the money would be taken back. CAAF agreed. 

c) United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F. 2001) (holding that military judges are 

required to instruct on the impact of a punitive discharge on retirement benefits, “if there is an 

evidentiary predicate for the instruction and it is requested”). 

D. Standard of review. 

1. Failure to object to an instruction or omission of instruction constitutes waiver of the 

objection in the absence of plain error. R.C.M. 1005(f); United States v. Reyes, 63 M.J. 265 

(C.A.A.F. 2006). 

2. The test for prejudice is whether the error materially prejudiced a substantial right. The 

question is whether the panel might have been substantially swayed by the error during the 

sentencing process. United States v. Reyes, 63 M.J. 265 (C.A.A.F. 2006). 

XIII. GENERAL FINDINGS IN THE MILITARY – RCM 918(A) 

A. Guilty; 

B. Not Guilty; 

C. Guilty by Exceptions (with or without substitutions); 

D. Guilty of Lesser Included Offense (LIO). 

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1. RCM 918(a)(1) permits a plea of “not guilty to an offense as charged, but guilty of a 

named lesser included offense.” What constitutes a “named lesser included offense” and 

whether this rule can be reliably applied is questionable in light of United States v. Jones, 

68 M.J. 465 (C.A.A.F. 2010). 

2. When plea to an LIO is entered, defense counsel should provide a written revised 

specification. Revised specification should be an appellate exhibit. 

3. United States v. Fowler, 74 M.J. 689 (A. Ct. Crim. App. 2015). Accused pled to 

absence without leave as LIO of desertion, and military judge mistakenly entered 

findings of guilty to the LIO and not guilty of the greater offense before the government 

had the opportunity to prove the greater offense. The finding of not guilty did not 

constitute an acquittal because a military judge cannot foreclose the government’s 

opportunity to present its case by entering a finding of not guilty before it has the 

opportunity to do so. 

E. Not Guilty Only by Reason of Lack of Mental Responsibility. 

XIV. WHAT MAY / MAY NOT BE CONSIDERED IN REACHING 

FINDINGS? RCM 918(C). 

A. Matters properly before the court (e.g., testimony of witnesses, real and documentary evidence). 

Does not include documents provided ex parte to the military judge. But see United States v. 

McCarthy, 37 M.J. 595 (A.F.C.M.R. 1993) (finding no prejudice when military “finds” missing 

performance evaluation report during deliberations and “adds” it to the record without explaining 

where he got it). 

B. Specialized knowledge – i.e., gained by member from source outside court-martial – may not be 

considered. 

1. United States v. Davis, 19 M.J. 689 (A.C.M.R. 1984). Improper for court member to 

visit the crime scene to determine quality of lighting. Convening authority should have 

ordered an evidentiary hearing to determine whether the accused was prejudiced. 

2. United States v. Johnson, 23 M.J. 327 (C.M.A. 1987). During deliberations, 

demonstration by member with martial arts expertise did not constitute extraneous 

prejudicial information where the demonstration was merely an examination and 

evaluation of evidence already produced. 

C. Member may not communicate with witnesses. 

1. United States v. Elmore, 33 M.J. 387 (C.M.A. 1991). Blood expert witness had 

dinner with the members. Extensive voir dire established the lack of taint. 

2. United States v. White, 36 M.J. 284 (C.M.A. 1993). Although any contact between 

witnesses and members gives rise to perceptions of unfairness, it is not automatically 

disqualifying. In this case the voir dire disclosed in full the innocuous nature of the 

contact. 

D. Members may not seek information that is not available in open court. United States v. Knight, 

41 M.J. 867 (Army Ct. Crim. App. 1995). Three members repeatedly quizzed bailiff/driver about 

matters presented in court out of presence of members, and sought his medical opinion – he was also 

an EMT – about bruising, which was a key issue in sexual assault prosecution. 

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E. Split Plea. Unless the defense requests (or offenses stand in greater – LIO relationship), panel 

members may not consider, and should not be told, that the accused earlier plead guilty to some 

offenses. United States v. Kaiser, 58 M.J. 146 (2003). 

F. Use of providence inquiry statements in mixed plea cases. 

1. Admissions in a plea of guilty to one offense cannot be used as evidence to support a 

finding of guilty of an essential element of a separate and different offense, but the 

elements established by the guilty plea inquiry and stipulation of fact may be considered 

in trial on contested charges, if the pled to charge is LIO of the contested charge. United 

States v. Abdullah, 37 M.J. 692 (A.C.M.R. 1993) (relying on United States v. Caszatt, 29 

C.M.R. 521, 522 (1960)). See also United States v. Rivera, 23 M.J. 89, 95 (C.M.A. 1986) 

(guilty plea to one offense can only be considered on findings when the plea is to a lesser 

included offense of the same specification as to which the plea is being offered into 

evidence). 

2. Plea of guilty may be used to establish common facts and elements of a greater 

offense within the same specification, but may not be used as proof of a separate offense. 

The elements of a LIO established by guilty plea (but not the accused’s admissions made 

in support of that plea) can be used to establish common elements of the greater offense. 

United States v. Ramelb, 44 M.J. 625 (Army Ct. Crim. App. 1996). 

3. Admissions concerning the elements of the LIO made during providence inquiry can 

be considered insofar as the admissions relate to common elements of the greater offense, 

but it was error for the military judge to consider the accused’s admissions that pertained 

to different elements of the greater offense. United States v. Grijalva, 55 M.J. 223 

(2001). 

G. Matters taken into the deliberation room may be considered. RCM 921(b). 

1. Notes of the court members. 

2. Exhibits admitted into evidence. 

3. Stipulations of fact are taken into the deliberation room so long as the military judge 

sufficiently ensures that the accused understood the effect of the stipulation of fact 

entered into with the Government. See United States v. Resch, 65 M.J. 233 (C.A.A.F. 

2007). 

4. Testimonial substitutes (depositions, stipulations of expected testimony) do not go 

into the deliberation room. See United States v. Austin, 35 M.J. 271 (C.M.A. 1992) 

(finding that a verbatim transcript of alleged victim’s testimony at pretrial investigation 

was not an “exhibit” that members could take into the deliberation room). 

H. Fact finder may not consider submitted Chapter 10. United States v. Balagna, 33 M.J. 54 

(C.M.A. 1991). Character witness acknowledged (upon prodding in open court by MJ) that he could 

not vouch for accused because had seen a “report.” When asked by the MJ what that report was, the 

witness responded “a request for Chapter 10.” Court finds no “extraordinary circumstances” 

requiring the declaration of a mistrial since the “adverse impact can be neutralized by other means.” 

Id. at 57. The MJ twice instructed the members that the evidence was inadmissible and prior to 

findings advised the members that it was to be “completely disregarded.” See also United States v. 

Vasquez, 54 M.J. 303 (C.A.A.F. 2001). 

I. Findings worksheet is used to assist members in putting findings in order. See Appendix 10, 

Manual for Courts-Martial, Forms of Findings. 

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XV. DELIBERATIONS AND VOTING ON FINDINGS. RCM 921. 

A. Basic rules and procedures. 

1. Deliberations. RCM 921(a) and (b). 

2. Only members present. RCM 921(a). 

3. No superiority in rank used to influence other members. RCM 921(a). 

4. May request reopening of court to have record read back or for introduction of 

additional evidence. RCM 921(b). 

5. Voting. RCM 921(c). 

6. By secret written ballot, with all members voting. 

7. Guilty only if at least 2/3 vote for guilty. 

8. Fewer than 2/3 vote for guilty, then finding of not guilty results. 

9. Special procedure to find accused not guilty by reason of lack of mental 

responsibility. 

10. Procedure. RCM 921(c)(6). 

B. Straw polls. 

1. United States v. Fitzgerald, 44 M.J. 434 (1996). Two specifications each alleged 

multiple discrete acts of sodomy and indecent acts. As to discrete acts alleged in 

specifications, MJ suggested straw vote on specification as charged, then treating 

individual discrete acts separately as lesser included offenses. Instructions likely inured 

to benefit of accused, and brought no objection from counsel. Court found waiver by 

defense, no plain error, and affirmed findings and sentence. 

2. United States v. Lawson, 16 M.J. 38 (C.M.A. 1983). Straw polls, i.e., informal nonbinding votes, are not specifically prohibited, but are discouraged. Cannot be used 

directly or indirectly to allow superiority of rank to influence opinion. 

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XVI. INSTRUCTIONS ON FINDINGS. RCM 920. 

A. United States v. Hardy, 46 M.J. 67 (1997). MJ cannot direct panel to accept findings of fact, or to 

return verdict of guilty. In non-capital case, panel returns only general verdict. In answering panel 

question regarding required finding, MJ refused trial counsel request to instruct that proof beyond 

reasonable doubt as to all elements meant panel must find accused guilty. 

B. United States v. Gibson, 58 M.J. 1 (2003). MJ erred by failing to give defense requested 

accomplice instruction. Three prong test to determine if failure to give requested instruction is 

reversible error: (1) was requested instruction accurate; (2) was requested instruction substantially 

covered by the instructions given; and (3) if not substantially covered, was the instruction on such a 

vital point that it (failure to give) deprived the accused of a defense or seriously impaired its effective 

presentation. If one through three are met, the burden of persuasion shifts to the Government to show 

that the error was harmless, that is, failure to give the instruction did not have a “substantial influence 

on the findings.” If it had a substantial influence or the court is left in “grave doubt” as to the validity 

of the findings, reversible error has occurred. 

C. United States v. Hibbard, 58 M.J. 71 (2003). MJ did not err by failing to give mistake of fact 

instruction in rape case where defense theory throughout trial, to include cross examination of victim, 

was that no intercourse occurred. 

D. United States v. Lewis, 65 M.J. 85 (2007). MJ erred by giving an incomplete instruction 

regarding self-defense by failing to instruct the members that a mutual combatant could regain the 

right to self-defense when the conflict is escalated or, is unable to withdraw in good faith. “When the 

instructional error raises constitutional implications, the error is tested for prejudice using a “harmless 

beyond a reasonable doubt” standard.” US v Lewis, 65 M.J. 85, __ (2007) citing United States v. 

Wolford, 62 M.J. 418, 420 (2006). 

XVII.ANNOUNCEMENT OF FINDINGS. RCM 922. 

A. United States v. Jones, 46 M.J. 815 (N-M. Ct. Crim. App. 1997). In mixed plea case, MJ failed to 

announce findings of guilty of offenses to which accused had pled guilty, and as to which MJ had 

conducted providence inquiry. Upon realizing failure to enter findings, MJ convened post-trial 

Article 39(a) hearing and entered findings consistent with pleas of accused. Though technical 

violation of RCM 922(a) occurred, MJ commended for using post-trial session to remedy oversight. 

B. United States v. Perkins, 56 M.J. 825 (Army Ct. Crim. App. 2002). MJ’s failure to properly 

announce guilty finding as to Spec 3 of Charge II (MJ Announced Guilty to Spec 3 of Charge III) did 

not require court to set aside appellant’s conviction of Specification 3 of Charge II when it was 

apparent from the record that the MJ merely misspoke and appellant had actually plead guilty to 

Specification 3 of Charge II. Court notes that a proceeding in revision under RCM 1102 would have 

been an appropriate course of action had the MJ or SJA caught the mistake. 

XVIII. RECONSIDERATION OF FINDINGS. UCMJ ART. 52, RCM 

924. 

A. Members may reconsider any finding before such finding is announced in open session. RCM 

924(a). 

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1. United States v. Thomas, 39 M.J. 626 (N.M.C.M.R. 1993), rev’d in part 46 M.J. 311 

(1997). (CAAF affirmed the findings and reversed the sentence due to a sentencing 

instruction error). Accepted practice is to instruct prior to deliberation on findings that if 

any member desires to reconsider a finding, the MJ should be notified so that 

reconsideration instructions may be given in open court. Instruction on reconsideration is 

required only if a court member indicates desire to reconsider. 

2. United States v. Jones, 31 M.J. 908 (A.F.C.M.R. 1990). Appellate court orders 

rehearing on sentence. Can the second panel reconsider findings? HELD: No. RCM 

924(a) states “Members may reconsider any finding reached by them.” Also, the 

appellate court had already affirmed the findings of guilty. Once affirmed, “they are no 

longer subject to reconsideration.” 

B. Judge alone. MJ may reconsider guilty finding any time before announcement of sentence. RCM 

924(c). 

XIX. DEFECTIVE FINDINGS. 

A. Concerns: Sufficient basis for court to base its judgment and protect against double prosecution. 

1. Divers occasions. 

a) United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003). Appellant charged with drug use 

on divers occasions. The evidence put on by the government alleged six separate periods. 

The panel returned a finding by exceptions and substitutions (excepting the words “divers 

occasions” and substituting the words “one occasion”), but did not specify the time frame. 

The CAAF held that the findings were ambiguous, setting aside the findings and sentence. 

The court noted that where a specification alleges acts on divers occasions, the members must 

be instructed that any findings by exceptions and substitutions must reflect the specific 

instance of conduct on which the modified findings are made. 

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1. United States v. Wilson, 67 M.J. 423 (C.A.A.F. 2009). Appellant charged with rape 

of a child on divers occasion. The testimony of the victim, and a sworn statement of the 

appellant admitted at trial, indicated that there were two possible occasions when a rape 

may have occurred. The military judge found the appellant guilty, excepting the words 

“on divers occasions,” but did not indicate which occasion was the basis for the single 

rape conviction. The CAAF held that a court of criminal appeals did even have the 

authority to review the cases because the findings where ambiguous – the appeals court 

would not know which occasion the appellant was guilty of. The CAAF dismissed the 

rape charge with prejudice. The CAAF identified two methods to prevent such a drastic 

remedy in future cases. First, when “on divers occasions” is excepted out, the substituted 

findings must clearly identify which conduct served as a basis for the findings. Second, 

in a judge alone trial, a clear statement from the military judge on the record explaining 

which conduct formed the basis for the conviction. 

2. United States v. Trew, 68 M.J. 364 (C.A.A.F. 2010). Appellant charged with 

indecent acts on diverse occasions. Military judge finds him guilty of LIO of assault 

consummated by battery on a child under sixteen and excepts the words “divers 

occasions.” Trial counsel asks military judge to clarify if the guilty finding was for 

“divers occasions as charged or is that just for—for one event or—will you clarify that 

further for us? The military judge replied “[i]t is on the one occasion.” NMCCA found 

the findings “were not ambiguous when placed it in the context of the entire record.” 

CAAF reversed the NMCCA, stating that NMCCA’s “distinction between ‘evaluat[ing] 

evidence’ and ‘consider[ing] the record as a whole to clarify the meaning and intent of 

the “military judge’s words’ appears to be a distinction without a difference.” CAAF 

finds findings “ambiguous” and unreviewable, and dismissed the charges with prejudice. 

3. United States v. Ross, 68 M.J. 415 (C.A.A.F. 2010). Appellant found guilty by 

military judge alone of possession of child pornography, excepting the words “on divers 

occasions.” CAAF holds findings are ambiguous and dismisses charge with prejudice. 

Even though possession of child pornography is a continuing offense and the words “on 

divers occasions” may be “surplusage,” on these facts they were not because the images 

were on three different media. Because the images could have been on more than one 

form of storage media, charging “on divers occasions” was appropriate, and excepting 

that language without identifying which media the child pornography was on created an 

ambiguous finding. 

4. United States v. Saxman, 69 M.J. 540 (N. M. Ct. Crim. App. 2010). Appellant 

charged with possession of twenty-two child pornography videos on a computer. 

Appellant was convicted by officer members by exceptions and substitutions of 

possessing only four of the charged twenty-two videos. The announced finding did not 

specify which four videos formed the basis of the guilty finding. NMCCA applies the 

Walters and Wilson logic to these facts and dismisses charge with prejudice. Members’ 

finding meant the appellant was not guilty of possessing eighteen of the twenty-two 

videos. Without knowing exactly which eighteen videos were not child pornography, the 

findings are ambiguous. 

B. Variance. 

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1. United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2003). Modification of a lawful 

general order charge from “wrongfully providing alcohol to [JK]” to “wrongfully [ ] 

engaging in and seeking [ ] a nonprofessional, personal relationship with [JK], a person 

enrolled in the Delayed-Entry Program” held to be a material variance; finding of guilty 

to the Charge and Specification set aside. Variance cannot change the nature of the 

offense or increase the seriousness of the offense or its maximum punishment. 

2. United States v. Pryor, 57 M.J. 821 (N-M. Ct. Crim. App. 2003). MJ erred by not 

entering guilty findings by exceptions and substitutions when the evidence in the 

stipulation of fact and the accused’s providence inquiry narrowed the period of the 

accused’s criminality. By simply entering findings of guilty to the specifications as 

written, the appellant was prejudiced by a court-martial record that “indicates a pattern of 

criminal conduct occurring over a greater period of time than actually took place.” The 

court provided relief by modifying the findings and reassessing the sentence based on the 

modified findings. 

3. United States v. Treat, 73 M.J. 331 (C.A.A.F. 2014). MJ created a material variance 

in making a guilty finding by exceptions and substitutions. Trial counsel originally 

charged the accused with “missing the movement of Flight TA4B702,” and the MJ found 

him guilty of “missing the movement of the flight dedicated to . . . transport Main Body 1 

of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, 

Kyrgyzstan.” Witnesses at trial were unable to remember the flight number or had no 

memory of it. The variance was material because the government must prove that the 

accused missed the specific flight or ship in question, and the government had identified 

the flight by its flight number in the specification. The variance did not prejudice the 

accused because the accused, who raised a defense of impossibility at trial, was not 

denied the opportunity to defend against the charge of which he was convicted. 

C. Bill of particulars. 

1. United States v. Harman, 66 M.J. 710 (Army Ct. Crim. App. 2008). MJ erred by 

accepting a verdict from the panel that specifically incorporated the bill of particulars. 

ACCA amended the specification and charge to implement the panel’s clear intent. 

D. Announcement of findings. 

1. United States v. Mantilla, 36 M.J. 621 (A.C.M.R. 1992). After findings of guilty 

have been announced, MJ may seek clarification any time before adjournment, and error 

in announcement of findings may be corrected by new announcement before final 

adjournment of court-martial. Such correction is not reconsideration; accused, however, 

should be given opportunity to present additional matters on sentencing. 

2. United States v. Perez, 40 M.J. 373 (C.M.A. 1994). President’s disclosure of 

members’ unanimous vote that overt act alleged in support of conspiracy specification 

had not been proven, during discussion of proposed findings as reflected on findings 

worksheet, was not announcement of finding of not guilty and had no legal effect. MJ 

had authority to direct reconsideration of the inconsistent verdict. Alternatively, MJ 

could have advised members that findings amounted to a finding of not guilty and 

advised them of their option to reconsider. 

XX. IMPEACHMENT OF FINDINGS. RCM 923. 

A. Strong policy against the impeachment of verdicts. 

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1. Promotes finality in court-martial proceedings. 

2. Encourages members to fully and freely deliberate. 

B. General rule: Deliberative privilege – court deliberations are privileged (MRE 509). 

C. Exceptions: Court members’ testimony and affidavits cannot be used after the court-martial to 

impeach the verdict except in three limited situations. RCM 923; MRE 606. See United States v. 

Loving, 41 M.J. 213 (C.M.A. 1994). 

1. Outside influence (e.g., bribery, jury tampering). 

2. Extraneous prejudicial information. 

3. United States v. Witherspoon, 16 M.J. 252 (C.M.A. 1983). Improper court member 

visit to crime scene. 

4. United States v. Almeida, 19 M.J. 874 (A.F.C.M.R. 1985). No prejudice where court 

member talked to witness about Thai cooking during a recess in the trial. 

5. United States v. Elmore, 33 M.J. 387 (C.M.A. 1991). Blood expert witness had 

dinner with the members. Extensive voir dire established the lack of taint. 

6. Unlawful command influence. 

7. United States v. Carr, 18 M.J. 297 (C.M.A. 1984). Unlawful command control for 

president to order a re-vote after a finding of not guilty had been reached. MJ should 

build a factual record at a post-trial Article 39(a) session. 

8. United States v. Accordino, 20 M.J. 102 (C.M.A. 1985). President of court can 

express opinions in strong terms and call for a vote when discussion is complete or 

further debate is pointless. It is improper, however, for the president to use superiority of 

rank to coerce a subordinate to vote in a particular manner. 

9. Possible voting irregularity not enough. United States v. Brooks, 42 M.J. 384 (1995). 

Deliberative privilege precludes MJ from entering a finding of not guilty when he 

concludes that members may have come to guilty finding as a result of improperly 

computing their votes. 

10. United States v. Hardy, 46 M.J. 67 (1997). “[T]he protection of the deliberative 

process outweigh[s] the consequences of an occasional disregard of the law by a courtmartial panel.” Id. at 74. 

D. Discovery of impeachable information. 

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1. Polling of court members is prohibited. RCM 922(e). May not impeach findings 

with post-trial member questionnaires. See United States v. Heimer, 34 M.J. 541 

(A.F.C.M.R. 1991). MRE 606 establishes the only three permissible circumstances to 

impeach a verdict. Post-trial questionnaires improperly “sought to impeach each panel 

member’s subjective interpretation of the evidence – the precise material the rule seeks to 

protect.” Id. at 546. 

2. United States v. Ovando-Moran, 48 M.J. 300 (1998). Gathering information to 

impeach a verdict is not a proper basis for post-trial interviews by counsel of panel 

members. Information in counsel’s post-trial affidavit that members improperly 

considered testimony and were impacted by military judge’s comments during trial fell 

outside bounds of MRE 606(b) to impeach findings of court-martial. 

3. Additional cases involving impeachment: United States v. Hance, 10 M.J. 622 

(A.C.M.R. 1980); United States v. Higdon, 2 M.J. 445 (A.C.M.R. 1975); United States v. 

Harris, 32 C.M.R. 878 (A.F.B.R. 1962). 

E. Evidence introduced at sentencing for the sole purpose of impeaching the findings is
 

inadmissible. See infra United States v. Johnson, 62 M.J. 31 (2005).
 

XXI. SPECIAL FINDINGS 

A. Purpose. In a trial by court-martial composed of military judge alone, the military judge shall 

make special findings upon request by any party. Special findings may be requested only as to 

matters of fact reasonably in issue as to an offense and need be made only as to offenses of which the 

accused was found guilty. RCM 918(b). 

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1. "Special findings enable the appellate court to determine the legal significance 

attributed to particular facts by the military judge, and to determine whether the judge 

correctly applied any presumption of law, or used appropriate findings." United States v. 

Hussey, 1 M.J. 804 (A.F.C.M.R. 1976). 

a) "Special findings serve many of the same functions as do jury instructions in 

trials before a court of members." Captain Lee D. Schinasi, Special Findings: 

Their Use at Trial and On Appeal, 87 Mil. L. Rev.73, 74 (Winter, 1980). 

"Special findings are to a bench trial as instructions are to a trial before members. 

Such procedure is designed to preserve for appeal questions of law. It is the 

remedy designed to rectify misconceptions regarding: the significance of a 

particular fact; the application of any presumption; or the appropriate legal 

standard." Id. at 105 (quoting United States v. Falin, 43 C.M.R. 702 (A.C.M.R. 

1971)). See also United States v. Zambrano, 2016 CCA LEXIS 19 (N-M. Ct. 

Crim. App. Jan 19, 2016)( “special findings are to a bench trial as instructions are 

to a trial before members.”)(internal citations omitted). 

2. "Viewed together, special findings can make a record for appellant, or protect it for 

the government." Schinasi at 121. 

3. Analogues (Specifically Mandated Occasions for Special Findings) 

4. RCM 905(d) - Motions: "Where factual issues are involved in determining a motion, 

the military judge shall state the essential findings on the record." 

5. MRE 304(d)(4) - Confessions and Admissions: "Where factual issues are 

involved in ruling upon such motion or objection, the military judge shall state essential 

findings of fact on the record." 

6. MRE 311(d)(4) - Evidence Obtained From Unlawful Searches and Seizures: "Where 

factual issues are involved in ruling upon such motion or objection, the military judge 

shall state essential findings of facts on the record." 

7. MRE 312(f) - Eyewitness Identification: "Where factual issues are involved in ruling 

upon such motion or objection, the military judge shall state his or her essential findings 

of fact on the record." 

B. Trial Procedures 

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1. Who may request special findings: 

a) Any party to the proceeding. RCM 918(b). Whenever the government and 

the defendant in a criminal case waive a jury, they are entitled to not just a 

verdict one way or the other, but to the reasons behind it." Schinasi at 86 (citing 

United States v. Clark, 123 F.Supp.608 (S.D. Cal 1954)). 

2. The military judge acting sua sponte. Schinasi at 81 (discussing United States v. 

Figueroa, 377 F.Supp. 645 (S.D.N.Y. 1970)). 

3. What the party may request: Any party can request special findings on any facts 

reasonably related to an important issue, but may make only one set of requests per case. 

RCM 918(b). 

4. When to make such a request: At any time before general findings are announced. 

RCM 918(b). 

5. How to make the request: There is no specified format, and the rule allows for either 

verbal or written requests. However, the military judge has the authority to require any 

request be specific and in writing. RCM 918(b). 

6. What issues merit special findings: 

7. "Not only findings on elements of the offense, but also on all factual questions 

reasonably in issue prior to findings as well as controverted issues of fact which are 

deemed relevant to the sentencing decision," including jurisdictional issues. Schinasi at 

107 (citing United States v. Falin, 43 C.M.R. 702, 703 (A.C.M.R. 1971)). Also, the 

judge must ensure they are made whenever another rule requires “essential findings of 

fact.” 

8. Issues which are irrelevant, immaterial, or so remote as to have no effect on the trial's 

outcome do not merit special findings. Schinasi at 107-108 (discussing United States v. 

Burke, 4 M.J. 530 (N.C.M.R. 1977)). Special findings are also not required when counsel 

desires to know what evidence was considered unimportant by the trial judge. Schinasi at 

91 (citing United States v. Peterson, 338 F.2d 595 (7th Cir. 1964)). 

9. How the military judge must issue special findings: Verbally on the record or in 

writing. RCM 918(b). 

10. When the military judge must enter findings: During or after the court-martial, but in 

any event before authentication of the record, as they must be included with the record of 

trial. RCM 918(b); RCM 1103(b)(3)(A)(iv). 

C. Use by Defense Counsel 

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1. When creatively designed, special findings requests can ensure that the trial judge 

fully understands the defense position. Schinasi at 121. "Virtually all trial judges agree 

that special findings help clarify those determinations..." Schinasi at 88 (citing United 

States v. Johnson, 496 F.2d 1131 (5th Cir. 1974)). 

2. If there is any inkling that the judge is laboring under any misapprehension of law or 

fact..." special findings may reveal that misapprehension, so the defense counsel can 

either resolve the issue at trial, or preserve it for appeal. Schinasi at 88. Convictions will 

be reversed for example, if "inconsistent special and general findings are returned." 

Schinasi at 95, citing United States v. Maybury, 274 F.2d 899 (2nd Cir. 1960). 

3. When the judge takes a contrary position to that requested by the defense, special 

findings flush-out the operative conclusions the judge has relied upon. "Findings of fact 

in non-jury criminal cases primarily aid the defendant in preserving questions for appeal, 

and aid the appellate court in delineating the factual bases on which the trial court's 

decisions rested." United States v Livingston, 459 F.2d 797, 798 (3rd. Cir.1972) (en 

banc). 

D. Use by trial counsel 

1. Prosecutors can "protect the record from appellate intervention by requiring the trial 

judge to clearly establish the factual and legal predicate upon which conviction will be 

based." Schinasi at 102. Special findings can also "show that the judge decided the case 

correctly after all." Schinasi at 73. 

2. To "ensure that conflicting and often confusing evidence is thoroughly evaluated by 

the trial court, and that the law is properly applied to the facts, protecting the record from 

inconsistent appellant review." Schinasi at 88. This may be particularly important in 

light of Article 66(c), which allows the military appellate courts the unique ability, unlike 

civilian appellate courts, to "weigh the evidence, judge the credibility of witnesses, and 

determine controverted questions of fact..." Id. 

a) "Special findings provide a concise format for establishing what evidence 

was considered by the bench, and, more important, what legal theory was 

employed to support the ultimate decision. Used in this fashion, special findings 

prohibit an appellate court from 'discovering' variant interpretations or 

irregularities in the record which could be used to justify reversing conviction." 

Schinasi at 122. 

E. Sua sponte use by court 

1. The military judge must make all “essential findings of fact,” even if not requested. 

See MRE 304(d)(4), MRE 311(d)(4), MRE 321(f). 

2. "Special findings justify themselves not only in averting an unjust act, but also in 

highlighting to the public, and the particular accused involved, that no injustice 

occurred." Schinasi at 80. "The existence of a rationale may not make the hurt pleasant, 

or even just. But the absence, or refusal, of reason is a hallmark of injustice." Schinasi at 

80. 

F. Standard of Review 

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1. Virtually every military court" which has addressed the issue "recognizes that it 

[918(b)] is based upon [Federal] Rule [of Criminal Procedure] 23(c), and attempts, as 

best it can, to adopt the federal practice." Schinasi at 102. 

2. Specific findings on an ultimate issue of guilt or innocence are subject to the same 

appellate review as a general finding of guilt, while other special findings are reviewed 

for clear error. United States v. Jones, 2009 WL 1508418, (A.F. Ct. Crim. App) 

(unpublished). 

3. "The test for legal sufficiency is whether, considering the evidence in the light most 

favorable to the government, any rational trier of fact could have found the appellant 

guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United 

States v. Quintanilla, 56 M.J. 37, 82 (C.A.A.F.2001); United States v. Turner, 25 

M.J. 324 (C.M.A.1987); United States v. Jones, 2009 WL 1508418 at 3. 

4. "The test for factual sufficiency is whether, after weighing the evidence in the record 

of trial and allowing for the fact that we did not personally see and hear the 

witnesses, we ourselves are convinced of the appellant's guilt beyond a reasonable doubt. 

Turner, 25 M.J. at 325. We review legal and factual sufficiency de novo. Article 66(c), 

UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 

2002)." United States v. Jones, 2009 WL 1508418 at 3. 

G. Remedy for defective special findings 

1. If the trial judge's mistake in rendering special findings is merely procedural, most 

appellate courts will return the case for compliance with statutory requirements. Schinasi 

at 117. 

"Where a trial judge's special findings disclose that he has misperceived, ignored, or 

confused the law or the facts, reversal will be the result." Schinasi at 118 (examining 

United States v. People, 45 C.M.R. 872 (N.C.M.R. 1971); Haywood v. United States, 393 

F.2d 780 (5th Cir. 1968). See also United States v. McMurrin, 69 M.J. 591 (N.M. Ct. 

Crim. App. 2010) (setting aside findings when military judge’s special findings omitted a 

critical element of the offense). 

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[Back to Table of Contents] 

Chapter 9
 

Court-Martial Personnel
 

I.	 INTRODUCTION..................................................................................................................................... 1
 

II.	 CONVENING AUTHORITY.................................................................................................................. 2
 

THE PANEL
 

III.	 PANEL SELECTION............................................................................................................................... 9
 

IV.	 PANEL CHARACTERISTICS ............................................................................................................. 14
 

V.	 PANEL MEMBER EXCUSAL AND REPLACEMENT.................................................................... 15
 

VI.	 PANEL MEMBERS ROLE AT TRIAL............................................................................................... 16
 

THE JUDGE
 

VII.	 MILITARY JUDGES............................................................................................................................. 17
 

VIII.	 EXPANDED JUDICIAL POWERS AND REMEDIAL ACTION.................................................... 30
 

OTHER PLAYERS
 

IX.	 COUNSEL. .............................................................................................................................................. 31
 

X.	 ACCUSED ............................................................................................................................................... 35
 

XI.	 OTHER COURT-MARTIAL PERSONNEL ...................................................................................... 37
 

XII.	 APPENDIX − COURT-MARTIAL PERSONNEL SUMMARY....................................................... 40
 

XIII.	 APPENDIX – PRETRIAL FLOWCHART ......................................................................................... 42
 

I. INTRODUCTION 

A. The military justice process. Congress enacted the Uniform Code of Military Justice (UCMJ) to provide a 

coherent, fair system of criminal justice within the military. The President was granted significant authority to craft 

rules of procedure for this system. Those rules are entitled Rules for Courts-Martial (RCM). The UCMJ and the 

RCMs are grouped together in the Manual for Courts-Martial, the most recent edition published in 2012. 

B. A Court-Martial. A court-martial exists temporarily and then is permanently adjourned. The court is called into 

life, or “convened,” by an officer who has been given such power by Congress, usually by virtue of position (e.g., a 

commander of an Army division is, under Article 22, UCMJ, authorized to convene a general court-martial). These 

commanders are “convening authorities” and they breathe life into these impermanent courts with a “convening 

in commands where only a small number of cases are tried, where there is no necessity for standing panels). 

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C. LEVELS OF COURTS-MARTIAL. Congress established three levels of courts-martial: General, Special, and 

Summary. The levels of court differ according to the jurisdictional limitations on punishment they can impose. 

Punishments can include confinement, punitive discharge, forfeitures, reduction (enlisted only), hard labor without 

confinement (enlisted only), reprimand, a fine, and death for certain offenses. The characteristics of each type of 

court-martial are set out below: 

1. Summary Courts-Martial (Arts. 20 and 24). This, the lowest level of court-martial, is accorded less 

procedural protection. Military judges do not preside over these proceedings, there is no right to defense counsel, 

and the “court” is composed of one officer, usually a non-lawyer. However, a finding of guilty at a SCM is not 

recognized as a federal conviction. The maximum punishment allowed is 1 month confinement, hard labor 

without confinement for 45 days, restriction for 2 months, or forfeiture of 2/3 pay (a Soldier above the rank of 

SPC may not be confined or given hard labor without confinement, or reduced except to the next pay grade). See 

RCM 1301 et seq. and DA Pam 27-7 for procedures. 

2. Special Courts-Martial (Arts. 19 and 23). Similar to a civilian “misdemeanor” court, the maximum 

punishment that can be adjudged at a SPCM is a bad conduct discharge, reduction to the lowest enlisted grade (E1), confinement for one year, and forfeiture of two-thirds pay per month for one year. A quorum consists of three 

members. 

3. General Courts-Martial (Arts. 18 and 22). Reserved for the more serious offenses, a GCM may adjudge the 

maximum punishment allowed for a particular offense (e.g., death for murder). In a trial with panel members, at 

least five members must sit to constitute a quorum. Only a GCM has jurisdiction to try an offense under Article 

120(a), 120(b), 120a(a), 120b(b), 125, or attempts to commit one of the listed offenses. See Article 18, UCMJ. 

II. CONVENING AUTHORITY 

A. General. The power to convene a court-martial is the power to call together and designate panel members for the 

purpose of hearing cases properly brought before it. Referral is the power to send preferred charges for trial before a 

convened court-martial. 

B. Source of Power to Convene. 

1. Statutory. Article 22, UCMJ (general courts-martial); Article 23, UCMJ (special courts-martial); and Article 

24, UCMJ (summary courts-martial). 

a. Assignment to position. United States v. Ross, No. 36139, 2006 CCA LEXIS 358 (A.F. Ct. Crim. App. 

Dec. 13, 2006) (unpublished). The accused argued that the GCMCA was improperly appointed to command 

and was not a proper convening authority. The GCMCA was an Air Force colonel (O-6) and was appointed 

as the Commander of the Third Air Force over two brigadier generals. This appointment was in violation of 

the applicable Air Force regulation. The GCMCA referred the case to trial by general court-martial, the 

accused was arraigned, and the case was recessed for 20 days. During the recess, command of the Third Air 

Force passed to a major general, who replaced five of the nine panel members in the case. The accused was 

re-arraigned and tried. At no time did the accused object to the original referral. The AFCCA held that the 

court-martial was properly convened, reasoning that, when an officer is in command, he may exercise the 

court-martial convening power that attaches to that command. Furthermore, although the appointment 

violated the Air Force regulation, jurisdiction still attached. “[A]ppellate courts are not justified in attaching 

jurisdictional significance to service regulations in the absence of their express characterization as such by 

Congress.” Finally, any error in the referral was cured by the successor GCMCA who took action on the 

sentence. See also United States v. Stamper, No. 36191, 2006 CCA LEXIS 364 (A.F. Ct. Crim. App. Dec. 15, 

2006) (unpublished). 

b. Revocation. Between referral and the convening authority’s (CA) action on the case, the Secretary of the 

Air Force issued an order which arguably revoked the CA’s authority to convene courts-martial. AFCCA 

held, although the order was inartfully drafted, it did not revoke the CA’s authority and, additionally, the 

Secretary of the Air Force issued a clarifying order proving his intent was to not revoke the CA’s power. 

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AFCCA held, in the alternative, even if the Secretary of the Air Force had intended to revoke the CA’s 

authority, the commander still had statutory authority to convene courts-martial under Article 22(a)(7) as a 

commander of an air force. “No administrative action is required to effect convening authority on a 

commander once he or she is placed in a command position at a numbered air force.” United States v. Hardy, 

60 M.J. 620 (A.F. Ct. Crim. App. 2004). 

c. Separate unit. Case upheld because the battalion was designated as “separate” by the Secretary of the 

Navy and therefore under Article 23(7), UCMJ, its commanding officer had authority to convene a special 

court-martial. United States v. Hundley, 56 M.J. 858 (N-M. Ct. Crim. App. 2002) 

2. Secretarial designation. The Acting Commander, Fort Lewis, referred charges against the accused to courtmartial. On appeal, the defense argued the commander was not designated as a court-martial convening authority 

by the Secretary of the Army (SECARMY) and did not have jurisdiction to take action in this case. Although 

Article 22 does not give statutory authorization for an installation commander to serve as a GCMCA, it does 

allow for the applicable Service Secretary to designate other commanders as GCMCAs. Additionally, in 1981, 

the SECARMY issued two General Orders designating GCMCAs. In Gen. Order No. 10 (dated 9 April 1981), 

the Commander, “Fort Lewis” was designated a GCMCA; in Gen. Order No. 27 (dated 13 November 1981) the 

“Commander, I Corps and Fort Lewis” was designated a GCMCA. In reviewing these orders, the ACCA noted 

the SECARMY merely took action to “designate” GCMCAs, without replacing or otherwise affecting prior 

orders. Hence, the two orders designated the installation commander as a GCMCA while also designating the 

“combined” positions of “Commander, I Corps and Fort Lewis” as a GCMCA. United States v. Smith, 69 M.J. 

613 (A. Ct. Crim. App. 2010). 

C. Decision of CA is personal to CA. 

Decision to refer is personal to the CA. United States v. Guidi, No. 200600493, 2007 CCA LEXIS 10 (N-M. 

Ct. Crim. App. Jan. 30, 2007) (unpublished). The signature on the referral portion of the accused’s charge 

sheet was illegible, and noted next to the signature, in writing was “1st Sgt By direction.” Typed next to the 

signature was “For the Commanding Officer.” The additional charge sheet was executed in the same manner, 

except the notation “1st Sgt” was lacking. The court concluded that a Marine Corps First Sergeant must have 

signed the charge sheets. However, the court held that it is not a jurisdictional defect for the convening 

authority to allow another to sign on his behalf. The N-MCCA stated, “[p]rovided his actions are personally 

made, it is not necessary that he actually take hold of a pen.” 

D. Special Cases 

1. Power over a member of another command 

a. Referral. After allegations of an improper relationship with a midshipman at the Naval Academy, 

accused was reassigned. The new GCMCA preferred fraternization charges which the military judge 

dismissed for failure to state an offense. The Naval Academy SJA, on behalf of the old GCMCA, requested 

the new GCMCA refer charges anew based on additional misconduct. After further investigation, the new 

GCMCA did not re-refer charges but stated he would make the accused available if the old GCMCA desired 

to refer charges. The old GCMCA referred charges which the military judge dismissed without prejudice 

based on an improper referral. The N-MCCA held “a command other than the one to which the accused is 

attached may refer charges against the accused to a court-martial” (citing RCM 601(b)). United States v. 

Jones, 60 M.J. 917 (N-M. Ct. Crim. App. 2005). 

b. After referral. Action taken to approve the sentence by a different SPCMCA than the one who convened 

the accused’s court-martial was error, because the action violated the terms of Article 60(c)(1), UCMJ, and 

RCM 1107(a). The court rejected the Government’s argument that the accused needed to demonstrate 

material prejudice to obtain relief. The clemency stage was an accused’s best opportunity to obtain sentence 

relief, and the Government was required to follow the statutory and regulatory scheme as written. United 

States v. Brown, 57 M.J. 623 (N-M. Ct. Crim. App. 2002). 

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2. Acting Commanders/successors in command. Service regulations govern, but violation of regulation may 

not spell defeat for Government. Court engages in a functional analysis looking to who actually was in command 

at the time the action was taken. United States v. Yates, 28 M.J. 60 (C.M.A. 1989). 

a. Service Regulations. Army, AR 600-20; Navy/U.S.M.C., JAGMAN - JAGINST 5800.7C; Air Force, 

AFR 35-34. 

b. Functional analysis. United States v. Gait, 25 M.J. 16 (C.M.A. 1987) (concern is for realities of 

command, not intricacies of service regulations). See also United States v. Jette, 25 M.J. 16 (C.M.A. 1987). 

c. Successor in command. United States v. Gilchrist, 61 M.J. 785 (A. Ct. Crim. App. 2005). ACCA, in a 

published opinion, clarifies its position, stating “[a]bsent evidence to the contrary, adaptation can be presumed 

from the convening authority’s action in sending the charges to a court-martial whose members were selected 

by a predecessor in command.” No requirement exists for a convening authority or an acting convening 

authority to expressly adopt panel members selected by his predecessor. See also United States v. Starks, No. 

20020224 (A. Ct. Crim. App. Mar. 10, 2004) (unpub.) (concurring with NMCCA in Brewick that “while there 

is no explicit statement of adoption of the selection of court members by the successor-in-command, we are 

not aware of any authority that so requires.”) Contrary ACCA opinions requiring explicit selection overruled 

by the Gilchrist decision. See United States v. Meredith, No. 20021184 (A. Ct. Crim. App. Jan. 27, 2005) 

(unpub.); United States v. Jost, No. 20030975 (A. Ct. Crim. App. Mar. 29, 2005) (unpub.). These cases held 

that a successor in command must expressly select members selected by the previous commander. “By the 

simple expedient of including and correctly referencing the predecessor’s recommended CMCO in the referral 

document, the SJA can ensure that the codal responsibilities of the convening authority are clearly met.” 

d. See also United States v. Brewick, 47 M.J. 730 (N-M. Ct. Crim. App. 1997) (holding “[t]o the extent an 

‘adoption’ is required [where a successor in command refers a case to a CMCO who members were selected 

by a predecessor] or helpful, we can presume as much from [the successor’s] action in sending the charge to 

that court-martial, absent evidence to the contrary.”). 

3. Limitations on Joint Commanders. United States v. Egan, 53 M.J. 570 (A. Ct. Crim. App. 2000). In a 

special court-martial convened by Air Force colonel (commander of a EUCOM joint unit), accused Soldier was 

convicted of drug use and distribution. SPCMCA approved the sentence, which included a BCD. ACCA held the 

SPCMCA did not have the authority under the applicable joint service directive to convene a special court-martial 

empowered to adjudge a BCD in the case of an Army soldier. BCD set aside; case further modified on other 

grounds. 

4. The Special Court-Martial 

a. Punishment limitations. In Army practice, the punishment limitations of a special court-martial are one 

year confinement, two-thirds forfeiture of pay per month for a period not exceeding a year, reduction to E-1, 

and a bad conduct discharge. Compare Article 19, UCMJ with AR 27-10, Paragraph 5-28(a) (11 May 2016) 

(requiring that a military judge and qualified defense counsel be detailed to the court-martial, that a verbatim 

record be prepared, and the SJA to prepare a pretrial advice “following generally the format of RCM 

406(b).”) See also United States v. Scott, 59 M.J. 718 (A. Ct. Crim. App. 2004). (“[A]ll Army SPCMs are 

empowered to adjudge a BCD unless the convening authority expressly states that a particular SPCM is not so 

empowered.) 

b. Limited SPCMCA authority to refer a non-mandatory capital offense to SPCM. United States v. 

Henderson, 59 M.J. 350 (C.A.A.F. 2004). SPCMCA referred alleged violation of Article 110(a), UCMJ 

(willfully hazarding a vessel, a nonmandatory capital offense). Article 19, UCMJ provides that a SPCM has 

jurisdiction over capital offenses “under such regulations as the President may prescribe.” The President, in 

RCM 201(f)(2)(c), authorizes a SPCMCA to refer a nonmandatory capital offense only with the permission of 

the GCMCA. That permission was neither sought nor granted in this case. The CAAF held the referral was 

jurisdictional error. The CAAF rejected three Government arguments: first, that the so-called “evolution” in 

the law applicable to jurisdictional defects does not extend to this situation; second, that the PTA in the case 

was a functional equivalent of a referral of a noncapital offense; and third, that the referral of the 

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nonmandatory capital offense was also an implicit referral of the noncapital lesser-included offense. Findings 

and sentence set aside. 

E. When Convening Authority is Disqualified by Virtue of Accuser Status 

1. General Rule. A convening authority must be reasonably impartial in order decide whether to refer a case. 

An “accuser” is not impartial. Under Article 1(9), UCMJ, “accuser” means a person who (1) signs and swears to 

charges; (2) directs that charges nominally be signed and sworn to by another; or (3) has an interest other than an 

official interest in the prosecution of the accused. See also RCM 601(c) discussion. If a convening authority is 

also the accuser in a case, then the convening authority has limited referral authority. The convening authority 

cannot refer charge(s) to a special or a general court-martial; however, he is not necessarily disqualified from 

convening a summary court-martial or initiating administrative measures (Article 15, memorandum of reprimand, 

Bar to Reenlistment, etc.). RCM 1302(b). If the convening authority has a personal (or other than official) 

interest in a case, there are additional limitations on what actions he may take. 

2. Statutory disqualification. If a convening authority signs and swears to charges or directs another to do so, 

she is said to be statutorily disqualified. An accuser who is statutorily disqualified may not refer a case to a 

general or special court-martial but may appoint an Article 32 Investigating Officer or forward the case with a 

recommendation as to disposition as long as the disqualification is noted. A convening authority who becomes an 

accuser by virtue of preferring charges in an official capacity as a commander is not, per se, disqualified from 

appointing an Article 32 officer to investigate those charges. See McKinney v. Jarvis, 46 M.J. 870 (A. Ct. Crim. 

App. 1997). 

3. Personal disqualification. A convening authority who has an other than official interest in the case is said to 

be personally disqualified. Besides being denied the right to refer, she may not appoint an Article 32 

Investigating Officer or make a recommendation when forwarding the case for action. 

a. Test: Whether a reasonable person could impute to the convening authority a personal interest or feeling 

in the outcome of the case. United States v. Jeter, 35 M.J. 442 (C.M.A. 1992); see also United States v. 

Gordon, 2 C.M.R. 161 (1952); United States v. Crossley, 10 M.J. 376 (C.M.A. 1981); United States v. 

Thomas, 22 M.J. 388, 394 (C.M.A. 1986) (listing examples of unofficial interests that disqualified CAs). 

b. Examples. 

(1) Relationship to the accused. SPCMCA forwarding the charges must disclose any potential personal 

interests, and if disqualified, forward without recommendation. United States v. Nix, 40 M.J. 6 (C.M.A. 

1994) (Dubay hearing ordered where special court-martial convening authority’s (SPCMCA’s) girlfriend 

(later spouse) and the accused shared relationship characterized by innuendo and sexual banter, and the 

record failed to establish that SPCMCA acted with proper motives.) 

(2) Accused and CA both members of the same Boy Scout organization. United States v. Dinges, 55 

M.J. 308 (C.A.A.F. 2001). A convening authority who becomes an accuser by virtue of having such a 

close connection to the offense that a reasonable person would conclude he had a personal interest in the 

case is disqualified from taking further action as a convening authority. At a GCM the accused was 

convicted of sodomy arising out of his activities as an assistant scoutmaster with a local troop of the Boy 

Scouts. The Scout Executive terminated his status as an assistant, and contacted the CA (who was a 

district chairman of the Big Teepee District, Boy Scouts of America) about the matter. Prior to preferral 

of charges, the accused was assigned to the CA’s wing (a special court-martial convening authority level 

command). The CAAF ordered a DuBay hearing to determine whether the convening authority had an 

other than official interest that would disqualify him under Article 1(9), UCMJ, and United States v. Nix, 

40 M.J. 6 (C.M.A. 1994). Based on facts gathered at the DuBay hearing, the CAAF held the SPCMCA 

did not become an accuser because he did not have such a close connection to the offense that a 

reasonable person would conclude he had a personal interest in the case. As such, he was not disqualified 

from taking action as a CA. 

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(3) CAs suspected of similar offenses may be disqualified. United States v. Kroop, 34 M.J. 628 

(A.F.C.M.R. 1992), aff’d, 38 M.J. 470 (C.M.A. 1993). Officer charged with adultery. CA was suspected 

of similar, albeit unrelated, offenses. In an “abundance of caution over the need to preserve the 

appearance of propriety” court set aside prior action of CA (approved sentence) and remanded for new 

SJA’s advice and action by different CA. United States v. Anderson, 36 M.J. 963 (A.F.C.M.R. 1993). 

Findings and sentence did not have to be set aside on grounds the CA was himself suspected of 

misconduct. Conduct in question was unrelated to accused’s misconduct. United States v. Williams, 35 

M.J. 812 (A.F.C.M.R. 1992) aff’d, 41 M.J. 134 (C.A.A.F. 1994) (Accused convicted of three rapes, 

robbery, sodomy, and aggravated assault was not entitled to disqualification of CA where CA was himself 

suspected of sexual misconduct. Suspected misconduct of CA was of a non-violent nature. No danger of 

“psychological baggage” being carried over to prejudice the accused.) 

(4) Disqualification and potential UCI. United States v. Haagenson, 52 M.J. 34 (C.A.A.F. 1999). 

Accused, a CW2, was charged with fraternization and her case initially referred to a SPCM, convened by 

the SPCMCA who was also the accuser. The SPCMCA later withdrew the charge, on the basis of the 

TC’s advice, and referred it to an Article 32 investigation, ultimately sending it forward with a 

recommendation for a GCM. Evidence revealed that the withdrawal from a SPCM may have been 

prompted by the XO of the Base Commander, the SPCMCA’s superior, who reportedly yelled “I want 

[accused] out of the Marine Corps” at the SPCMCA. The military judge found that there was “no 

support” for the defense contention that command influence tainted the referral, but the CAAF disagreed, 

finding insufficient evidence to rule either for or against the defense because the record was not properly 

developed. Case remanded for a fact-finding proceeding on issue of whether SPCMCA became an 

accuser. 

c. Violations of orders of the convening authority. 

(1) General Rule. Violation of CA orders does not make give the CA a personal interest in the outcome 

of the case. United States v. Tittel, 53 M.J. 313 (C.A.A.F. 2000). Accused was convicted of shoplifting 

and several other offenses and processed for elimination when he was caught shoplifting again from the 

base PX. The SPCMCA signed an order barring the accused from entering any Navy PX, which the 

accused violated. The CAAF adopted the Navy court’s reasoning that the order was a routine 

administrative directive and that the CA was not an “accuser” and that, in any event, the accused waived 

the issue. 

(2) United States v. Byers, 34 M.J. 923 (A.C.M.R. 1992) set aside and remanded, 37 M.J. 73 (C.M.A. 

1993), rev’d as to sentence, 40 M.J. 321 (C.M.A. 1994), sent. aff’d. on remand (A.C.M.R., 23 Jan. 1995) 

(unpub.). Accused charged under Article 90, UCMJ for violating commanding general’s (CG) order not 

to operate privately owned vehicle on post. Same CG referred the charge to a GCM. CG was not an 

accuser and involvement was official and not personal. 

(3) See also United States v. Cox, 37 M.J. 543 (N.M.C.M.R. 1993). Accused charged under Article 90, 

UCMJ for violating CA’s restriction order. Imposition of pretrial restriction is an “official act” which 

does not connect the CA so closely with the offense that a reasonable person would conclude he had 

anything other than an official interest in the matter. 

(4) United States v. Shiner, 40 M.J. 155 (C.M.A. 1994) (whether CA was disqualified because accused 

allegedly violated CA’s personal order was waived by failure to raise at trial). See also United States v. 

Garcia, 2003 CCA LEXIS 98 (N-M Ct. Crim. App. Apr. 9, 2003) (unpub.). Applying CAAF’s opinions 

in United States v. Tittel, 53 M.J. 313 (C.A.A.F. 2000) and United States v. Rockwood, 52 M.J. 98 

(C.A.A.F. 1999), court held that accused waived the issue by failing to raise it at trial. In any event, CA 

was not an “accuser” prohibited from convening a court-martial where convening authority issued the 

order the accused is alleged to have violated. The order was not to operate POV on Camp Pendleton. 

Applying the standard that whether one is an accuser depends on whether, under the particular facts and 

circumstances . . . a reasonable person would impute to [the convening authority] a personal feeling or 

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interest in the outcome of the litigation,” the court found that the issuance of this routine “simple, written 

order” did not exceed official interest. 

d. Official involvement does not make CA an “accuser.” 

(1) United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009). Convening authority appointed another 

General Officer to conduct a command investigation board into an aircraft accident that killed 20 civilians 

riding a cable car in the Italian Alps. The accused was eventually court-martialed as the pilot of the 

aircraft. Convening authority closely monitored the investigation, calling the board on a daily basis and 

making recommendations about areas of further inquiry; charges were not preferred until the investigation 

was completed. CAAF held the convening authority not become an accuser based on his hands-on 

involvement in the investigation, noting the repeated contacts did not show a “personal rather than a 

professional interest.” 

(2) United States v. Arindain, 65 M.J. 726 (A.F. Ct. Crim. App. 2007). The convening authority, an Air 

Force GCMCA, referred charges of felony murder, rape, and forcible sodomy to a GCM; the accused was 

only convicted of unpremeditated murder. Three months after the trial, the convening authority wrote an 

e-mail to the SJA saying: “My opinion, tho: this was not a sexual assault case . . . we all think they had 

consensual sex and she expired during their rather abnormal acts.” E-mail was disclosed to the defense 

and they submitted it as part of their clemency. On appeal, defense argued the convening authority 

committed prosecutorial misconduct by referring “charges for which he did not have reasonable grounds 

to believe that offenses triable by a court-martial had been committed.” AFCCA affirmed, reasoning that 

the SJA provided pretrial advice that provided the GCMCA with an “analysis of the available evidence . . 

. , and advised him that the evidence supported the specifications and referral was warranted.” Also, the 

Article 32 investigating officer concluded that reasonable grounds existed to believe the accused 

committed the offenses. “Sufficient information existed at the time of referral for the convening authority 

to make his decision, and while his choice of language . . . was regrettable, we do not find that [his emails] cast doubt on the propriety of the referral . . . .” 

(3) United States v. Diacont, No. 200501425, 2007 CCA LEXIS 94 (N-M. Ct. Crim. App. Mar. 20, 2007) 

(unpublished). Convening authority was not personally disqualified when he visited the accused and 

several others in pretrial confinement and asked them “how they were doing, whether they had called 

their families recently, and what the command could have done to prevent the circumstances in which 

they found themselves.” 

(4) United States v. Voorhees, 50 M.J. 494 (C.A.A.F. 1999). A CA is an “accuser” when the convening 

authority is so closely connected to the offense that a reasonable person would conclude that the CA had a 

personal interest in the matter - that it would affect the CA’s ego, family, or personal property, or that it 

demonstrates personal animosity beyond misguided zeal. Here, CA did not become an accuser even 

though he threatened to “burn” accused if he did not enter into pretrial agreement. 

(5) United States v. Fisher, 45 M.J. 159 (C.A.A.F. 1996). CA’s mid-trial statements critical of defense 

counsel will not invalidate previous pretrial actions of selecting members and referring case to trial when 

CA’s statements do not indicate that he was other than objective in processing court-martial. CA 

appeared as a Government witness on a MRE 313 motion to suppress a urinalysis. During the recess, the 

CA stated that “any lawyer that would try to get the results of the urinalysis suppressed was unethical.” 

No taint attributed to selection process. 

(6) CA testimony at trial. United States v. Gudmundson, 57 M.J. 493 (C.A.A.F. 2002). Convening 

authority testified on dispositive suppression motion. Defense did not request that convening authority 

disqualify himself from taking post-trial action in the case but alleged on appeal that he should have 

disqualified himself. The CAAF held that the defense waived the issue by failing to raise it below, in 

light of the fact that the defense was fully aware of the ground for potential disqualification but chose not 

to raise it either at trial or in its post-trial submissions. In dicta, CAAF reviews law in area. “A 

convening authority’s testimony at trial is not per se disqualifying, but it may result in disqualification if 

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it indicates that the convening authority has a ‘personal connection with the case.’ However, ‘if the 

[convening authority’s] testimony is of an official or disinterested nature only,’ the convening authority is 

not disqualified.” 

e. CA as secondary victim does not make CA “accuser.”. United States v. Rockwood, 52 M.J. 98 (C.A.A.F. 

1999). Accused who was critical of Operation Uphold Democracy in Haiti attempted to “inspect” a prison in 

order to draw attention to the plight of its inmates. Accused was charged with a variety of offenses, to include 

disrespect and being absent from his place of duty. He claimed at trial that the entire command was precluded 

from acting in the case because his behavior so directly challenged his command’s actions that the CA, the 

commanders, and the members had a conflict of interest. CAAF held that the accused’s personal assertion of 

such a conflict was insufficient; he produced no evidence that the CA had anything other than an official 

interest in the case, that there was command influence under Article 37, UCMJ, or that the members were 

disqualified from serving. 

4. Effect of Convening Authority disqualification 

a. Before trial 

Action contemplated If statutorily If personally 

disqualified ­ disqualified ­

Appointing Article 32 May appoint May not appoint 

in

(IO

ve

) 

stigating officer Article 32 IO Article 32 IO 

Dismissal of charges May dismiss May dismiss 

Disposition by other May dispose of May dispose of 

means case via Article case via Article 

15, Letter of 15, Letter of 

Convening a court May convene a May convene a 

martial SCM, but 

 

not a SCM, but

 

 not a 

Forwarding to May forward with May forward but 

superior recommendation may not make 

as to disposition recommendation 

(must note (must note 

b. After trial. Accuser issue is not jurisdictional – failure to raise at trial may result in waiver. United 

States v. Shiner, 40 M.J. 155 (C.M.A. 1994) (assuming CA was an accuser, his failure to forward the charges 

to the next higher level of command was a nonjurisdictional error, which was waived by accused’s failure to 

raise it at court-martial). See also Tittel; United States v. Voorhees, 50 M.J. 494 (C.A.A.F. 1999). CA did not 

become an accuser by threatening to “burn” accused if he did not enter into PTA; even if he did, accused 

affirmatively waived issue at trial. 

c. The “Junior Accuser” Concept. Commander who is subordinate to “accuser” may not convene a general 

or special court-martial. See RCM 504(c)(2) and Articles 22(b) and 23(b): “If . . . such an officer is an 

accuser, the court shall be convened by superior competent authority.” See also United States v. Corcoran, 

17 M.J. 137 (C.M.A. 1984). 

i. Other Referral Issues. 

b. Post-trial Implications 

5. CA disqualification. United States v. Davis, 58 M.J. 100 (C.A.A.F. 2003). Accused was convicted of
 

wrongful drug use. In its RCM 1105 submission, the defense alleged that the convening authority publicly
 

commented that “people caught using illegal drugs would be prosecuted to the fullest extent, and if they were
 

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convicted, they should not come crying to him about their situations or their families[’].” Government did not 

dispute that the convening authority made the statements. After reviewing the law on disqualification of 

convening authorities to take post-trial action, and applying a de novo standard of review, the CAAF held that the 

statements displayed an inelastic attitude toward the performance of the convening authority’s post-trial 

responsibilities that disqualified him from taking post-trial action on accused’s case. The comments “lacked 

balance and transcended a legitimate command concern for crime or unlawful drugs.” Action set aside, record 

returned to the Air Force TJAG for a new review and action before a different convening authority. 

6. Legal officer disqualification. United States v. Edwards, 45 M.J. 114 (C.A.A.F. 1996). An O-4 officer who 

served as the legal officer for the case in the pretrial and post-trial stages was disqualified from preparing the posttrial recommendation. Officer preferred 3 charges and 31 specifications of larceny, forgery, and false-identity 

offense against accused; conducted a videotaped interrogation of accused that resulted in a confession; acted as 

evidence custodian during the pretrial stages of the court-martial; and defense counsel only became aware of legal 

officer’s involvement after trial and completion of post-trial recommendation. 

III. PANEL SELECTION 

A. In general. Virtually any member of the Armed Forces is eligible to serve on a court-martial panel. However, 

the CA may only select those members who, in the CA’s personal opinion, are “best qualified” in terms of criteria set 

out in Article 25, UCMJ: Age, Experience, Education, Training, Length of Service and Judicial Temperament. 

United States v. Hodge, 26 M.J. 596 (A.C.M.R. 1988), aff’d, 29 M.J. 304 (C.M.A. 1989) (holding cross sectional 

representation of military community on court-martial panel is not required by the Constitution); see also United 

States v. Carter, 25 M.J. 471 (C.M.A. 1988) (holding no Sixth Amendment right that membership reflect a 

representative cross-section of the military population). 

B. CHALLENGES TO PANEL SELECTION PROCESS 

1. Proving the use of inappropriate criteria or command influence in panel selection. 

a. The burden. The defense shoulders the burden of establishing the improper exclusion of qualified 

personnel from the selection process. Once the defense establishes such exclusion, the Government must 

show by competent evidence that no impropriety occurred when selecting the accused’s court-martial 

members. United States v. Kirkland, 53 M.J. 22, 24 (C.A.A.F. 2000). 

b. The standard of proof. Generally, the standard on both sides is a preponderance of the evidence. RCM 

905(c)(1). However, if the defense alleges that the convening authority violated not only Article 25 but also 

that the convening authority tried, for example, to stack the court against him, then the challenge is essentially 

one of command influence, and the command influence standards apply. 

(1) To raise an issue under Article 37, UCMJ, the accused must show “some evidence” (i.e., facts which, 

if true, constitute unlawful command influence, and that the alleged unlawful command influence has a 

logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings). 

United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999). Once the issue is raised at the trial level, the 

burden shifts to the Government, which may either show that there was no unlawful command influence 

or show that the unlawful command influence will not prejudice the proceedings. Id. The court must be 

persuaded beyond a reasonable doubt that the findings and sentence will not be affected by command 

influence. Id. at 151. 

(2) Command influence is, generally, harder to establish, but, once established, it is harder for the 

Government to disprove prejudice to the accused. 

c. Two general methods of proof. 

(1) Counsel may attack the array. See, e.g., United States v. Nixon, 33 M.J. 433 (C.M.A. 1991) (panel 

of E-8s and E-9s creates an appearance of evil). Second, counsel can mount statistical attacks on the 

array. See, e.g., United States v. Bertie, 50 M.J. 498 (C.A.A.F. 1999) (disproportionate number of high19-9
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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ranking panel members did not create presumption of impropriety in selection). See also United States v. 

Fenwrick, 59 M.J. 737 (A.F. Ct. Crim. App. 2003) (holding “the military judge may rely upon statistical 

evidence to discern a ‘subconscious’ desire by the convening authority to improperly exclude certain 

grades, [but] such statistical evidence must clearly indicate such an exclusion”). 

(2) Attacks on the nomination and selection memoranda. See United States v. Upshaw, 49 M.J. 111 

(C.A.A.F. 1998); United States v. Roland, 50 M.J. 66 (C.A.A.F. 1999); and United States v. Kirkland, 53 

M.J. 22 (C.A.A.F. 2000). 

2. The convening authority’s responsibility to personally select members cannot be delegated. United 

States v. Ryan, 5 M.J. 97 (C.M.A. 1978); United States v. McCall, 26 M.J. 804 (A.C.M.R. 1988) (military judge 

said “it sounds like somebody has already selected a list of people to take in to the convening authority and have 

him just kind of stamp it;” ACMR agreed). But see United States v. Benedict, 55 M.J. 451 (C.A.A.F. 2001). The 

Chief of Staff (CoS) submitted a final list of members to the CA, who then personally signed the convening order 

without asking any questions or making any changes. Setting aside the decision of the Coast Guard Court of 

Criminal Appeals, the CAAF held that the CA personally selected the nine prospective members set forth by the 

CoS. See Judge Effron’s dissent for a comprehensive discussion of the history of Article 25, UCMJ. 

a. United States v. Hilow, 32 M.J. 439 (C.M.A. 1991). The division deputy adjutant general gathered a list 

of court member nominees who, in his opinion, supported a command policy of “hard discipline.” Staff 

members can violate the provisions of Article 37, UCMJ. Their errors will likely spillover to the CA. 

b. Interlopers as a jurisdictional defect. United States v. Peden, 52 M.J. 622 (A. Ct. Crim. App. 1999). 

Where Member A was selected by CA but Member B was inadvertently placed on convening order, Member 

B was an “interloper” whose presence constituted jurisdictional error. Convening authority not permitted to 

ratify presence of Member B after the fact. Sentence set aside (accused had pleaded guilty). 

3. If members of another command are selected, they must also be personally selected by the convening 

authority. United States v. Gaspard, 35 M.J. 678 (A.C.M.R. 1992) Accused was assigned to Fort Polk. 

Commanding General, Fort Polk, was disqualified after talking to victim’s parents, so case convened by 

Commander, III Corps and Fort Hood, who referred case to a Fort Polk court-martial convening order (CMCO) 

with Fort Polk members. Issue on appeal was whether Corps CG personally selected the Fort Polk members. If 

not, court-martial was “fatally flawed.” Case remanded for DuBay hearing. But see successor in command cases 

supra. 

C. CHALLENGES TO PANEL SELECTION CRITERIA 

1. In general. The CA must use the Article 25 criteria to select panel members. Article 25(d)(2) directs the 

convening authority to personally select members who are “best qualified” based on six criteria: “age, education, 

training, experience, length of service, and judicial temperament.” United States v. Bartlett, 66 M.J. 426 

(C.A.A.F. 2008). Much litigation has revolved around the CA’s supplementing the Article 25 criteria with other 

criteria. Some of these criteria are discussed below. Although Bartlett did not explicitly overrule any precedent 

regarding the use of non-Article 25 criteria for the purposes of either including or excluding panel members, 

practitioners should exercise extreme caution in supplementing the Article 25 criteria. 

2. Cross-Sectional Representation. The commander may seek to have the panel’s membership reflect the 

military community. See, e.g., United States v. Smith, 27 M.J. 242, 249 (C.A.A.F. 1988). “[A] commander is free 

to require representativeness in his court-martial panels and to insist that no important segment of the military 

community – such as blacks, Hispanics, or women – be excluded from service on court-martial panels.” CMA 

tacitly accepted as valid the CA’s effort “to have a mix of court members with command or staff experience” to 

have “some female representation on the panel.” 

3. Inclusion Criteria 

a. By Race. Convening authority may include members based upon their race so long as the motivation is 

compatible with Article 25, UCMJ. United States v. Crawford, 35 C.M.R. 3 (C.M.A. 1964) (as to black 

NCO, it is exclusion that is prohibited, not inclusion). See also United States v Smith, infra. 

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b. By Gender. Permissible if for proper reason. 

(1) United States v. Smith, 27 M.J. 242 (C.M.A. 1988). CA may take gender (or race) into account in 

selecting court members if seeking in good faith to select that a court-martial panel that is representative 

of the military population. But, evidence indicated a hidden policy of ensuring two “hardcore” females 

were on all sexual assault cases based on their “unique experience.” 

(2) United States v. Lewis, 46 M.J. 338 (C.A.A.F. 1997). In a case involving attempted voluntary 

manslaughter and assault on the accused’s wife, the convening authority did not “stack” the panel with 

female members when, in response to a defense request for enlisted members, two of original five female 

officers were relieved and one female enlisted member was added, resulting in a panel of five male and 

four female members. Original panel had ten members, five of whom were females. 

c. By Duty Position. Convening authority may select based upon duty position (e.g., commanders) in a 

good faith effort to comply with Article 25 criteria. 

(1) United States v. White, 48 M.J. 251 (C.A.A.F. 1998). CA issued a memorandum directing 

subordinate commands to include commanders, deputies and first sergeants in the court member applicant 

pool. Eight of ten panel members for the accused’s trial were in command positions. Court held CA did 

not engage in court packing absent evidence of improper motive or systematic exclusion of a class or 

group of candidates. Court noted “best qualified” selection for command is close to “best qualified” 

under Article 25. See Effron, J., and Sullivan, J., concurring in the result, but criticizing the majority’s 

willingness to equate selection for command with selection for panel duty. 

(2) United States v. Cunningham, 21 M.J. 585 (A.C.M.R. 1985) (holding preference for those in 

leadership positions is permissible where CA articulates Article 25 criteria; 6 commanders and 3 XOs 

who were 1 COL, 3 LTCs, 2 MAJs, 2 CPTs, 1 LT); see also United States v. Lynch, 35 M.J. 579 

(C.G.C.M.R. 1993), rev’d on other grounds, 39 M.J. 223 (C.M.A. 1994) (holding selection process that 

limited members to those “with significant seagoing experience” met the requirements of Article 25, 

specifically the “experience” criterion given the charged offenses). 

d. By Random. See United States v. Dowty, 60 M.J. 163 (C.A.A.F. 2004). Accused contended that, by 

soliciting volunteers to serve as court members and then drafting a list of nominees for the CA’s approval, the 

ASJA violated the letter and spirit of Article 25, UCMJ. Court upheld conviction in face of “potentially 

troubling” panel selection where CA personally selected members despite unorthodox nomination process. 

While it was error to nominate members based on an irrelevant variable, such as volunteering, the error did 

not prejudice the accused. Note: accused and counsel were “given full opportunity to question potential 

members in open court to develop any possible biases or preconceptions, and, through appropriate causal and 

peremptory challenges, removed any potential member who they had reason to believe would not be capable, 

fair, and impartial.” Also, by time of accused’s trial, only three “volunteers” remained on seven-member 

panel. 

e. By seniority. United States v. Melson, No. 36523, 2007 CCA LEXIS 372 (A.F. Ct. Crim. App. Sep. 14, 

2007) (unpublished). At his trial, the accused moved to dismiss the charges and specifications, alleging that 

the GCMCA improperly selected the panel by intentionally selecting senior members to serve. Five of the ten 

members were colonels (O-6s) and, although the case was tried at a different base, some of his staff were 

chosen as members. The GCMCA testified that he “wanted to pick members whom he knew had the best 

judgment and experience.” He also said it “was the most serious case he had ever handled.” Furthermore, he 

wanted to ensure that he had officers with the “requisite maturity and experience.” The issue was addressed at 

length at trial and the military judge denied the motion, finding that the CA had properly applied Article 25. 

The AFCCA affirmed, stating that every panel is essentially “hand-picked.” However, “[w]hat is 

impermissible is for the convening authority to select members with a view toward influencing the outcome 

of the case.” The court found that the CA gave the panel selection in the case “a great deal of time and 

consideration . . . [and] did so in an attempt to ensure justice, not subvert it.” Therefore, the accused did not 

satisfy his burden to show that the members were improperly selected. 

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4. Systematic exclusion of otherwise qualified personnel. 

a. Motive. Generally, where the accused challenges the panel because the CA has allegedly excluded 

otherwise qualified people (e.g., she prefers to select only those who have command experience), we look to 

the motivation of the convening authority. If the motivation is compatible with Article 25, UCMJ, the 

selection may not be disturbed. Where the convening authority appoints members to achieve a particular 

result (e.g., to guarantee a conviction, or a harsh sentence), the CA has engaged in “court stacking” or “court 

packing.” This is not a jurisdictional challenge per se but rather a species of command influence, in violation 

of Article 37. If the accused alleges the CA has engaged in court stacking, the court will look to the 

motivation and intent of the CA. 

b. Rank is an area where the convening authority’s motive is largely irrelevant (thus, the CA may have the 

intention of fully complying with Article 25, but Article 25 is violated where the CA uses rank as a “shortcut” 

in the selection process). 

c. United States v. Simpson, 55 M.J. 674 (A. Ct. Crim. App. 2001). aff’d, 58 M.J. 368 (C.A.A.F. 2003). 

CA’s deliberate exclusion of personnel assigned to the Army’s Ordinance Center and School did not 

constitute unlawful “court packing” where the CA’s motive was to find an unbiased and objective panel. 

d. United States v. Brocks, 55 M.J. 614 (A.F. Ct. Crim. App. 2001). Base legal office intentionally excluded 

all officers from the Medical Group from the nominee list, because all four alleged conspirators and many of 

the witnesses were assigned to that unit. Citing United States v. Upshaw, 49 M.J. 111, 113 (C.A.A.F. 1998), 

“[a]n element of unlawful court stacking is improper motive. Thus, where the convening authority’s motive 

is benign, systematic inclusion or exclusion may not be improper.” Held: Exclusion of Medical Group 

officers did not constitute unlawful command influence. But see United States v. Bartlett, 66 M.J. 426 

(C.A.A.F. 2008) (invalidating Army regulation that exempted certain special branches from court-martial 

duty, including medical personnel). 

e. In United States v. Redman, 33 M.J. 679 (A.C.M.R. 1991), the court found that the Government’s 

dissatisfaction with the panel’s unusual sentences actually meant dissatisfaction with findings of not guilty or 

lenient sentences. The court held the intentional manipulation of Article 25 criteria to achieve particular 

result in cases is a clear violation of Articles 25 and 37, UCMJ. 

f. United States v. Smith, 27 M.J. 242 (CMA 1988) (legal office policy of placing “hardcore” female 

members on panel in sex cases to achieve a particular outcome was ruled inappropriate); see also United 

States v. Hilow, 32 M.J. 439 (C.M.A. 1991) (court packing occurred where functionary prepared lists of panel 

members based upon notions of hard discipline). 

g. Special case of law enforcement personnel. United States v. Swagger, 16 M.J. 759 (A.C.M.R. 1983) 

announced that “individuals assigned to military police duties should not be appointed as members of courtsmartial. Those who are the principal law enforcement officers at an installation must not be.” Cases since 

United States v. Bartlett have not revisited this issue. 

(1) United States v. Dale, 42 M.J. 384 (C.A.A.F. 1995). Accused charged with sexual offenses against a 

child. Member of panel (Air Force 0-3) was Deputy Chief of Security Police and had sat in on criminal 

activity briefings with base commander. Focus is on the perception and appearance of fairness. Member 

was intimately involved day-to-day law enforcement on the base; “the embodiment of law enforcement 

and crime prevention.” MJ’s denial of challenge for cause reversed and case set aside. 

(2) United States v. Fulton, 44 M.J. 100 (C.A.A.F. 1996). Military judge did not abuse discretion by 

denying challenge for cause against member who was Chief of Security Police with Bachelor of Arts in 

criminal justice, where member only had contact with accused’s commander on serious matters requiring 

high level decisions, and member had no prior knowledge of accused’s misconduct. Cf. Dale, above. 

(3) United States v. Berry, 34 M.J. 83 (C.M.A. 1992). Member was command duty investigator for NAS 

Alameda security and knew and worked with key Government witness. Military judge said, “I don’t 

think he said anything that even remotely hints that he could not render a fair judgment in this case.” 

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Abuse of discretion in the face of mere naked disclaimers by member. Reversed. But see United States 

v. McDavid, 37 M.J. 861 (A.F.C.M.R. 1993) (no “per se” rule of exclusion for security policemen). 

5. Inclusion or Exclusion by Rank. Rank is not a criterion listed under Article 25, UCMJ. The CA may not 

select members junior to an accused, but, aside from that one qualification, the convening authority may not use 

rank as a device for deliberate and systematic exclusion or inclusion of otherwise qualified court members. 

United States v. Daigle, 1 M.J. 139 (C.M.A. 1975) (policy of excluding all lieutenants and WOs); but see United 

States v. Yager, 7 M.J. 171 (C.M.A. 1979) (exclusion of persons in grades E-2 and E-1 permissible). 

a. Disproportionately senior panel. Despite the cases holding that the composition of the panel can create an 

“appearance of evil,” more recent cases have disallowed challenges to the panel based solely on its 

composition at trial. United States v. Bertie, 50 M.J. 489 (C.A.A.F. 1999) (disproportionate number of highranking panel members did not create presumption of impropriety in selection). 

b. Administrative selection error. United States v. Upshaw, 49 M.J. 111 (C.A.A.F. 1998) (good faith 

administrative error resulting in exclusion of otherwise eligible members (E6s) was not error). But see 

Kirkland, below. 

c. Nominee solicitation. United States v. Roland, 50 M.J. 66 (C.A.A.F. 1999) (SJA’s memo soliciting 

nominees E-5 to O-6 was not error). But see Kirkland, below. 

d. Excluding E7s. United States v. Kirkland, 53 M.J. 22 (C.A.A.F. 2000), pet. for clarification denied, 54 

M.J. 211 (C.A.A.F. 2000). Despite evidence that CA understood and applied Article 25, sentence set aside 

where panel selection documents appeared to exclude NCOs below E-7. Panel selection documents may give 

rise to an appearance of impropriety where documents make it seem that rank was a criterion in panel 

selection. 

e. Excluding Lieutenants. United States v. Fenwrick, 59 M.J. 737 (A.F. Ct. Crim. App. 2003). Defense 

raised motion to dismiss for systematic and improper exclusion of lieutenants from panel membership. The 

GCMCA testified on the motion regarding his selection of members IAW Article 25 criteria. The military 

judge, however, determined the GCMCA had systematically and improperly excluded lieutenants because in 

the thirteen courts-martial of the fiscal year only two lieutenants were selected and none served. The military 

judge granted defense’s motion and ordered the GCMCA to select new panel members free from systematic 

exclusion of lieutenants. The GCMCA selected a new panel, without lieutenants, causing the military judge 

to dismiss the case with prejudice and the Government appealed. On appeal, AFCCA held “the military judge 

may rely upon statistical evidence to discern a ‘subconscious’ desire by the convening authority to improperly 

exclude certain grades, [but] such statistical evidence must clearly indicate such an exclusion.” Such clear 

evidence was lacking in this case where lieutenants were not excluded from the nomination process, the 

GCMCA testified he applied the Article 25 criteria, and the GCMCA had previously selected six lieutenants 

in fifteen courts-martial in the prior fiscal year. The court recognized “it is not improper, during the selection 

process, for a convening authority to look first to officers and enlisted members senior in rank because they 

are more likely to be the best qualified under Article 25.” 

f. United States v. Smith, 37 M.J. 773 (A.C.M.R. 1993). In handwritten note, convening authority directed 

major subordinate commanders to provide “E7” and “E8” members for membership on court-martial panel. 

ACMR found that selection was based solely on rank in violation of Article 25, UCMJ, and that the improper 

selection deprived the court of jurisdiction. Findings and sentence set aside. 

g. United States v. Nixon, 33 M.J. 433 (C.M.A. 1991). A panel consisting of only E-8s and E-9s creates an 

appearance of evil and is probably contrary to Congressional intent. The CG’s testimony, however, 

established that he had complied with Article 25 and did not use rank as a selection criterion. Court noted 

close correlation between the selection criteria for court-martial members in Article 25(d)(2), UCMJ and the 

grade of a commissioned or non-commissioned officer. “Indeed, because of that correlation, there is a danger 

that, in selecting court members, a convening authority may adopt the shortcut of simply choosing by grade.” 

Resulting blanket exclusion of qualified officers or enlisted members in lower grades violates Congressional 

intent. 

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h. United States v. Ruiz, 46 M.J. 503 (A.F. Ct. Crim. App. 1997), aff’d, 49 M.J. 340 (C.A.A.F. 1998). 

Convening authority did not improperly select members based on rank when, after rejecting certain senior 

nominees from consideration for valid reasons, he requested replacement nominees of similar ranks to keep 

the overall balance of nominee ranks relatively the same. 

i. United States v. Benson, 48 M.J. 734 (A.F. Ct. Crim. App. 1998). An Air Force convening authority 

violated Article 25 when, after sending a memorandum to subordinate commands directing them to nominate 

“officers in all grades and NCOs in the grade of master sergeant or above for service as court-members,” he 

failed to select members below the rank of master sergeant (E-7). The convening authority, while testifying 

that he had no intent to violate Article 25, also testified that he had never selected a member below the rank of 

E-7. The court held the CA violated Article 25 by systematically excluding ranks E-4 to E-6. The findings 

and sentence were set aside. This case provides an excellent review of the case law interpreting Article 25, 

UCMJ, and court member selection. 

IV. PANEL CHARACTERISTICS 

A. Quorum. Article 29, UCMJ. 

1. Three members for SPCM, five members for GCM. Ballew v. Georgia, 435 U.S. 223 (1978). “Jury” of less 

than 6 is unconstitutional (civilian). But see United States v. Wolff, 5 M.J. 923 (N.C.M.R. 1978), pet. denied, 6 

M.J. 305 (C.M.A. 1979) (holding Sixth Amendment right to trial by “jury” does not apply to courts-martial); 

United States v. Hutchinson, 17 M.J. 156 (C.M.A. 1984). 

2. Twelve members for capital case. Article 25a, UCMJ requires a minimum of twelve panel members in 

military capital cases, except in certain circumstances. The change was effective for offenses committed after 31 

December 2002. 

B. Requirement for members senior in rank to the accused. 

1. Officer panel. United States v. Follord, No. 20020350 (A. Ct. Crim. App. Feb. 15, 2005) (unpub). The 

accused, a CW2, did not make a knowing and voluntary waiver of his statutory right to trial by five officer 

members because of the following errors: (1) his executed PTA erroneously listed one of his three forum options 

as a trial by one-third enlisted, (2) his request for military judge alone stated that any trial composed of officers 

would be “not of his unit,” and (3) military judge advised the accused that if he requested officer members at his 

general court-martial that the panel must comprise “at least three members.” The court stated the host of errors 

“constitutes a lack of substantial compliance with Article 16, UCMJ.” Findings and sentence set aside. 

2. Enlisted panel. United States v. McGee, 15 M.J. 1004 (N.M.C.M.R. 1983). When it can be avoided, court 

members should not be junior in rank to the accused. Failure to object results in waiver. United States v. 

Schneider, 38 M.J. 387 (C.M.A. 1993). Defense discovered court member was junior to accused during 

deliberations on findings and remained silent until the morning after findings were read in open court. Issue 

waived. See also RCM 503(a) Discussion. 

C. Panel with enlisted representation 

1. General. An enlisted accused may request trial by a panel that includes enlisted members. Article 25 

requires requests for enlisted court members to be made orally on the record or in writing. 

2. How requested. The request should be written and signed by the accused, or made orally on the record. 

RCM 903(b)(1). Failure to make the request in writing or on the record is procedural, not jurisdictional and will 

be tested for prejudice. United States v. Alexander, 61 M.J. 266 (C.A.A.F. 2005). (“[The] right being addressed 

and protected in Article 25 is the right of an accused servicemember to select the forum[,] . . . [t]he underlying 

right is one of forum selection, not the ministerial nature of its recording.”) See also United States v. Morgan, 57 

M.J. 119 (C.A.A.F. 2002) (military judge erred by not obtaining on record defendant’s personal request for 

enlisted members to serve on court-martial, but error was not jurisdictional, and under circumstances, it did not 

materially prejudice substantial rights of defendant); United States v. Townes, 52 M.J. 275 (C.A.A.F. 2000) 

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(military judge had duty to obtain personal election from accused regarding the forum’s composition, but where 

no coercion was alleged, the error did not materially prejudice the accused’s substantial rights); United States v. 

Andreozzi, 60 M.J. 727 (A. Ct. Crim. App. 2004) (two DuBay hearings ordered to determine if the accused 

personally selected trial by one-third enlisted members, found substantial compliance with procedural rules where 

relevant circumstances included: the military judge telling the accused his forum rights, the defense counsel 

submitting trial by enlisted members paperwork to the military judge, the defense counsel’s testimony that his 

SOP was to discuss and explain forum rights to the accused and to follow the accused’s wishes, the accused’s 

presence in the courtroom when the panel was assembled and voir dired, and the accused’s active participation in 

his own defense.); 

3. Rejecting request for enlisted members. United States v. Summerset, 37 M.J. 695 (A.C.M.R. 1993). Military 

judge abused his discretion when he denied as untimely accused’s request for enlisted members made four days 

prior to trial. He made no findings of fact regarding unnecessary expense, unacceptable delay, or significant 

inconvenience. See RCM 903(a)(1) and (e). 

4. Composition of Enlisted Panel 

a. At least one-third enlisted. Failure to assemble court of at least one-third enlisted members is 

jurisdictional error necessitating setting aside panel-adjudged sentence. United States v. Craven, 2004 CCA 

LEXIS 19 (A.F. Ct. Crim. App. Jan 21, 2004) (unpub.) (following challenges for cause and peremptory 

strikes, enlisted members constituted only 28.6 percent (five officer and two enlisted) of membership of 

court). 

b. Same unit. Article 25(c)(1), UCMJ. Enlisted members should not be from the same company-sized 

“unit” as the accused. Presence of members from the “same unit” is not a jurisdictional defect. United States 

v. Wilson, 21 M.J. 193 (C.M.A. 1986). Failure to object waives the issue. United States v. Zengel, 32 M.J. 

642 (C.G.C.M.R. 1991), review denied, 33 M.J. 185 (C.M.A. 1991). But see United States v. Milam, 33 M.J. 

1020 (A.C.M.R. 1991) (findings and sentence set aside where two enlisted members of the panel were 

assigned to the same company-sized unit as accused where with defense challenged for cause) 

5. Jurisdictional error. Failure to assemble court of at least one-third enlisted members is jurisdictional error 

necessitating setting aside panel-adjudged sentence. United States v. Craven, 2004 CCA LEXIS 19 (A.F. Ct. 

Crim. App. Jan 21, 2004) (unpub.) (following challenges for cause and peremptory strikes, enlisted members 

constituted only 28.6 percent (five officer and two enlisted) of membership of court). 

V. PANEL MEMBER EXCUSAL AND REPLACEMENT 

A. Excusal. 

1. Prior to assembly, RCM 505(c)(1) allows delegation to staff judge advocate or convening authority’s deputy 

authority to excuse up to one-third (1⁄3) of the members. See AR 27-10, para. 5-18c. United States v. Cook, 48 

M.J. 434 (C.A.A.F. 1998). The excusal of more than one-third of the members of a panel by the convening 

authority’s delegate rises to the level of reversible and jurisdictional error only if the defense objects to the 

excusals and substitutions of members at trial, and the record somehow indicates that the accused was deprived of 

a right to make causal or peremptory challenges. The accused was convicted of violating a lawful general 

regulation and possession of marijuana with intent to distribute. Prior to trial, the SJA excused five of nine 

members who were detailed to sit as members. The accused suffered no prejudice because he failed to object to 

the excusals at trial. The CAAF skirted an issue regarding the appropriate number to determine whether onethird of the members were excused (five of nine detailed for the accused’s case or five of thirty-one total members 

on primary and alternate member lists). 

2. Excusal after assembly can occur only as the result of a challenge or by the military judge for good cause 

shown. United States v. Latimer, 30 M.J. 554 (A.C.M.R. 1990) (panel member’s upcoming appointment for 

physical examination was not “good cause”). 

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3. A sleeping member is good cause for excusal. United States v. Boswell, 36 M.J. 807 (A.C.M.R. 1993). 

Military judge could have rehabilitated member by reading portions of transcript. Not an abuse of discretion, 

however, to excuse. What if excusal dropped court below quorum? Mistrial? See RCM 806(d)(1). 

A. Replacement Members. 

1. Sloppy paper trails. United States v. Gebhart, 34 M.J. 189 (C.M.A. 1992). “The administration of this courtmartial...can best be described as slipshod.” “Such a lack of attention to correct court-martial procedure cannot be 

condoned.” The amended CMCO mistakenly removed member who actually sat on panel. Order also included 

member who was not present without explanation for the absence. The amending order also incorrectly referred 

to the original order by the wrong number. Held: errors were administrative and not jurisdictional. Issue was 

waived by defense failure to object. See also United States v. Sargent, 47 M.J. 367 (C.A.A.F. 1997) and United 

States v. Larson, 33 M.J. 715 (A.C.M.R. 1991). 

2. Triggering mechanisms. United States v. Mack, 58 M.J. 413 (C.A.A.F. 2003). SJA memorandum approved 

by convening authority concerning operation of convening order provided that, when accused requested panel of 

at least one-third enlisted members, alternate enlisted members would be automatically detailed without further 

action by the convening authority if, among other triggering mechanisms, “before trial, the number of enlisted 

members . . . falls below one-third plus two.” Prior to trial, two officer and one enlisted members were excused, 

leaving five officer and four enlisted members (a total of nine members, of which one-third plus two, or five, were 

enlisted). At trial, two additional enlisted members sat, which appeared to be inconsistent with the above 

triggering mechanism. The defense did not object. ACCA remanded on its own for a DuBay hearing concerning 

the presence of the additional two enlisted members. CAAF held that, “When a convening authority refers a case 

for trial before a panel identified in a specific convening order, and the convening order identifies particular 

members to be added to the panel upon a triggering event, the process of excusing primary members and adding 

the substitute members involves an administrative, not a jurisdictional matter. Absent objection, any alleged 

defects in the administrative process are tested for plain error.” Here there was no error. Excusal of one officer 

and the one enlisted member prior to the excusal of the other officer would have reduced the panel to ten 

members, five of who were officers and five of whom were enlisted. This triggered the one-third plus two 

triggering event. Even if there was error in the triggering event, so long as the members were listed on the 

convening order and the panel met the one-third requirement, any error in the operation of the triggering 

mechanism was administrative, not jurisdictional. 

3. Court-Martial Convening Orders and harmless error. United States v. Adams, 66 M.J. 255 (C.A.A.F. 2008) 

(even though amending CMCO included plain language that a new court-martial was “hereby convened,” court 

found mistake was a mere harmless administrative error). 

VI. PANEL MEMBERS ROLE AT TRIAL 

A. Call witnesses and receive evidence. Article 46, UCMJ; RCM 921(b); RCM 801(c) and Discussion. See also 

United States v. Story, No. 20061014 (A. Ct. Crim. App. Dec. 2, 2009) (unpublished). During the accused’s trial, the 

members were on a two-hour break after both sides had rested but before closing arguments and instructions. When 

the panel returned, a member asked to call an additional witness. The military judge responded, “The answer to that 

is, you’ve heard all the evidence in this case.” The ACCA held the military judge erred. 

1. R.C.M. 801(c) similarly provides: “The court-martial may act to obtain evidence in addition to that presented 

by the parties. The right of the members to have additional evidence obtained is subject to an interlocutory ruling 

by the military judge.” The Discussion to R.C.M. 801(c) notes the members may request a witness be recalled or 

that a “new witness be summoned.” 

2. M.R.E. 614(a) also notes the military judge may call (or recall) witnesses “at the request of the members.” 

B. Reopen proceedings. R.C.M. 921(b) expressly allows the members to “request that the court-martial be 

reopened and that portions of the record be read to them or additional evidence introduced” though the rule grants the 

military judge latitude “in the exercise of discretion” to grant or deny such request. 

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C. Standard to deny request. 

1. Lampani factors. In United States v. Lampani, 14 M.J. 22, 26 (C.M.A. 1982), the COMA provided a nonexclusive list of factors a military judge must consider before denying a member’s request for additional 

evidence: “Difficulty in obtaining witnesses and concomitant delay; the materiality of the testimony that a 

witness could produce; the likelihood that the testimony sought might be subject to a claim of privilege; and the 

objections of the parties to reopening the evidence are among the factors trial judge must consider.” In this case, 

the military judge did not consider these factors (or any other factors) on the record, which was an abuse of 

discretion. 

2. See also United States v. Lents, 32 M.J. 636 (A.C.M.R. 1991). Court member questions were essentially a 

request to call witnesses. Court members may request witnesses be called or recalled. The military judge must 

weigh difficulty, delay, and materiality; consider whether a privilege exists; and whether the parties object; United 

States v. Lampani, 14 M.J. 22 (C.M.A. 1982) (even after deliberations have begun members may request 

additional evidence). 

VII. MILITARY JUDGES 

A. General. 

1. Requirement for a military judge. Article 26 requires that a military judge be detailed to each general 

court-martial. Article 19 imposes additional sentencing limitations at a special court-martial where no military 

judge has been detailed. Service regulations may have additional requirements. See, e.g., AR 27-10, Paragraph 

5-28(a) (11 May 2016)(requiring detail of a military judge to all special courts-martial). 

2. What constitutes “presence” at trial. United States v. Reynolds, 44 M.J. 726 (A. Ct. Crim. App. 1996), 

aff’d, 49 M.J. 260 (C.A.A.F. 1998). The physical absence of the military judge at a pretrial proceeding does not 

deprive an accused of the structural due process protections created by Articles 26 and 39, UCMJ, and RCM 803, 

804, and 805. The military judge held arraignment proceedings by speakerphone. The military judge was at Fort 

Stewart while the accused, DC and TC were in a courtroom at Fort Jackson. Military judge advised the accused 

of all rights and the accused consented to the speakerphone procedure. The military judge was not “present” but 

the accused’s due process rights were not violated. The speakerphone procedure lasted for just twelve minutes of 

a seven hour trial and the judge was physically present for the remainder of the trial. Note, RCM 804(b) has since 

been amended to allow for “the use of audiovisual technology” for Article 39(a) sessions, subject to authorization 

by the applicable Service Secretary. 

3. Accused’s forum selection. Trial before military judge alone. 

a. Request. RCM 903(b)(2). Trial by judge alone may be requested orally or in writing by the accused. See 

also United States v. Wright, 5 M.J. 106 (C.M.A. 1978). Accused may withdraw request for good cause. 

(1) Doctrine of Substantial Compliance. United States v. Mayfield, 45 M.J. 176 (C.A.A.F. 1996). The 

absence of a written or oral request for trial by military judge alone did not establish a substantial matter 

leading to jurisdictional error based on the dialogue at trial, the absence of a defense objection, and 

accused’s post-trial Article 39(a) confirmations of his desire to be tried by judge alone. A post-trial 

session is permissible to cure jurisdictional errors created by the failure to obtain an accused’s request for 

trial by military judge alone. Conviction affirmed. 

(2) United States v. Turner, 47 M.J. 348 (C.A.A.F. 1997). A written request for trial by military judge 

alone, which counsel made and submitted before trial, and then confirmed orally at an Article 39a session 

with the accused, present substantially complies with Article 16, UCMJ. While the military judge erred 

in failing to obtain an oral statement of selection of the forum from the accused, the error did not 

materially prejudice the accused. 

(3) United States v. Seward, 49 M.J. 369 (C.A.A.F. 1998). An accused’s forum request from a previous 

court-martial that was terminated by mistrial cannot be used to support a forum request at a subsequent 

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court-martial. However, accused suffered no prejudice under Article 59 because his request for trial by 

military judge alone was apparent from the pretrial agreement (forum selection was a term), and there 

was a written request for the same even though offered after completion of the sentencing proceedings. 

(4) United States v. Alexander, 61 M.J. 266 (C.A.A.F. 2005). Military judge advised the accused of his 

forum selection rights, which accused requested to defer. During a later proceeding, military judge stated 

that he was told an enlisted panel would be hearing the case and defense did not object. The accused, 

however, failed to state in writing or on the record his request for enlisted members in violation of Article 

25, UCMJ and RCM 903(b)(1). The CAAF held that the error in the accused failing to personally select 

forum on the record is a procedural, as opposed to jurisdictional, issue. The court stated “[the] right being 

addressed and protected in Article 25 is the right of an accused servicemember to select the forum[,] . . . 

[t]he underlying right is one of forum selection, not the ministerial nature of its recording.” The CAAF 

held that the record reflected that the accused selected court-martial by panel members and the accused 

failed to show that the error in recording his forum selection resulted in any prejudice. 

(5) United States v. Goodwin, 60 M.J. 849 (N-M. Ct. Crim. App. 2005). Accused failed to state in 

writing or orally on the record his request for a judge alone trial as required by Article 16, UCMJ. 

Military judge failed to advise the accused of his forum rights and the only evidence of his intent existed 

was a single sentence in the pretrial agreement, to request trial by judge alone (a term the military judge 

failed to discuss with the accused). N-MCCA held the failure to advise the accused of his forum rights 

did not substantially comply with Article 16, UCMJ, and found the error was not harmless. Findings and 

sentence set aside. 

(6) United States v. Follord, No. 20020350 (A. Ct. Crim. App. Feb. 15, 2005) (unpub). The accused, a 

CW2, did not make a knowing and voluntary waiver of his statutory right to trial by five officer members 

because of the following errors: (1) his executed PTA erroneously listed one of his three forum options as 

a trial by one-third enlisted, (2) his request for military judge alone stated that any trial composed of 

officers would be “not of his unit,” and (3) military judge advised the accused that if he requested officer 

members at his general court-martial that the panel must comprise “at least three members.” The court 

stated the host of errors “constitutes a lack of substantial compliance with Article 16, UCMJ.” Findings 

and sentence set aside. 

b. Requests submitted after assembly of the court-martial allowed if justified by the circumstances. 

United States v. Jungbluth, 48 M.J. 953 (N-M. Ct. Crim. App. 1998). Accused pled guilty to wrongful use of 

marijuana on divers occasions before a properly assemble court consisting of a panel of officer members. A 

military judge was forced to declare a recess after the TC became ill. At the next session of court the parties 

presented the military judge with a PTA. Under the PTA, the military judge dismissed the officer panel, 

conducted a providence inquiry, entered findings, and adjudged a sentence. A military judge can lawfully 

approve a request for trial by military judge alone after assembly if justified by the circumstances. RCM 903 

does not expressly prohibit approval of after assembly forum requests, and in this case, military judge 

approved the request under the terms of a pretrial agreement. The agreement was mutually beneficial to both 

sides and the accused suffered no prejudice. 

4. A Right? 

a. United States v. Ward, 3 M.J. 365 (C.M.A. 1977). There is no right to a judge alone trial. But see United 

States v. Butler, 14 M.J. 72 (C.M.A. 1982) (military judge must state reason for denial of judge alone 

request). 

b. United States v. Webster, 24 M.J. 96 (C.M.A. 1987). Denial of a timely motion for trial by judge alone 

cannot be based on judge’s desire to discipline counsel nor to provide court members with experience. 

c. United States v. Edwards, 27 M.J. 504 (C.M.A. 1988). Once military judge ruled he was not disqualified 

from hearing case, he abused his discretion by denying accused right to trial by judge alone, as requested. 

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d. United States v. Dodge, 59 M.J. 821 (A.F. Ct. Crim. App. 2004), rev’d on other grounds, 60 M.J. 368 

(C.A.A.F. 2004) (holding RCM 903(c)(2)(B) does not create a “concomitant absolute right” to be tried by 

military judge alone). 

B. Qualifications. 

1. Article 26, UCMJ. Military judge shall be a commissioned officer who is a member of the bar of a Federal 

court or the highest court of a State and who is certified to be qualified for duty as a military judge by TJAG. 

2. Member of a bar. Military judge’s “inactive status” with her state bar nevertheless equated to her being a 

“member of the Bar” of Pennsylvania as contemplated by Article 26(b). United States v. Cloud, ARMY 9800299 

(A. Ct. Crim. App., Dec. 14, 2000) (unpub), aff’d, 55 M.J. 164 (C.A.A.F. 2001) (summary disposition); United 

States v. Brown, ARMY 9801503 (A. Ct. Crim. App. Dec. 11, 2000) (unpub), aff’d, 55 M.J. 366 (C.A.A.F. 2001) 

(summary disposition) (ACCA also considered fact that judge, although “inactive” in state bar, was a member in 

good standing of “this [the ACCA] Federal bar”). See also United States v. Corona, 55 M.J. 247 (C.A.A.F. 2001) 

(summary disposition). 

3. Reserve Judges. Change to MCM. 

a. Change to RCM 502; Executive Order removed holdover provision concerning qualifications for military 

judges. 

b. MCM had mandated that military judges be commissioned officers on active duty in the armed forces. 

The current RCM 502(c) deletes that requirement, enabling reserve military judges to try cases while on 

active duty, inactive duty training, or inactive duty training and travel. 

c. Issue: Does this mean reservists can try GCM and SPCMs? Generally, no. Only military judges 

assigned directly to TJAG and TJAG’s delegate (Trial Judiciary) may preside at GCMs. AR 27-10, paras. 8­

1(c)(2), 8-2(a). 

4. Detailing. Military judges are normally detailed according to the regulations of the “Secretary concerned.” 

a. Army. AR 27-10, para. 5-3 governs. Detailing is a ministerial function to be exercised by the Chief Trial 

Judge, U.S. Army Judiciary, or his or her delegate. The order detailing military judge must be in writing, 

included in the record of trial or announced orally on the record. 

b. Detailing in a joint environment. In a joint environment, there is no “Secretary concerned.” Therefore, 

detailing should be agreed upon by convening authority, SJA, and defense. See Captains William H. Walsh 

and Thomas A. Dukes, Jr., The Joint Commander as Convening Authority: Analysis of a Test Case, 46 A.F. 

L. Rev. 195 (1999). 

5. Replacement of military judges – RCM 505(e)(2). United States v. Kosek, 46 M.J. 349 (C.A.A.F. 1997). 

The Air Force did not violate a CAAF remand order by substituting a new military judge at accused’s courtmartial after the CAAF ordered that the record be returned to the “military judge” for reconsideration. 

6. Appellate Judges. 

a. United States v. Walker, 60 M.J. 354 (C.A.A.F. 2004). In a capital case, the CAAF granted the accused’s 

motion for extraordinary relief regarding the composition of judges on his N-MCCA panel. In 1995, the 

accused’s case was assigned to the N-MCCA panel 3. Over the years the composition of panel 3 changed 

resulting in the presence of only one judge in the spring of 2004. Most N-MCCA judges, to include the Chief 

Judge, were disqualified in the case. Based on the Chief Judge’s disqualification the TJAG under Article 66, 

UCMJ selected a new Chief Judge to handle the accused’s case. Immediately prior to the TJAG’s 

appointment, the original Chief Judge established a new court policy establishing “an order of precedence 

among judges on the court for the purpose of exercising the responsibility to make panel assignments in a 

particular case in the event of the absence or recusal of the chief judge.” The problem at issue occurred when 

the substitute Chief Judge appointed by the TJAG retired requiring the appointment of another substitute 

Chief Judge to proceed over the accused’s case. At that time the N-MCCA attempted to use the new policy 

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letter to select a substitute Chief Judge with objection from the accused. The CAAF held because the NMCCA did not use the policy to select the first substitute Chief Judge it was not appropriate to use the policy 

to select the second substitute Chief Judge and a substitute appointment by the TJAG was necessary. 

b. United States v. Lane, 64 M.J. 1 (C.A.A.F. 2006). A Member of Congress may not serve as an appellate 

judge for a service court because of the Ineligibility and Incompatibility Clauses of the United States 

Constitution. The CAAF reasoned that no Person holding any office under the United States [i.e., a service 

court judicial position] should simultaneously serve as a Member of either House during his Continuance in 

Office. In the case, Senator Lindsey Graham, a reserve military judge on the AFCCA, was challenged. 

7. Tenure/Fixed Term and Appointment. 

a. Settled issue regarding appointment of civilians to Coast Guard Court of Criminal Appeals. Edmond v. 

United States, 520 U.S. 651 (1997), aff’g United States v. Ryder, 44 M.J. 9 (C.A.A.F. 1996) (holding that 

civilian judges on Coast Guard Court of Criminal Appeals are inferior officers and do not require additional 

presidential appointment; therefore, the Congressional delegation of appointment authority to Secretary of 

Transportation to appoint judges is consistent with Appointments Clause. See also United States v. Graf, 35 

M.J. 450 (C.M.A. 1992); United States v. Weiss, 36 M.J. 224 (C.M.A. 1993), aff’d, 510 U.S. 163 (1994). 

United States v. Grindstaff, 45 M.J. 634 (N-M. Ct. Crim. App. 1997) (judges of courts of criminal appeals, 

military judges, and convening authorities are not principal officers under Appointments Clause and do not 

require a second appointment). 

b. United States v. Paulk, 66 M.J. 641 (A.F. Ct. Crim. App. 2008). Accused, an Air Force officer, pled 

guilty to several offenses and was sentenced to confinement for 30 days and a dismissal. On appeal, the 

defense argued that the Equal Protection component of the Fifth Amendment’s Due Process Clause was 

violated because the military judge and the appellate judges serve without a fixed term of office, while those 

in the Army and Coast Guard judiciary enjoy such protection by regulation. “Essentially, the appellant is 

saying that either all or none of the services should have fixed terms, but the mixed bag currently existing 

violates constitutional imperatives of equal protection.” The court rejected the defense argument. 

C. Disqualification and Recusal 

1. General. Under R.C.M. 902(a), “a military judge shall disqualify himself or herself in a proceeding in which 

that military judge’s impartiality might reasonably be questioned.” R.C.M. 902(e) allows parties to waive any 

ground for challenge predicated on this subsection. 

2. Legal standard for recusal. The Discussion to R.C.M. 902(d)(1) directs a military judge to “broadly 

construe grounds for challenge” but not to “step down from a case unnecessarily.” On appeal, a military judge’s 

decision regarding recusal will be reviewed for an abuse of discretion. 

3. Non-waivable grounds for recusal. Under RCM 902(b), five non-waivable (and rare) grounds are listed, 

directing that a military judge should be disqualified if he or she: (1) has a personal bias or prejudice about a party 

or personal knowledge of “disputed” facts in the case; (2) has acted as counsel, investigating officer legal officer, 

SJA, or convening authority for any of the offenses; (3) has been or will be a witness in the case, was the accuser, 

forwarded charges with recommendations, or expressed opinion about the accused’s guilt; (4) is not qualified 

under RCM 502(c) or not detailed under RCM 503(b); or (5) is personally or has a family member who is a party 

to the proceeding, has a financial or other interest in the outcome of the proceeding, or likely to be a “material” 

witness. 

4. Appellate review – Liljeberg factors. On appeal, courts apply the three factors from Liljeberg v. Health 

Servs. Acquisition Corp., 486 U.S. 847 (1988), to determine if reversal is warranted when a military judge should 

have been recused: (1) risk of injustice to the parties in the case, (2) risk that the denial of relief will result in 

injustice in other cases, and (3) the risk of undermining public confidence in the judicial process. 

5. Disqualification Mechanics 

a. General. RCM 902 governs disqualification of a judge. 

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b. Personal attack on judge may create UCI. United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006). Trial 

counsel requested military judge’s recusal based mainly on an alleged inappropriate professional and social 

relationship with the accused’s civilian defense counsel (CDC). Military judge denied the Government’s 

recusal motion and defense filed a UCI motion. During testimony on the UCI motion, the SJA alluded that 

the military judge lied regarding her relationship with the CDC and characterized “the [MJ] and [CDC] being 

seen leaving a theater together as a ‘date.’” Without ruling on the UCI motion, military judge recused herself 

finding that there was no basis for recusal in fact or appearance but she was unable to remain impartial 

“following the Government’s attack on her character.” Another military judge was detailed who sua sponte 

recused himself because “he was so shocked and appalled by the unprofessional conduct of [the TC] and [the 

SJA] that he was not convinced he could remain objective.” This required detailing two additional military 

judges to conduct various proceedings which eventually lead to a guilty plea by the accused. On appeal, the 

N-MCCA held that the actions of the TC and SJA were unprofessional and constituted unlawful command 

influence but that their actions did not prejudice the accused’s court-martial which was tried by two impartial 

military judges. The CAAF, however, ruled “since the appearance of unlawful influence was created by the 

Government, achieving its goal of removing [the MJ] without sanction, a rehearing before any [judge] other 

than [the detailed MJ] would simply perpetuate this perception of unfairness.” Findings and sentence set 

aside and charges dismissed with prejudice. 

6. Disqualification Standard 

a. Remote financial interest not enough. United States v. Reed, 55 M.J. 719 (A. Ct. Crim. App. 2001). 

The accused pled guilty to conspiracy to commit larceny and to willfully and wrongfully damaging 

nonmilitary property in a scheme to defraud USAA automobile insurance company. During sentencing, a 

USAA claims handler talked about fraudulent claims and their effect on the company’s policyholder 

members. The military judge (himself a policyholder member) immediately disclosed his affiliation with 

USAA and stated this would not affect his sentencing decision. The military judge allowed the defense an 

opportunity to voir dire, and the DC exercised it. The military judge also offered the defense the opportunity 

to challenge him for cause, but the defendant declined. The court, after sua sponte disclosing all judges of the 

ACCA are also policy holders of USAA, held there was nothing improper or erroneous in the judge’s failure 

to disclose his policy holder status until a potential ground for his disqualification unfolded. Further, it found 

the military judge’s financial interests were so remote and insubstantial as to be nonexistent. See also RCM 

902(b)(5)(B) (non-waivable basis for recusal if military judge has financial interest that could be 

“substantially affected” by outcome of case). 

b. Potential disqualification based on previous victimization. United States v. Robbins, 48 M.J. 745 

(A.F. Ct. Crim. App. 1998). Military judge who was the victim of spousal abuse 13 years ago before 

presiding at a trial of an accused charged with battery of his pregnant wife (and intentionally inflicting 

grievous bodily harm on his wife and involuntary manslaughter by unlawfully causing termination of his 

wife’s pregnancy) did not abuse her discretion in failing to recuse herself. The Air Force court directs 

military judges to apply a totality of the circumstances type test to resolve recusal matters involving military 

judges who are victims of the type of offense with which an accused is charged. The court emphasizes that 

our “national experience” supports a preference for “judges with real-life experiences.” 

c. Military judge and accused members of same chain of command. United States v. Norfleet, 53 M.J. 

262 (C.A.A.F. 2000). Presence of military judge’s superiors in SPCMCA chain of command did not require 

military judge’s recusal under RCM 902. Accused was an Air Force paralegal, assigned to AF Legal Services 

Agency. Commander, AFLSA, served as director of Air Force judiciary and endorser on military judge’s 

OER. Commander of AFLSA forwarded case (without recommendation) to Commander, 11th Wing (the 

SPMCA), for disposition. CAAF held that this did not constitute a per se basis for disqualification. In light 

of military judge’s superiors taking themselves out of the decision making process, the full disclosure by the 

military judge, and opportunity provided to defense to voir dire the military judge, the accused received a fair 

trial by an impartial judge. 

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d. Knowledge of sentence limitation in a PTA. United States v. Phillipson, 30 M.J. 1019 (A.F.C.M.R. 

1990). Inadvertent exposure to sentence limitation does not require judge to recuse himself. 

e. Previous judicial exposure. 

(1) General rule. United States v. Soriano, 20 M.J. 337 (C.M.A. 1985). If the military judge is accuser, 

witness for prosecution, or has acted as investigating officer or counsel, disqualification of military judge 

is automatic. But military judge need not recuse himself solely on basis of prior judicial exposure to the 

accused. See also United States v. Proctor, 34 M.J. 549 (A.F.C.M.R. 1992). 

(2) Prior trial of same accused. United States v. Howard, 50 M.J. 469 (C.A.A.F. 1999). No prejudicial 

error occurred where military judge presided at prior case involving accused (who was tried twice, first 

for assault, then for AWOL). Military judge noted prior adjudication on the record and accused 

maintained he wished to proceed with the present judge. During the sentencing phase in the AWOL case, 

the defense introduced the accused’s version of the events underlying the prior conviction; military judge 

interrupted defense counsel and stated that, although he had awarded the accused “an unusually light 

sentence for a fractured jaw,” he found him guilty during that prior trial because he had kicked the victim 

in the head while he was on the ground. CAAF held that there was no error. 

(3) Prior judicial rulings. Liteky v. United States, 510 U.S. 540 (1994). Supreme Court (interpreting 28 

U.S.C. § 455(b)(1)) indicates that prior judicial rulings against a moving party almost never constitute a 

basis for a bias or partiality recusal motion. Recusal not required except when prior rulings or 

admonishments evidence deep-seated favoritism or antagonism as would make a fair judgment 

impossible. Cited in United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994). 

(4) Contact with SJA/DSJA regarding companion cases. Military judges should not communicate with 

the SJA office about pending cases. In United States v. Greatting, 66 M.J. 226 (C.A.A.F. 2008), the 

military judge presided over three companion cases before hearing the present case. The accused’s 

defense counsel questioned the military judge about the other cases and the judge admitted to having ex 

parte communications with “the staff judge advocate and probably his deputy” about the companion 

cases. Specifically, the military judge remembered saying that, for one co-accused, Government “sold the 

case too low given his culpability.” For the other two cases, he “questioned the appropriateness of their 

being at a special court-martial.” The military judge also commented on the accused’s level of culpability 

as one of the “two staff NCOs.” By contrast, the military judge “questioned” (his word) whether the two 

junior Marines should have been sent to a special court-martial at all. Based on the military judge’s 

communications with the SJA and “probably his deputy,” trial defense counsel made a motion for the 

judge to recuse himself under RCM 902(a) for implied bias. The military judge denied the request. In 

reversing, the court noted the SJA was “the very individual responsible for advising the convening 

authority,” and the military judge made ex parte comments while clemency matters in the other cases 

were pending and, likely, before the accused’s pretrial agreement had been finalized. 

f. Ex parte communication with trial counsel. 

(1) Contact with trial counsel. United States v. Butcher, 56 M.J. 87 (C.A.A.F. 2001). The military 

judge, who was presiding over a contested trial, went to a party at the trial counsel’s house and played 

tennis with the trial counsel. The CAAF reviewed whether the military judge abused his discretion by 

denying a defense request that the judge recuse himself. The CAAF advised that under the circumstances 

the military judge should have recused himself. However, the Court held there was no need to reverse the 

case, because there was no need to send a message to the field, the social interaction took place after 

evidence and instructions on the merits, and public confidence was not in danger (the social contact was 

not extensive or intimate and came late in trial). 

(2) Assisting trial counsel ex parte. United States v. Cornett, 47 M.J. 128 (C.A.A.F. 1997). Military 

judge did not abuse discretion when he denied a defense recusal request based on an ex parte 

conversation between military judge trial counsel, wherein the judge stated, “Well, why would you need 

that evidence in aggravation, because I’ve never seen so many drug offenses? Why don’t you consider 

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holding that evidence in rebuttal and presenting it, if necessary, in rebuttal?” Military judge invited voir 

dire concerning any predisposition toward sentence; accused selected trial by judge alone pursuant to 

voluntary pretrial agreement term; counsel and accused were given a recess to confer about the challenge 

after the accused made his forum selection; and the military judge made full disclosure on the record and 

disclaimed any impact on him. RCM 902(a) requirements regarding recusal and disqualification were 

fully met. 

g. Presiding over a companion case 

(1) General. A military judge is not per se disqualified from presiding over companion cases. See also 

United States v. Nave, ACM 36851, 2008 WL 5192217 (A.F. Ct. Crim. App. Dec. 10, 2008) 

(unpublished) (military judge not required to recuse after presiding over three companion cases, 

even though two of those co-accused were set to testify in this case and the military judge had 

ruled in a companion case about an entrapment defense the accused planned on raising). The 

CAAF noted that sitting on companion cases, without more, does not mandate recusal. United States v. 

McIlwain, 66 M.J. 312 (C.A.A.F. 2008 (citing United States v. Oakley, 33 M.J. 27, 34 (C.M.A. 1991)). 

United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998) (military judge did not abuse his discretion in 

denying defense motion that he recuse himself based on the fact that he had ruled on a command 

influence issue similar to the accused’s in a companion case, and that he had learned that accused had 

offered to plead guilty. The military judge ruled in the accused’s favor on the UCI issue, and no 

incriminating evidence or admissions from the accused relating to the offer to plead guilty were disclosed 

during trial on the merits. There was no reasonable doubt about the fairness of accused’s trial.); United 

States v. Burris, 25 M.J. 846 (A.F.C.M.R. 1988) (holding presiding over earlier trial involving same 

urinalysis inspection did not disqualify trial judge). 

(2) Bias raised when judge conceded her partiality could be questioned. In United States v. 

McIlwain, 66 M.J. 312 (C.A.A.F. 2008), before the accused made forum election, the military judge 

stated on the record that she had presided over two companion cases (one a guilty plea and one a mixed 

plea). In the course of those companion cases, the military judge conducted providence inquiries and 

heard evidence that implicated the accused. The military judge advised defense counsel: “[I]f your client 

desires to go with a judge alone, then I would not sit; I would recuse myself. If your client decides to go 

with a panel of either all officers or officers and enlisted members, then I’m comfortable that I will be 

able to objectively instruct the members, rule on objections, and that sort of thing, because my role is 

different.” The accused elected trial by member and challenged the military judge. In response, the 

military judge noted she had made decisions favorable to the accused regarding witness credibility in the 

companion cases, decisions that “would suggest to an impartial person looking in that I can’t be impartial 

in this case” if serving as the fact finder; however, the military judge reiterated that she would be 

comfortable presiding over a members case. The CAAF held the military judge abused her discretion in 

refusing the recusal request and set aside the findings and sentence. On the military judge’s concession 

that an “impartial person” would have questioned her impartiality, the CAAF held the military judge 

abused her discretion in denying the recusal motion. 

h. Repeated sua sponte (and pro-Government) decisions may create appearance of partiality. United 

States v. Johnston, 63 M.J. 666 (A.F. Ct. Crim. App. 2006). Military judge “abandoned his impartial role in 

th[e] case solely on the basis of his actions and rulings during the trial.” The court noted the ruling was 

unusual because a specific ground for dismissal did not arise under RCM 902 but that after applying an 

objective test, based on the standpoint of a person watching the proceedings, the judge’s rulings created the 

appearance of partiality in favor of the Government. The military judge twice sua sponte reversed a previous 

judge’s ruling and admitted evidence regarding statements made by the accused’s wife that were strongly proGovernment. The court stated that although no actual bias by the military judge was noted, the judge abused 

his discretion by not disqualifying himself under RCM 902. Findings and sentence reversed. 

i. Busted providence inquiry. 

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(1) General. The military judge is not required, per se, to recuse himself from further proceedings in a 

trial unless his impartiality was reasonably in question. United States v. Bray, 49 M.J. 300 (C.A.A.F. 

1998) (where judge has conducted a providence inquiry, reviewed a stipulation of fact, and entered 

findings of guilty to initial pleas but accused thereafter withdrew plea based on possible defense that came 

out during sentencing, military judge was able to preside over subsequent guilty plea unless he had 

formed an “intractable opinion as to the accused’s guilt,” and a reasonable person who knew the facts of 

the case would question the appearance of impurity and have doubts as to the military judge’s 

impartiality). 

(2) Preference for recusal. 

(a) Army. The Army’s preference is for the military judge to recuse himself after the withdrawal of a 

guilty plea. United States v. Rhule, 53 M.J. 647 (A. Ct. Crim. App. 2000) 

(b) Air Force. Judge not disqualified simply based on participation in first providence inquiry. 

United States v. Dodge, 59 M.J. 821 (A.F. Ct. Crim. App. 2004), rev’d on other grounds, 60 M.J. 368 

(C.A.A.F. 2004). Accused completed the entire providence inquiry but prior to the announcement of 

findings the parties disagreed over the maximum punishment. The accused then requested to 

withdraw his plea and proceed to trial, which request the military judge granted, and the case was 

adjourned for sixty days. During forum selection for the now contested proceeding, the accused 

claimed his rights to forum were circumscribed by the continued presence of the military judge who 

heard his providence inquiry and that he had no practical option but to select a trial by members. 

Military judge allowed the accused to voir dire her regarding her potential bias and denied his 

challenge noting “she had not accepted [his] plea, had not formed an opinion concerning his guilt or 

innocence and everything she knew about the case was learned in her judicial capacity.” 

Subsequently, accused pled guilty to the same specifications (except for one) that he attempted to 

plead guilty to in the first hearing. AFCCA held the accused’s forum rights were not impinged citing 

RCM 903(c)(2)(B) and stated “there is no concomitant absolute right” to have a case tried by military 

judge alone. Further the court held the military judge is not disqualified “based simply on her 

participation in the first providence inquiry.” The court declined to adopt the Army’s approach in this 

situation stating “We are aware of the [ACCA’s] approach . . . expressing a preference for recusal 

after withdrawal of guilty pleas” (citing Rhule) but “this Court rejected that approach long ago.” 

(3) Revalidation of request for trial by military judge encouraged. United States v. Winter, 35 M.J. 

93 (C.M.A. 1992). Military judge is not per se disqualified after conducting a providence inquiry and 

then rejecting accused’s plea of guilty to a lesser included offense. Counsel and judges should determine 

whether the judge should ask the accused if accused wants to continue to be tried by judge alone when the 

judge has rejected the plea. 

j. Knowledge of witnesses. 

(1) Exposure to witnesses. United States v. Davis, 27 M.J. 543 (C.M.A. 1988) (military judge must use 

special caution in cases where he has heard a witness’ testimony against a co-actor at a prior trial); United 

States v. Oakley, 33 M.J. 27 (C.M.A. 1991) (exposure to motions and pleas at prior trial of co-actors did 

not require recusal of military judge in trial before members). 

(2) Relationship to witness. United States v. Wright, 52 M.J. 136 (C.A.A.F. 1999). Military judge 

announced at trial that he had a prior “close” association with NCIS agent stemming from a duty station at 

which the military judge, as a prosecutor, worked closely with the agent on several important criminal 

cases. Military judge said he felt the NCIS agent was an honest and trustworthy person and a very 

competent NCIS agent, but that the witness would not have a “leg up” over the credibility of other 

witnesses, particularly the accused. The judge said he gave all members of the Marine Corps a certain 

“credence.” CAAF noted that military judges have broad experiences and a wide array of backgrounds 

that are likely to engender ties with other attorneys, law firms, and agencies. Here, military judge’s full 

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disclosure, sensitivity to public perceptions, and sound analysis objectively supported his decision not to 

recuse himself; these factors contribute to a perception of fairness. 

k. Consultation with other judges not improprer. United States v. Baker, 34 M.J. 559 (A.F.C.M.R. 1992) 

(holding that a military judge’s consultations with another judge concerning issue in a case is not improper.) 

l. Conduct outside of court. 

(1) Contact with civilian witness. United States v. Quintanilla, 56 M.J. 37 (C.A.A.F. 2001). The 

military judge became involved in verbal out-of-court confrontations with a civilian witness that included 

profanity and physical contact. The military judge also engaged in an ex parte discussion with the trial 

counsel on how to question this civilian witness about the scuffle. The CAAF held the military judge’s 

failure to fully disclose the facts on the record deprived the parties of the ability to effectively evaluate the 

issue of judicial bias. As such, the court remanded the case for a DuBay hearing. 

(2) Comments about accused outside of court. United States v. Miller, 48 M.J. 790 (N-M. Ct. Crim. 

App. 1998). Assuming arguendo that military judge stated, upon hearing that the accused suffered a drug 

overdose and was medically evacuated to a hospital, that the accused was a “cocaine addict and a 

manipulator of the system” and that “perhaps the accused would die,” such comments did not establish a 

personal bias or prejudice on part of the judge. Rather, the remarks indicated a high level of impatience 

and frustration with an unplanned delay in a scheduled court-martial proceeding. The test applied by the 

Navy court was whether the remarks reasonably suggests a “deep-seated and unequivocal antagonism” 

towards the accused as to make fair judgment impossible. See Liteky v. United States, 510 U.S. 540 

(1994). 

m. Conduct of trial & judicial advocacy. 

(1) Impartial and objective stance. United States v. Hardy, 30 M.J. 757 (A.C.M.R. 1990). Military 

judge erred in sua sponte initiating discussion of appropriateness of defense counsel’s sentencing 

argument and allowing trial counsel to introduce additional rebuttal. 

(2) Praise. United States v. Carper, 45 C.M.R. 809 (N.M.C.R. 1972). Improper for military judge to 

praise Government witness for his testimony. 

(3) Examination. Assess whether the judge’s questions assist either side of the case. The number of 

questions is not a significant factor, but the tenor of those questions will be. United States v. Johnson, 36 

M.J. 866 (A.C.M.R. 1993). 

(a) United States v. Foster, 64 M.J. 331 (C.A.A.F. 2007). The accused, convicted of committing an 

indecent act against his daughter, argued on appeal that the military judge failed to remain impartial 

in his conduct toward their expert witness by: (1) limiting their expert’s testimony, (2) questioning 

their expert, (3) failing to instruct the members that their expert was an expert and inaccurately 

summarizing her testimony, and (4) making inappropriate comments about their expert outside the 

panel’s presence. The CAAF stated that a strong presumption exists that a military judge’s trial 

conduct is impartial and “the test is whether, taken as a whole in the context of [the] trial, [the] courtmartial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions.” The 

court held that the military judge’s conduct, especially in relation to the inappropriate comments, 

departed from judicial propriety but “a reasonable observer would conclude that in the context of the 

whole trial, his actions did not compromise the court-martial’s legality, fairness, or impartiality.” 

(b) United States v. Acosta, 49 M.J. 14 (C.A.A.F. 1998). Accused was convicted of wrongful 

distribution and use of methamphetamine. Defense case was based on entrapment. Defense cross 

examination resulted in Government witness stating that he put undue pressure on the accused to 

purchase drugs. When trial counsel failed to elicit the entrapment-negating information, military 

judge asked the witness 89 questions about the accused’s prior uncharged misconduct relating to a 

drug transaction that predated the drug offenses that were the basis of the court-martial. Held: no 

error. The law provides the military judge with wide latitude in asking questions of witnesses. The 

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military judge has a right, equal to counsel’s, to obtain evidence. Here, the information was clearly 

rebuttal evidence that was admissible once the defense raised the entrapment defense. 

(c) United States v. Sanford, No. 200500993, 2006 CCA LEXIS 303 (N-M. Ct. Crim. App. Nov. 6, 

2006) (unpublished). During a motion to suppress incriminating statements made to “Capt M,” 

military judge did not have enough evidence to rule and notified the parties that he wanted to call 

three witnesses who had also given statements to Capt M in order to discern the procedures Capt M 

used to interview witnesses. The military judge questioned the witnesses and offered counsel an 

opportunity to question them. On appeal, the defense claimed that the military judge “abandon[ed] 

his neutral role in resolving the . . . motion to suppress.” The court noted that under Article 46, 

UCMJ and MRE 614, the military judge is permitted to call or recall witnesses and has wide latitude 

in questioning witnesses. As such, the military judge did not abandon his neutral role, as his efforts 

in calling the witnesses were an attempt to clarify the facts pertaining to the defense motion. The 

court concluded that “a reasonable person observing the . . . court-martial would not doubt its fairness 

or the impartiality of the military judge.” See also United States v. Johnson, No. 36433, 2007 CCA 

LEXIS 127 (A.F. Ct. Crim. App. Mar. 29, 2007) (unpublished) (the military judge did not abandon 

his impartial role when he questioned a defense witness (also a co-actor) about what sentence the coactor received in his own trial when the defense did not object and the answer favored the defense). 

(d) United States v. Hernandez, No. 200501599, 2007 CCA LEXIS 183 (N-M. Ct. Crim. App. Jun. 

12, 2007) (unpublished) (the military judge did not become a “partisan advocate when he ‘ask[ed] 

clearly incredulous impeaching questions’ of the appellant’s mother who was a defense witness” 

because the defense did not object or move to disqualify the military judge and “a reasonable person . 

. . would not have doubted the military judge’s impartiality or the legality or fairness of the trial.”). 

(e) United States v. Paaluhi, 50 M.J. 782 (N-M. Ct. Crim. App. 1999), rev’d on other grounds, 54 

M.J. 181 (C.A.A.F. 2000). Military judge did not abandon his impartial role despite accused’s claims 

that the judge detached role and became a partisan advocate when his questions laid the foundation 

for evidence to be admitted against the accused and when he instructed the accused to assist the 

Government to procure the presence of the prosecutrix. 

(f) United States v. George, 40 M.J. 540 (A.C.M.R. 1994). Military judge improperly limited 

defense voir dire and cross-examination, extensively questioned defense witnesses, limited number of 

defense witnesses, assisted TC in laying evidentiary foundations, and limited DC’s sentencing 

argument. 

(g) United States v. Morgan, 22 M.J. 959 (C.G.C.M.R. 1986). Military judge overstepped bounds of 

impartiality in cross-examining accused to obtain admission of knife, which trial counsel had been 

unsuccessful in obtaining admission. But see United States v. Zaccheus, 31 M.J. 766 (A.C.M.R. 

1990) (holding military judge’s assistance in laying foundation for the admission of evidence was not 

error; actions did not make the judge a partisan advocate.). 

(h) Outer limits? United States v. Bouie, 18 M.J. 529 (A.F.C.M.R. 1984) (no error on facts of case 

for military judge to ask 370 questions of accused). 

(4) Judge demonstrated partiality where evidentiary ruling under MRE 412 prevented accused from 

providing an exculpatory answer to questions the military judge allowed to be asked. United States v. 

Watt, 50 M.J. 102 (C.A.A.F. 1999). The military judge abandoned his impartial role when he ruled the 

accused could not respond to a question from the members (he had been asked “What reason did you have 

to believe she would have sex with you?” His answer would have been that the complainant had a 

“reputation for being easy.”). The military judge then repeatedly asked the accused the question, and 

allowed TC to badger him with similar questions. Accused repeatedly stated that he could not answer the 

question asked. Counsel then implied in closing that accused knew he had no reason to believe 

complainant would not have sex with him, as opposed to a simply inadmissible one. Accused “was left to 

defend himself without assistance” from defense or military judge. 

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(5) Intemperate comments from the bench concerning the case. Remarks that suggest the military 

judge will hold a party responsible for taking a legally sound and available option (here, Article 62 

appeal) undermine public confidence and should not be made. United States v. Kirk, No. Misc. 20100443 

(A. Ct. Crim. App. July 28, 2010) (unpublished). The Government initially filed an Article 62 appeal, 

challenging the military judge’s decision to suppress the accused’s statements based on a violation of 

Article 31(b), UCMJ. The ACCA reversed the military judge’s ruling on the suppression issue and then 

(on its own accord) commented on the possible recusal of the military judge from further proceedings in 

the case. In ruling on the motion to suppress, the military judge had noted the Government could appeal 

his decision but added, “I do not expect to get overturned on this issue.” The military judge continued: 

[I]f this case does come, you know, back three or four months from now I will be 

the military judge in the case . . . that is going to hear the facts in the future 

including the [first sergeant]’s testimony if they believe the statements should be 

admissible. But if you want to appeal you are welcome to. Is that your final 

decision, Government? I just want to make sure. 

The ACCA found that these “gratuitous comments” called into question the perception of fairness and 

impartiality of the military judge. The court noted that R.C.M. 902(a) directs recusal when a military 

judge’s “impartiality might reasonably be questioned” (emphasis added by the court). While ACCA did 

not actually determine the military judge should be recused, the court opined “his comments suggest he 

prejudged the Government’s evidence, and intimated the futility of appealing his decision in light of his 

anticipated role as ultimate fact finder.” The court concluded: “We find his comments intemperate, 

injudicious, and inconsistent with the impartial role he is to play in the court-martial, creating at least the 

perception of unfairness to the parties, potentially undermining public confidence in his judicial role.” 

(6) Intemperate remarks from the bench concerning witnesses, counsel, and panel members. While 

incivility is not condoned, the case will not be set aside where the inappropriate remarks did not call into 

question the legality, fairness, and impartiality of the court-martial. United States v. Todd, No. 

200400513, 2007 CCA LEXIS 237 (N-M. Ct. Crim. App. Jul. 9, 2007) (unpublished). During the trial, 

the military judge made several “injudicious” comments to witnesses, counsel, and even potential panel 

members. The military judge even referred to the convening authority’s conduct in the case as 

“imbecilic.” The N-MCCA characterized his statements as “needless comments,” “incessant sarcasm,” 

and “pompous condescension.” The N-MCCA cautioned that military judges should be “patient, 

dignified, and courteous to litigants, jurors, witnesses, lawyers, and others . . . [and the court] will not 

tolerate incivility by a military judge toward any trial participant, and that includes counsel.” However, 

the court concluded that “[w]hile we do not condone that inappropriate comments made by the military 

judge, in the context of the entire trial, the legality, fairness, and impartiality of the court-martial were not 

put in doubt.” Affirmed. 

n. Assistance to a party. 

(1) United States v. Felton, 31 M.J. 526 (A.C.M.R. 1990). Military judge should not have advised trial 

counsel on the order of challenges during voir dire. 

(2) United States v. George, 40 M.J. 540 (A.C.M.R. 1994). Military judge improperly limited defense 

voir dire and cross-examination, extensively questioned defense witnesses, limited number of defense 

witnesses, assisted TC in laying evidentiary foundations, and limited DC’s sentencing argument. 

(3) United States v. Hurst, No. 200401383, 2007 CCA LEXIS 56 (N-M. Ct. Crim. App. Feb. 8, 2007) 

(unpublished) (holding that military judge did not abandon his impartial role by alerting the Government 

that they had failed to introduce evidence that two orders had been properly published, or by allowing 

Government to reopen the case over defense objection when the deficiency was a mere technical one and 

an earlier evidentiary ruling may have created confusion in the status of the evidence the military judge 

would consider). 

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(4) The outer limits? United States v. Cooper, 51 M.J. 247 (C.A.A.F. 1999). Military judge said in front 

of members that defense counsel had “thank[ed] [him] for helping perfect the government’s case” through 

questions of a Government witness. Military judge also commented disparagingly on the poor quality of 

the defense counsel’s evidence, a videotape made by the accused’s wife. These comments did not plainly 

cause him to lose his impartiality or the appearance of his impartiality. Because the defense did not 

object to the comments, CAAF applied a plain error analysis, and found the judge’s questions were not 

improper. Further the military judge explained to the members his neutral intent in asking questions and 

instructed the members to not construe his questions as favoring the Government. CAAF found the 

military judge’s comments about his irritation with defense was inappropriate before the members, though 

not sufficient to divest him of the appearance of impartiality because his comments were couched within 

unequivocal instructions protecting the accused from prejudice. Finally, his comments upon the quality 

of defense evidence were not impermissible, because just the RCM 920(e)(7) Discussion permits the 

military judge to comment on the evidence during instructions. While the military judge’s comments 

“may have been improper,” the trial’s legality, fairness and impartiality were not put into doubt. 

o. Sentencing. 

(1) Discussion of religious principles. United States v. Green, 64 M.J. 289 (C.A.A.F. 2007). Prior to 

announcing the sentence, military judge provided the accused an explanation for the adjudged sentence. 

He referenced the Bible and other religious principles. On appeal, accused claimed that the military judge 

demonstrated an impermissible bias by interjecting his own religious views into the sentencing process. 

Claims of judicial bias are evaluated to determine, “in view of the sentencing proceeding as a whole, 

whether a reasonable person would doubt the court-martial’s legality, fairness, and impartiality.” The 

court found that if there was any error, it was harmless based on several factors. First, the sentence did 

not “reflect prejudicial consideration of extraneous factors.” Second, the defense first introduced the 

subject of religion during sentencing. Third, the military judge expressly stated that “he would not 

consider the [accused’s] fealty to his religious tenets as a sentencing factor.” Fourth, the defense did not 

object to the military judge’s remarks. Lastly, the remarks focused primarily on proper sentencing 

principles and only incidentally referenced religion. Therefore, military judge’s remarks did not reflect 

any bias in this case. 

(2) Questioning of accused. United States v. Burton, 52 M.J. 223 (C.A.A.F. 2000). Military judge’s 

questions of the accused which revealed judicial sentencing philosophy did not reflect an inflexible 

predisposition where the military judge imposed only 30 days’ confinement, well below the jurisdictional 

limit of the court-martial and the maximum punishment for the offense. 

(3) Summary of accused’s statements during providence inquiry given to panel by military judge. 

United States v. Figura, 44 M.J. 308 (C.A.A.F. 1996). Military judge did not become de facto witness for 

prosecution when during sentencing he gave members summary of accused statements during providence 

inquiry. Defense and Government agreed to have military judge give summary, rather than introduce 

evidence through transcript or witness testimony. 

(4) Evidence of racial bias or prejudice not directed at accused. United States v. Ettinger, 36 M.J. 

1171 (N.M.C.M.R. 1993). Although remarks by military judge may demonstrate prejudice sufficient to 

constitute bias, accused must be a member of that class in order for comments to be disqualifying. 

(5) Military judge’s inappropriate and intemperate remarks evaluated in light of whether they 

were so unreasonable as to indicate the judge abandoned his impartial role. United States v. 

Thompson, 54 M.J. 26 (C.A.A.F. 2000). Military judge did not depart from his impartial role despite 

issuing numerous adverse rulings against defense, taking over questioning from counsel, shutting off 

presentations, expressions of impatience and exasperation with counsel, and the making of condescending 

or berating comments about counsels’ performance. Defense counsel repeatedly alluded to being 

“ineffective” or being forced into providing ineffective representation. CDC requested that the military 

judge recuse himself under RCM 902(a), 902(b)(1), 905. Military defense counsel became tearful and 

complained she would think twice before raising an issue. Military judge countered “you need to 

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investigate...a new line of work.” While court noted much of the blame for breakdown between parties 

“stems from the military judge’s inappropriate and intemperate remarks to counsel on the record,” CAAF 

found military judge’s actions were not so unreasonable that he abandoned his impartial role. 

Nevertheless, case returned to the Court of Criminal Appeals to order affidavits from both civilian and 

military defense counsel or to order a DuBay hearing on issue of ineffective assistance of counsel. 

p. “Bridging the gap” sessions. 

(1) General. Evidence of judicial bias or error revealed during a ‘Bridging the Gap’ session will 

generally be evaluated according to the same legal standard as bias or error revealed prior to or during 

trial. 

(2) Background. The US Army Trial Judiciary Standard Operating Procedure encourages military 

judges to conduct a “post-trial critique” one-on-one with counsel after trial to improve trial skills. Judges 

should limit such discussions to trial advocacy tips. See United States v. Copening, 32 M.J. 512 

(A.C.M.R. 1990) (suggesting “Bridging the Gap” may need reevaluation in light of issues arising 

concerning discussions by trial judges of legal issues that may come before them in future cases; ex parte 

discussions with counsel about the conduct of the trial; and discussions with counsel before the trial is 

final about rulings in the case). 

(3) Improper sentencing considerations revealed. United States v. McNutt, 62 M.J. 16 (C.A.A.F. 

2005). Military judge revealed during the “Bridging the Gap” session that he framed accused’s sentence 

to take into account good time credit. Military judge sentenced the accused to seventy days with the idea 

that the accused would receive ten days good time credit and would serve sixty days of confinement. 

CAAF reversed the sentence, finding the military judge improperly considered the collateral 

administrative effect of good time credit. “[S]entence determinations should be based on the facts before 

the military judge and not on the possibility that [the accused] may serve less time than he was sentenced 

to based on the Army’s policy.” 

(4) Comments showing bias against homosexual conduct were improper where accused was 

charged with indecent acts with another male. United States v. Hayes, NMCCA 200600910, 2010 

WL 4249518 (N-M. Ct. Crim. App. Oct. 28, 2010). Male accused pled guilty to indecent acts with 

another male in the barracks. Military judge made comments during a post-trial “bridging the gap” 

session with counsel that suggested a bias against homosexual conduct. In a unanimous decision, the NMCCA found the military judge’s comments created an appearance of bias that mandated 

disqualification; the court affirmed the findings and set aside the accused’s sentence. Based on a DuBay 

hearing convened, the court found the following about the military judge’s actions at trial and during 

“Bridging the Gap”: 

(5) Practical suggestions. For military judges who elect to conduct “Bridging the Gap” sessions, 

consider the following: 

(a) Never conduct an ex parte session. 

(b) Provide feedback on technical aspects of counsel performance is ok (e.g., “You had trouble 

admitting the prior statement of the victim. Remember, the foundation for admitting a prior 

inconsistent statement consists of ______.”) 

(c) Avoid discussing the deliberative process or judicial philosophy (e.g., “The reason I found him 

guilty was ____.”) 

(d) Always bear in mind the trial may not be truly “over.” United States v. Holt, 46 M.J. 853 (N-M. 

Ct. Crim. App. 1997), aff’d, 52 M.J. 173 (C.A.A.F. 1999) (suggesting that, where trial judge provides 

post-trial “practice pointers” to counsel prior to the cases being finalized, recusal would be mandated 

if the case were sent back for some sort of rehearing). 

7. Actions when grounds for challenge exist 

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a. Further actions void. United States v. Sherrod, 26 M.J. 30 (C.M.A. 1988) (holding when a judge is 

disqualified, all further actions are void). See also United States v. Howard, 33 M.J. 596 (A.C.M.R. 1991) 

(holding when military judge becomes a witness for the prosecution, he is disqualified and all further actions, 

as in Sherrod, are void). United States v. Wiggers, 25 M.J. 587 (A.C.M.R. 1987) (holding when military judge 

recognized that his prior determination of witness’ lack of credibility disqualified him from acting as fact 

finder, judge should have recused himself rather than direct a trial with members). 

b. Judge’s sua sponte duty even after accused’s waiver of disqualification under RCM 902(e). United 

States v. Keyes, 33 M.J. 567 (N.M.C.M.R. 1991). Military judge previously sat in a different case involving 

the accused. Defense had no challenge under RCM 902(b) and waived any challenge to the judge that might 

exist under RCM 902(a). Military judge properly recognized a sua sponte obligation to disqualify himself if 

warranted even with a defense waiver under 902(e). The military judge, however, found no basis for 

disqualification. Upheld by NMCMR. 

c. Improper for recused judge to select replacement. United States v. Roach, 69 M.J. 17 (C.A.A.F. 

2010). The accused’s case was originally affirmed by an Air Force Court of Criminal Appeals panel that 

included the chief judge. The case went to CAAF and was remanded back to the AFCCA. While the initial 

CAAF review was pending, the AFCCA chief judge commented about the case at two public events. 

Following a motion by the defense, the chief judge recused himself from the case. The chief judge then sent 

an e-mail to the executive officer for the Air Force TJAG recommending that a specific judge be appointed to 

replace the chief judge on the case. The Air Force TJAG appointed this judge, who then convened the panel 

that considered the remanded case. CAAF vacated the AFCCA decision and remanded for new Article 66 

review, finding the chief judge improperly took action in the case after recusal when he recommended his 

replacement. CAAF noted, “[E]ither a military judge is recused or he is not.” Once recused, a judge shall not 

take further action in a case. If a military judge deviates from this requirement, “no matter how minimally,” it 

“may leave a wider audience to wonder whether the military judge lacks the same rigor when applying the 

law.” 

VIII. EXPANDED JUDICIAL POWERS AND REMEDIAL ACTION. 

A. Post-trial proceedings. 

1. Judges have power to order. United States v. Griffith, 27 M.J. 42 (C.M.A. 1988). (“Consistent with our 

conclusion ... that Congress intended for a military judge to have the power to conduct post-trial proceedings 

until authentication of the record has taken place, we are convinced that ... before authenticating the record of 

trial ... he may take remedial action on behalf of the accused without awaiting an order therefor by an appellate 

court.”); United States v. Scaff, 29 M.J. 60 (C.M.A. 1989). (holding that Article 39(a) empowers judge to order a 

post-trial session to consider newly discovered evidence and to take remedial action, including, in proper cases, to 

set aside findings of guilt and sentence); United States v. Mahoney, 36 M.J. 679 (A.F.C.M.R. 1993) (holding 

military judge did not usurp power by ordering a post-trial session to inquire into possible improper command 

intervention after commander ordered accused into confinement, contrary to order of military judge after courtmartial; further, that judge did not usurp power by reducing accused’s sentence by 18 months as remedy for 

commander’s intervention.) 

2. Responsibility to correct errors in trial proceedings. United States v. Pulido, No. 20011043 (A. Ct. Crim. 

App. Mar. 19, 2004) (unpub.) Findings and sentence set aside due to lack of properly authenticated or approved 

findings of guilty. Prior to authenticating the record, the military judge determined that her originally announced 

findings were incorrect. She amended the findings without a post-trial session; however, the amended findings 

neglected to reflect an announcement of guilt on a separate charge to which the accused had pled guilty. The 

court declared that “Article 53, UCMJ, and RCM 922(a) require that the court-martial announce its findings to the 

parties promptly, in an open court, after they have been determined.” (emphasis in original). Because the verdict 

was ambiguous, there was material prejudice to the accused’s substantial rights. Military judge’s options 

included: reviewing tapes to determine whether she announced the reported findings; if record inaccurately 

reported findings, she should not have authenticated it; returning record of trial to trial counsel for further 

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examination and correction; directing proceedings in revision to correct error, so long as accused suffered no 

material prejudice. 

3. Abuse of discretion where exculpatory evidence was uncovered after trial and judge denied defense 

request for post-trial Article 39(a). United States v. Meghdadi, 60 M.J. 438 (C.A.A.F. 2005). Military judge 

denied defense request for a post-trial Article 39(a) based on newly discovered evidence, specifically an 

audiotape. Accused’s conviction centered on distributing cocaine, based on testimony by CID agent and CID 

informant. Defense argued at trial that CID agent was trying to make several drug cases to advance his career and 

that the informant lied to obtain a sentencing deal offered by CID. After the accused’s trial and during the CID 

informant’s trial, an audiotape surfaced lending credence to the accused’s defense theory. CAAF held the military 

judge abused his discretion by denying the Article 39(a) session which resulted in prejudice to the accused 

because of the failure “to afford [the accused] a forum in which to make his case.” The CAAF stated “the 

[military judge] misapprehended the purpose of the Article 39(a) session, made factual findings that are not 

supported by the record, applied an erroneous legal standard, misperceived the evidentiary value of the audiotape, 

and made no record of any weighing of the new evidence against the evidence at trial, either on the merits or in 

sentencing.” 

4. Judge should take remedial action where error identified. United States v. Lepage, 59 M.J. 659 (N-M. Ct. 

Crim. App. 2003). Military judge committed plain error by admitting record of Article 15 into evidence. He 

determined that admitting the exhibit was erroneous in a post-trial 39(a) session, and that the erroneouslyadmitted exhibit was considered by the court in arriving at a sentence. However, military judge failed to take 

corrective action during that hearing, and recommended that the convening authority disapprove the Bad-Conduct 

Discharge; convening authority declined to follow recommendation. Held, “This case should not even be before 

us for review . . . the military judge had the authority under RCM 1102(b)(2) to take corrective action.” 

B. Authority to manage post-trial preparation of the record. United States v. Chisholm, 58 M.J. 733 (A. Ct. 

Crim. App. 2003), aff’d, 59 M.J. 151 (C.A.A.F. 2003). Military judges, as empowered by Congress and the President, 

have both a duty and a responsibility to take active roles in “directing” the timely and accurate completion of courtmartial proceedings. After adjournment, but prior to authentication of the record of trial, military judge must ensure 

that Government is proceeding with due diligence to complete the record of trial as expeditiously as possible, given 

the totality of the circumstances of that accused’s case. If the military judge determines that the record preparation is 

proceeding too slowly, he may take remedial action without awaiting an order from the intermediate appellate court. 

The exact nature of the remedial action is within the sound judgment and broad discretion of the military judge, but 

could include, among other things: (1) directing a date certain for completion of the record with confinement credit or 

other progressive sentence relief for each day the record completion is late; (2) ordering the accused’s release from 

confinement until the record of trial is completed and authenticated; or, (3) if all else fails, and the accused has been 

prejudiced by the delay, setting aside the findings and the sentence with or without prejudice as to a rehearing. Staff 

judge advocates and convening authorities who disregard such remedial orders do so at their peril. 

IX. COUNSEL. 

A. Counsel Qualifications. 

1. GCM [changed in 2016 RCM]. Article 27(b), UCMJ. “Trial counsel or defense counsel ­

a. must be a judge advocate who is a graduate of an accredited law school or is a member of the bar of a 

federal court or of the highest court of a State . . . and 

b. must be certified as competent to perform such duties by The Judge Advocate General of the armed force 

of which he is a member.” 

2. SPCM. Art 27(b). Defense counsel must be Article 27(b) certified unless physical conditions or military 

exigencies preclude availability. If the trial counsel meets either or both Article 27(b) criteria, then the defense 

counsel must as well. However, RCM 502(d) requires defense counsel to meet Article 27(b) criteria regardless of 

the level of court-martial. 

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3. Under RCM 502(d)(2), assistant trial counsel need only be commissioned officer. However, assistant defense 

counsel must meet Article 27(b) criteria. 

4. Summary Court-Martial. Middendorf v. Henry, 425 U.S. 25 (1976). The Sixth Amendment right to counsel 

does not extend to SCM. 

B. Disqualification of Counsel. 

1. Defect in appointment or lack of qualifications tested for prejudice 

a. Wright v. United States, 2 M.J. 9 (C.M.A. 1976). Defects in appointment or qualifications of trial counsel 

are matters of procedure to be tested for prejudice and have no jurisdictional significance. 

b. United States v. Harness, 44 M.J. 593 (N-M. Ct. Crim. App. 1996). Presence of defense counsel who was 

neither graduate of accredited law school nor properly admitted to practice did not constitute ineffective 

assistance of counsel under Sixth Amendment. Performance of defense counsel measured by combined 

efforts of entire defense team. Note that Harness was decided under a previous version of RCM 502. 

c. Inactive status of civilian attorney. United States v. Steele, 53 M.J. 274 (C.A.A.F. 2000). Inactive 

status of civilian attorney in states in which he is licensed to practice does not bar practice before military 

courts-martial. 

d. Assistant trial counsel not sworn. United States v. Roach, No. S31143, 2007 CCA LEXIS 402 (A.F. Ct. 

Crim. App. Sep. 13, 2007) (unpublished). The assistant trial counsel in the case had not been sworn under 

Article 42(a), UCMJ, prior to serving on the court-martial. The defect was not caught until after trial. The 

lack of qualified counsel is not a jurisdictional defect requiring reversal, so the error was tested for prejudice. 

The defense did not object or raise the issue in clemency, and the accused’s pleas were voluntary and 

provident. Therefore there was no prejudice. 

2. Due to potential disqualification as witness. United States v. Baca, 27 M.J. 110 (C.M.A. 1988). Although 

the accused is not fully and absolutely entitled to counsel of choice, he is absolutely entitled to retain an 

established relationship with counsel absent demonstrated good cause. 

3. Due to incompetence. United States v. Galinato, 28 M.J. 1049 (N.M.C.M.R. 1989). Military judge had 

discretion to remove accused’s counsel of choice, and to appoint different counsel, where counsel of choice had 

effectively withdrawn from proceedings. 

4. Due to conflict of interest. 

a. Test for disqualification. United States v. Rushatz, 31 M.J. 450 (C.M.A. 1990). Accused met with legal 

assistance attorney who later moved to the criminal law department. The counsel disclosed to the detailed 

trial counsel that he had represented the accused on an unrelated matter. Court adopted three-part test to 

determine if trial counsel disqualified: (1) was there former representation (2) was there a substantial 

relationship between subject matters, and (3) was there a subsequent proceeding. In this case, legal assistance 

attorney did not act as trial counsel, though he did appear with trial counsel at Article 32. 

b. Trial counsel’s investigatory activities did not rise to the level of de facto Article 32 investigating 

officer. United States v. Strother, 60 M.J. 476 (C.A.A.F. 2005). Trial counsel had served as the command 

SJA and, in that capacity, conducted interviews involving the accused’s misconduct and discussed various 

aspects of the case, including procedural matters, substantive issues, and investigative options, with the 

officer ordered to conduct the preliminary inquiry. During this preliminary inquiry, a new SJA arrived and 

the trial counsel assumed other legal duties. Upon completion of the preliminary inquiry, charges were 

preferred and an Article 32 investigation directed. At this time, trial counsel was detailed to the case. At trial 

and on appeal, defense asserted that the trial counsel was disqualified as a matter of due process and because 

under Article 27(a)(2) he acted as an “investigating officer.” Article 27(a)(2) states that no person who has 

acted as an investigating officer may later act as a trial counsel. While “investigating officer” is not defined 

in Article 27, the CAAF, after a thorough historical discussion on the “investigating officer” disqualification, 

interpreted the language to apply to an Article 32 investigating officer. The CAAF then held trial counsel’s 

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involvement did not interfere with the accused’s due process rights and that the accused did not “demonstrate 

that the [TC’s] activities so departed from the normal role of prosecutor as to make him a de facto Article 32 

‘investigating officer.’” 

c. Assistant trial counsel’s representation of accused’s wife on an unrelated legal assistance matter did 

not disqualify counsel where neither the time period of representation nor subject matter of 

representation coincided and the trial counsel gained no specific confidential information from the 

former representation. United States v. Humpherys, 57 M.J. 83 (C.A.A.F. 2002). Assistant trial counsel 

(ATC) previously represented accused in legal assistance matter (child support issue). At trial, defense 

moved to disqualify ATC alleging that ATC used information from this prior representation while 

interviewing the accused’s wife (a potential defense sentencing witness). Military judge denied motion to 

disqualify ATC because: (1) the charges did not relate to the period of time of the prior representation; (2) the 

subject matter of prior representation had no substantial relationship to any matter at issue in the courtmartial; and (3) military judge accepted ATC’s representation that she did not recall the specifics of the prior 

representation. When the defense called the wife as a witness, the ATC conducted cross-examination. In 

affirming, the court held the accused failed to demonstrate either (1) that the subject of the prior 

representation was substantially related to the pending court-martial charges (adultery, sodomy, violation of 

lawful general regulation, and false official statements); or (2) that specific confidential information gained by 

ATC during the prior representation might have been used to the disadvantage of the accused in the present 

case. Accused could have requested military judge review legal assistance file, which still existed, or accused 

could have testified in closed hearing with sealed record as to the matters of prior representation. Accused’s 

mere conclusory assertions were not sufficient. 

d. Romantic relationship between defense counsel and accused disqualified counsel from representing 

accused. United States v. Cain, 59 M.J. 285 (C.A.A.F. 2004). Accused alleged that his lead trial defense 

counsel had a coerced, homosexual relationship with him that created an actual conflict of interest and 

deprived him of effective assistance of counsel. At DuBay hearing, the military judge found the relationship 

was consensual and that accused desired continued representation by his counsel, despite advice from two 

civilian counsel to fire him. ACCA held the accused did not meet the two-pronged test to establish IAC due 

to an actual conflict of interest in a guilty plea: (1) that there was an actual conflict of interest; and (2) that the 

conflict adversely affected the voluntary nature of the guilty plea. The CAAF reversed, finding that the 

“volatile mixture of sex and crime in the context of the military’s treatment of fraternization and sodomy as 

criminal offenses” resulted in a “uniquely proscribed relationship” that was “inherently prejudicial and 

created a per se conflict of interest in counsel’s representation of the Appellant.” The conflict resulted in 

ineffective assistance of counsel under the Sixth Amendment. Findings and sentence set aside. 

e. Civilian counsel required to withdraw where his firm also represented the estranged wife of the 

accused in the divorce proceedings. United States v. Beckley, 55 M.J. 15 (C.A.A.F. 2001). At issue was 

the accused’s right to retain civilian counsel whom the military judge determined to be disqualified because of 

the conflict of interest with the accused’s estranged wife, who was represented by the lawyer’s firm in a 

divorce action against the accused. After a detailed factual analysis, CAAF affirmed ACCA, holding that the 

civilian counsel had an actual conflict of interest and was required to withdraw. 

f. Representation of servicemember in a companion case may be disqualifying. United States v. Smith, 

44 M.J. 459 (C.A.A.F. 1996). Defense counsel previously represented another airman in companion case for 

Article 15 proceedings. Former client did not testify at trial, but testimony presented via stipulation of 

expected testimony. Accused consented to representation. Court held that client could not make informed 

decision regarding representation, even after being advised by counsel, because counsel did not understand 

ramifications of conflict issue; former client was still subject to court-martial even though nonjudicial 

punishment had been imposed; and court was concerned that accused denied fair trial because of stipulation 

rather than cross-examination of important witness. 

g. Disagreement in strategy. United States v. McClain, 50 M.J. 483 (C.A.A.F. 1999). Accused 

complained his lawyers were conspiring with the trial counsel. The accused also had several disagreements 

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with his defense counsel, and told the military judge his counsel had lied to him. In response, one of his 

counsel told the military judge that the accused has told “lies here today in court.” Nevertheless, the military 

judge denied counsel’s request for release, and accused ultimately requested both counsel represent him. The 

court held the issue of a conflict of interest (because of a disagreement in strategy) was waived by the 

accused. The defense was entitled to respond to the accused’s assertions. 

h. Complaint made against counsel. United States v. Thompson, 51 M.J. 431 (C.A.A.F. 1999). A pretrial 

complaint against defense counsel, made by accused’s wife, did not create a conflict of interest disqualifying 

him from participation in this case. Court also held that accused was not denied effective assistance of 

counsel when military defense counsel cautioned him about retaining civilian counsel and discouraged him 

from getting help from a psychologist. 

i. Military judge has a sua sponte duty to explore conflicts of interest where raised by the record. 

United States v. Murphy, 50 M.J. 4 (C.A.A.F. 1998). The Government called accused’s pretrial confinement 

cell mate as a witness against the accused. A member of the accused’s defense team had previously 

represented the witness and had negotiated a favorable PTA in part based on information the witness had 

learned from the accused. After negotiation of the PTA, the counsel then withdrew from witnesses case. 

Additionally, the military judge in the accused’s case was the same judge who had presided over witness’ 

guilty plea. At the accused’s trial, the defense did not impeach the witness, even though he had been 

convicted of several crimes involving dishonesty and deceit. The court held the military judge had a sua 

sponte duty to resolve conflict questions on the record and defense had a duty to discuss potential or actual 

conflicts of interest with accused. Such multiple representation creates a presumption that a conflict of 

interest existed, one that can be rebutted by the actual facts. In this case, there was a clear conflict of interest. 

j. Trial counsel who acted as Accuser. United States v. Reist, 50 M.J. 108 (C.A.A.F. 1999). Assistant TC 

signed charge sheet and was present in court, identified as “accuser” on the record, and argued at sentencing 

that accused’s conduct was “cowardly criminal conduct of a sexual pervert.” While ATC was accuser under 

Article 1(9), UCMJ, and clearly disqualified to act as ATC (RCM 504(d)(4)(A)), the court held defense 

waived the issue, and found no plain error. 

k. Due to prior duty on opposite side. United States v. Smith, 26 M.J. 152 (C.M.A. 1988) (trial counsel 

who had been a member of the Trial Defense Service and acted as a sounding board for part of the defense 

case was not disqualified); United States v. Sparks, 29 M.J. 52 (C.M.A. 1989) (despite Article 27 violation, 

accused cannot complain when, “after full disclosure and inquiry by military judge,” he gives informed 

consent to representation by defense counsel who previously acted for prosecution). 

l. Based on bar status. United States v. Steele, 53 M.J. 274 (C.A.A.F. 2000). No error where accused’s 

civilian DC was carried “inactive” by all state bars of which he was member (and such status prohibited him 

from practicing law). RCM 502(d)(3)(A) requires that a CDC be a member of a bar of a federal court or bar 

of the highest court of the state, or a lawyer authorized by a recognized licensing authority to practice law 

(and determined by military judge qualified to represent the accused). CAAF looked to federal case law 

holding that neither suspension nor disbarment creates a per se rule that continued representation is 

constitutionally ineffective (CAAF also noted a Navy instruction permits military counsel to remain “in good 

standing” even though they are “inactive.”). Counsel are presumed competent once licensed. 

C. Replacement Counsel 

1. Severance of attorney-client relationship. United States v. Allred, 50 M.J. 795 (N-M. Ct. Crim. App. 

1999). A preexisting attorney-client relationship may be severed by Government only for good cause. “Good 

cause” did not exist where defense counsel had entered into relationship with accused concerning pending 

charges, charges were dismissed during the time accused was medically evacuated for evaluation of heart 

problems, and DC was told by SDC that, due to pending PCS, DC would not be detailed to case if charges repreferred. Court found that DC’s commander’s finding of unavailability was abuse of discretion. Prejudice 

presumed and findings and sentence set aside. 

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2. Duty to provide counsel. United States v. Johnston, 51 M.J. 227 (C.A.A.F. 1999). Where detailed defense 

counsel left active duty prior to preparation of a new SJA recommendation, failure of the convening authority to 

detail substitute counsel for accused deprived him of his opportunity for sentence relief with the convening 

authority and was prejudicial to accused’s substantial rights. 

X. ACCUSED 

A. Accused’s Forum Selection. 

1. Forum selection requests evaluated for substantial compliance with RCM 903(b)(2). 

a. Request for trial by judge alone. United States v. Turner, 47 M.J. 348 (C.A.A.F. 1997). Where the 

military judge fully explained the accused’s rights as to forum, and defense counsel stated at trial that the 

accused wished to be tried by military judge alone, it was error for the accused not to state his election either 

in writing or orally on the record. However, the facts of the case showed substantial compliance with Article 

16, UCMJ, and no material prejudice to the substantial rights of the accused. 

b. Request for trial before members. RCM 903(b)(1). United States v. Alexander, 61 M.J. 266 (C.A.A.F. 

2005). Military judge advised the accused of his forum selection rights, which the accused requested to 

defer. During a later proceeding, the military judge stated that he was told an enlisted panel would be hearing 

the case and defense did not object to the judge’s statement. The accused, however, failed to state in writing 

or on the record his request for enlisted members in violation of Article 25, UCMJ and RCM 903(b)(1). The 

CAAF held that the error in the accused failing to personally select forum on the record is a procedural, as 

opposed to jurisdictional, issue. The court stated, “[the] right being addressed and protected in Article 25 is 

the right of an accused servicemember to select the forum[,] . . . [t]he underlying right is one of forum 

selection, not the ministerial nature of its recording.” The CAAF held that the record reflected that the 

accused selected court-martial by panel members and the accused failed to show that the error in recording his 

forum selection resulted in any prejudice. 

c. United States v. Morgan, 57 M.J. 119 (C.A.A.F. 2002) (military judge erred by not obtaining on record 

defendant’s personal request for enlisted members to serve on court-martial, but error was not jurisdictional, 

and under circumstances, it did not materially prejudice substantial rights of defendant) 

a. United States v. Daniels, 50 M.J. 864 (A. Ct. Crim. App. 1999). Where accused was tried by enlisted 

members and there was no evidence on the record reflecting personal forum selection, jurisdiction was 

properly found by a military judge in an ACCA-ordered DuBay hearing, which established that accused had 

discussed her forum choices with her counsel, and that, prior to the assembly of the court, she had decided to 

elect trial by an enlisted panel, and that her counsel had then presented a document to TC stating that the 

accused requested an enlisted panel. Failure to elicit forum selection on the record was a technical defect in 

the application of Article 25, a defect that, as was clear from the DuBay hearing, did not prejudice the 

substantial rights of the accused. 

b. United States v. Lanier, 50 M.J. 772 (A. Ct. Crim. App. 1999), aff’d, 53 M.J. 220 (C.A.A.F. 2000) 

(summary disposition). Counsel’s consulting with the accused and announcing on the record, in response to 

judge’s question, “We will have a court with enlisted” substantially complied with the terms of Article 

25(c)(1). 

c. United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999). No error where accused, who had signed his request 

for enlisted members with words “Negative Reading,” was directed by military judge to elect a forum and he 

subsequently signed his name above the words “Negative Reading;” any confusion the accused experienced 

concerned his name and not his forum choices. 

B. Trial in Absentia. RCM 804(c). 

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1. The accused shall be considered to have waived the right to be present if after initially present he/she (1) 

voluntarily absents self after arraignment, or (2) is removed for disruption. For requirements of a valid 

arraignment, see RCM 904. 

2. United States v. Bass, 40 M.J. 220 (C.M.A. 1994). Accused did not return for trial after being arraigned 23 

days earlier (delay for sanity board). 

3. Inference of voluntary absence. United States v. Sharp, 38 M.J. 33 (C.M.A. 1993). Notice to accused of 

exact trial date or that trial may continue in his absence, while desirable, is not a prerequisite to trial in absentia. 

Burden is on the defense to go forward and refute the inference of a voluntary absence. Military judge must 

balance public interest with right of accused to be present. 

4. Proper arraignment required. United States v. Price, 43 M.J. 823 (A. Ct. Crim. App. 1996), rev’d, 48 M.J. 

181 (C.A.A.F. 1998). Trial in absentia is not authorized when military judge fails to conduct a proper 

arraignment. Reversing the ACCA, the CAAF stated that when military judge asked accused whether charges 

should be read, but failed to call upon the accused to plead, this constituted a defective arraignment. Waiver by 

voluntary absence will not operate to authorize trial in absentia if arraignment is defective, particularly 

considering that military judge failed to also inform the accused that trial would proceed in accused’s absence. 

See generally RCM 904 (“Arraignment . . . shall consist of reading the charges and specifications to the accused 

and calling on the accused to plead.”). 

5. Accused sleeping during trial. United States v. Thrower, 36 M.J. 613 (A.F.C.M.R. 1993). While giving 

unsworn statement during sentencing, accused succumbed to effects of sleeping pills he took earlier and 

remainder of statement given by defense counsel. Held to be a voluntary absence. 

C. Accused’s Rights to counsel. 

1. Pro se representation. RCM 506(d). 

a. United States v. Mix, 35 M.J. 283 (C.M.A. 1992). Before approving accused’s request to proceed pro se, 

RCM 506(d) requires a finding that the accused understands: (1) the disadvantages of self representation and; 

(2) if the waiver of counsel was voluntary and knowing. Opinion includes an appendix of suggested 

questions. 

b. Cf. Iowa v. Tovar, 541 U.S. 77 (2004). Prior to proceeding pro se at a guilty plea, the Sixth Amendment is 

satisfied if the trial court “informs the accused of the nature of the charges against him, of his right to be 

counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty 

plea.” Warnings that: “(1) advise the defendant that waving the assistance of counsel in deciding whether to 

plead guilty [entails] the risk that a viable defense will be overlooked; and (2) admonish[ing] the defendant 

that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on 

whether, under the facts and applicable law, it is wise to plead guilty” are not required by the Sixth 

Amendment. 

c. Godinez v. Moran, 509 U.S. 389 (1993). Supreme Court says the standard of competence to proceed pro 

se is no different than that required for an accused to stand trial. Military appellate courts appear to imply a 

higher level of competence for accused to waive counsel. See also United States v. Freeman, 28 M.J. 789 

(N.M.C.M.R. 1989) (“[H]igher standard of competence must exist for an accused to waive counsel and 

conduct his own defense than would be required to merely assist in his own defense”). United States v. 

Streater, 32 M.J. 337 (C.M.A. 1991) (accused was competent to “represent himself and to actually defend 

himself”). 

2. Individual military counsel. RCM 506(b); Article 38(b), UCMJ; AR 27-10, para 5-7; United States v. 

Spriggs, 52 M.J. 235 (C.A.A.F. 2000). If an individual military counsel request has been denied and the defense 

claims improper severance of attorney-client relationship, the defense bears the burden of demonstrating that the 

accused had a viable ongoing attorney-client relationship regarding the substance of the charges. Defense must 

demonstrate both an understanding as to the nature of future representation and active engagement by the attorney 

in preparation of the case. If the defense makes such showing, the burden shifts to the Government to 

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demonstrate good cause for severance. If the defense cannot make such showing, the burden shifts to the 

Government to demonstrate that the judge advocate was not reasonably available under applicable criteria. If 

there was a prior attorney-client relationship that is no longer viable at the time of the request, the Government is 

not required to demonstrate good cause, but must demonstrate that the other criteria warrant disregarding the 

relationship under the circumstances. Absent Government misconduct, the routine separation of a judge advocate 

from active duty normally terminates any attorney-client relationship established on the basis of the attorney’s 

military status, except when: (1) the attorney agrees to represent the client in his or her civilian capacity; or (2) the 

attorney enters the reserves and is ordered to represent the client to the extent permitted by applicable law based 

upon a determination by the appropriate official of reasonable availability. 

3. Civilian Counsel. 

a. Delay to obtain civilian counsel. 

(1) United States v. Wiest, 59 M.J. 276 (C.A.A.F. 2004). Military judge abused his discretion in denying 

defense request for delay to obtain civilian counsel. “It should . . . be an unusual case, balancing all the 

factors involved, when a judge denies an initial and timely request for a continuance in order to obtain 

civilian counsel, particularly after the judge has criticized appointed military counsel.” Applying the 

Miller factors, below, the court held that the judge erred and set aside findings and sentence. 

(2) United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997). Military judge abused his discretion by 

denying request for delay in post-trial hearing in order for accused to obtain civilian counsel. While the 

right to retain civilian counsel is not absolute, “an unreasoning and arbitrary insistence upon 

expeditiousness in the face of a justifiable request for delay violates the right to the assistance of counsel.” 

Factors used to determine whether military judge abused his discretion include: surprise, timeliness of the 

request, other continuance requests, good faith of moving party, and prior notice. 

4. Foreign counsel. RCM 502(d)(3)(b); Soriano v. Hosken, 9 M.J. 221 (C.M.A. 1980). Military judge 

determines if individual foreign civilian counsel is qualified. 

XI. OTHER COURT-MARTIAL PERSONNEL 

A. Staff Judge Advocates. 

1. General. Article 6(a) governs assignment of staff judge advocates. Article 6(c) specifies who may not serve 

as the staff judge advocate or legal officer to the reviewing authority on a case. Previous participation as a 

“member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or 

investigating officer” is disqualifying. Article 6, UCMJ. See also RCM 1106(b). 

2. Disqualification Cases 

a. While a staff legal officer who merely gives general advice to prosecutors or investigators is not 

disqualified from participating in the post-trial process, when the same advisor becomes a participant 

in the prosecution, she is disqualified. United States v. Gutierrez, 57 M.J. 148 (C.A.A.F. 2002). The 

accused pled guilty to multiple specifications of larceny, conspiracy to commit larceny, robbery, conspiracy to 

commit robbery and receiving stolen property. Prior to entry of pleas, the accused moved to dismiss all 

charges and specifications for lack of speedy trial. The Chief of Justice testified in opposition to the motion 

and the military judge denied the motion. Later, the COJ assumed duties as the SJA and prepared the posttrial recommendation (PTR) in the accused’s case. DC responded to the PTR claiming that the COJ was 

disqualified from preparing the PTR because of her involvement in the case, specifically her testimony in 

opposition to the speedy trial motion. Since Government counsel assumed a prosecutorial role in accused’s 

case prior to her appointment as SJA, she was disqualified from preparing the SJA post-trial recommendation 

which involved evaluating the prosecution. 

b. Where SJA imputes actions of TC to herself, the SJA is disqualified from participating in the posttrial process. United States v. Taylor, 60 M.J. 190 (C.A.A.F. 2004). Eight days after the accused’s court19-37
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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martial, trial counsel published an article in the base newspaper warning commanders to properly prepare 

adverse personnel records. The article resulted from the trial counsel’s inability to admit the accused’s 

adverse personal records, because of numerous administrative errors, which the trial counsel characterized as 

a disservice to justice. Based on the article, the defense sought the disqualification of the SJA. The SJA, 

while stating the article could be imputed to him in an addendum recommendation, took action on the case. 

The CAAF held where a SJA imputes a disqualification to himself his participation in the post-trial review 

process is error, that the accused made a “colorable showing of prejudice,” and returned the case for a new 

post-trial review. 

c. Performing trial counsel duties—even administrative ones—can effectively cause staff judge 

advocate to be “trial counsel.” United States v. Stefan, 69 M.J. 256 (C.A.A.F. 2010). Chief of Justice 

caused charges to be served on the accused (a duty reserved for detailed trial counsel under RCM 602) and 

then signed charge sheets as “Trial Counsel.” The Chief of Justice later, in her capacity as Acting SJA, 

signed the addendum to the post-trial staff judge advocate’s recommendation (SJAR), recommending the 

convening authority not grant clemency. Defense argued that under Article 6(c), no person who has acted as 

trial counsel may later act as SJA in the same case. CAAF held the Acting SJA was disqualified based on her 

limited administrative actions as trial counsel. However, the court affirmed, finding the error did not 

prejudice the accused. 

d. Same individual cannot serve as SJA and military judge in same case. Under RCM 1106(b) and Article 

6(c), UCMJ, a person cannot serve as the SJA and military judge in the “same case.” RCM 1106(b) governs 

the post-trial SJA recommendation. Article 6(c) more broadly governs action an SJA assisting “any 

reviewing authority.” See United States v. Moorefield, 66 M.J. 170 (C.A.A.F. 2008) (per curiam). The staff 

judge advocate (SJA) served as a military judge in a prior, unrelated, court-martial of the accused. On appeal, 

the defense argued the SJA should have been disqualified, citing RCM 1106 and Article 6, UCMJ. In a short 

per curiam opinion, the CAAF held the SJA was not disqualified. The two courts-martial were several years 

apart and involved different victims and evidence. The judge advocate properly acted as SJA and military 

judge in the two cases as they were “neither the same case for purposes of RCM 1106 or Article 6, UCMJ, 

nor the same matter, for purposes of [Navy professional responsibility rules].” 

3. Other SJA powers 

a. SJA has no authority to make ‘de facto’ denial of immunity request by refusing to process to the CA. 

United States v. Ivey, 55 M.J. 251 (C.A.A.F. 2001). At issue was whether Government failed to process the 

accused’s requests for immunity for four civilian witnesses. Here, the CA did not deny the defense request 

for immunity until after trial and chose not to forward the request to Department of Justice. In addition, 

military judge denied the defense request to grant immunity or to abate the proceedings to wait for CA action. 

The CAAF held trial counsel and SJAs do not have the authority to de facto deny a request for immunity by 

withholding it from the convening authority. All requests for immunity, from either the Government or the 

defense, must be submitted to the CA for a decision; the CA does not have to forward an immunity request 

for a civilian to DOJ if the CA intends to deny that request; and all three prongs of RCM 704(e) must be met 

before a military judge may overrule a CA’s decision to deny a request for immunity: (1) the witness intends 

to invoke the right against self-incrimination to the extent permitted by law if called to testify; (2) 

Government has engaged in discriminatory use of immunity to obtain a tactical advantage, or the 

Government, through its own overreaching, has forced the witness to invoke the privilege against selfincrimination; and (3) the witness’ testimony is material, clearly exculpatory, not cumulative, not obtainable 

from any other source and does more than merely affect the credibility of other witnesses. In this case, the 

military judge did not abuse his discretion by refusing to abate proceedings (to wait for CA action) where he 

found there had been no discriminatory use of immunity or Government overreaching, and proffered 

testimony was not clearly exculpatory. 

b. SJA’s promise of immunity will be treated as de facto immunity even though RCM 704 is not met. 

United States v. Jones, 52 M.J. 60 (C.A.A.F. 1999). Accused was charged with conspiracy to submit a false 

claim, larceny, and other offenses. His co-accused were offered punishment under Article 15 if they agreed to 

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testify against the accused. When the co-conspirators invoked their rights and seemed hesitant to cooperate, 

the SJA called the RDC and said that the three soldiers would be court-martialed if they did not testify in 

accordance with their agreement. The CAAF said the informal agreements were tantamount to a grant of de 

facto immunity, that the President had not formulated rules governing such “informal immunity,” but that 

there was no command influence and no material prejudice to the accused. 

B. Disqualification of Article 32 Investigating Officers. United States v. Holt, 52 M.J. 173 (C.A.A.F. 1999). 

Article 32 investigating officer recommended accused’s case be referred capital for his alleged murder of a fellow 

biker. After referral, the Article 32 investigating officer attended a forensic evidence course and, upon returning to 

the command, gave trial counsel the name and phone number of a forensic expert. Ultimately, this expert testified for 

Government that the spatter patterns on jeans seized from the accused were consistent with a stabbing. CAAF noted 

that an “investigating officer is disqualified” from acting subsequently “in the same case in any other capacity” under 

RCM 405(d)(1), and that his provision of information solely to the assigned prosecutor may have created at least the 

appearance of impropriety by providing trial counsel with information that was neither transmitted to the commander 

who ordered the investigation nor served on the accused. Nevertheless, the court found no prejudicial error that 

would warrant giving the accused a new trial; the decision to submit the jeans for testing and to call the expert witness 

were solely the decisions of the trial counsel. 

C. Court Reporters. RCM 502(e). See United States v. Yarbrough, 22 M.J. 138 (C.M.A. 1986). Accuser 

improperly acted as court reporter but reversal not required where accuser only operated microphone system and did 

not transcribe proceedings or prepare the record of trial. 

D. Interpreter. RCM 502(e). Must be qualified and sworn. 

E. Bailiff. RCM 502(e). Cannot be a witness. United States v. Martinez, 40 M.J. 82 (C.M.A. 1994). Military judge 

committed prejudicial error when, during sentencing deliberations, he conducted an ex-parte communication with 

bailiff. 

F. Drivers. 

1. United States v. Aue, 37 M.J. 528 (A.C.M.R. 1993). Military judge’s assigned driver told witnesses waiting 

to testify that the MJ told her that “he had already decided the case.” Military judge addressed issue at post-trial 

Article 39(a) hearing as motion for mistrial and found that: (1) he had never made such a statement; and (2) that 

driver was trying to impress witnesses with her apparent “inside information.” ACMR returns for DuBay hearing 

and indicates that MJ should have recused himself at the post-trial Article 39(a) session. Otherwise, no 

misconduct by military judge and no prejudice to accused. 

2. United States v. Knight, 41 M.J. 867 (A. Ct. Crim. App. 1995). Three senior enlisted court members solicited 

daily information from driver about his opinions regarding witness veracity, medical testimony, and what 

transpired during Article 39(a) sessions. Defense motion for mistrial made during deliberations denied. CA 

grants immunity to members in post-trial Article 39(a) session. ACCA said SJA, CA, and military judge “were 

remiss” in failing to apply presumption of prejudice absent clear and positive showing by Government. 

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XII. APPENDIX − COURT-MARTIAL PERSONNEL SUMMARY 

MAJOR POINT SUMMARY 

The Convening Authority • A convening authority (CA) has personal responsibility to select 

members and refer cases to courts-martial. Article 25(d) and 

Article 1(9), UCMJ. When considering selection and referral 

issues, look at the practical effect of the action as well as the 

RCMs to ensure that this is an appropriate situation for application 

of the practical effects test. 

• A convening authority with a personal interest in a case is 

disqualified from referring a case to trial and taking most other 

actions. A convening authority with a statutory disqualification is 

also disqualified from referral action, but can appoint the Article 

32 investigator and make a recommendation on the disposition of 

the case. 

Accused’s Rights: Counsel 

Qualifications and Pro Se 

Representation 

• The accused is entitled to qualified counsel at trial. When 

confronted with issues regarding counsel qualifications, determine 

whether the defect results in prejudice to the accused. Such defects 

are, however, nonjurisdictional. 

• Regarding prior representation, determine on the record 1) whether 

there was former representation, 2) whether there was a substantial 

relationship between the subject matters, and 3) whether there was 

a subsequent proceeding. 

• An accused may proceed pro se if military judge makes the 

accused aware on the record of the disadvantages of selfrepresentation and secures a voluntary and knowing waiver of 

counsel. 

Court Members • CA may violate the law if she uses anything other than the Article 

25(d) criteria (age, experience, education, training, length of 

service, judicial temperament) to select members. Rank may not 

be a sole selection criterion. Gender or race may be a criterion if 

the CA is seeking to include members of these categories for 

purposes of fairness and cross-sectional representation. The CA’s 

motive is crucial. 

• CA cannot systematically exclude otherwise qualified personnel. 

See US v. Bartlett, 66 M.J. 426 (C.A.A.F. 2008) 

• Enlisted members cannot be from the accused’s company-size unit. 

A military judge should grant a challenge against such a member. 

This issue, however, is waivable. 

The Military Judge • A military judge must carefully consider motions for recusal. The 

standard is: a military judge should disqualify himself when his 

partiality might reasonably be questioned. To ensure that such 

motions are properly handled, the military judge should follow 

RCM 902 by making full disclosure on the record of the 

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potentially disqualifying matter, and permit voir dire and 

challenge. When in doubt, the military judge should grant recusal. 

• The MJ must be careful not to engage in judicial advocacy. The 

MJ should not assist one side or the other through questioning 

witnesses or praising witnesses. 

• The MJ must be mindful not to discuss cases with other court 

personnel. Such contact or discussion may lead to situations where 

drivers, bailiffs and court reporters communicate to others their 

interpretation of MJ comments about findings or sentence, raising 

issues of partiality and unfairness. 

• If the MJ engages in a “Bridging the Gap” session, he should 

scrupulously keep the core of the deliberative process privileged. 

Trial By Judge Alone or by 

a panel of 1⁄3 enlisted 

members 

• Article 16 requires that the accused make a forum request in 

writing or orally on the record. To eliminate the possibility of 

error, the MJ should obtain an oral or written forum request on the 

record, especially in trials with multiple pretrial proceedings. 

Other means might substantially comply with Article 16 (counsel 

makes request in accused presence; request made after assembly). 

• The doctrine of substantial compliance applies to requests for trial 

by one-third enlisted members as well. Such requests are 

controlled by Article 25, UCMJ. 

Trial In Absentia  • Trial in absentia is only possible after an effective arraignment. 

The MJ must ensure that the accused is given an opportunity to 

have the charges read, and then call upon the accused to plead. 

Presence    Arraignment does not include entry of the plea. See RCM 904 for 

requirements of arraignment. 

• The UCMJ and RCMs require that all parties to a trial be 

physically present in one occasion to conduct valid court-martial 

proceedings. This ensures that the MJ is able to preside over the 

trial, and evaluate whether the accused genuinely desires to 

proceed with a particular forum or waive or pursue rights under the 

Constitution and UCMJ. 

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XIII. APPENDIX – PRETRIAL FLOWCHART 

Alleged 

Offense 

Preliminary 

Investigation (R.C.M. 

303) Soldier may be put 

in restraint (R.C.M. 304) 

or pretrial confinement 

(R.C.M. 305) 

Company 

commander 

may dispose 

of case or 

prefer charges 

Receipt by SCMCA,* 

who may dismiss, 

offer Art 15, refer to 

SCM, appt Art 32, or 

forward 

(R.C.M. 403, 404) 

SCMCA makes 

recommendation to 

SPCMCA3 

(R.C.M. 403) 

Accuser forwards 

charges, with 

recommendation, to the 

SCMCA2 

(R.C.M. 402) 

SPCMCA** may dismiss, 

offer Art 15, refer to SCM, 

SPCM, forward, or appoint Art 

32 Investigation (R.C.M. 404) 

Art 32 PHO 

conducts Art 32 

Investigation 

(R.C.M. 405) 

Art 32 PHO 

prepares Art 32 

report 

(DD Form 457) 

Art 32 PHO forwards 

Art 32 report to 

SPCMCA 

(R.C.M. 405) 

SPCMCA considers Art 

32 report in making 

disposition decision 

(R.C.M. 404) 

SPCMCA may 

dismiss, refer to 

SCM or SPCM, or 

forward to 

GCMCA4 

(RCM 404) 

GCMCA gets SJA 

Pretrial Advice5 

(R.C.M. 406) 

GCMCA refers case 

(R.C.M. 407, 

R.C.M. 604)**6 

1Usually the company commander (the accused’s immediate commander) prefers charges, becoming the Accuser; forwards charges (once 

forwarded, charges may be disposed of only by a convening authority (CA)). 

2Summary Court-Martial Convening Authority 3Special Court-Martial Convening Authority 4General Court-Martial Convening Authority 5The SJA will normally “bundle” the subordinate commanders’ recommendations with his Pretrial Advice. 6Review of non-referral decisions withheled to superior GCMCA(s). 

*Disposition of certain sex offenses with withheld to O-6 Commander level. 

**GCMCAs and SPCMCAs who are accusers may not act as CAs. Art 1(9), Art 22(b), Art 23(b). If statutorily disqualified (because she 

signed charge sheet), CA may dismiss, offer Art 15, appt Art 32, forward with rec. for GCM (must note disqualification). If personally 

disqualified (e.g., personal interest in case), may not appt Art 32, must forward with no rec. (only SCMCA may be accuser and a CA). 

***Usually CA will have previously convened court, e.g., by creating a “standing panel.” 

Charges 

preferred1 

(R.C.M. 307) 

CA convenes court 

(R.C.M. 502, 504, 

Art 25)*** 

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Chapter 10 

Speedy Trial [Return to Table of Contents] 

CHAPTER 10
 

SPEEDY TRIAL
 

I. References 

II. R.C.M. 707: The 120 Day Rule 

III. U.C.M.J., Article 10: Pretrial Confinement 

IV. The Sixth Amendment Right to Speedy Trial 

V. The Fifth Amendment Right to Due Process 

VI. Litigating Speedy Trial Issues 

I. REFERENCES 

A. R.C.M. 707: 120 day rule. 

B. U.C.M.J., Articles 10 and 33. 

C. Sixth Amendment 

D. Fifth Amendment 

II. R.C.M. 707: THE 120 DAY RULE. 

A. The Rule. “The accused shall be brought to trial within 120 days after the earlier of: (1) Preferral 

of charges under R.C.M. 307/ 308; or (2) The imposition of restraint under R.C.M. 304(a) (2)-(4) 

[restriction, arrest, confinement]; or (3) Entry on active duty under R.C.M. 204.” R.C.M. 707(a). 

1. “Conditions on liberty” (a “moral” restraint) is not a type of restraint which triggers R.C.M. 

707. [See R.C.M. 304(a)(1)] 

2. “Specified Limits” - An individual must be required to remain within specified limits to 

constitute pretrial restriction. [See R.C.M. 304(a)(2-3)] 

a. United States v. Wilkinson, 27 M.J. 645 (A.C.M.R. 1988), petition denied, 28 M.J. 230 

(C.M.A. 1989). Denial of off-post pass that left the accused free access to the entire 

installation with all its support and recreational facilities was at most a condition on liberty 

that did not affect speedy trial clock. “[The lack of pass privileges] will, in the usual case, 

have no impact on rules relating to speedy trial.” 

b. But see United States v. Wagner, 39 M.J. 832 (A.C.M.R. 1994). In dicta, court seriously 

questioned Wilkinson’s application to married Soldier living off post, especially in foreign 

country. Court should consider extent and duration of disruption of spousal and parental 

responsibilities. 

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c. See also United States v. Melvin, 2009 WL 613883 (A.F.Ct.Crim.App.). Maj. Melvin 

was an Air Force ROTC instructor. He was charged with providing underage cadets in his 

detachment with alcohol, had sexual intercourse with a female cadet, and encouraged cadets 

to lie to investigating officers. He was adjudged a dismissal and six months confinement. 

One issue on appeal was the trial judge’s decision to start the 120 day clock at preferral of 

charges. Maj. Melvin asserted it should have started when he received a no contact order 

with the cadets and was sent TDY away from the university area and more significantly, his 

family that lived there. Maj. Melvin’s contention that since he was forced away from his 

family and could not return home without taking leave was this equated to restriction in lieu 

of arrest and pretrial restraint under R.C.M. 304(a)(2)-(4). Alternatively, Maj. Melvin argued 

that his extension on active duty was a second triggering date before preferral. The appellate 

court agreed with the trial judge that neither of these positions contained merit. 

3. Administrative restraint imposed under R.C.M. 304(h) “for operational or other military 

purposes independent of military justice, including administrative hold or medical reasons” does 

not start the speedy trial clock. 

a. “Primary Purpose” Test - If the primary purpose of restraint is administrative and not for 

military justice, the speedy trial clock is not triggered. 

b. United States v. Bradford, 25 M.J. 181 (C.M.A. 1987). Denial of sailor’s port liberty 

while sailor was a suspect of offense found to be “administrative restraint” under R.C.M. 

304(h). “[We] believe the test is . . . the primary purpose. . . .” “Where the evidence supports 

a conclusion that the primary purpose of the command . . . is related to an upcoming courtmartial, R.C.M. 707 applies.” 

4. Starting the count: Include the day of arraignment; do not include the day of preferral or 

imposition of restraint or entry on active duty. R.C.M. 707(b)(1). 

5. Termination: At arraignment under R.C.M. 904. See United States v. Doty, 51 M.J. 464 

(C.A.A.F. 1999), wherein the CAAF holds that arraignment at day 119 was not a “sham” to toll 

the speedy trial clock. For sentence rehearings, the clock stops when the accused is first brought 

to the “bar” for resentencing, typically at the initial UCMJ art. 39(a) session. R.C.M. 707(a) and 

(b)(1). United States v. Becker, 53 M.J. 229, 232 (A.F. Ct. Crim. App. 2000). See also United 

States v. Gammon, NMCCA 200800324 (2009) an unpublished case where, based on the 

dispersal of trial participants, the appellate court approved of the judge’s decision to delay the 

arraignment until trial because of the “unjustifiable expense” in bringing everyone together and 

excluding the period of time from when the delay could have occurred but for the cost factor until 

when it actually did happen. 

B. Restarting the clock at zero. R.C.M. 707(b)(3). 

1. First restart. If charges are dismissed or a mistrial is granted, speedy trial clock is reset to 

begin on; date of dismissal in cases where the accused remains in pretrial restraint; date of 

mistrial, or; earlier of re-preferral or imposition of restraint for all other cases. R.C.M. 

707(b)(3)(A). 

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a. Dismissal (R.C.M. 401) or withdrawal (R.C.M. 604)? General Rule: Withdrawal does 

not toll running of speedy trial clock. United States v. Weatherspoon, 39 M.J. 762 (A.C.M.R. 

1994). Dismissal of charges does. United States v. Bolado, 34 M.J. 732 (N.M.C.M.R. 1991); 

aff’d, 36 M.J. 2 (C.M.A. 1992). A commander can dismiss charges even if there is an intent 

to re-institute charges at a later date. Convening authority ordered charges dismissed since 

two NIS witnesses were deployed on Operation Desert Shield/Storm for an uncertain time 

period. Charges lined through, dismissal document executed, accused informed and allowed 

to go on leave, although not allowed to work in MOS. Charges were re-preferred 9 months 

later following return of the witnesses. See also United States v. Tippit, 65 M.J 69 (C.A.A.F. 

2007), Upon the SJA’s advice the Special Court-Martial Convening Authority signed a 

withdrawal of charges (which were not referred). The Court honored the SPCMCA intent to 

dismiss the charges despite the misnomer and found no violation of R.C.M. 707. 

b. United States v. Young, ARMY 20000358 (A.C.C.A. 2005). Young deserted his unit after 

he was found guilty of various offenses but prior to sentencing. The court sentenced him, in 

abstentia, to confinement for life. After his initial trial, his command preferred a new charge 

for desertion in 1995. Young was apprehended six months later and began serving his life 

sentence. The desertion charge was not acted upon until the Chief of Staff at the USBD 

signed a DA form 4833 stating, “the [prior] command and the USBD have declined 

prosecution of the desertion offense.” The command decided to go forward on the desertion 

charge when the sentence from Young’s initial trial was set aside on appeal. Believing the 

initial desertion charge had been dismissed, the command preferred the desertion charge 

anew in 1999. Young moved the trial court to dismiss the desertion charge because there had 

been no dismissal of the original desertion charge and therefore the speedy trial clock had run 

continuously since 1995. The trial court disagreed and found the DA form 4833 equaled a 

dismissal. ACCA reversed the case finding that the government had violated Young’s right 

to a speedy trial. The court noted that the DA form 4833 was NOT a dismissal but rather a 

decision to take “no action”. 

c. United States v. Robison, WL 6135093 (Army Ct. Crim. App. 2011). Dismissal of a 

DFR charge sheet 93 days after an Accused's return to military control was not a subterfuge 

and therefore not a violation of the Accused's right to a speedy trial under RCM 707. “A 

convening authority's dismissal of a charge is only a subterfuge when the sole purpose of the 

dismissal is to avoid the running of the 120–day speedy trial clock.” The government 

preferred a new desertion charge with newly acquired information in an additional element. 

d. United States v. Robinson, 47 MJ 506 (N.M.C.C.A. 1997). Dismissal of charges on day 

115 and re-preferral of substantially identical charges one week later, without any significant 

change in A’s status held to be a subterfuge to avoid the 120 day speedy trial clock. 

Distinguishes Bolado, which held convening authority need not explain reasons for dismissal. 

Any other solution would allow CA to routinely violate spirit of RCM 707. 

e. Factors courts will consider to decide if subterfuge: Convening Authority intent, notice 

and documentation of action, restoration of rights and privileges of accused, prejudice to 

accused, amended or additional charges. See also United States v. Anderson, 50 M.J. 447 

(C.A.A.F. 1999), wherein CAAF finds no subterfuge under the facts of the case and declares, 

contrary to the Government’s concession, that the speedy trial clock was restarted on the date 

of dismissal. 

2. Second restart provision. If the accused is released from pretrial restraint for a significant 

period, the time under this rule shall run from the earliest date on which charges are preferred, or 

restraint is re-instituted, or entry on active duty. R.C.M. 707(b)(3)(B). 

a. What is a significant period? 

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1) United States v. Hulsey, 21 M.J. 717 (A.F.C.M.R. 1985), petition denied, 22 M.J. 353 

(C.M.A. 1986). 5 day release from pretrial restraint held a “significant period” and not a 

“subterfuge designed to circumvent R.C.M. 707,” clock restarted with reinstitution of 

restraint. 

2) United States v. Miller, 26 M.J. 959 (A.C.M.R. 1988), petition denied, 28 M.J. 164 

(C.M.A. 1989). 5 day release from pretrial restriction tantamount to confinement held to 

be a “significant period” even though accused was held in administrative restraint in the 

hospital for the 5 days. Factors: (1) hospitalization for suicide attempt, (2) hospital, not 

command, imposed restraint, and (3) no showing of improper gamesmanship. 

3) United States v. Campbell, 32 M.J. 564 (A.C.M.R. 1991). Thirteen day period of 

restriction imposed as punishment under Article 15 was a “significant period” of 

“release” from ongoing restriction that restarted the speedy trial clock. Article 15 was 

for offenses that were unrelated to the court-martial charges and was not a subterfuge to 

avoid speedy trial issues. 

4) United States v. Reynolds, 36 M.J. 1128 (A.C.M.R. 1993). 19 day period of 

conditions on liberty between release from 5 weeks of restriction and preferral of charges 

was a significant period. Speedy trial clock commenced running upon preferral. 

5) Note: Time between release from pretrial restraint and preferral of charges need not 

be a “significant period” to stop the speedy trial clock. United States v. Ruffin, 48 M.J. 

211 (C.A.A.F. 1998). Charges preferred one day after two month restriction was lifted. 

Restriction never re-imposed. The requirement to wait a “significant period” of time only 

applies to cases involving re-imposition of restraint; it does not require the government to 

wait a “significant period” before preferring charges once released from confinement. 

Purpose of rule is to avoid sham releases to stop and start the speedy trial clock. Here, 

because restriction was never re-imposed, release was for a “significant period” which 

restarted the speedy trial clock at preferral. 

3. Third restart provision. Government appeal under R.C.M. 908 - begin on date of notice to the 

parties of final action on the appeal. R.C.M. 707(b)(3)(C). 

4. Fourth restart provision. Rehearings begin on date “responsible convening authority receives 

record of trial and opinion authorizing or directing a rehearing.” R.C.M. 707(b)(3)(D). See 

United States v. Becker, 53 M.J. 229 (C.A.A.F. 2000) (applying R.C.M. 707 timing requirements 

to a sentence rehearing but finding that remedy of dismissal of charges too severe). 

5. Fifth restart provision. Return of accused from the custody of the Attorney General. R.C.M. 

707 (b)(3)(E). 

6. Multiple charges: When charges are preferred at different times each charge may have a 

separate starting date based on date of preferral, restraint, or entry on active duty related to 

particular charge. R.C.M. 707(b)(2). United State v. Bray, 52 M.J. 659 (A.F. Ct. Crim. App. 

2000). Speedy trial clock begins to run when accused is placed into pretrial confinement for all 

offenses the government knows (or reasonably should know) are part of the misconduct (rape 

charge was dismissed with prejudice). 

See United States v. Robinson, 26 M.J. 954 (A.C.M.R. 1988) aff’d, 28 M.J. 481 (C.M.A. 1989). 

“We hold that, in order to commence the speedy trial clock, the imposition of restraint . . . must 

be ‘in connection with’ the specification being challenged.” 

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7. Post-trial Speedy Trial Clock: United States v. Collazo, 53 M.J. 721 (Army Ct. Crim. App. 

2000). “Every soldier (sic) deserves a fair, impartial, and timely trial, to include the post-trial 

processing of his case.” The court reduced appellant’s sentence to confinement by four months 

after finding ten month delay in processing too long for 519-page record of trial. 

United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). The Moreno decision demonstrated that 

while the CAAF was not willing to return to an inflexible Dunlap-style 90-day rule, it was willing 

to apply heightened scrutiny and find due process violations in cases where post-trial processing 

crossed certain defined boundaries. In Moreno, the CAAF announced that it would apply a 

presumption of unreasonable delay to any case completed after 11 June 2006 that: (1) did not 

have initial action taken within 120 days of the completion of the trial; (2) was not docketed 

within 30 days of the convening authority’s action; or, (3) did not have appellate review 

completed by the Court of Criminal Appeals within 18 months of docketing. Once the post-trial 

delay in a case is determined to be unreasonable, the court must balance: (1) the length of the 

delay against; (2) the reason for the delay; (3) the appellant’s assertion of the right to timely 

review and appeal; and, (4) prejudice. This test represented an adaptation of the Barker v. Wingo, 

407 U.S. 514 (1972), test that had previously only been used to review speedy trial issues in a 

Sixth Amendment context. While failure to meet the Moreno timelines triggers the Barker v. 

Wingo analysis, the government can still rebut the presumption of prejudice by showing that the 

delay was not unreasonable. 

C. Excludable Delays. R.C.M. 707(c). “All periods of time during which appellate courts have 

issued stays in the proceedings, or the accused is hospitalized due to incompetence, or is otherwise in 

the custody of the Attorney General, shall be excluded when determining whether the period in 

subsection (a) of this rule has run. All other pretrial delays approved by a military judge or the 

convening authority shall be similarly excluded.” 

1. Independent determination as to whether there is in fact good cause for a delay, and for only 

so long as is necessary. 

2. Approval Authority: Convening Authority and the Military Judge (after referral). Discussion 

following R.C.M. 707(c)(1) indicates the CA's authority can be delegated to the Article 32 

Investigating Officer (IO), now Preliminary Hearing Officer (PHO). 

United States v. Lazauskas, 62 M.J. 39 (C.A.A.F. 2005). Lazauskas made a motion to 

dismiss the charges at his arraignment on the basis that the government had not brought him 

to trial within 120 days in accordance with RCM 707. The military judge denied the motion 

at trial. The AFCCA affirmed. CAAF affirmed as well. At issue were two delays in the 

proceedings totaling 11 days. The first delay was six days in order to secure witnesses for the 

Article 32. The CAAF held this time was excludable because the IO may grant reasonable 

delay requests (excludable in accordance with RCM 707(c)) if the convening authority had 

properly delegated delay authority. Furthermore, the delays are excludable unless there was 

an abuse of discretion by the person who granted the delay. The second delay was the five 

day statutory waiting period in accordance with Article 35, UCMJ. The CAAF held that 

Article 35 provides a shield so that the accused is not brought to trial too quickly. Therefore, 

Article 35 may not be used as a sword for the accused to attack the government for not 

bringing him to trial sooner. 

3. Pretrial delays should not be granted ex parte. Discussion to R.C.M. 707(c)(1). 

4. Approved delays subject to review on two grounds: 

a. Abuse of discretion. “Granting a continuance is within the sound discretion of the 

military judge, and a denial will be reversed only for an abuse of discretion.” United States v. 

Sharp, 38 M.J. 33, 37 (C.M.A. 1993). 

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b. Reasonableness of the period of delay: “Reasons to grant a delay might, for example, 

include the need for: time to enable counsel to prepare for trial in complex cases; time to 

allow examination into the mental capacity of the accused; time to process a member of the 

reserve component to active duty for disciplinary action; time to complete other proceedings 

related to the case; time requested by the defense; time to secure the availability of the 

accused, substantial witnesses, or other evidence; time to obtain appropriate security 

clearances for access to classified information or time to declassify evidence; or additional 

time for other good cause.” R.C.M. 707(c)(1) discussion. 

5. Attribution of delay period. United States v. McKnight, 30 M.J. 205 (C.M.A. 1990). Defense 

is not entitled to request a delay until a day certain and then insist the government proceed on that 

very day. Defense must accommodate government’s scheduling needs and remains accountable 

for reasonable delays occasioned by initial request. See also, United States v. Torres, 2014 CCA 

Lexis 180 (A.C.C.A. 2014). Court found that SPCMCA acted properly in attributing 28-day 

delay to Defense while their IMC request was pending. 

6. Exceptions to the Rule requiring pre-approved delay: 

a. United States v. Dies, 45 M.J. 376 (C.A.A.F. 1996). Accused’s unauthorized absence is 

automatically excluded from government accountability even though government never 

secured a delay from competent authority to cover time. By his voluntary absence, an 

accused “waives” his speedy trial right as to that interim period. Further, R.C.M. 707 does 

not require that the government be held accountable for all periods of time not covered by 

stays or delays. 

b. United States v. Thompson, 46 M.J. 472 (C.A.A.F. 1997). After the fact approval of 

defense requested delay by the SPCMCA held excludable delay. Although purpose of 

revised rule was to obtain delays as you go, CAAF focused on fact the specific text of RCM 

707(c) “does not require specifically that the delay be approved in advance for it to be 

excluded.” But government runs risk that such post hoc determinations will be viewed with 

skepticism. CAAF avoided certified issue of whether quasi-judicial Article 32 IO has power 

to exclude delays. 

c. United States v. Melvin, 2009 CCA Lexis 82 (A.F.Ct.Crim.App.). Maj. Melvin was an 

Air Force ROTC instructor. He was charged with providing underage cadets in his 

detachment with alcohol, had sexual intercourse with a female cadet, and encouraged cadets 

to lie to investigating officers. He was adjudged a dismissal and six months confinement. 

One issue on appeal was the trial judge’s decision to exclude the time (158 days) it took to 

process the servicemember’s request for resignation in lieu of trial, determining that only 

seventy “countable” days had passed between preferral and arraignment. The Air Force 

appellate court held that exclusion of this time was proper even though he had submitted a 

speedy trial request because there was no evidence he wanted to proceed to trial while the 

resignation request was pending. The lesson to take away from this aspect of the case is 

understanding that calculating the 120 day clock is more than counting days on a calendar. 

The TC needs to know what time will be excluded and then make a clear appellate record. 

d. Request for delay need not originate from either party; convening authority may initiate 

sua sponte. United States v. Anderson, 46 M.J. 540 (N.M.C.C.A. 1997). 

D. Remedy for violation is dismissal of charges upon timely motion. R.C.M. 707(d). 

1. In dismissing with or without prejudice, the military judge considers these factors: 

“[s]eriousness of the offense . . . facts and circumstances that lead to dismissal . . . impact of reprosecution . . . and any prejudice to the accused . . .” R.C.M. 707(d). United States v. Bray, 52 

M.J. 659, 663 (A.F. Ct. Crim. App. 2000). 

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a. United States v. Edmond, 41 M.J. 419 (C.A.A.F. 1995). Dismissal without prejudice 

appropriate for 41 day violation of R.C.M. 707. Sex crimes against inebriated victim were 

serious offenses; no government bad faith involved; dismissal with prejudice would not lead 

to better administration of justice; no indication accused suffered prejudice. 

b. United States v. Bolado, 34 M.J. 732, 739 n.6 (N.M.C.M.R. 1991); aff’d, 36 M.J. 2 

(C.M.A. 1992). “A commander’s decision to reassign an accused to another duty assignment 

is not the kind of prejudice envisioned in R.C.M. 707(d).” Court also states “backwater of 

suspicion” following dismissal is no different than that existing pre-preferral and constitutes 

minimal prejudice. 

c. United States v. Dooley, 61 M.J. 258 (C.A.A.F. 2005). In 1998, Dooley was convicted of 

various child pornography related offenses. In 2004, his conviction was set aside. The 

convening authority decided to retry Dooley on the charges but did not bring him off 

appellate leave and onto active duty and arraign him until 125 days after the convening 

authority received the record of trial. The military judge dismissed the case with prejudice. 

The N-MCCA reversed the judge based on the fact the he had abused his discretion when 

ordering dismissal with prejudice. CAAF reversed the N-MCCA and reinstated the trial 

court’s dismissal with prejudice. Under the abuse of discretion standard, mere disagreement 

with the conclusion of the trial judge is not enough to warrant reversal. Here the N-MCCA 

did not find that the trial judge’s decisions were “clearly erroneous” but rather that it “did not 

concur” with the trial judge. 

d. United States v. McClain, 65 M.J. 894 (Army Ct. Crim. App. 2008). Mistrial is not an 

appropriate remedy for a violation of R.C.M. 707. 

III. UCMJ, ARTICLE 10: PRETRIAL CONFINEMENT AND ARREST. 

A. UCMJ, Article 10: 

“When any person subject to this chapter is placed in arrest or confinement prior to trial, 

immediate steps shall be taken to inform him of the specific wrong of which he is 

accused and to try him or to dismiss the charges and release him.” 

B. Historical Development. 

1. The rule of United States v. Burton, 44 C.M.R. 166 (C.M.A. 1971): Pretrial confinement 

over 90 days created a presumptive speedy trial violation under UCMJ, Article 10. The 

government could overcome the presumption by demonstrating due diligence. 

2. United States v. Kossman, 38 M.J. 258 (C.M.A. 1993). The death of Burton. THERE IS NO 

LONGER A 90 DAY RULE! 

a. “Reasonable diligence” is the standard for measuring compliance with UCMJ, Article 10. 

b. Article 10 may be violated where accused is tried in less than 120 days, or even in less 

than 90 days. Many circumstances, however, may justify delays beyond these traditional 

periods. “The touch stone . . . is not constant motion, but reasonable diligence in bringing 

the charges to trial. Brief periods of inactivity in an otherwise active prosecution are not 

unreasonable or oppressive.” Kossman, at 262 (citing United States v. Tibbs, 35 C.M.R. 322, 

325 (C.M.A. 1965)). 

Article 10 motion will lie when government “could readily have gone to trial . . . but 

negligently or spitefully chose not to.” Kossman, at 261. 

C. Analysis for application of Article 10. 

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1. Compliance with R.C.M. 707 does NOT equal compliance with Article 10. 

a. United States v. Hatfield, 44 M.J. 22 (C.A.A.F 1996). Overall lack of forward motion 

toward resolving relatively simple case. CAAF particularly concerned with two month delay 

in appointing defense counsel due to incomplete paperwork. 

b. United States v. Collins, 39 M.J. 739 (N.M.C.M.R. 1994). Six to eight phone calls by 

non-JAG attempting to obtain evidence of forged checks from an exchange on another 

installation is not proceeding with due diligence. Delays in requesting copy of service record 

and requesting legal services do not reflect due diligence. 

c. United States v. Laminman, 41 M.J. 518 (C.G.Ct. Crim. App. 1994). Government failed 

to proceed with reasonable diligence when it brought the accused to trial 134 days after initial 

restraint. (21 days attributed to defense delay.) Case provides detailed analysis of Article 10 

and the government’s burden of proof when confronted with motion to dismiss based on 

Article 10. Court found government’s failure to provide evidence explaining several delays 

supported military judge’s finding of lack of diligence. (In footnote, court suggested that the 

best way for the military judge to proceed would be to have parties enter a stipulation of fact 

as to the undisputed portions of chronology and then to present evidence on those relevant 

matters upon which there is disagreement.) 

d. United States v. Calloway, 47 M.J. 782 (N.M.Ct.Crim.App. 1998). Accused placed in 

pretrial confinement for 20 days before government took any action on his case. Another 7 

days passed before magistrate review. The government took another 34 days to prefer 

charges, another 22 days to serve charges on the accused after referral, and another 18 days to 

arraign the accused. Accused was not provided with a TDS counsel until 66 days of pretrial 

confinement. Several other cases without pretrial confinement were tried before the accused. 

Military judge failed to make specific findings of fact and explanation for the delays, 

especially regarding (1) overall lack of forward motion, (2) delay in appointing DC. Judge 

also criticized for relying too much on RCM 707 type analysis. 

e. United States v. Mizgala, 61 M.J. 217 (C.A.A.F. 2005). Mizgala was placed in pretrial 

confinement (PTC) for 117 days. His initial PTC began on 28 February. Based on various 

factors (i.e., waiting on a police report, moving the SJA office because of a fire) the 

government did not prefer charges until 14 May. On 16 April, Mizgala made a demand for a 

speedy trial. The Article 32 was held on 22 May; afterwards the charges were referred to trial 

on 20 June. At the arraignment, the military judge denied Mizgala’s motion to dismiss for 

violating Article 10, UCMJ. The military judge used a “gross negligence” standard when 

deciding that the government had not violated Article 10, UCMJ. The CAAF affirmed the 

trial court decision that the government did not violate Mizgala’s speedy trial rights but 

pointed out several errors that the military judge made when deciding the motion. First, the 

120 day requirement of RCM 707 is irrelevant when determining whether there was an 

Article 10 violation. Second, reasonable diligence, not gross negligence, is the proper 

standard when analyzing Article 10 claims. Finally, Article 10 is more exacting than the 

Sixth Amendment so the military judge should not have limited his consideration to the 

Barko v. Wingo factors (see infra). The CAAF also held that an unconditional guilty plea 

does NOT waive consideration of an Article 10 claim on appeal. 

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f. United States v. Simmons, Army 20070486 (Army Ct. Crim. App. 2009). In an 

unpublished opinion, ACCA ruled that the government did not exhibited reasonable 

diligence in processing its case. Consequently, the court dismissed the case with prejudice, 

the remedy for a violation of Article 10. Simmons pled guilty at a general court-martial to 

AWOL, failure to be at his place of duty or follow orders, and, disorderly conduct. While he 

was also arraigned on charges of rape, kidnapping, and multiple assaults, those charges were 

dismissed. The issue on appeal in this case was whether the judge erred by failing to dismiss 

the charges for violating Article 10. He remained in PTC for 133 days before his trial, 

although was arraigned on day 107. The events of this case took place in South Korea, where 

Simmons was assigned. The first delay of this case resulted from the government’s errant 

belief that the SOFA gave primary jurisdiction to the Koreans and the U.S. military was 

barred from going forward with the case. In addition to identifying the SOFA from allowing 

them to move forward, the government also cited a brigade training exercise in hindering 

their forward movement. The court noted that, “[w]hile operational considerations are 

relevant, they are not an absolute excuse.” Ultimately, Simmons spent 134 days in PTC 

before being sentenced to 120 days of confinement, a BCD and reduction to E-1. 

g. United States v. Roberts II, 2009 WL 613877 (A.F.Ct.Crim.App.). The prosecution took 

270 days from the time Roberts was placed into PTC until he was brought to trial. Based on 

the Record of Trial, the appellate court opined that the government “exercised reasonable 

diligence in accomplishing those tasks necessary to try him.” As such, Roberts did not 

receive any credit for speedy trial violations despite the amount of time it took to get the case 

to trial. 

h. United States v. Thompson, 68 MJ 308 (C.A.A.F. 2010). Accused spent 145 days in 

PTC. Much of the delay centered on the handover of the off-post offenses from the civilian 

authorities to the military. Additional delay came from the TC attending a weeklong, out-oftown sexual assault course and then taking 4 days of leave, before being snowed in for an 

additional day. Further exacerbating the problem was a deployment that ultimately resulted 

in 3 different TC handling the case. The trial judge found that there was a 37 day period 

where the government failed to act with reasonable diligence and dismissed all charges with 

prejudice for violating Thompson’s Article 10 right to a speedy trial. Unlike the judge, 

ACCA found it reasonable that the TC resolve all of the jurisdictional issues with the civilian 

authorities before proceeding, as well as taking what ACCA termed “mandatory job-related 

training” and taking a short leave in conjunction with that duty. ACCA was also influenced 

by defense not making a speedy trial demand until Thompson had been in confinement for 

over 140 days, which was not during the 37 day period. ACCA was further impacted by a 39 

day defense delay to prepare for the Art. 32 hearing, which came after the 37 day period the 

judge determined the defense did not proceed with reasonable diligence. ACCA returned the 

case to the judge for action not inconsistent with their opinion, after writing, “appellee does 

not allege, nor do we find, that she suffered any hindrance to the preparation of her case 

because of any delay.” CAAF upheld ACCA based on the 37 days needed to determine who 

was going to prosecute the case. 

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i. United States v. Schuber, 70 M.J. 181 (C.A.A.F. 2011). Schuber was subject to 

restriction not tantamount to arrest during the period following his 71 days in pretrial 

confinement, where he was restricted to base rather than to quarters, and although he was 

required to provide weekly urine samples, he was permitted to use all usual base activities, 

was given a three-day pass upon the death of his grandfather, was not placed under guard or 

escort during his base restriction or travel, and was not suspended from performing normal 

military duties. The court held, “there are gradations of restriction. Whether a particular 

restriction amounts to arrest for the purposes of Article 10, UCMJ, will depend on a 

contextual analysis . . . including consideration of such factors as the geographic limits of 

constraint, the extent of sign-in requirements, whether restriction is performed with or 

without escort, and whether regular military duties are performed.” In doing so, the court 

made it easier for defense counsel to argue that an accused is under arrest and thus protected 

by Article 10. The accused could be performing military duties but still be under arrest 

because of narrow geographic limits of constraint, sign-in requirements, and escort 

requirements. 

j. United States v. Cooley, 75 M.J. 247 (C.A.A.F. 2016). Cooley, a Coast Guard Fireman 

Apprentice, was convicted of multiple offenses, including attempted lewd acts on a child, and 

wrongful and knowing possession of child pornography. The Court described the procedural 

history as, “a messy primer on military justice procedure.” CAAF upheld the CGCCA’s 

determination that Cooley’s Article 10, UCMJ, speedy trial right was violated, noting the 

Government’s lack of diligence in bringing Cooley to trial. 

2. Factors from Barker v. Wingo, 407 U.S. 514 (1972). An appropriate analysis of Article 10 

includes consideration of these factors. See United States v. Birge, 52 M.J. 209 (C.A.A.F. 1999), 

United States v. Cooper, 58 MJ 54 (C.A.A.F. 2003). 

3. Arraignment does not necessarily terminate government’s Article 10 speedy trial obligations. 

United States v. Cooper, 58 MJ 54 (C.A.A.F. 2003): “We therefore hold that the Article 10 duty 

imposed on the Government immediately to try an accused who is placed in pretrial confinement 

does not terminate simply because the accused is arraigned.” The court goes on to say that post 

arraignment, the MJ has much more control of the course of the trial, but the “affirmative 

obligation of reasonable diligence upon the government does not change.” 

D. Remedy for an Article 10 violation remains dismissal with prejudice. 

IV. THE SIXTH AMENDMENT RIGHT TO SPEEDY TRIAL. BARKER 

V. WINGO, 407 U.S. 514 (1972). 

A. The Trigger: Preferral of charges. United States v. Grom, 21 M.J. 53 (C.M.A. 1985). 

B. A Balancing Test: The Barker Factors. 

1. Length of delay. 

2. Reason for delay. 

3. Assertion of the right. 

4. Prejudice to accused. 

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C. Applying Barker v. Wingo. United States v. Edmond, 41 M.J. 419 (C.A.A.F. 1995). No Sixth 

Amendment violation under Barker test. Length of delay: 176 days from preferral to trial. Reason 

for delay: witnesses unavailable due to homeport change and necessity of trying co-accused 

shipmates before granting immunity. Assertion of right: Accused did demand speedy trial. 

Prejudice: only slight prejudice; accused’s defense was not impaired; he was not restrained; he had 

not suffered abnormal anxiety because of charges. Accused had been paid and had been allowed to 

work in his rating, albeit only duties not requiring a security clearance. Held: balance weighed in 

favor of government. 

D. Constitutional right to a speedy trial does not arise until after an indictment is filed or charges are 

preferred. United States v. McGraner, 13 M.J. 408 (C.M.A. 1982). United States v. Vogan, 35 M.J. 

32 (C.M.A. 1992). Accused committed mail fraud while serving a prior court-martial sentence. He 

was placed in administrative segregation pending year-long investigation. Held: Sixth Amendment 

right to a speedy trial did not apply because of accused’s post-trial restraint. 

E. Remedy for Sixth Amendment speedy trial violation is dismissal with prejudice. 

V. FIFTH AMENDMENT RIGHT TO DUE PROCESS. 

A.	 Applies during investigatory stage, prior to preferral. 

B.	 Requires a showing of: 

1.	 Egregious or intentional tactical delay by the Government and 

2.	 Actual prejudice to the accused or his case. 

C.	 United States v. Reed, 41 M.J. 449 (C.A.A.F. 1995). Seventeen month delay between 

identification of accused as a suspect and preferral of charges did not violate due process. 

Appellant failed to meet his burden of proof to show an egregious or intentional tactical 

delay and actual prejudice. (The Court also noted that when the accused is not confined, 

the statute of limitations is the "primary protection" against pre-accusation delay.) 

D.	 Remedy for a Fifth Amendment speedy trial violation is dismissal with prejudice. 

VI.	 LITIGATING SPEEDY TRIAL ISSUES. 

A. Accused raises issue at trial by a motion to dismiss. R.C.M. 907. 

B. Speedy trial issue is waived if not raised before final adjournment. R.C.M. 907(b)(2). But see 

United States v. Britton, 26 M.J. 24 (C.M.A. 1988). “While it is the general rule that failure to make 

a timely motion at trial may estop one from raising the issue on appeal, failure to raise the issue does 

not preclude the Court of Military Review in the exercise of its powers from granting relief.” 

C. Waiver by guilty plea. “Except as provided in (conditional pleas), a plea of guilty which results 

in a finding of guilty waives any speedy trial issue as to that offense.” R.C.M. 707(e). 

D. Once defense raises issue, government has burden of persuasion to show no denial of speedy trial. 

R.C.M. 905(c)(2)(B). 

E. The government’s burden of proof on any factual issue is by a preponderance of the evidence. 

R.C.M. 905(c)(1). United States v. Cummings, 21 M.J. 987 (N.M.C.M.R. 1986). 

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F. Parties must put on evidence or agree to stipulation of fact. See United States v. Cummings, 

supra; United States v. Thompson, 29 C.M.R. 68 (C.M.A. 1960). The court is not permitted to 

consider matters in an offer of proof. A proffer is not evidence. 

G. Pretrial agreement provisions. See United States v. McLaughlin, 50 M.J. 217 (C.A.A.F. 1999). 

Arising in the context of a pretrial agreement provision, the accused challenged a provision in the 

PTA that required a waiver of a speedy trial motion. Finding that such a provision is impermissible, 

the CAAF said the Military Judge should have set aside that provision and held the Government to 

the balance of the PTA, giving the defense the chance to raise or waive the motion at trial. Absent 

this "cleaner" waiver process, the CAAF says that the accused must make a colorable or prima facie 

claim that he would have been entitled to relief on his speedy trial motion. The CAAF said the 

defense failed in this case, when the accused had been in PTC for 95 days, no prejudice was claimed 

by the defense and no demand for immediate trial was made. 

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[Back to Table of Contents] 

CHAPTER 11
 

DISCOVERY & PRODUCTION
 

I. Introduction 

II. General 

III. Government Discovery 

IV. Defense Discovery Responsibilities & Requests 

V. Regulation of Discovery 

VI. Production 

VII. Conclusion and Practice Tips 

VIII. References 

I. INTRODUCTION 

A. How to use this outline. 

1. This outline is designed to inform both the government and defense counsel what you 

must disclose if the other party asks; and what discovery you can seek from the other party. 

2. This outline contains those discovery requirements that are found in the, UCMJ, Military 

Rules of Evidence, and the Rules of Practice that relate to the exchange of information between 

the parties. The Rules of Practice contain other requirements for the exchange of information 

between the parties and the military judge, to include the exchange of information related to 

motions. Chapter 5, AR 27-10 also contains requirements for information exchanges with the 

military judge. 

3. This outline does not cover Article 32 preliminary hearings ; however, the Article 32 

preliminary hearing should be an integrated part of your discovery plan. 

B. Discovery basics. 

1. The rules for discovery establish how each party will help the other party to develop the other 

party’s case. Fundamentally, these rules govern how the parties will exchange information. 

a) Discovery is a broad term. It means attaining that which was previously unknown. 

Black’s Law Dictionary 322 (6th ed. 1991). It includes “the pre-trial devices that can be used 

by one party to obtain facts and information about the case from the other party in order to 

assist the party’s preparation for trial.” Id. 

b) Generally, one party requests discovery, to which the other party provides disclosure of 

the material. Disclosure means to bring into view or to make known. Id. at 320. The terms 

“disclosure” and “allowing to inspect” are often used interchangeably. The difference is 

really just a question of which party has to press the button on the copy machine. 

c) Discovery includes disclosure of something tangible or notice of something intangible, 

like a party’s intent to do something. 

2. The discovery rules in the military are very liberal and are designed to encourage an efficient 

system. Requiring parties to exchange information early in the process reduces pretrial motions 

practice; reduces surprise and gamesmanship; reduces delay at trial when delay is especially 

costly because the court is assembled; leads to better-informed decisions about the merits of the 

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case; and encourages early decisions concerning withdrawal of charges, motions, pleas, and 

composition of court-martial. RCM 701 analysis, app. 21, at A21-33. 

a) Showing your cards encourages realistic settlements. James W. McElhaney, Discovery is 

the Trial, A.B.A. J., Aug. 2007, at 26. 

C. Production basics. 

1. Production and discovery are different concepts. Discovery deals with case development. 

Information learned during the discovery process may or may not ultimately be introduced at 

trial. 

2. Production is where one party (typically, the defense) requests that the other party (typically, 

the government) be responsible for ensuring a witness or item of evidence makes it to the 

courthouse on the date scheduled for a motions hearing or trial. The party seeking production 

intends to call this witness or introduce this evidence at the hearing or trial. If the accused is 

denied production, or does not want to request that the government produce a witness or some 

evidence, the accused can always arrange for the production of that witness or evidence at his 

own expense (having family members drive in on sentencing but not seek reimbursement from 

the government, for example). 

3. In the federal system, the judiciary is responsible for processing witness and evidence 

requests. In the military, the command which convened the court-martial is responsible for those 

duties. The production rules found in RCM 703 explain what the defense must include in its 

requests; that the trial counsel can grant the requests; and if the trial counsel denies the request, 

that the military judge will rule on the production of the witness or evidence. RCM 703 analysis, 

app. 21, at A21-36. 

II. GENERAL 

A. UCMJ art. 46(a) (2016) is the root source for much of the military’s discovery and production 

rules: “The counsel for the Government, the counsel for the accused, and the court-martial shall have 

equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the 

President may prescribe.” 

1. For discovery, this statute is embodied in RCM 701(e), Access to Witnesses and Evidence: 

“Each party shall have adequate opportunity to prepare its case and equal opportunity to interview 

witnesses and inspect evidence. No party may unreasonably impede the access of another party 

to a witness or evidence.” 

a) Generally speaking, the government cannot require that a government representative be 

present during defense interviews of government witnesses, although in certain circumstances 

a third party observer may be permissible. United States v. Irwin, 30 M.J. 87 (C.M.A. 1990). 

If a third party observer is required, that requirement would need to apply to both defense and 

government interviews. Id. at 93. See also United States v. Killebrew, 9 M.J. 154 (C.M.A. 

1980). 

b) If the government analyzes the evidence, then the defense can analyze it too. United 

States v. Walker, 66 M.J. 721 (N-M. Ct. Crim. App. 2008) (in a capital trial, the military 

judge erred when he refused to allow the defense experts to conduct independent testing of 

physical evidence admitted a trial). 

2. For production, this statute is embodied in RCM 703(a): “The prosecution and defense and 

the court-martial shall have equal opportunity to obtain witnesses and evidence, including the 

benefit of compulsory process.” 

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B. Ethical considerations. AR 27-26, para. 3.4. 

1. It is unethical to unlawfully obstruct another party’s access to evidence, to make a frivolous 

discovery request, or fail to make a reasonably diligent effort to comply with a proper discovery 

request from an opposing party. Rule 3.4(a) and (d). 

2. “Subject to evidentiary privileges, the right of an opposing party, including the Government, 

to obtain evidence through discovery or subpoena is an important procedural right.” (Comment to 

rule). 

3. The ABA Standards for Criminal Justice, which apply to Army lawyers to the extent that they 

do not conflict with AR 27-26, contains additional ethical considerations. For example, the 

Standards contain guidance on how to deal with a witness that asks a party whether or not she 

should communicate with the other party (see Standard 3-3.1 and accompanying commentary) 

and whether a trial counsel should read a witness her rights for the purpose of influencing 

whether that witness should testify (Standard 3-3.2). 

C. Continuing Duty to Disclose. If, before or during the court-martial, a party discovers additional 

evidence or material previously requested or required to be produced, which is subject to discovery or 

inspection under this rule, that party shall promptly notify the other party or the military judge of the 

existence of the additional evidence or material. RCM 701(d). See United States v. Eshalomi, 23 M.J. 

12 (C.M.A. 1986); United States v. Jackson, 59 M.J. 330 (C.A.A.F. 2004); U.S. v. Stellato, 74 M.J. 

473 (C.A.A.F. 2015). 

D. Information not subject to disclosure. RCM 701(f). Disclosure is not required if the information 

is protected under the Military Rules of Evidence or if the information is attorney work product 

(notes, memoranda, or similar working papers prepared by counsel or counsel’s assistants or 

representatives). 

1. United States v. Vanderwier, 25 M.J. 263, 269 (C.M.A. 1987) (“Even though liberal, 

discovery in the military does not ‘justify unwarranted inquiries into the files and the mental 

impressions of an attorney.’”) 

2. United States v. King, 32 M.J. 709 (A.C.M.R. 1991), rev’d on other grounds, 35 M.J. 337 

(C.M.A. 1992). A defense expert is subject to a pretrial interview by TC, but a defense 

“representative” under MRE 502 is not. It was improper for TC to communicate with defense 

representative concerning interview with appellant. 

3. United States v. Vanderbilt, 58 M.J. 725 (N-M. Ct. Crim. App. 2003) (holding that a civilian 

witness’ agreement to testify pursuant to a pretrial agreement with the U.S. Attorney’s Office 

does not waive that witness’ attorney-client privilege regarding statement made to his attorney 

during the course of pretrial negotiations). 

III. GOVERNMENT DISCOVERY RESPONSIBILITIES AND 

REQUESTS 

A. Mandatory disclosure or notice requirements for trial counsel. 

1. Evidence that reasonably tends to negate guilt, reduces the degree of guilt, or reduces 

punishment (disclose as soon as practicable). 

a) Sources. 

(1) RCM 701(a)(6). The trial counsel shall disclose evidence which reasonably tends to: 

(a) Negate guilt; 

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(b) Reduce the degree of guilt; or 

(c) Reduce the punishment. 

(2) Brady v. Maryland, 373 U.S. 83 (1963). In a death penalty case, the government did 

not disclose a statement where the codefendant admitted to being the actual killer. The 

Court stated that the government must disclose evidence that is favorable to the accused 

and material to either guilt or punishment. 

(3) AR 27-26, para. 3.8(d). Trial counsel will disclose all evidence that tends to: 

(a) Negate guilt; 

(b) Mitigate the offense; or 

(c) Mitigate the sentence. 

(d) See United States v. Behenna, 71 M.J. 228 (C.A.A.F 2012); United States 

v. Kinzer, 39 M.J. 559, 562 (A.C.M.R. 1994); United States v. Adens, 56 M.J. 

724 (Army Ct. Crim. App. 2002). 

b) Favorable. 

(1) Impeachment information. Banks v. Dretke, 124 S. Ct. 1256 (2004); Strickler v. 

Greene, 527 U.S. 263, 281 (1999); Kyles v. Whitley, 514 U.S. 419 (1995); United States 

v. Bagley, 473 U.S. 667 (1985); Giglio v. United States, 405 U.S. 150 (1972). 

(2) This impeachment information may include: 

(a) Any promise of immunity or leniency offered to a witness in exchange for 

testimony. See, e.g., Giglio v. United States, 405 U.S. 150 (1972); Napue v. 

Illinois, 360 U.S. 264 (1959); U.S. v. Coleman, 72 M.J. 184 (2013). 

(b) Specific instances of conduct of a witness for the purpose of attacking the 

witness’s credibility or character for truthfulness. See, e.g., United States v. 

Watson, 31 M.J. 49 (C.M.A. 1990) (finding evidence that witness had 

monetary interest in outcome of case could have been favorable); United 

States v. Mahoney, 58 M.J. 346 (C.A.A.F. 2003) (holding that trial counsel’s 

failure to disclose a letter impeaching government’s expert witness was 

reversible error). 

(c) Evidence in the form of opinion or reputation as to a witness’s character 

for truthfulness. 

(d) Prior inconsistent statements. See, e.g., United States v. Romano, 46 M.J. 

269 (C.A.A.F. 1997); Graves v. Cockrell, 351 F. 3d 156 (5th Cir. 2003). See 

also MRE 613(a) 

(e) Information to suggest that a witness is biased. See, e.g., Bagley, 473 U.S. 

at 667; Banks, 124 S. Ct. 1256 (2004) (finding that the State’s failure to 

disclose that key state witness in capital sentencing proceeding was a paid 

government informant and played an important role in setting up Banks’ arrest 

was error). 

(f) United States v. Romano, 46 M.J. 269 (C.A.A.F. 1997). The trial counsel 

had a duty to disclose statements by witnesses at the Art. 32 investigation of 

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co-accuseds, where the prior statements were inconsistent with the 

government’s main witness’ testimony at trial. 

c) Scope of the government’s duty. 

(1) The prosecutor does not have to have actual knowledge of the evidence to commit a 

Brady violation. See Kyles v. Whitley, 514 U.S. 419 (1995); Giglio v. United States, 405 

U.S. 150 (1972); United States v. Mahoney, 58 M.J. 346 (C.A.A.F. 2003); Bailey v. Rae, 

339 F.3d 1107 (9th Cir. 2003). 

(2) The government may be required to look beyond its files for exculpatory evidence. 

United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999). The scope of the government’s 

duty to search with beyond the prosecutor’s own files generally is limited to: 

(a) The files of law enforcement authorities that have participated in the 

investigation of the subject matter of the charged offenses. Id. at 441. 

(i) United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir. 1989) (the 

“prosecutor will be deemed to have knowledge of and access to anything 

in the possession, custody, or control of any federal agency participating 

in the same investigation of the defendant.”) 

(ii) United States v. Simmons, 38 M.J. 376 (C.M.A. 1993) (holding that 

trial counsel must exercise due diligence in discovering the results of 

exams and tests which are in possession of CID). 

(iii)United States v. Sebring, 44 M.J. 805 (N-M. Ct. Crim. App. 1996) 

(holding that trial counsel had a duty to discover quality control 

investigation into problems at Navy drug lab that tested the accused’s 

urine sample). 

(iv)Kyles v. Whitley, 514 U.S. at 437 (“the individual prosecutor has a 

duty to learn of any favorable evidence known to the others acting on the 

government’s behalf in the case, including the police”). 

(b) Investigative files in a related case maintained by an entity closely aligned 

with the prosecution. United States v. Williams, 50 M.J. at 441. 

(i) United States v. Hankins, 872 F. Supp. 170, 173 (D.N.J. 1995) (“when 

the government is pursuing both a civil and criminal prosecution against a 

defendant stemming from the same underlying activity, the government 

must search both the civil and criminal files in search of exculpatory 

material.”) 

(c) Investigative files of tangential or unrelated investigations if specifically 

requested by the defense. Williams, 50 M.J. at 441; United States v. Veksler, 

62 F.3d 544 (3d Cir. 1995) (the request provides constructive notice to the 

prosecution about the existence of the files). (These requests should also be 

analyzed under RCM 701(a)(2).) 

(i) United States v. Green, 37 M.J. 88, 89 (C.M.A. 1993). The defense 

requested “[a]ny record of prior conviction, and/or nonjudicial punishment 

of” any government witness. The trial counsel responded without 

comment. The CID agent had an Art. 15 for fraternization, false claim, 

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and larceny. Error was harmless beyond a reasonable doubt because the 

CID agent was only used to authenticate physical evidence. 

(d) Evidence in the hands of government witnesses which the government 

counsel knows about. “The RCMs generally do not place on the government 

a duty to search for exculpatory evidence held by people or entities not under 

its control, such as a witness; nevertheless, a trial counsel cannot avoid 

discovery obligations by remaining willfully ignorant of evidence that 

reasonably tends to be exculpatory, even if that evidence is in the hands of a 

government witness instead of the government; this prohibition against willful 

ignorance has special force in the military justice system, which mandates that 

an accused be afforded the equal opportunity to inspect evidence.” U.S. v. 

Stellato, 74 M.J. 473 (C.A.A.F. 2016) . 

(3) The Brady rule is designed to ensure the defendant learns of exculpatory evidence 

that is known only to the government. If the defendant knows or should know the 

essential facts permitting him to take advantage of the exculpatory evidence (like the 

witness’ identity), then the government does not have a duty to disclose the information. 

United States v. Grossman, 843 F.2d 78, 85 (2d Cir. 1988) (no Brady violation when the 

defense knew the witness’ name; that he might have testified before a grand jury; and that 

the testimony might have been favorable). 

(4) U.S. v. Stellato, 74 M.J. 473 (C.A.A.F. 2015). 

The government’s duty under the RCMs of disclosing exculpatory evidence 

encompasses more than producing what was in its physical possession, but 

also what is in its control; trial counsel must review their own case files for 

exculpatory evidence and must also exercise due diligence and good faith in 

learning about any evidence favorable to the defense known to the others 

acting on the government’s behalf in the case, including the police; in regard 

to the latter point, a trial counsel’s duty to search beyond his or her own 

prosecution files is generally limited to: (1) the files of law enforcement 

authorities that have participated in the investigation of the subject matter of 

the charged offenses; (2) investigative files in a related case maintained by an 

entity closely aligned with the prosecution; and (3) other files, as designated 

in a defense discovery request, that involved a specified type of information 

within a specified entity; however, this list is not exhaustive because trial 

counsel’s duty to search beyond his own files will depend in any particular 

case on the relationship of the other governmental entity to the prosecution 

and the nature of the defense discovery request 

d) Understanding and applying RCM 701(a)(6) and Brady at trial. 

(1) Applying RCM 701(a)(6) and Brady at trial is not that difficult. Typically, these 

issues arise when the government makes a late disclosure or the defense discovers this 

evidence on its own late in the process. Everyone knows about the evidence (they are, 

after all, litigating about it). The real problem is that the defense needs more time to 

prepare for trial based on this newly discovered evidence. The military judge just needs 

to fashion a just action in response under RCM 701(g), which will probably be to grant a 

continuance. 

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(a) Whether disclosure is sufficiently complete or timely to satisfy Brady can 

only be evaluated in terms of “the sufficiency, under the circumstances, of the 

defense’s opportunity to use the evidence when disclosure is made.” Leka v. 

Portuondo, 257 F.3d 89, 100 (2d Cir. 2001). “The opportunity for use under 

Brady is the opportunity for a responsible lawyer to use the information with 

some degree of calculation and forethought.” Id. at 103. 

(2) The key point is that, in the military, under RCM 701(a)(6) (and for Army attorneys, 

under AR 27-26, para. 3.8(d)), the trial counsel must always disclose favorable matter, 

whether or not that matter may later be found to be material or not. 

(3) The RCM 701(a)(6) language uses the phrase “reasonably tends” rather than the 

Brady term “material.” Under Brady, if the government fails to disclose favorable 

information, that non-disclosure violates due process only if the matter was material. 

Kyles v. Whitley, 514 U.S. 419, 434 (1995); Cone v. Bell, 129 S.Ct. 1769 (2009). If a 

local jurisdiction has not implemented rules like RCM 701(a)(6) or AR 27-26, para. 

3.8(d), then the prosecutor might consider whether favorable evidence is material before 

disclosing. That is not the case in our practice. 

(4) The phrase “reasonably tends” can be readily applied at during trial proceedings, 

where the parties are arguing prospectively. The term “material” is essentially a test for 

prejudice that is applied retrospectively, on appeal, where the defense has only now 

learned of the evidence. The issue on appeal is whether the first trial should be set aside 

based on this discovery violation. As such, much of the case law related to the term 

“material” may not translate well to litigation at trial. At trial, use “reasonably tends.” 

(5) The case law that has developed around the term “favorable” does have application at 

trial litigation, but again, if the issue is being litigated at trial, then the defense knows 

about the evidence and the real issue is whether the defense has enough time to prepare 

based on that new knowledge. And, if the defense has made a discovery request under 

RCM 701(a)(2), the defense does not have to make a showing that the evidence is 

“favorable.” Under that rule, the information only needs to be “material.” 

e) Understanding and applying RCM 701(a)(6) and Brady on appeal. 

(1) Applying RCM 701(a)(6) and Brady on appeal is more complex. The issue now is 

whether the matter was favorable; whether the government failed to properly disclose; 

and whether the defendant suffered prejudice as a result (the “material” inquiry). See 

generally, Strickler v. Greene, 527 U.S. 263 (1999). 

(2) Favorable. Discussed above. 

(3) If there is no specific request by the defense, use material. 

(a) A failure to disclose is material if there is a reasonable probability that 

there would have been a different result at trial had the evidence been 

disclosed. Kyles v. Whitley, 514 U.S. 419, 434 (1995). The Supreme Court in 

Banks v. Dretke, 540 U.S. 668 (2004), reiterated that the touchstone of 

materiality is the Kyles case. 

(b) “The question is not whether the defendant would more likely than not 

have received a different verdict with the evidence, but whether in its absence 

he received a fair trial, understood as a trial resulting in a verdict worthy of 

confidence.” Kyles, 514 U.S. at 434. 

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(c) In cases of knowing use of perjured testimony by the prosecutor, the 

failure to disclose favorable evidence is material unless the failure to disclose 

is harmless beyond a reasonable doubt. United States v. Bagley, 473 U.S. 667 

(1985). 

(4) If there is a specific defense request under RCM 701, then use harmless beyond a 

reasonable doubt. 

(a) Where the defense makes a specific discovery request under RCM 

701(a)(2) and the government fails to disclose that evidence, the standard of 

review is harmless beyond a reasonable doubt. United States v. Roberts, 59 

M.J. 323 (C.A.A.F. 2004). This heightened standard is often incorrectly 

confused with Brady material analysis (reasonable probability of different 

result). See United States v. Figueroa 55 M.J. 525 (A.F. Ct. Crim. App. 

2001). 

(b) The source of the “harmless beyond a reasonable doubt” standard is 

Article 46 and RCM 701, not Brady. United States v. Eshalomi, 23 M.J. 12 

(C.M.A. 1986); United States v. Hart, 29 M.J. 407 (C.M.A. 1990); Roberts, 

59 M.J. 323. 

f) Comparison to RCM 701(a)(2). (For more discussion of RCM 701(a)(2), see section B.1 

below). 

(1) If the defense makes a specific discovery request under RCM 701(a)(2) , the 

government must provide the information if, among other things, it is material to the 

preparation of the defense. Unlike RCM 701(a)(6) and Brady, there is no requirement 

that the information be “favorable.” It can be unfavorable and still be material to the 

preparation of the defense. 

(2) Unlike RCM 701(a)(6) and Brady, the government only has to disclose RCM
 

701(a)(2) information if requested by the defense.
 

(3) The scope of the government’s duty to locate the evidence is different under RCM 

701(a)(2) than under RCM 701(a)(6) and Brady. Under RCM 701(a)(2), the trial counsel 

must search that which is within the “possession, custody, or control of military 

authorities,” which includes non law-enforcement authorities. Under RCM 701(a)(6) and 

Brady, the trial counsel must search her files, files of other law enforcement agencies that 

have been involved in the investigation, files of related cases maintained by an entity 

closely aligned with the prosecution. 

g) Miscellaneous. 

(1) The duty to disclose favorable evidence exists even without a request by the accused. 

United States v. Agurs, 427 U.S. 97, 107 (1976). 

(2) Bad faith on the part of the government not required. Brady v. Maryland, 373 U.S. 

83 (1963). 

(3) The Constitution does not require the pre-guilty plea disclosure of impeachment 

information. The Court noted that disclosure of impeachment information relates to the 

fairness of a trial, as opposed to the voluntariness of a plea. Impeachment information, 

the Court declared, is particularly difficult to characterize “as critical information of 

which the defendant must always be aware prior to pleading guilty given the random way 

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in which such information may, or may not, help a particular defendant.” United States 

v. Ruiz, 536 U.S. 622 (2002). 

2.	 Charges (as soon as practicable). RCM 308(a). 

a) Within 24 hours to both accused and defense counsel. Rules of Practice, at 1. 

3.	 Allied papers (as soon as practicable after service of charges). 701(a)(1):
 

a) Any papers that accompanied the charges when referred;
 

b) The convening orders.
 

c) Also, ERB/ORB. Rules of Practice, at 1.
 

4.	 Sworn or signed statements (as soon as practicable after service of charges). RCM 701(a)(1): 

a) Any sworn or signed statement relating to an offense charged which is in the possession 

of the trial counsel. 

5.	 Report of Article 32preliminary hearing (promptly). RCM 405(j)(3). 

6.	 Merits witnesses (before the beginning of the trial on the merits). RCM 701(a)(3). 

a) The trial counsel shall notify the defense of the names and addresses of the witnesses the 

trial counsel intends to call: 

(1) In the prosecution case-in-chief; and 

(2) To rebut a defense of alibi, innocent ingestion, or lack of mental responsibility, when 

the trial counsel has received timely notice of such a defense. 

b)	 The Rules of Practice, at 21, requires notice ten days prior to trial. 

7.	 Prior convictions of the accused (before arraignment). RCM 701(a)(4). 

a) The trial counsel shall notify the defense of any records of prior civilian or court-martial 

convictions of the accused of which the trial counsel is aware and which the trial counsel may 

offer on the merits for any purpose, including impeachment. 

8.	 “Section III” disclosures under the Military Rules of Evidence. 

a) Grants of immunity or leniency (prior to arraignment or within a reasonable time before 

the witness testifies). MRE 301. The grant must be reduced to writing. See also Giglio v. 

United States, 405 U.S. 150 (1972). 

b) Accused’s statements (prior to arraignment). MRE 304(d). The prosecution must 

disclose all statements of the accused, oral or written, that are relevant to the case known to 

the trial counsel, and within the control of the Armed Forces, that the prosecution intends to 

offer against the accused at trial. “All statements:” 

(1) Includes remarks made during informal conversations. United States v. Callara, 21 

M.J. 259, 262 (C.M.A. 1986). 

(2) Is not limited to those made to military superiors or law enforcement. United States v. 

Trimper, 28 M.J. 460, 468 (C.M.A. 1989). 

(3) Provide timely notice of an intent to offer a statement that was not disclosed prior to 

arraignment. MRE 304(d)(2). 

c) Evidence seized from the accused or property owned by the accused (prior to 

arraignment). MRE 311(d)(1). The prosecution shall disclose all evidence seized from the 

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accused or property owned by the accused, that it intends to offer into evidence against the 

accused at trial. 

(1) Provide timely notice of an intent to offer this evidence that was not disclosed prior 

to arraignment. MRE 311(d)(2)(B). 

d) Identifications (prior to arraignment). MRE 321(c)(1). The prosecution shall disclose all 

evidence of prior identifications of the accused that it intends to offer into evidence against 

the accused at trial. 

(1) Provide timely notice of an intent to offer lineup evidence that was not disclosed 

prior to arraignment. MRE 321(c)(2)(B). 

e) The Rules of Practice, at 3, requires disclosure not later than two duty days after the trial 

date is set if arraignment is the day of trial. 

9. Similar sex assault or molestation crimes (5 days prior to trial). MRE 413 and 414. 

a) If the government intends to offer evidence of similar crimes (sexual assault or child 

molestation), the trial counsel must notify the defense of its intent and disclose the evidence. 

10. Testing may consume only available samples of evidence. United States v. Garries, 22 M.J. 

288, 293 (C.M.A. 1986). Inform the accused when testing may consume the only available 

samples and permit the defense an opportunity to have a representative present. 

11. Residual hearsay (sufficiently in advance of trial to provide fair opportunity to respond). 

MRE 807. 

a) The proponent of residual hearsay must give the opponent notice of the intent to offer 

out-of-court statements as residual hearsay. See United States v. Holt, 58 M.J. 227 (C.A.A.F. 

2003) (holding that Air Force Court of Criminal Appeals abused its discretion when it 

affirmed the introduction of residual hearsay statement when there was no indication in the 

record as to whether the required notice was given and by misapplying the foundational 

requirement of necessity). 

12. Aggravating circumstances in capital cases (before arraignment). RCM 1004(b)(1)(B). 

13. Judicial notice of a foreign law (reasonable time). MRE 201A(b). 

14. Original writing in possession of other party. MRE 1004(3). 

15. Evidence of a conviction more than 10 years old (sufficient advance notice as to provide a 

fair opportunity to contest the use). MRE 609(b). 

16. Notice of intent to employ an expert at government expense (in advance of employment). 

RCM 703(d). 

B.	 Disclosures and notices made upon defense request. 

1.	 Documents and tangible objects (after service of charges). RCM 701(a)(2)(A). 

a) Books, papers, documents, photographs, tangible objects, buildings, or places, AND 

b) In the possession, custody, or control of military authorities, AND 

c) Either intended for use by the trial counsel as evidence in the case-in-chief OR material 

to the preparation of the defense; 

(1) Unlike RCM 701(a)(6) and Brady, this matter does not have to be favorable – just 

material to the preparation of the defense. Unfavorable matter can be material to the 

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preparation of the defense. See United States v. Adens, 56 M.J. 724 (Army Ct. Crim. 

App. 2002). 

(a) The definition of “material” in Black’s Law Dictionary includes matter 

that is of “such a nature that knowledge of the item would affect a person’s 

decision-making process.” Black’s Law Dictionary 1066 (9th ed. 2009). 

(b) The decisions might affect how to plead (see generally United States v. 

Adens, 56 M.J. 724 (Army Ct. Crim. App. 2002); United States v. Trigueros, 

69 M.J. 604, 611 (A. Ct. Crim. App. 2010)) or to pursue lines of investigation, 

defenses, or trial strategies (United States v. Eshalomi, 22 M.J. 12, 27 (C.M.A. 

1986); United States v. Webb, 66 M.J. 89 (C.A.A.F. 2008)). 

(c) Evidence might be material if the defense could use it to persuade the 

convening authority not to refer the case. United States v. Eshalomi, 22 M.J. 

12, 28 (C.M.A. 1986)). 

(d) There is no requirement that “material” matters be known to be admissible 

at trial or that the government intend to introduce it. See United States v. 

Luke, 69 M.J. 309 (C.A.A.F. 2011). 

(2) Where the defense makes a specific discovery request and the government fails to 

disclose that evidence, or where there is prosecutorial misconduct, the standard of review 

is harmless beyond a reasonable doubt. United States v. Roberts, 59 M.J. 323 (C.A.A.F. 

2004). 

(a) Some of the military judge’s decisions are reviewed under the abuse of 

discretion standard. A military judge abuses her discretion when her factual 

findings are clearly erroneous or she applies the wrong law. Next, the 

appellate courts review the decision that the matter is “material to the 

preparation of the defense” under a de nevo standard. If the appellate court 

finds that the material should have been disclosed, then the appellate courts 

apply “harmless beyond a reasonable doubt” to test for prejudice. Roberts, 59 

M.J. at 326. 

(3) Courts often incorrectly confuse this analysis with Brady analysis. See United States 

v. Figueroa 55 M.J. 525 (A.F. Ct. Crim. App. 2001). The obligations under RCM 

701(a)(2) are in addition to the obligations found under Brady. 

(4) Trial counsel’s duty to search. The government must make good faith efforts to 

comply with the requests. United States v. Williams, 50 M.J. 436, 441 (C.A.A.F. 1999). 

“The government cannot intentionally remain ignorant and then claim it exercised due 

diligence.” United States v. Trigueros, 69 M.J. 604, 611 (A. Ct. Crim. App. 2010); See 

also U.S. v. Stellato, 47 M.J. 473 (2015). 

(5) Trial counsel’s rebuttal evidence on the merits. 

(a) Government must disclose evidence that is “material to preparation of 

defense” under R.C.M. 701(a)(2) regardless of “whether the government 

intends to offer the evidence in its case-in-chief, in rebuttal, or not at all.” 

United States v. Adens, 56 M.J. 724 (Army Ct. Crim. App. 2002). 

(b) In Adens, the government knew the defense theory of the case and knew of 

evidence that was unfavorable to that defense; did not present that evidence 

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during a direct examination but instead waited for the defense to crossexamine a government witness based on the defense theory; then the 

government introduced the evidence in re-direct examination of that witness. 

While stating that RCM 701(a)(2) includes rebuttal evidence, the court noted 

that technically this evidence was introduced in the government case-in-chief. 

Because this failure to disclose was pursuant to a specific request, court 

reviewed under the harmless beyond a reasonable doubt standard, found 

material prejudice existed, and reversed. 

(c) “[A] trial counsel who holds back material evidence for possible use in 

rebuttal to ambush the defense runs a risk . . . In the exercise of that control, a 

military judge is entitled to exclude prosecution evidence in rebuttal, if the 

judge concludes that it should have been offered in the prosecution case-inchief . . .” United States v. Murphy, 33 M.J. 323 (C.M.A. 1991). 

2. Reports (after service of charges). RCM 701(a)(2)(B). 

a) Results or reports of physical or mental examinations, and of scientific tests or
 

experiments, AND
 

b) In the possession, custody, or control of military authorities, AND 

c) Either intended for use by the trial counsel as evidence in the case-in-chief OR material 

to the preparation of the defense; 

d) United States v. Jackson, 59 M.J. 330 (C.A.A.F. 2004). Defense counsel specifically 

requested “any reports, memos for record or other documentation relating to Quality Control 

and/or other documentation relating to Quality Control and/or inspections pertaining to 

quality control at the Brooks Lab for the three quarters prior to [the accused]’s sample being 

tested, and the available quarters since [the accused]’s sample was tested.” The lab failed to 

identify a blind quality control sample by reporting a negative sample as a positive less than 

four months after the accused’s sample was tested and less than three months after the 

defense’s request. The trial counsel failed to discover and disclose the report to the defense. 

That failure violated the accused’s rights under RCM 701(a)(2)(B). The CAAF found 

prejudice because had the information been disclosed, the defense could have used the 

information to demonstrate the existence of quality control problems. 

3. Sentencing information (upon request). RCM 701(a)(5). 

a) Written material that will be presented by the prosecution during the presentencing 

proceedings. 

(1) Trial counsel are not required to written matters intended to be offered in rebuttal of 

an accused’s presentencing case where the matter could not have been offered during 

government’s presentencing case. United States v. Clark, 37 M.J. 1098 (N.M.C.M.R. 

1993). 

b) Names and addresses of witnesses the trial counsel intends to call during the 

presentencing proceedings. 

(1) The Rules of Practice, at 21, requires notice ten days prior to trial and do not require 

a defense request for this information. 

4. Notice of uncharged misconduct (reasonable notice in advance of trial). MRE 404(b). 

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a) Upon defense request, the government must provide pretrial notice of the general nature 

of evidence of other crimes, wrongs, or acts which it intends to introduce at trial. 

5. Statements by a witness that has testified (after testimony). RCM 914. 

a) A witness, not the accued, testifies. Upon a motion by the party who did not call the 

witness, the judge shall order disclosure of any “statement” by the witness that relates to the 

subject of his testimony. 

b) RCM 914 is a counterpart to the Jencks Act, 18 U.S.C. § 3500. Much of what the 

government would have to disclose to the defense under RCM 914 will also fall under other 

discovery rules like RCM 701(a)(1, 2, 6) and Brady. 

(1) Under RCM 701(a)(1), for example, the government must disclose all sworn or 

signed statements relating to a charged offense 

(2) Includes a substantially verbatim account of an oral statement made by the witness 

that is recorded contemporaneously with the oral statement. See United States v. Holmes, 

25 M.J. 674 (A.F.C.M.R. 1987). 

(3) A substantially verbatim recital of an oral statement made by the witness that is 

recorded contemporaneously with the making of the oral statement and contained in a 

stenolineart, mechanical, electrical, or other recording. RCM 914(f)(2). 

(4) CID Agent investigator notes. If the agent testifies or if a witness who has reviewed 

and approved the agent’s notes testifies, the notes must be produced under this rule. See 

Goldberg v. United States, 425 U.S. 94 (1976) and United States v. Smaldone, 484 F. 2d 

311 (10th Cir. 1973). If the agent does not testify, then the defense will have to look to 

another rule to seek discovery. 

(5) Article 32 testimony. 

(a) United States v. Lewis, 38 M.J. 501 (A.C.M.R. 1993). CID agent testifies 

at trial. Defense motion to strike because tape recordings of his Article 32 

testimony erased by legal clerk. The trial judge correctly denied the motion 

when the accused failed to show that the government acted in bad faith 

causing the destruction or loss of the Article 32 tapes and the agent’s 

testimony was internally consistent and corroborated by other witnesses. 

(b) United States v. Marsh, 21 M.J. 445 (C.M.A. 1986). The Jencks Act 

applies to courts-martial and to statements made by witnesses at an Article 32 

Investigation. Negligent loss of Article 32 tapes, without any intent to 

suppress, does not require the court to strike the testimony of the witness. 

(6) Administrative board hearings. United States v. Staley, 36 M.J. 896 (A.F.C.M.R. 

1993). Military judge found that statements made by witnesses before an administrative 

discharge board were within the general mandate of RCM 914. Destruction of the tape 

recording of the testimony was in good faith; thus, exclusion of the witnesses’ testimony 

was not required. 

(7) Confidential informant’s notes. 

(a) United States v. Guthrie, 25 M.J. 808 (A.C.M.R. 1988). No Jencks Act 

violation when a handwritten statement was destroyed after a typed version 

was created and adopted by the witness. 

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(b) United States v. Douglas, 32 M.J. 694 (A.F.C.M.R. 1991). An informant 

did not keep his notes about an investigation. Lesson to be learned: 

“Whenever military law enforcement agents request that an informant prepare 

written notes regarding an on-going investigation, those notes should be 

obtained from the informant and included in the investigative case file.” Id. at 

698 n.2. 

c) Remedy for non-disclosure. “The military judge shall order that the testimony of the 

witness be disregarded by the trier of fact and that the trial proceed, or, if it is the trial counsel 

who elects not to comply, shall declare a mistrial if required in the interest of justice.” RCM 

914(e). 

6. Writings used to refresh memory (while testifying, or before testifying if the judge 

determines it is necessary in the interest of justice). MRE 612. 

a) Remedy for non-disclosure. “The military judge shall make any order justice requires, 

except that when the prosecution elects not to comply, the order shall be one striking the 

testimony . . . or a mistrial.” 

7. Inconsistent prior statements (on request). MRE 613(a). 

C. Government requests. 

1. Names and addresses of sentencing witnesses. RCM 701(b)(1)(B)(i). Due upon request. 

2. Written sentencing materials. RCM 701(b)(1)(B)(ii). Due upon request. 

3. Reciprocal discovery. If the defense requests discovery under RCM 701(a)(2), upon 

compliance with such request by the government, the defense, on request of the trial counsel, 

shall permit the trial counsel to inspect: 

a) Papers, documents, photographs, objects within the possession, custody and control of 

the defense and which the defense intends to introduce as evidence in the defense case-inchief. RCM 701(b)(3). Due upon government request and government compliance with 

defense request. 

b) Reports of physical or mental examinations and scientific tests or experiments within the 

possession, custody and control of the defense and which the defense intends to introduce as 

evidence in the defense case-in-chief or which were prepared by a defense witness who will 

be called at trial. RCM 701(b)(4). Due upon government request and government compliance 

with defense request. 

4. Statements by a witness that testifies (after testifying, upon motion). RCM 914. 

a) A witness, not the accused, testifies. Upon a motion by the party who did not call the 

witness, the judge shall order disclosure of any “statement” by the witness that relates to the 

subject of his testimony. 

b) RCM 914 is a counterpart to the Jencks Act, 18 U.S.C. § 3500. 

c) For a complete discussion of RCM 914 and the Jencks Act, see paragraph IV.b.5 above. 

5. Writings used to refresh memory (while testifying, or before testifying if the judge 

determines it is necessary in the interest of justice). MRE 612. 

a) Keep track of what your witness looks at in preparation for testifying. 

6. Inconsistent prior statements (on request). MRE 613(a). 

7. Full contents of the sanity board (upon motion). MRE 302(c). 

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a) If the defense offers expert testimony concerning the mental condition of the accused, the 

military judge shall order the release of the full contents (except for statements made by the 

accused). 

b) If the defense also offers the statements made by the accused at the sanity board, the 

military judge may also order the disclosure of those statements. 

D. Practice tip. Note that if the trial counsel does not ask for certain information, the defense is 

under no obligation to provide it – so ask for it. 

IV. DEFENSE DISCOVERY RESPONSIBILITIES AND REQUESTS 

A. Mandatory disclosure or notice requirements for defense counsel. 

1. Merits witnesses (before beginning of trial on the merits). RCM 701(b)(1)(A). 

a) The defense shall notify the trial counsel of the names and addresses of all witnesses, 

other than the accused, whom the defense intends to call during the defense case-in-chief. 

b) The Rules of Practice, at 21, requires notice ten days prior to trial. 

2. Merits witnesses’ sworn or signed statements (before beginning of trial on the merits). RCM 

701(b)(1)(A). 

a) The defense shall provide all sworn or signed statements known by the defense to have 

been made by such witnesses in connection with the case. 

b) The Rules of Practice, at 21, requires notice ten days prior to trial. 

3. Notice of certain defenses (before the beginning of trial on the merits). RCM 701(b)(2). The 

defense shall give notice before the beginning of trial on the merits of its intent to offer the 

defense of: 

a) Alibi, to include the place or places at which the defense claims the accused to have been 

at the time of the alleged offense. 

b) Innocent ingestion, to include the place or places where, and the circumstances under 

which the defense claims the accused innocently ingested the substances in question. 

(1) United States v. Lewis, 51 M.J. 376 (C.A.A.F. 1999). The trial judge erroneously 

prevented the accused from presenting an innocent ingestion defense because the defense 

could not give notice of places where the innocent ingestion occurred and witnesses to be 

relied upon. The judge prevented the accused from raising this defense herself by her 

testimony alone. CAAF reversed holding that RCM 701(b)(2) does not require 

corroborative witnesses or direct evidence as a condition for raising innocent ingestion. 

c) Lack of mental responsibility. 

d) Notice shall include places, circumstances, and witnesses to be relied upon for these 

defenses. 

e) The Rules of Practice, at 4, requires notice at least ten days before trial. 

4. Notice of intent to introduce expert testimony as to the accused’s mental condition (before 

beginning of trial on the merits). RCM 701(b)(2). 

a) Note the relationship to MRE 302(c). If the defense does then offer this testimony, the 

defense may have to disclose the full contents of the sanity board report. 

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5. Evidence of the victim’s sexual behavior or predisposition (5 days prior to entry of plea). 

MRE 412. 

6. Residual hearsay (sufficiently in advance of trial to provide a fair opportunity to respond). 

MRE 807. 

a) See United States v. Holt, 58 M.J. 227 (C.A.A.F. 2003) (holding that Air Force Court of 

Criminal Appeals abused its discretion when it affirmed the introduction of residual hearsay 

statement when there was no indication in the record as to whether the required notice was 

given and by misapplying the foundational requirement of necessity). 

7. Notice of intent to disclose classified or government information. MRE 505(h)(1), 506(h). 

8. Judicial notice of a foreign law (reasonable time). MRE 201A(b). 

9. Testimony of accused for limited purpose regarding a confession, MRE 304(f); seizures, 

MRE 311(f); or lineups, MRE 321(c)(2)(B). 

10. Original writing in possession of other party. MRE 1004(3). 

11. Evidence of a conviction more than 10 years old (sufficient advance notice as to provide a 

fair opportunity to contest the use). MRE 609(b). 

12. Notice of plea and forum. Unless the judge sets a different deadline, defense counsel will 

notify the trial counsel and judge, in writing, at least ten duty days before the date of trial 

(whichever is earlier), of the forum and pleas. Rules for Practice, at 3. 

B. Disclosures or notices made upon government request (not based on reciprocity). 

1. Sentencing witnesses (no time given). RCM 701(b)(1)(B)(i). Provide the trial counsel with 

the names and addresses of any witness whom the defense intends to call at the presentencing 

proceeding. 

2. Written presenting material (no time given). RCM 701(b)(1)(B)(ii). Permit the trial counsel 

to inspect any written material that will be presented by the defense at the presentencing 

proceeding. 

3. Statements by a witness that testifies (after testifying, upon motion). RCM 914. 

a) A witness, not the accused, testifies. Upon a motion by the party who did not call the 

witness, the judge shall order disclosure of any “statement” by the witness that relates to the 

subject of his testimony. 

b) RCM 914 is a counterpart to the Jencks Act, 18 U.S.C. § 3500. Some of what the 

defense would have disclose is also covered by RCM 701(b)(1)(A): merits witnesses’ sworn 

or signed statements. 

c) For a complete discussion of RCM 914 and the Jencks Act, see paragraph IV.b.5 above. 

4. Writings used to refresh recollection (while testifying, or before testifying if the judge 

determines it is necessary in the interest of justice). MRE 612. 

a) Keep track of what your witness looks at in preparation for testifying. 

5. Prior inconsistent statements by a witness (on request). MRE 613(a). 

6. Full contents of the sanity board report (upon the granting by the military judge of a motion 

to compel disclosure). MRE 302(c). 

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a) If the defense offers expert testimony concerning the mental condition of the accused, the 

military judge shall order the release of the full contents (except for statements made by the 

accused). 

b) If the defense also offers the statements made by the accused at the sanity board, the 

military judge may also order the disclosure of those statements. 

C. Disclosures made upon government requests (based on reciprocity). If the defense requests 

discovery under RCM 701(a)(2), upon compliance with such request by the government, the defense, 

on request of the trial counsel, shall permit the trial counsel to inspect: 

1. Papers, documents, photographs, objects within the possession, custody and control of the 

defense and which the defense intends to introduce as evidence in the defense case-in-chief. 

RCM 701(b)(3). 

a) Defense not required to disclose surrebuttal evidence. United States v. Stewart, 29 M.J. 

621 (C.G.C.M.R. 1989). 

2. Reports of physical or mental examinations and scientific tests or experiments within the 

possession, custody and control of the defense and which the defense intends to introduce as 

evidence in the defense case-in-chief or which were prepared by a defense witness who will be 

called at trial. RCM 701(b)(4). 

D. Defense requests. 

1. Documents and tangible objects. RCM 701(a)(2)(A). 

a) Where the defense makes a specific discovery request and the government fails to 

disclose that evidence, or where there is prosecutorial misconduct, the standard of review is 

harmless beyond a reasonable doubt. 

b) “Where an appellant demonstrates that the Government failed to disclose discoverable 

evidence in response to a specific request or as a result of prosecutorial misconduct, the 

appellant will be entitled to relief unless the Government can show that nondisclosure was 

harmless beyond a reasonable doubt.” United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004). 

See also United States v. Green, 37 M.J. 88, 90 (C.M.A. 1993) (Wiss, J., concurring); United 

States v. Stone, 37 M.J. 558 (A.C.M.R. 1993) (finding nondisclosure harmless beyond a 

reasonable doubt). 

c) For more, see the RCM 701(a)(2) discussion in section IV above. 

2. Reports. RCM 701(a)(2)(B) 

3. Sentencing materials and witnesses. RCM 701(a)(5): 

4. Notice of uncharged misconduct (reasonable notice in advance of trial). MRE 404(b). 

5. Statements by a witness that has testified (after testimony). RCM 914. 

a) A witness, not the accused, testifies. Upon a motion by the party who did not call the 

witness, the judge shall order disclosure of any “statement” by the witness that relates to the 

subject of his testimony. 

b) RCM 914 is a counterpart to the Jencks Act, 18 U.S.C. § 3500. 

c) For more, see the RCM 914 in section IV above. 

6. Writings used to refresh memory (while testifying, or before testifying if the judge 

determines it is necessary in the interest of justice). MRE 612. 

E. Practice tips. 

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1. Note that if the defense counsel does not ask for certain information, the government is under 

no obligation to provide it unless another rule or due process separately requires disclosure – so 

ask for it. 

2. If defense counsel can identify what they are looking for and make a specific discovery 

request and the government does not disclose that evidence, then the accused will benefit from a 

higher standard of review on appeal. 

3. Defense counsel should generally make an RCM 701(a)(2) request. Note that after making 

that request, if the government makes a reciprocal request, the defense only has to disclose that 

evidence that it intends to introduce in its case-in-chief. Defense counsel do not usually introduce 

damaging evidence during its case-in-chief. They only introduce positive information – and this 

positive information may further negotiations. If the circumstances of your case weight against 

making an RCM 701(a)(2) request, remember to request the other items in this section. 

V. REGULATION OF DISCOVERY 

A. General. The basic rules for discovery, to include the basic remedies available for 

noncompliance, come from RCM 701(g). However, many discovery rules contain their own 

remedies for noncompliance. See RCMs 308(c), 405(j)(4), 914(e), 1004(b)(1)(A); MREs 301(c)(2), 

302(d), 304(d)(2)(B), 311(d)(2)(B), 321(c)(2)(B), 505, 506, 507, 612. 

B. Pretrial orders. 

1. The military judge may issue pretrial orders that regulate when the parties will provide 

notices and make disclosures to the other party. 

a) “The military judge may, consistent with this rule, specify the time, place, and manner of 

making discovery and may prescribe such terms and conditions as are just.” RCM 701(g)(1) 

b) The judiciary “may make rules of court not inconsistent with these rules for the conduct 

of court-martial proceedings.” RCM 108. 

C. Protective and modifying orders. 

1. A party may seek relief from a discovery obligation by providing the military judge with a 

sufficient showing that relief is warranted. RCM 701(g)(2). See generally RCM 906(b)(7) 

(motion for appropriate relief – discovery). 

2. The military judge may order that discovery or inspection be denied, restricted, or deferred, 

or make such other order as is appropriate. RCM 701(g)(2). 

3. In camera review. 

a) Rules. 

(1) Upon motion, the military judge may permit a party to make such showing, in whole 

or in part, in writing to be inspected only by the judge. RCM 701(g)(2). 

(2) If the military judge withholds some or all of the reviewed material, the entire text of 

the material must be sealed and attached to the record of trial as an appellate exhibit 

RCM 701(g)(2). 

(a) Failure of military judge to seal and attach military records of 

government's key witness, after denying defense request for their disclosure 

for impeachment purposes, made proper appellate review impossible. United 

States v. Abrams, 50 M.J. 361 (C.A.A.F. 1999). 

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b) The framework for deciding (1) whether to conduct an in camera review in first place, 

and (2) whether to then grant the request to prevent disclosure of certain information is not 

entirely clear. The cases on this issue tend to move between RCM 701 and 703 without much 

precision even though there are significant differences between the two rules (see 

subparagraph d below). A suggested framework for in camera reviews of discovery requests 

under RCM 701(a)(2) (see generally United States v. Abrams, 50 M.J. 361 (C.A.A.F. 1999); 

United States v. Trigueros, 69 M.J. 604 (A. Ct. Crim. App. Mar. 29, 2010)) is: 

(1) Does the party allege with a sufficient showing that some of what is being requested 

is not subject to disclosure under RCM 701(f) (privileged) or is otherwise confidential? 

If yes, then the court should grant in camera review. 

(2) Is the matter protected from disclosure under the Military Rules of Evidence
 

(privileges)? If yes, then do not disclose but attach to the record. 

(a) MRE 506. United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998). 

(3) Is the matter otherwise confidential? Potentially confidential matters include: 

(a) Medical records, mental health records, therapist notes. United States v. 

Cano, 61 M.J. 74 (C.A.A.F. 2005); United States v. Abrams, 50 M.J. 361 

(C.A.A.F. 1999); United States v. Briggs, 48 M.J. 143 (C.A.A.F. 1998); 

United States v. Kelly, 52 M.J. 773 (Army Ct. Crim. App. 1999); United 

States v. Trigueros, 69 M.J. 604 (Army Ct. Crim. App. Mar. 29, 2010). 

(b) Personnel records. United States v. Kelly, 52 M.J. 773 (Army Ct. Crim. 

App. 1999). 

(c) Inspector General’s Report of Inquiry. United States v. Sanchez, 50 M.J. 

506 (A.F. Ct. Crim. App. 1999). 

(4) If no, end the in camera review. If yes, is the matter material to the preparation of 

the defense? 

(a) Military judges can allow the defense counsel to perform a review for 

materiality under a protective order to enable them to make informed 

arguments about discoverability. United States v. Abrams, 50 M.J. 361, 364 

(C.A.A.F. 1999). 

(b) When trial judges consider whether the information is material to the 

preparation of the defense they should remember that they may not be in the 

best position to judge what is relevant and what is not: “An apparently 

innocent phrase, a chance remark, a reference to what appears to be a neutral 

person or event, the identity of a caller or the individual on the other end of a 

telephone, or even the manner of speaking or using words may have special 

significance to one who knows the more intimate facts of an accused's life. 

And yet that information may be wholly colorless and devoid of meaning to 

one less well acquainted with all relevant circumstances.” Alderman v. United 

States, 394 U.S. 165, 182 (1969). 

(5) If yes, disclose with a protective order. If no, do not disclose but attach to the record. 

c) The military judge should perform the in camera review rather than having a trial counsel 

state that sought after records do not contain exculpatory material. United States v. Briggs, 

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48 M.J. 143 (C.A.A.F. 1998); United States v. Kelly, 52 M.J. 773 (Army Ct. Crim. App. 

1999). 

d) Comparison with RCM 703(f) in camera analysis (see RCM 703(f) discussion in section 

VII below). 

(1) Timing. Under RCM 701(g), a party has a disclosure obligation. The party tells the 

military judge that it believes the matter is not subject to disclosure and asks for an in 

camera review. The military judge grants in camera review before deciding on the 

importance of the information (whether the matter is material to the preparation of the 

defense). Under RCM 703(f), the government has already issued a subpoena for the 

evidence (the “relevant and necessary” decision has already been made) and now the 

custodian of the evidence requests relief from the subpoena. The in camera review 

comes after the decision on the importance of the information. The military judge is now 

dealing with how to enforce that subpoena. 

(2) Person seeking relief. Under RCM 701(g), the person seeking relief is a party to the 

trial. Under RCM 703(f), the person seeking relief is the custodian of the evidence (not 

one of the parties). 

(3) Remedy. Under RCM 701(g), once the military judge has ruled, the party that was 

denied discovery has no relief until appeal. Under RCM 703(f)(4), the party denied 

production of the evidence then seeks relief under RCM 703(f)(2) (unavailable evidence). 

Remember, at this point, the evidence has already been determined to be relevant and 

necessary. Now, the threshold for relief is raised to “such central importance to an issue 

that is essential to a fair trial and no adequate substitute.” 

D. Remedies for Nondisclosure. RCM 701(g)(3). At any time during the court-martial, if a party 

has failed to comply with RCM 701, the military judge can take one or more of the following actions: 

1. Order discovery. RCM 701(g)(3)(A). 

2. Grant a continuance (common remedy). RCM 701(g)(3)(B); 

a) United States v. Trimper, 28 M.J. 460 (C.M.A. 1989). Defense counsel moved to 

preclude use of a urinalysis report that was disclosed by the government just before trial. The 

military judge denied the request for exclusion, but granted a continuance, which was an 

appropriate remedy. 

b) United States v. Murphy, 33 M.J. 323 (C.M.A. 1991). The Government did not disclose 

its sole witness (an eyewitness accomplice) that they learned of the night before trial, but 

used the witness on rebuttal. Exclusion of testimony was not necessary. Violation of 

disclosure was adequately remedied by military judge’s actions in granting accused a 

continuance for several hours to allow the defense to interview the witness, read her 

statement, interview the investigator that interviewed the witness, and conduct background 

checks of the witness. 

3. Prohibit introduction of the evidence, calling a witness, or raising a defense not disclosed. 

RCM 701(g)(3)(C). 

a) The discussion to RCM 701(g)(3) includes factors to consider in determining whether to 

grant this remedy: 

(1) The extent of disadvantage that resulted from a failure to disclose; 

(2) The reason for the failure to disclose; 

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(3) The extent to which later events mitigated the disadvantage caused by the failure to 

disclose; 

(4) Any other relevant factors. 

b) Excluding defense evidence. 

(1) RCM 701(g)(3) discussion. 

(a) Only use this sanction upon finding that the defense counsel’s failure to 

comply was willful and motivated by a desire to obtain tactical advantage or 

to conceal a plan present fabricated testimony. 

(b) Only use if alternative sanctions could not have minimized the prejudice 

to the Government. 

(c) Before imposing the sanction, the military judge must weigh the 

defendant’s right to compulsory process against the countervailing public 

interests, including: 

(i) The integrity of the adversarial process; 

(ii) The interest in the fair and efficient administration of justice; 

(iii)The potential prejudice to the truth-determining function of the trial 

process. 

(2) The Sixth Amendment right to present witnesses is not absolute. The sword of 

compulsory process cannot be used irresponsibly. Excluding testimony is allowable; 

however, alternative sanctions will be adequate and appropriate in most cases. Taylor v. 

Illinois, 484 U.S. 400, 414 (1988). 

(3) United States v. Nobles, 422 U.S. 225 (1975). Defense expert testimony excluded 

because expert refused to permit discovery of a “highly relevant” report. “The Sixth 

Amendment does not confer the right to present testimony free from the legitimate 

demands of the adversarial system; one cannot invoke the Sixth Amendment as a 

justification for presenting what might have been a half-truth.” Id. at 241. 

(4) Michigan v. Lucas, 500 U.S. 145 (1991). The Court held that the state court of 

appeals erred in holding that the exclusion of evidence for the violation of a notice 

requirement under a state rape-shield law always violates the Sixth Amendment. The 

preclusion may be appropriate where willful misconduct is designed to gain a tactical 

advantage over the prosecution. 

(5) United States v. Pomarleau, 57 M.J. 352 (C.A.A.F. 2002). The military judge erred 

by excluding defense evidence as a discovery sanction without conducting a fact-finding 

hearing or otherwise ascertaining the cause for untimely disclosure by the defense, and by 

not making findings of fact on the record as to whether less restrictive measures could 

have remedied any prejudice to the government. 

(6) United States v. Preuss, 34 M.J. 688 (N.M.C.M.R. 1991). Applying the RCM 

703(g)(3) discussion factors, the court found that the military judge abused his discretion 

by excluding the defense’s alibi witness because the defense counsel failed to give notice 

of its intent to offer the alibi defense before the beginning of the trial. 

4. Such other order as is just under the circumstances. 

a) Mistrial. RCM 915. 

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b) Order a deposition. 

(1) Depositions are primarily used to preserve testimony for later use at trial; however, 

depositions can be used for discovery when the government has improperly impeded 

defense access to a witness. RCM 702(c)(3)(A) discussion; RCM 702(a) analysis, app. 

21, at A21-35. 

(2) Where the government substantially impaired the defense counsel’s ability to 

interview a witness, the defense could have sought a deposition. United States v. 

Killebrew, 9 M.J. 154 (C.M.A. 1980). 

(3) Where the government substantially impaired the defense’s ability to interview 

witnesses, “timely use of the deposition process would provide the defense with 

meaningful discovery of these witnesses' testimony . . .” United States v. Cumberledge, 6 

M.J. 203, 206 n.13 (C.M.A. 1979). 

c) Count the delay caused by the noncompliance against the government when calculating 

speedy trial. United States v. Tebsherany, 32 M.J. 351, 354 (C.M.A. 1991) “[T]ime requested 

by counsel to examine material not disclosed until the pretrial investigation might, under facts 

showing bad faith, be charged to the United States in accounting for pretrial delay.” 

d) United States v. Adens, 56 M.J. 724 (Army Ct. Crim. App. 2002). The government failed 

to disclose unfavorable but material evidence to the defense. A government witness then 

testified early on in the trial regarding this undisclosed evidence. The remedies fashioned by 

military judge for the government’s failure to disclose the evidence included making the 

assistant trial counsel lead counsel for the remainder of the case, with the “quiet assistance” 

of the lead counsel, and exclusion of the undisclosed evidence and some related evidence. 

The military judge failed, however, to instruct the members to disregard the testimony from 

the government witness, given five days earlier, about the evidence. The court held that while 

the decision not to instruct the members was “understandable under the circumstances,” the 

failure to instruct negated the validity of the other remedies. 

e) Dismissal with Prejudice. U.S. v. Stellato, 74 M.J. 473 (C.A.A.F. 2015). On interlocutory 

appeal by the Government, CAAF upheld the military judge’s decision to dismiss with 

prejudice when the government’s multiple and repeated discovery violations resulted in lost 

or unaccounted for evidence which compromised the accused’s ability to mount a defense. 

f) 

E. Post-Trial: A military judge has the authority under Article 39(a), UCMJ to convene a post-trial 

session (but before authentication of the record) to consider a discovery violation and to take 

whatever remedial action is appropriate to include ordering a new trial. United States v. Webb, 66 

M.J. 89 (C.A.A.F. 2008). 

1. The Brady/RCM 701(a)(6) disclosure requirement lasts beyond the trial. If any member of 

the Judge Advocate Legal Service (JALS) learns of new, credible, and material evidence or 

information creating a reasonable likelihood that an accused did not commit an offence of which 

the accused has been convicted must disclose. Army Regulation 27-10, par. 5-51. 

a) After adjournment but before initial action, trial counsels who learn of such evidence 

must disclose to defense counsel and make reasonable efforts to investigate. Any other 

member of JALS making such a discovery shall disclose to the SJA. AR 27-10, par. 5-51b. 

b) After initial action but before final action, any member of JALS who learns of such 

evidence or information myst promptly notify the Army Court of Criminal Appeals Clerk of 

Court. AR 27-10, par. 5-51c. 

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c) After final action, Any member of JALS who learns of such evidence or information 

must notify The Office of the Judge Advocate General. From there, the Criminal Law 

Division must promptly forward the notice to the last known address of the accused. AR 27­

10, par. 5-51b. 

VI. PRODUCTION 

A. General. 

1. RCM 703 provides that “[t]he prosecution and defense and the court-martial shall have equal 

opportunity to obtain witnesses and evidence, including the benefit of compulsory process.” This 

rule is based on Article 46, UCMJ and implements the accused’s Sixth Amendment right to 

compulsory process. 

a) Merits witnesses. Each party is entitled to production of any witness whose testimony on 

a matter in issue on the merits or on an interlocutory question would be relevant and 

necessary. RCM 703(b)(1). 

(1) Necessary means the evidence is not cumulative and would contribute to a party’s 

presentation of the case in some positive way on a matter in issue. RCM 703(b)(1) 

discussion. A matter is not in issue when it is stipulated as a fact. 

b) Sentencing witnesses. Each party is entitled to the production of any witness whose 

testimony on sentencing is required under RCM 1001(e). RCM 703(b)(2). 

(1) There is much greater latitude during the presentencing proceeding to receive 

information from means other than the testimony of witnesses in the courtroom. RCM 

1001(e)(1). 

c) Evidence. Each party is entitled to production of evidence that is relevant and necessary. 

RCM(f)(1). 

(1) Necessary means the evidence is not cumulative and would contribute to a party’s 

presentation of the case in some positive way on a matter in issue. RCM 703(f)(1) 

discussion. A matter is not in issue when it is stipulated as a fact. 

2. How the process works. 

a) The parties identify the witness or evidence that they want produced. 

b) The defense submits its requests to the trial counsel. 

c) If the trial counsel contends that some defense witnesses or evidence do not satisfy the 

production standards, the trial counsel tells the defense. The defense may file a motion for 

production with the military judge. 

d) The military judge rules on production. 

e) The trial counsel then arranges for the presence of those required witnesses and that 

evidence, to include prosecution witnesses and evidence. The trial counsel arranges for 

orders or subpoenas of witnesses, depending on the witnesses’ status, and arranges for 

requests or subpoenas for evidence, depending on who controls the evidence. 

B. Production standards for the prosecution. 

1. Witnesses. 

a) The trial counsel shall obtain the presence of witnesses for the prosecution whose 

testimony the trial counsel considers relevant and necessary. RCM 703(c)(1). 

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2.	 Evidence 

a) The trial counsel shall obtain evidence that the trial counsel considers relevant and 

necessary. RCM 703(f)(3), relating back to RCM 703(c)(1). 

C.	 Production standards for the defense. 

1. Witnesses. RCM 703(c)(2). The defense shall submit to the trial counsel a written list of the 

witnesses that the defense wants the government to produce. 

a)	 Merits and interlocutory questions. Requests shall include: 

(1) A synopsis of the expected testimony sufficient to show its relevance and necessity. 

(2) The contact information found in RCM 703(c)(2)(B)(i). See, e.g., United States v. 

Barreto, 57 M.J. 127 (C.A.A.F. 2002). 

b)	 Sentencing. Requests shall include: 

(1) A synopsis of the expected testimony and why personal appearance is necessary 

under the standards set forth in RCM 1001(e). Personal appearance is required only if all 

of the below are satisfied: 

(a) The testimony is necessary for consideration of a matter of substantial 

significance to a determination of an appropriate sentence. 

(b) The weight or credibility of the testimony is of substantial significance to 

the determination of an appropriate sentence. 

(c) The other party refuses to enter into a stipulation of fact. 

(d) Other forms of evidence (depositions, interrogatories, former testimony, 

testimony by remote means) would not be sufficient in the determination of an 

appropriate sentence. 

(e) The significance of the personal appearance to the determination of an 

appropriate sentence, when balanced against the practical difficulties of 

producing the witness, favors production. 

(i) See RCM 1001(e)(2)(E) for a list of factors related to this balancing 

test. 

(2) The contact information found in RCM 703(c)(2)(B)(ii). 

2.	 Evidence. RCM 703(f)(3).
 

a) Defense requests for evidence shall:
 

(1) List the items of evidence to be produced, and 

(2) Must include a description of each item sufficient to show its relevance and 

necessity. 

(3) Must include a statement of where it can be obtained; and, if known, the name, 

address, and telephone number of the custodian of the evidence. 

b) Generally, the government has no responsibility to create records to satisfy demands for 

them. United States v. Birbeck, 35 M.J. 519, 522 (A.F.C.M.R. 1992) (military judge did not 

err in denying defense request for the government to create laboratory reports on two 

negative urinalysis). The court used “discovery” language rather than “production” language. 

If the government will not produce a report, the defense can seek the employment of an 

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expert witness, who can then test the evidence and produced a report. See, e.g., United States 

v. Walker, 66 M.J. 721 (N-M. Ct. Crim. App. 2008). 

D. Regulation of production. 

1. If the trial counsel contends that the defense requests for production are not required by the 

rules, then the defense may file a motion for production. RCM 703(c)(2)(D); RCM 906(b)(7). 

2. Whether a witness shall be produced to testify during the presentencing proceeding is a 

matter within the discretion of the military judge, subject to the production rules. RCM 

1001(e)(1). 

3. If the military judge grants a motion for production, the trial counsel shall produce the 

witness or evidence or the proceedings shall be abated. RCM 703(c)(2)(D), 703(f)(3). 

4. The standard of review for the denial of a request for production is abuse of discretion. 

United States v. Powell, 49 M.J. 220, 225 (C.A.A.F. 1998); United States v. Mosley, 42 M.J. 300, 

303 (C.A.A.F. 1995). If the military judge abused her discretion, then the test for prejudice is 

harmless beyond a reasonable doubt. Powell, 49 M.J. at 225. 

5. Remote testimony. RCM 703(b)(1). 

a) With the consent of both the accused and the Government, the military judge may 

authorize any witness to testify via remote means. 

b) Over a party’s objection, the military judge may authorize any witness to testify on 

interlocutory questions (not on issues of ultimate guilt) via remote means or similar 

technology if: 

(1) The practical difficulties of producing the witness outweigh the significance of the 

witness’ personal appearance. 

(2) Factors include: costs of producing the witness; the timing of the request for 

production; potential delay caused by production; willingness of the witness to testify in 

person; the likelihood of significant interference with military operations; and for child 

witnesses, the traumatic effect of providing in-court testimony. 

6. Unavailable witnesses and evidence. 

a) A party is not entitled to the presence of a witness who is unavailable under MRE 804(a) 

or evidence that is destroyed, lost, or otherwise not subject to compulsory process. RCM 

703(b)(3) and (f)(2). 

b) However, if the testimony or the evidence is of such central importance to an issue that is 

essential to a fair trial, and there is no adequate substitute, the military judge shall: 

(1) Grant a continuance or other relief in order to attempt to secure the witness or 

evidence; or 

(2) Shall abate the proceedings. 

c) A party cannot seek a remedy under this rule if they are the reason that the evidence is 

unavailable. RCM 703(f)(2). Otherwise, there is no “bad faith” requirement, unlike the 

constitutional jurisprudence regarding preservation and destruction of evidence (discussed 

below). The defense can seek a remedy under this rule even if the government was not at 

fault when destroying the evidence, or was simply negligent in losing the evidence. 

d) Lost or destroyed evidence instruction. 

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(1) “If you find that the State has . . . allowed to be destroyed or lost any evidence 

whose content or quality are in issue, you may infer that the true fact is against the State’s 

interest.” Arizona v. Youngblood, 488 U.S. 51, 59-60 (1988) (Stevens, J., concurring). 

(2) “An adverse inference instruction is an appropriate curative measure for improper 

destruction of evidence.” United States v. Ellis, 57 M.J. 375 (C.A.A.F. 2002). 

e) Cases. 

(1) United States v. Terry, 66 M.J. 514 (A.F. Ct. Crim. App. 2008). After the first trial, 

the government lost or destroyed almost all of the physical evidence in a rape case. The 

second trial judge dismissed the related charges. The appellate court found that there 

were adequate substitutes and the evidence did not go to an issue of central importance. 

(2) United States v. Barreto, 57 M.J. 127 (C.A.A.F. 2002). Appellant caused a car 

accident, killing a passenger and injuring himself. The government was unable to locate 

two unknown witnesses to the fatal traffic accident whom the defense requested, despite 

efforts that included running ads in German and U.S. newspapers. The defense moved to 

compel their production, or, in the alternative, abate the proceedings until the witnesses 

could be produced. The court found that these witnesses were unavailable and that other 

eyewitnesses with unobstructed views of the accident who testified at trial were an 

adequate substitute for the potential testimony of the unknown witnesses. 

(3) United States v. Eiland, 39 M.J. 566 (N.M.C.M.R. 1993). Military judge abated the 

proceedings when the government failed to produce two critical witnesses requested by 

the defense in a rape case. One witness was the doctor who examined the alleged victim 

and the other witness was another employee of the hospital who observed her demeanor. 

Defense refused to stipulate. No abuse of discretion in abating trial when testimony is “of 

such central importance to an issue that it is essential to a fair trial.” Id. at 568. 

(4) United States v. Ellis, 57 M.J. 375 (C.A.A.F. 2002). Appellant convicted of 

involuntary manslaughter and assault upon a child. After an autopsy was performed on 

the victim, the brain and its meninges were stored pursuant to laboratory regulations. 

Several months later, the specimen container was accidentally discarded when the 

laboratory was moved to a new location. The defense expert was never able to examine 

the specimens. At trial, the military judge never gave an adverse inference instruction 

relating to the lost specimen, and did not stop the trial counsel from commenting on the 

defense’s inability to examine it. The court did not reach the RCM 703(f)(2) analysis, 

finding any error was harmless. 

E. Duty to preserve evidence. 

1. Due process test. Unless the government acts in bad faith, failure to preserve potentially 

useful evidence does not constitute a denial of due process 

a) Arizona v. Youngblood, 488 U.S. 51 (1988). The Government did not preserve clothes or 

perform certain tests on physical evidence taken from a child victim who had been sexually 

assaulted. The Government did not make use of any of the materials in its case-in-chief. The 

Court stated “that unless a criminal defendant can show bad faith on the part of the police, 

failure to preserve potentially useful evidence does not constitute a denial of due process.” Id. 

at 58. 

(1) See also Illinois v. Fisher, 540 U.S. 544 (2004) (bad faith is the issue, even when the 

government destroys evidence for which the defense has submitted a discovery request). 

(2) Youngblood clarified California v. Trombetta, 467 U.S. 479, 488-89 (1984), which 

stated that absent bad faith, any constitutional duty to preserve evidence is limited to 

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evidence that might be expected to play a significant role in the suspect's defense; that is, 

the evidence must both possess an exculpatory value that was apparent before the 

evidence was destroyed, and be of such a nature that the defendant would be unable to 

obtain comparable evidence by other reasonably available means. Some military cases 

from the period 1984-1988 refer to Trombetta as the controlling source. 

(3) Seventeen years after his conviction, DNA testing on some remaining evidence 

cleared Youngblood. Understanding Criminal Procedure § 7.04. 

b) Military cases. 

(1) United States v. Garries, 22 M.J. 288, 293 (C.M.A. 1986). Blood stained fabric was 

consumed during testing. The court applied the Trombetta test which applied at the time 

and found no constitutional violation. However, the court stated, “Under Article 46, the 

defense is entitled to equal access to all evidence, whether or not it is apparently 

exculpatory. . . . Thus, the better practice is to inform the accused when testing may 

consume the only available samples and permit the defense an opportunity to have a 

representative present.” 

(2) United States v. Mobley, 31 M.J. 273 (C.M.A. 1990). Crime scene processors took 

evidence (including swatches) from a car and then released the car to the owners before 

the defense had an opportunity to examine the car. At trial, the defense made a due 

process objection. The court found no bad faith, and the evidence collected from the car 

was still available for testing. 

(3) United States v. Gill, 37 M.J. 501 (A.F.C.M.R. 1993). The accused is not entitled to 

relief on due process grounds for the government’s failure to preserve evidence. 

(4) United States v. Terry, 66 M.J. 514 (A.F. Ct. Crim. App. 2008). After the first trial, 

the government lost or destroyed almost all of the physical evidence in a rape case. The 

court conducted due process analysis, finding no bad faith. (The court also conducted 

separate, R.C.M. 703(f)(2) analysis). 

(5) United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015). The duty to preserve evidence 

includes: 

(a) Evidence that has an apparent exculpatory value and that has no 

comparable substitute 

(b) Evidence that is of such central importance to the defense that it is 

essential to a fair trial 

(c) Statements of witnesses testifying at trial 

2. Contrast with RCM 703(f)(2). 

a) The rules for unavailable evidence in RCM 703(f)(2) are consistent with but broader than 

the due process jurisprudence related to the preservation of evidence. Many states declined 

to follow Youngblood and either enacted rules for production or made rulings under state 

constitutions that provided the same protections that are found under RCM 703(f)(2): no 

requirement for bad faith, and a “critically important to a fair trial” test. See generally 

Understanding Criminal Procedure § 7.04. 

b) At trial, counsel and military judges should generally apply the RCM 703(f)(2) analysis. 

See generally United States v. Kern, 22 M.J. 49 (C.M.A. 1986). If the government did act in 

bad faith, then shift analysis to the due process jurisprudence. 

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c) RCM 703(f)(2) is also a prospective rule – the parties at trial know that the evidence is 

unavailable. The question on appeal is whether the military judge correctly applied the rule. 

If the accused did not know at trial that that some evidence had been destroyed, and so could 

not litigate under RCM 703(f)(2), then the question on appeal would be whether due process 

was violated and so that analysis would be used. Appellate courts can conduct separate 

analysis under both tests. See United States v. Terry, 66 M.J. 514 (A.F. Ct. Crim. App. 

2008). 

3. Service regulations may provide further rights and remedies. 

a) United States v. Manuel, 43 M.J. 282 (C.A.A.F. 1995). Destruction of accused’s positive 

urine sample one month after testing violated Air Force regulation and DoD directive. Lower 

court’s suppression of positive results not an abuse of discretion where court concluded that 

standards for preserving samples conferred a substantial right on the accused. 

b) United States v. Madigan, 63 M.J. 118 (C.A.A.F. 2006). An Air Force Institute of 

Pathology regulation required that positive urine samples be kept for two years. The lab 

inadvertently destroyed the accused’s sample before the two years were up. The defense did 

not request access to the sample during this period. Later, the defense discovered the sample 

was destroyed. The court found that applicable regulations concerning retention of drug 

testing samples conferred a right on servicemembers to discover evidence, and suppression is 

an appropriate remedy for lost or destroyed evidence in those cases. If the defense does not 

make a request to preserve the evidence before the period ends, they have essentially become 

the reason that the evidence is unavailable and so cannot seek a remedy under RCM 

703(f)(2). 

c) Department of Defense policy requires retention for one year. Dep't of Defense, Instr. 

1010.16, Technical Procedures for the Military Personnel Drug Abuse Testing Program para. 

E1.9.2 (Dec. 9, 1994) 

F. Procedures. 

1. Witnesses. 

a) Military Personnel: Request that the witness’ commander issue any necessary orders. 

RCM 703(e)(1). 

b) Civilian Witnesses: Subpoena. RCM 703(e)(2). 

(1) Use for trial or depositions but not for pretrial interviews or Article 32 investigations. 

RCM 703(e)(2)(B) discussion. 

(2) Issued by the trial counsel. RCM 703(e)(2)(C). 

(3) Use DD Form 453. See the content requirements of RCM 703(e)(2)(B) and follow 

the requirements of RCM 703(e)(2). 

2. Evidence. 

a) Evidence is under the control of the government. Trial counsel notifies the custodian of 

the evidence of the time, place, and date evidence is required and requesting custodian to 

send or deliver the evidence. RCM 703(f)(4)(A). 

b) Evidence not under control of the government. Subpoena. RCM 703(f)(4)(B). 

G. Enforcement. 

1. Witnesses. Article 47, RCM 703(e)(2)(G). 

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a) If the witness neglects or refuses to appear, a military judge (or the convening authority if 

there is no military judge), may issue a warrant of attachment. RCM 703(e)(2)(G)(i). 

(1) A warrant of attachment is issued only upon probable cause to believe that the 

witness was duly served with the subpoena, that fees and mileage were tendered, that the 

witness was material, that the witness refused or willfully neglected to appear, and that no 

valid excuse exists. RCM 703(e)(2)(G)(ii). 

(2) Only non-deadly force may be used to bring the witness to before the court-martial. 

RCM 703(e)(2)(G)(iv). 

b) Refusal to appear or testify is a separate offense under Article 47. 

c) Cases. 

(1) United States v. Scaff, 29 M.J. 60 (C.M.A. 1989). The military judge ordered a posttrial Article 39(a) to hear allegedly newly discovered evidence to be offered by defense 

witness. Trial counsel issued a subpoena to the defense witness, but the convening 

authority refused to pay expenses on the basis of bad advice from his SJA. The Court of 

Military Appeals determined that since the record of trial wasn’t authenticated, the judge 

could order the government to show cause why the findings and sentence should not be 

set aside or the judge could order accused released from confinement pending the motion 

for new trial. 

2. Evidence. RCM 703(f)(4)(C). 

a) If the person who has the evidence believes that compliance with the subpoena or order 

of production is unreasonable or oppressive, the person may seek relief from the military 

judge. 

b) The military judge can withdraw or modify the subpoena or order of production. 

(1) United States v. Rodriguez, 57 M.J. 765 (N-M. Ct. Crim. App. 2002). Law 

enforcement agents invited NBC for a “ride along” where an NBC videographer may 

have taped the scene of the traffic stop and search of appellant’s vehicle. The accused 

filed a motion to suppress based on violations of his Fourth Amendment rights and 

believed that the video may contain evidence in support of his motion. NBC provided a 

videotape of the broadcast material of the traffic stop but stated that it relied on its First 

Amendment privilege regarding the production of the video “outtakes” and reporter’s 

notes. The trial defense counsel requested the military judge to order production of any 

remaining videotape. The military judge denied the defense request to compel 

production. The appellate court stated that, essentially, the accused ask for production; 

NBC asked for relief; and the trial counsel supported that with a motion to quash the 

subpoena. The court found that the accused never met his burden for production: 

relevance and necessity. Even if it was, and assuming the evidence was unavailable 

under RCM 703(f)(2) because it was not subject to compulsory process, the evidence 

was not of central importance to an issue that was essential to a fair trial. The military 

judge should have at least reviewed the material in camera, though. 

c) In camera. The military judge may direct an in camera review in order to determine 

whether relief should be granted. 

(1) Note how this in camera review differs from the in camera review found in RCM 

701(g). This review comes after a subpoena has been issued, which means someone has 

decided that the matter is relevant and necessary. Now, the custodian of the evidence 

does not want to give the matter to the court. The military judge now does an in camera 

review. If the military judge agrees, the matter now has become “unavailable,” and the 

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parties shift to the unavailable evidence analysis found in RCM 703(f)(2). See the 

discussion in section VI above. 

d) Types of potentially oppressive or unreasonable subpoenas. 

(1) First Amendment claims. 

(a) United States v. Rodriguez, 57 M.J. 765 (N-M. Ct. Crim. App. 2002) 

(discussed above). 

(b) United States v. Wuterich, 67 M.J. 63 (C.A.A.F. 2008). The accused gave 

an interview to CBS. CBS broadcast a portion of the interview and the 

government issued a subpoena for the remainder. The military judge did not 

conduct an in camera review and ordered the subpoena quashed. The court 

remanded for an in camera review and suggested that if the outtakes were not 

cumulative, then production and a subpoena would be appropriate. 

(2) Medical treatment and disciplinary records of minors. United States v. Reece, 25 

M.J. 93 (C.M.A. 1987). The military judge should have conducted an in camera 

inspection of the victims’ treatment and disciplinary records. The defense counsel “made 

as specific a showing of relevance as possible, given that he was denied all access to the 

documents.” Witness credibility would be central in this case because there were no 

eyewitnesses. The court held that the military judge abused his discretion in failing to 

order production of the requested records for an in camera review. 

(3) United States v. Harding, 63 M.J. 65 (C.A.A.F. 2006) Defense counsel requested 

production of a rape victim’s medical records during discovery. Trial counsel 

subpoenaed the requested records; however the custodian, a private social worker who 

had counseled the victim, refused to produce the records. Defense counsel filed a motion 

asking the military judge to order production of the records, which he agreed to do after a 

hearing where he considered M.R.E. 513 and decided an in camera review would be 

appropriate. When the social worker still declined to produce the records, the military 

judge issued a warrant of attachment IAW R.C.M. 703(e)(2)(G). The warrant of 

attachment authorized the United States Marshal Service to seize the records and deliver 

them to the judge. The U.S. Marshal Service failed to seize the records, instead merely 

asking the social worker to produce the records, and gave up when she declined to do so. 

Faced with the government’s failure to enforce the warrant of attachment, and deciding 

that the case could not proceed without in camera consideration of the records, the 

military judge abated the proceedings with regard to the rape charge. The appellate 

courts upheld the military judge. 

VII. CONCLUSION AND PRACTICE TIPS 

A. The gaps between discovery and production can lead to Catch-22 scenarios. Say the defense 

counsel believes his client suffered an adverse reaction from a new medication. The defense counsel 

wants to review reports made to the Food and Drug Administration to see if others have had similar 

reactions. Can the defense counsel get these reports under RCM 701 or 703? Probably not. 

1. RCM 701(a)(6) and Brady do not provide a mechanism. Even if there were exculpatory 

material in the reports, the trial counsel is not obligated to disclose them – the reports are not in 

the files of a law enforcement agency that is somehow related to the case. 

2. RCM 701(a)(2) does not provide a mechanism. The reports are not in the possession, 

custody, or control of military authorities. 

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3. The defense counsel has to rely on the production rules in RCM 703. While the files are 

subject to production without subpoena (they are under the control of the Government), the 

defense counsel may not be able to make a good argument about why the matter is relevant and 

necessary – because the defense counsel has not seen them yet. 

4. The defense counsel’s only remedy may be to ask the Article 32 officer to produce the reports 

at the Article 32 hearing (RCM 405(g)(1)(B)) or ask for the reports under the Freedom of 

Information Act and then wait patiently for them to arrive, asking the military judge for 

continuances until they do. 

B. Knowing the difference between the various discovery rules and between the discovery rules and 

similar production rules is important. Be precise in your analysis. When conducting research, note 

whether the appellate court is using RCM 701 or 703 as the basis for its reasoning (and whether the 

appellate court incorrectly applied one or the other). For example: 

1. Scope of government duty to locate. Under RCM 701(a)(2), the trial counsel must search 

what is in the possession, custody, or control of military authorities, which includes non lawenforcement authorities. Under RCM 701(a)(6) and Brady, the trial counsel generally must 

search law enforcement files. Under RCM 703, the government may have to issue a subpoena to 

anyone, military or government or not. 

2. The kind of information. Under RCM 701(a)(2), the threshold is low: the matter only needs 

to be material to the preparation of the defense. Under RCM 701(a)(6) and Brady, the matter 

needs to be favorable and material. Under RCM 703, the matter needs to be relevant and 

necessary. These are all different standards. 

3. When. Under RCM 701(a)(2), the government only has to provide the information when 

asked. Under RCM 701(a)(6) and Brady, the government must disclose the matter without being 

asked. Under RCM 703, the government must product the witness or evidence if the government 

determines that it is relevant and necessary, or the military judge tells the government to produce 

it. 

4. In camera. Under RCM 701(g), the military judge grants in camera review before deciding 

on the importance of the information (whether the matter is material to the preparation of the 

defense); the person seeking relief is a party to the trial; and the party that is denied discovery has 

no relief until appeal. Under RCM 703(f), the in camera review comes after the decision on the 

importance of the information (relevant and necessary); the person seeking relief is the custodian 

of the evidence; and the party denied production of the evidence then seeks relief under RCM 

703(f)(2) (unavailable evidence). 

5. Standard on review. For specific requests under RCM 701(a)(2), the standard for prejudice is 

harmless beyond a reasonable doubt. Under RCM 701(a)(6) and Brady, the standard for 

prejudice is material (reasonable probability of different result) unless government bad faith, 

when it is harmless beyond a reasonable doubt. Under RCM 703, the standard for prejudice is 

harmless beyond a reasonable doubt. 

C. Discovery and trial advocacy. 

1. After trial advocates have framed their problem by identifying the elements at issue in the 

case and have constructed basic arguments that support their positions on those elements, the 

advocates need to develop the evidence that supports those arguments. 

2. Before you can find something, you need know what you are looking for. Develop a plan for 

finding what you need. Brainstorm. See Albert J. Moore, et al., Trial Advocacy: Inferences, 

Arguments, and Techniques (1996). 

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a) If my claim is true, what evidence indicates a motive or reason for why my claim is 

accurate? What should we expect to have happened before and after? What actually did 

happen before and after? If my claim is true, what else is likely to have occurred? 

b) How do people typically act? How do institutions typically behave? How do mechanical 

devices operate? How do people typically think? How do people typically react in emotional 

situations? 

c) What is the custom and practice? Were less restrictive alternatives available? What 

positive or negative consequences resulted or could have resulted from the conduct? 

d) What was the person’s physical ability to observe? Is there a reason they would or would 

not have seen the event? Is there a reason why they would or would not remember the event? 

Are there internal inconsistencies (if they did this, they would not have done that)? Are there 

external inconsistencies (they said they did this, but someone else says that did not happen)? 

Did the person have the authority to do what they said they did? Are there reasons the person 

would be neutral or biased? 

3. Discovery is just a part of that plan. “[T]he role of discovery is not just to get your case into 

or out of court. It’s to find the facts – the human elements – that tell the winning story.” James 

W. McElhaney, Hunt for the Winning Story, A.B.A. J., July 2006, at 22. 

4. The starting point for developing evidence is to apply a liberal amount of elbow grease. If 

you want it, go get it. If there is an obstacle between you and the evidence that you cannot get 

around, but the other party can get around the obstacle, then seek discovery. 

5. While not discussed in this outline, the Article 32 is an integral part of both party’s discovery 

plans. 

VIII. REFERENCES 

A. UCMJ art. 46 (2008). 

B. Manual for Courts-Martial, United States, R.C.M. 701, 702, 703, 914 [hereinafter MCM, RCM]. 

C. MCM, Mil. R. Evid. 301, 304, 311, 321, 404(b), 412, 413, 414, 807 [hereinafter, MRE]. 

D. U.S. Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for Lawyers (1 June 1992) 

[hereinafter, AR 27-26]. 

E. Rules of Practice before Army Courts-Martial, United States Army Trial Judiciary (15 Sept. 

2009) [hereinafter, Rules of Practice]. 

F. Joshua Dressler and Alan C. Michaels, Understanding Criminal Procedure, vol. 2: Adjudication 

(4th ed. 2006) [hereinafter, Understanding Criminal Procedure]. 

G. James W. McElhaney, Hunt for the Winning Story, A.B.A. J., July 2006, at 22. 

H. James W. McElhaney, Discovery is the Trial, A.B.A. J., Aug. 2007, at 26. 

I. Lieutenant Colonel Eric R. Carpenter, Simplifying Discovery and Production: Using Easy 

Frameworks to Evaluate the 2009 Term of Cases, Army Law., Jan. 2011, at 31. 

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IX. APPENDIX 

Discovery in the Military Justice System 

Preferral, Article 32 Preliminary Hearing, Referral (Until Arraignment) 

**This document is intended to give a general framework to help counsel understand how discovery 

works in court-martial practice. It is only a starting point and is not a substitute for the rules and cases 

actually governing discovery. 

I. Preferral 

After the accused is informed of the charges against him or her, the trial counsel should provide a 

copy of the charge sheet and associated documents (sworn statements etc.) to the defense counsel. If the 

accused does not have a defense counsel assigned, this is the time to get one detailed (work with your 

Chief of Justice). This will foster good working relations with the Trial Defense Service, streamline the 

process, and make it work better for all concerned. 

Authority Burden On Trigger/Deadline What is Required 

R.C.M. 308 Government As soon as practicable 

after preferral 

Identification of accuser 

II. Article 32 Investigation

 There is no formal requirement for disclosure under RCM 701 before the Article 32 hearing. However, 

RCM 405 does require that witnesses and evidence against the accused be produced. From a practical 

standpoint, the defense counsel should be provided with a packet that includes all charge sheets, sworn 

statements, evidence custody documents, and copies of pictures. This will streamline the process. You 

should always use a tracking document when you turn something over to the defense so that there is a 

paper trail. 

Authority Burden On Trigger/Deadline What is Required 

R.C.M. 405(j)(3) Government Promptly after report is 

completed 

Article 32 Investigating 

Officer’s Report 

III. Referral 

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 Note that many of these rules have different triggers. In practice, all evidence should be disclosed 

before arraignment, according to the dates set by the Military Judge. The Military Judge regulates 

discovery once a case is referred to trial. 

Authority Burden On Trigger/Deadline What is Required 

R.C.M. 701(a)(1) Government As soon as practicable Papers accompanying 

after service of charges the charges; convening 

orders; & statements 

R.C.M. Government As soon as practicable Evidence that 

701(a)(6)/Brady reasonably tends to be 

favorable to the defense 

Trombetta, Government Before evidence used up Inform accused that 

Youngblood, and in testing testing may consume all 

Garries available samples of 

evidence (even if that 

evidence is apparently 

not exculpatory) 

R.C.M. 701(a)(2) Government Defense Request Documents, tangible 

objects and reports etc. 

R.C.M. 701(a)(3)(B) Government Defense notice under Witnesses to rebut 

RCM 701(b)((1) or (2); certain defenses 

Before start of trial 

R.C.M. 701(a)(5) Government Defense Request Information to be used 

at sentencing 

M.R.E. 404(b) Government Defense Request Uncharged misconduct 

M.R.E. 505 Government and Defense request or Classified Information 

Defense government claim of 

privilege 

M.R.E. 506 Government Defense Request Privileged information 

other than classified 

information 

M.R.E. 507 Government (claim of Identity of informant 

privilege); Defense 

(motion to disclose) 

M.R.E. 609 Proponent Sufficient advance Notice of intent to 

notice impeach w/ > 10 year 

old conviction 

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Authority Burden On Trigger/Deadline What is Required 

R.C.M. 706(c)(3)(B) Government Completion of sanity 

board 

Mental examination of 

accused – distribution of 

the report 

R.C.M. 701(b)(1)(B) Defense Government request Pre-sentencing 

witnesses and evidence 

R.C.M. 701(b)(3) Defense Reciprocal Discovery 

(once government has 

responded to earlier 

defense discovery 

request, and has 

affirmatively requested 

this information 

pursuant to this rule) 

Documents and tangible 

objects 

R.C.M. 701(b)(4) Defense Reciprocal Discovery 

(once government has 

responded to earlier 

defense discovery 

request, and has 

affirmatively requested 

this information 

pursuant to this rule) 

Reports of results of 

mental examinations, 

tests, and scientific 

experiments 

Discovery in the Military Justice System 

Arraignment 

Authority Burden On Trigger/Deadline What is Required 

R.C.M. 701(a)(4) Government Before arraignment Prior convictions of 

accused to be offered on 

the merits for any 

reason, including 

impeachment 

M.R.E. 301 Government Before arraignment or 

within reasonable time 

before witness testifies 

Immunity 

M.R.E. 304(d) Government Before arraignment Statements of accused 

relevant to case, 

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regardless of whether 

government intends to 

use them 

M.R.E. 311(d) Government Before arraignment Property seized from 

accused 

M.R.E. 321(c) Government Before arraignment Identifications of 

accused 

R.C.M. 1004(b)(1) Government Before arraignment Capital cases – notice of 

aggravating factors 

under RCM 1004(c) 

M.R.E. 311(f) Defense Accused to testify in 

motion to suppress 

evidence seized from 

accused 

Notice that accused will 

testify for limited 

purposes of the motion 

M.R.E. 321(e) Defense Accused to testify in 

motion to suppress out 

of court identification 

Notice that accused will 

testify for limited 

purposes of the motion 

Discovery in the Military Justice System 

Trial 

Authority Burden On Trigger/Deadline What is Required 

R.C.M. 701(a)(3)(A) Government Before start of trial Witnesses in case-inchief 

M.R.E. 412(c) Proponent (normally 

defense) 

Minimum of 5 days 

before entry of pleas 

Rape shield 

M.R.E. 413/414 Government Minimum of 5 days 

before scheduled date of 

trial 

Evidence of similar 

crimes (child 

molestation and sexual 

assault cases) 

R.C.M. 914 (Jencks 

Act) 

Proponent of witness After witness testifies 

on direct, on motion of 

opposing party 

Production of 

statements concerning 

which witness testified 

(could be CID Agent 

Activity Summaries; 

Article 32 tapes; witness 

interview notes; 

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Administrative board 

proceedings; 

confidential informant’s 

notes, etc. 

R.C.M. 701(b)(1)(A) Defense Before trial on the 

merits 

Names of witnesses and 

statements 

R.C.M. 701(b)(2) Defense Before trial on the 

merits 

Notice of certain 

defenses (alibi; lack of 

mental responsibility; 

innocent ingestion, etc.) 

Post-Trial 

Remember that the duty to disclose is a continuing duty. Even if something covered by these rules is 

discovered after trial, it must be disclosed. 

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CHAPTER 12
 

EXPERT WITNESSES
 

I. Introduction 

II. Experts and Scientific Evidence Generally 

III. Production of Experts for the Defense 

Appx. Sample Defense Request Memorandum 

I. INTRODUCTION 

A. Some cases demand investigation and proof in matters involving highly technical 

evidence. Common examples are DNA, digital forensics, and various fields in medicine and 

mental health. Experts aid during investigative phases of a case in the collection and analysis 

of evidence; prior to trial in the analysis and preparation of cases; and during trial in the 

presentation of evidence and the consideration of that evidence by the members at trial. 

Ultimately, the purpose of an expert assistant or witness is to enable counsel, the judge, or the 

members to understand and apply information to their respective role in the military justice 

process. 

B. Prior to trial, the government may employ one or more experts in preparing its case. 

These may be essential witnesses in cases where the case involves understanding complex 

concepts related to computers, medicine, or other fields. 

C. Likewise, expert assistants commonly assist defense counsel in the evaluation of 

scientific or technical evidence that the government intends to offer at trial. In addition, 

expert assistants can also be helpful in evaluating and presenting certain defenses, and in the 

areas of mitigation, member selection, evaluation of physical evidence, or in providing a 

psychological evaluation of the accused. The term “expert assistant” is often used to describe 

someone detailed to the defense team to assist the accused and defense counsel during the 

investigative stage of the trial process, although expert assistance can be requested for any 

stage. 

D. Rule framework: 

1. The production of expert assistants and witnesses is governed by RCM 703; 

2. The qualifications of experts are governed by MRE 702; 

3. In general, the question of admissibility follows this line of questions: 

a) Is the expert qualified? 

b) Does the expert’s testimony help the factfinder understand other evidence or 

determine a fact in issue? 

c) Is the testimony derived from a proper source? 

d) Is the testimony relevant? 

e) Is the testimony reliable? 

f) Is the probative value of the testimony substantially outweighed by the danger of 

unfair prejudice? 

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4. If relevant, expert testimony and opinions are presumptively admissible unless they 

fail balancing under MRE 403, the witness is not qualified, or the testimony is on an 

improper basis under MRE 702 or 703; 

5. Questions regarding expert production, qualifications, and the admissibility of expert 

testimony are resolved by the military judge under MRE 104(a); 

6. Once an expert testifies, the facts and data underlying the expert’s opinion are ripe 

for cross-examination. 

II. EXPERTS AND SCIENTIFIC EVIDENCE GENERALLY 

Rule 702. Testimony by experts 

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify 

in the form of an opinion or otherwise if: 

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand 

the evidence or to determine a fact in issue; 

(b) the testimony is based on sufficient facts or data; 

(c) the testimony is the product of reliable principles and methods; and 

(d) the expert has reliably applied the principles and methods to the facts of the case. 

A. In general, the threshold for qualifying a witness as an expert is relatively low. The 

standard is, as noted in Rule 702, whether the expert has specialized knowledge based on 

sufficient and reliable information which will help the factfinder understand some issue in the 

case. As the scientific or technical demands of a particular field of expertise increase, that 

threshold also elevates. That said, the requirements of 702(a) through (d) are stated in the 

conjunctive, and a party seeking admission of expert testimony must meet all of the rule’s 

requirements. 

B. Preliminary questions concerning the availability, qualifications, relevance, propriety, 

and necessity of expert testimony are matters which must be determined by the military 

judge. See Rule 104(a). In United States v. Houser, 36 M.J. 392 (1993) the CAAF set out six 

factors that a judge should use to determine the admissibility of expert testimony. Although 

Houser was decided before the Supreme Court reached similar issues in Daubert, v. Merrell 

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Houser is consistent with Daubert, and the 

CAAF continues to follow it. See United States v. Griffin, 50 M.J. 278, 284 (1999) and 

United States v. Billings, 61 M.J. 163 (2005). The Houser factors are: 

1. Qualified Expert. To give expert testimony, a witness must qualify as an expert by 

virtue of his or her “knowledge, skill, experience, training, or education.” See Rule 702 

2. Proper Subject Matter. Expert testimony is appropriate if it would be “helpful” to 

the trier of fact. It is essential if the trier of fact could not otherwise be expected to 

understand the issues and rationally resolve them. See Rule 702. 

3. Proper Basis. The expert’s opinion may be based on admissible evidence 

“perceived by or made known to the expert at or before the hearing” or inadmissible 

hearsay if it is “of a type reasonably relied upon by experts in the particular field in 

forming opinions or inferences upon the subject. . . .” The expert’s opinion must have an 

adequate factual basis and cannot be simply a bare opinion. See Rules 702 and 703. 

4. Relevant. Expert Testimony must be relevant. See Rules 401 and 402. 

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5. Reliable. The expert’s methodology and conclusions must be reliable. See Rule 

702. 

6. Probative Value. The probative value of the expert’s opinion and the information 

comprising the basis of the opinion must not be substantially outweighed any unfair 

prejudice that could result from the expert’s testimony. See Rule 403. 

7. In United States v. Henning, 75 M.J. 187 (C.A.A.F., 2016), the CAAF again visited 

the issue of experts, technical evidence, and reliability. Applying both Houser and 

Daubert, the court held the military judge did not abuse his discretion by excluding DNA 

evidence and the testimony of an expert accompanying that evidence where the trial 

judge determined that the methods used in producing that evidence were not sufficiently 

reliable. 

C. Qualified Expert: The Expert’s Qualification to Form an Opinion. 

1. Expertise Based on Knowledge: 

a) Degrees attained from educational institutions; 

b) Other specialized training in the field; 

c) Witness licensure in a particular field and has done so (if applicable) for a 

sufficient period of time; 

d) Teaching experience in the field; 

e) Witness publications; 

f) Membership in professional organizations, honors or prizes received, previous 

expert testimony. 

2. Expertise Based on Skill and Experience. An expert due to specialized knowledge. 

See United States v. Mustafa, 22 M.J. 165 (C.M.A. 1986). 

a) United States v. Meeks, 35 M.J. 64 (C.M.A. 1992) involved testimony by an FBI 

agent concerning his “crime scene analysis” of a double homicide. The testimony 

included observations that the killer was an “organized individual” who had planned 

and spent some time in preparation for crime, was familiar with crime scene and 

victims, and acted alone. Such evidence was not too speculative for admission under 

Rule 702. 

b) United States v. Banks, 36 M.J. 150 (C.M.A. 1992). Military judge erred when 

he refused to allow defense clinical psychologist to testify about the relevance of 

specific measurements for a normal prepubertal vagina, solely because the 

psychologist was not a medical doctor. As the court noted, testimony from a 

qualified expert, not proffered as a medical doctor, would have assisted the panel in 

understanding the government’s evidence. 

c) United States v. Harris, 46 M.J. 221 (1997). Military Judge did not err in 

qualifying a highway patrolman who investigated over 1500 accidents, as an expert 

in accident reconstruction. 

d) United States v. McElhaney, 54 M.J. 120 (2000). During the sentencing phase, 

the government called an expert on future dangerousness of the accused. The expert 

said he could not diagnose the accused because he had not interviewed him nor had 

he reviewed his medical records. In spite of this and objections by defense counsel, 

the expert did testify about pedophilia and made a strong inference that the accused 

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was a pedophile who had little hope of rehabilitation. The CAAF held that it was 

error for the judge to admit this evidence. Citing Houser, the court noted that the 

expert lacked the proper foundation for this testimony, as noted by his own 

statements that he could not perform a diagnosis because of his lack of contact with 

the accused. 

e) United States v. Billings, 61 M.J. 163 (2005). To link the appellant to a stolen 

(and never recovered) Cartier Tank Francaise watch, the Government called a local 

jeweler as an expert witness to testify that a watch the appellant was wearing in a 

photograph had similar characteristics as a Tank Francaise watch. Although the 

jeweler had never actually seen a Tank Francaise watch, his twenty-five years of 

experience and general familiarity with the characteristics of Cartier watches 

qualified him as a technical expert. 

f) United States v. Flescher, 73 M.J. 303 (2014). The military judge did not hold a 

Daubert hearing and failed to properly establish the qualifications of a Sexual 

Assault Response Coordinator to testify as an expert on counterintuitive victim 

behaviors. Because the trial judge did not, inter alia, hold the hearing, expressly rule 

on a defense motion to exclude the testimony of the government’s expert, address the 

Houser factors, or make any findings of fact related to the expert’s qualifications, the 

judge’s ruling was entitled to less deference on appeal. Because the witness was not 

qualified, testified on improper bases during the testimony, and provided some 

testimony which was either not relevant or improper bolstering of the victim, the trial 

judge abused his discretion in admitting the evidence. The error was not harmless 

beyond a reasonable doubt. Accordingly, the CAAF set aside the findings on 

aggravated sexual assault, and the sentence. 

D. Proper Subject Matter: (MRE 702(a) “will help the trier of fact to understand the 

evidence or to determine a fact in issue”) 

1. Helpfulness. Expert testimony is admissible if it will assist the fact finder. There are 

two primary ways an expert’s testimony may assist. 

a) Complex Testimony. Experts can explain complex matters such as scientific 

evidence or extremely technical information that the fact finder could not understand 

without expert assistance. 

b) Unusual Applications. Experts can also help explain apparently ordinary 

evidence that may have unusual applications. Without the expert’s assistance, the 

fact finders may misinterpret the evidence. See United States v. Rivers, 49 M.J. 434 

(1998); United States v. Brown, 49 M.J. 448 (1998). 

(1) United States v. Hall, 165 F.3d 1095 (7th Cir. 1999). The trial judge did not 

abuse his discretion in excluding the defense expert on eyewitness identification. 

Even if the evidence meets the reliability prong of Daubert, it must also meet the 

helpfulness prong. Here the judge properly ruled that such testimony is not 

beyond the ken of lay jurors and there was no need for expert opinion testimony. 

(2) United States v. Dimberio, 52 M.J. 550 (A.F. Ct. Crim. App. 1999). Military 

judge excluded the testimony of defense expert who would testify about the 

alcoholism and mental problems of the accused’s wife. Air Force court affirmed 

and held the evidence was irrelevant because there was no link to her problems 

and her alleged violence. The testimony was impermissible profile evidence. 

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(3) United States v. Traum, 60 M.J. 226 (2004). To answer the question of why 

a parent would kill her child, the government called a forensic pediatrician, who 

testified to the following matters: (1) overwhelmingly, the most likely person to 

kill a child would be his or her biological parent; (2) the most common cause of 

trauma death for children under four is child maltreatment; (3) for 80% of child 

abuse fatalities, there are no prior instances of reported abuse; (4) Caitlyn died of 

non-accidental asphyxiation. The CAAF held that there was no error in 

admitting “victim profile” evidence regarding the most common cause of trauma 

death in children under four and the fact that most child abuse deaths involve 

first-time abuse reports for that child. The CAAF held that the military judge 

erred in admitting evidence that overwhelmingly, the most likely person to kill a 

child is its biological parent. In context, however, the error was harmless 

because the government already had admitted the appellant’s confession. 

2. Form of the Opinion. The foundation consists of no more than determining that the 

witness has formed an opinion, and what that opinion is. 

E. Proper Basis: The language of the rule is broad enough to allow at least three types of 

bases: facts personally observed by the expert; facts posed in a hypothetical question; and 

hearsay reports from third parties. However, expert testimony must be based on the facts of 

the case being tried. United States v. Reveles, 42 M.J. 388 (1995). 

Rule 703. Bases of an expert’s opinion testimony 

An expert may base an opinion on facts or data in the case that the expert has been made aware of 

or personally observed. If experts in the particular field would reasonably rely on those kinds of 

facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be 

admitted. If the facts or data would otherwise be inadmissible, the proponent of the opinion may 

disclose them to the members of a court-martial only if the military judge finds that their probative 

value in helping the members evaluate the opinion substantially outweighs their prejudicial effect. 

1. Personal Perception. United States v. Hammond, 17 M.J. 218 (C.M.A. 1984). The 

fact that expert did not interview or counsel victim did not render expert unqualified to 

arrive at an opinion concerning rape trauma syndrome. United States v. Snodgrass, 22 

M.J. 866 (A.C.M.R. 1986); United States v. Raya, 45 M.J. 251 (1996). Defense objected 

to social worker’s opinion that victim was exhibiting symptoms consistent with rape 

trauma accommodation syndrome and suffered from PTSD on basis that opinion was 

based solely on observing victim in court, reading reports of others and assuming facts as 

alleged by victim were true. Objection went to weight to be given expert opinion, not 

admissibility. The foundational elements include: 

a) Where and when the witness observed the fact; 

b) Who was present; 

c) How the witness observed the fact; and 

d) A description of the observed fact. 

2. Hypothetical questions (no longer required). No need to assume facts in evidence, 

but, if used, must be reasonable in light of the evidence. United States v. Breuer, 14 M.J. 

723 (A.F.C.M.R. 1982). The proponent may specify historical facts for the expert to 

assume as true, or may have the expert assume the truth of another witness or witnesses. 

3. Hearsay reports of third parties are admissible, provided the Confrontation Clause 

and other Rules of Evidence are satisfied. 

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a) “The rationale in favor of admissibility of expert testimony based on hearsay is 

that the expert is fully capable of judging for himself what is, or is not, a reliable 

basis for his opinion. This relates directly to one of the functions of the expert 

witness, namely to lend his special expertise to the issue before him.” United States 

v. Sims, 514 F.2d 147, 149 (9th Cir.), cert. denied, 423 U.S. 845 (1975). However, 

the testimony of an expert witness does not permit “smuggling in” otherwise 

inadmissible hearsay evidence. 

b) An expert may rely on otherwise inadmissible testimonial hearsay in formulating 

an admissible opinion. The question of admissibility in these cases is the degree to 

which the testifying expert conducts an independent analysis in reaching the offered 

opinion. See United States v. Katso, 74 M.J. 273 (2015). 

c) For more information on the admissibility of hearsay reports through experts, 

refer to the Deskbook Chapter on the Confrontation Clause. 

4. Examples. 

a) United States v. Neeley, 25 M.J. 105 (C.M.A. 1987), cert. denied, 484 U.S. 1011 

(1988). Psychiatrist’s testimony that she consulted with other psychologists in 

reaching her conclusion that accused had inflated results of psychiatric tests and her 

opinion was the consensus among these people was hearsay and inadmissible. 

Military judge may conduct a 403 balancing to determine if the probative value of 

this foundation evidence is outweighed by unfair prejudice. 

b) United States v. Hartford, 50 M.J. 402 (1999). Defense was not allowed to 

cross-examine the government expert about contrary opinions from two colleges. 

The defense did not call the two as witnesses and there was no evidence that the 

government expert relied on the opinions of these colleges. The CAAF held the MJ 

did not err in excluding this questioning as impermissible smuggling under Rule 703. 

c) The elements of the foundation for this basis include: 

(1) The source of the third party report; 

(2) The facts or data in the report; 

(3) If the facts are inadmissible, a showing that they are nonetheless of the type 

reasonably relied upon by experts in the particular field. 

d) In United States v. Traum, 60 M.J. 226 (2004), the CAAF emphasized that the 

key to evaluating the expert’s basis for her testimony is the type of evidence relied on 

by other experts in the field. 

5. Improper Bases for Expert Testimony 

a) An expert should not opine that a certain witness’s rendition of events is 

believable or not. See, e.g., United States v. Petersen, 24 M.J. 283, 284 (C.M.A. 

1987) (“We are skeptical about whether any witness could be qualified to opine as to 

the credibility of another.”) The expert may not become a “human lie detector.” 

United States v. Palmer, 33 M.J. 7, 12 (C.M.A. 1991). Questions such as whether the 

expert believes the victim was raped, or whether the victim is telling the truth when 

she claimed to have been raped (i.e. was the witness truthful?) are impermissible. 

However, the expert may opine that a victim’s testimony or history is consistent with 

what the expert’s examination found, and whether the behavior at issue is typical of 

victims of such crimes. Questions such as whether the victim’s behavior is consistent 

with individuals who have been raped, or whether injuries are consistent with a child 

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who has been battered, are therefore permissible. The relevant focus is on symptoms, 

not conclusions concerning veracity. See United States v. Birdsall, 47 M.J. 404 

(1998) (expert’s focus should be on whether children exhibit behavior and symptoms 

consistent with abuse; reversible error to allow social worker and doctor to testify 

that the child-victims were telling the truth and were the victims of sexual abuse). 

b) Examples: 

(1) An expert may testify as to what symptoms are found among children who 

have suffered sexual abuse and whether the child-witness has exhibited these 

symptoms. United States v. Harrison, 31 M.J. 330, 332 (C.M.A. 1990). 

(2) United States v. Cacy, 43 M.J. 214 (1995): While expert testimony that a 

child’s behavior is consistent with behavior patterns of a typical sexual abuse 

victim and that victim did not appear rehearsed were admissible, testimony that 

expert explained to child importance of being truthful and, based on child’s 

responses, recommended further treatment, was an affirmation that expert 

believed the victim, which improperly usurped the responsibility of the factfinder. 

(3) United States v. Marrie, 43 M.J. 35 (1995): Government expert testified that 

preteen and teenage boys (the victims) were the least likely group to report abuse 

because of shame and embarrassment and fear of being labeled a homosexual. 

She opined that false allegations from that group were “extremely rare” and 

outside of her clinical experience. Such testimony was improperly admitted, 

although harmless. 

(4) United States v. Raya, 45 M.J. 251 (1996). Social worker’s testimony that 

rape victim was not vindictive and wanted to stay away from the accused was not 

improper comment on credibility. 

(5) United States v. Anderson, 50 M.J. 447 (1999), Accused charged with child 

sexual abuse. On appeal for the first time, defense objected to testimony of 

government expert on child abuse accommodation syndrome. Defense claimed 

that it amounted to labeling the accused as an abuser and vouching for the 

credibility of the victims because the expert got all her information from the 

victims. CAAF rejected that argument and noted that the expert testimony was 

limited to factors and that the facts of this case were consistent with those factors. 

(6) But see United States v. Schlamer, 47 M.J. 670 (N-M. Ct. Crim. App. 1997), 

affirmed, 52 M.J. 80 (1999). On redirect examination TC asked one of the 

accused’s interrogators if he believed the accused was making the confession up. 

The court said the question was permissible because investigator was an eyewitness to the confession, the witness gave a conclusory answer that added 

nothing, and the accused had two doctors testify that the confession was 

unreliable, so the government should have the chance to rebut with an eye 

witness. And, if this was error, it was harmless. 

(7) United States v. Eggan, 51 M.J. 159 (1999). Accused convicted of forcible 

sodomy with another soldier. Defense theory was that it was consensual. The 

victim sought counseling after the incident and the government called the 

counselor in as an expert witness. The defense asked the expert if the victim 

could be faking his emotions. The expert said it was possible. On re-direct, the 

expert testified that he saw no evidence of faking. On appeal, defense claimed 

that this opinion was error because he was commenting on the witness’ 

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credibility. CAAF rejected this argument noting that the defense opened the door 

to this line of questioning and did not object at trial. 

(8) United States v. Armstrong, 53 M.J. 76 (2000). Accused charged with 

indecent acts with his daughter. Accused made a partial confession to the police 

and at trial stated that any contact with his daughters was not of a sexual nature. 

On rebuttal, the govt. called an expert in child abuse who testified that in her 

opinion the victim suffered abuse at the hands of her father. The defense did not 

object. On appeal, CAAF found error and, while that error was not 

constitutional, it had a substantial influence on the findings. Reversed. 

(9) United States v. Robbins, 52 M.J. 455 (2000). Accused charged with two 

specifications of sodomy with a child under 16. Social worker testified that in 

this case, the allegation was substantiated. A second witness also testified, about 

what the victim told her. She testified that when the victim reported the incident 

to her, the victim appeared not to be lying. The defense did not object to any of 

this evidence. CAAF cited Birdsall and then distinguished this case primarily 

because it was a judge alone case and since the judge is presumed to know and 

apply the law correctly, these errors were not plain error and no relief. 

F. Relevance. Expert testimony, like any other testimony must be relevant to an issue at 

trial. See Rules 401 and 402; Daubert, v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 

(1993). The standard for relevance is low, and Rule 402 reflects a strong bias in favor of 

admissibility for relevant evidence. 

G. Reliability. 

1. The Test for Scientific Evidence. In Daubert, the Supreme Court held that nothing in 

the Federal Rules indicates that “general acceptance” is a precondition to admission of 

scientific evidence. The rules assign the task to the judge to ensure that expert testimony 

rests on a reliable basis and is relevant. The judge assesses the principles and 

methodologies of such evidence pursuant to Rule 104(a). 

a) The role of the judge as a “gatekeeper” leads to a determination of whether the 

evidence is based on a methodology that is “scientific,” and therefore reliable. The 

judgment is made before the evidence is admitted, and entails “a preliminary 

assessment of whether the reasoning or methodology is scientifically valid.” Trial 

court possessed with broad discretion in admitting expert testimony; rulings tested 

only for abuse of discretion. General Electric Co. v. Joiner, 118 S. Ct. 512 (1997). 

See also, United States v. Kaspers, 47 M.J. 176 (1997). 

b) Factors. The Supreme Court discussed a nonexclusive list of factors to consider 

in admitting scientific evidence, which included the Frye v. United States, 293 F. 

1013 (D.C. Cir. 1923) test as a separate consideration: 

(1) Whether the theory or technique can be and has been tested; 

(2) Whether the theory or technique has been subjected to peer review and 

publication; 

(3) Whether the known or potential rate of error is acceptable; 

(4) Whether the theory/technique enjoys widespread acceptance. 

c) After Daubert, “helpfulness” alone will not guarantee admission of evidence 

because it does not guarantee “reliability.” 

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(1) Examples: 

(a) DNA Testing. United States v. Thomas, 43 M.J. 626 (A.F. Ct. Crim. 

App. 1995), one Air Force appellate judge held that the military judge did not 

abuse his discretion in admitting DNA results obtained by PCR 

methodology. Judge properly applied Daubert factors and any weaknesses in 

PCR methodology go to weight not admissibility. 

(b) Luminol Testing. United States v. Hill, 41 M.J. 596 (A. Ct. Crim. App. 

1994), luminol tests satisfy the Daubert criteria where testimony is limited to 

an opinion that positive results only show a presumptive positive for blood. 

See also United States v. Holt, 46 M.J. 853 (N.M.Ct. Crim. App. 1997), 

United States v. Schlamer, 47 M.J. 670 (N-M.Ct. Crim.App. 1997) 

(c) Chemical Hair Analysis. United States v. Nimmer, 43 M.J. 252 (1995), 

case remanded in order to allow the lower court to apply the Daubert model 

to RIA and GC/MS testing for the presence of cocaine. See also United 

States v. Bush, 44 M.J. 646 (A.F. Ct. Crim. App. 1996), military judge did 

not abuse his discretion in applying Daubert factors and permitting analysis 

of the accused’s hair to go before the members. 

2. Non-Scientific Evidence. In Kumho Tire v. Carmichael, 119 S. Ct. 1167 (1999), the 

Supreme Court held the trial judge’s gatekeeping responsibility applies to all types of 

expert evidence, and that the Daubert factors apply to non-scientific evidence also. To 

the extent the Daubert factors apply, they can be used to evaluate the reliability of this 

evidence; factors other than those announced in Daubert can also be used to evaluate the 

reliability of non-scientific expert evidence. 

a) United States v. Brown 49 M.J. 448 (1998). MJ Judge excluded the testimony of 

defense expert in eyewitness identification on 403 grounds. Army court said this per 

se denial was an abuse of discretion but harmless. CAAF reviewed and affirmed. 

CAAF did not address the correctness of that part of the Army court’s decision. Nor 

did CAAF illuminate how Daubert factors applied to this kind of expert testimony. 

The court did not announce any per se rule on the admissibility of this type of expert 

testimony. See also United States v. Rivers, 49 M.J. 434 (1998). 

b) United States v. Mustafa, 22 M.J. 165 (C.M.A. 1986), cert. denied, 479 U.S. 953 

(1986). In this pre-Daubert case involving blood-spatter evidence, the court used a 

three-step analysis. First, does the evidence involve an area of specialized 

knowledge? Second, would the expert testimony be relevant (helpful) to the trier of 

fact? Third, is the expert qualified to testify? After Kumho Tire, this minimal 

inquiry may not be sufficient. The trial judge should do more than consider the 

expert’s qualifications in making the reliability determination. 

c) Other Factors. Other factors courts have considered to evaluate the reliability of 

scientific and non-scientific testimony include: 

(1) Was the information developed for the purpose of litigation? 

(2) Did the expert unjustifiably extrapolate facts to support conclusions? 

(3) Are there alternative explanations? 

(4) Is the expert being as careful as they would be in their regular professional 

work outside paid litigation? 

(5) Is there a well-accepted body of learning in this area? 

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(6) How much practical experience does the expert have and is there a close fit 

between the experience and the testimony? 

(7) Is the testimony based on objective observations and standards? 

d) Matters for Experts. 

(1) Drug Testing. 

(a) In United States v. Campbell, 50 M.J. 154 (1999), the defense claimed 

that the lab’s use of GC/MS/MS to determine the existence of LSD in urine 

failed under Daubert. CAAF reversed the case because the government 

failed to show that the 200 PG/ML established by DoD adequately accounted 

for innocent ingestion. 

(b) On reconsideration, the CAAF clarified its opinion in Campbell, at 52 

M.J. 386 (2000). In a urinalysis case, the government can show wrongful use 

by expert testimony that meets this 3-part test: (1) proof must show that the 

metabolite is not naturally produced by the body; (2) cutoff level and 

concentration are high enough to reasonably discount innocent ingestion; (3) 

testing method reliably detected and quantified the concentration. The 3-part 

test is not required if the evidence can explain, with equivalent 

persuasiveness, the underlying scientific methodology and significance of 

test results. 

(c) In United States v. Green, 55 M.J. 76 (2001), the CAAF held that a 

positive urinalysis, accompanied by the testimony of an expert witness 

interpreting the result, was sufficient to support the permissive inference of 

knowing and wrongful use of cocaine. 

(2) Sleep Disorders. United States v. Blaney, 50 M.J. 533 (A.F. Ct. Crim. App. 

1999). Accused charged with sodomizing another male victim while the victim 

was asleep. Defense wanted to admit the testimony of two experts to testify 

about the victim’s alleged sleep disorders. Military judge excluded the testimony 

and the Air Force Court affirmed. Court held that under Daubert, the expert’s 

methodologies were unreliable and not helpful because the victim had not been 

interviewed. 

(3) False Confessions. 

(a) United States v. Griffin, 50 M.J. 278 (1999), CAAF held that MJ did not 

abuse his discretion in excluding the testimony of an expert in false 

confessions. The court reasoned that no witness could serve as a human lie 

detector, and in this case the evidence was unreliable because there was no 

correlation between the expert’s studies and the accused in this case. In the 

future, no per se exclusion may be admissible if testimony is limited to 

factors and there is a close correlation between the study group and the 

accused at trial. 

(b) In United States v. Bresnahan, 62 M.J. 137 (2005), the CAAF held that 

the appellant was not entitled to a false confession expert consultant absent 

evidence of abnormal mental condition, submissive personality, or other 

factors suggesting that the confession was actually false. 

(4) Child Abuse Accommodation Syndrome. United States v. Suarez, 35 M.J. 

374 (C.M.A. 1992): In trial for child sex abuse crimes, evidence was received on 

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how the victim exhibited “Child Sexual Abuse Accommodation Syndrome” 

(children change or recant their stories, delay or fail to report abuse, 

accommodate themselves to the abuse). While such evidence is controversial, it 

may be admitted where it explains the abused child’s delay or recantation, as is 

this case. United States v. Cacy, 43 M.J. 214 (1995). 

(5) Dysfunctional Family Profile Evidence. 

(a) United States v. Banks, 36 M.J. 150 (1992). Error to present expert 

testimony that accused’s family was in a situation that was ripe for child 

sexual abuse. The expert testified by presenting characteristics of a family 

that included child sexual abuser. Then pursuing a deductive scheme of 

reasoning, the expert opined that families with the profile present an 

increased risk of child sexual abuse. Finally, the expert testified that the 

Bank’s family fit the profile. 

(b) United States v. Pagel, 45 M.J. 64 (1996). No abuse of discretion in 

allowing government expert to testify concerning a dysfunctional family 

“profile” and whether the accused’s family displayed any of its 

characteristics. Testimony went to support credibility of daughter’s 

accusations and to explain her admitted unusual behavior. Unlike in Banks 

evidence used to explain the behavior of the victim on the assumption she 

was abused by someone, not necessarily the accused. Using “profile’ 

evidence to explain the counter-intuitive behavioral characteristics of sexual 

abuse victims was permissible. 

(6) Rape Trauma Syndrome. Rape Trauma is a subcategory of PTSD in the 

DSM-IV. The psychiatric community recognizes it as valid and reliable. 

Evidence may assist factfinder by providing knowledge concerning victim’s 

reaction to assault. United States v. Carter, 26 M.J. 428 (C.M.A. 1988) (Rape 

trauma syndrome evidence will assist the trier of fact in determining the issue of 

consent. This would be particularly true where such members would likely have 

little or no experience with victims of rape. . . [The RTS evidence] serves as a 

helpful tool by providing the factfinders with knowledge regarding a victim’s 

psychological reactions to an alleged sexual assault.) 

(a) Other uses: RTS testimony to rebut an inference that a victim’s conduct 

was inconsistent with a claim of rape where she did not fight off the attacker, 

made inconsistent statements concerning the assault, did not make a fresh 

complaint, and recounted the incident in a calm and “unnatural” manner. See 

United States v. Cox, 23 M.J. 808 (N.M.C.M.R. 1986), United States v. 

Hartford, 50 M.J. 402 (1999). 

(b) Impermissible Testimony. United States v. Bostick, 33 M.J. 849 

(A.C.M.R. 1991). Psychologist impermissibly expressed an opinion 

concerning the rape victim’s credibility by discussing the performance of the 

victim on a “Rape Aftermath Symptoms Test,” (RAST) and by stating that 

the victim did not fake or feign her condition. The expert thus became a 

“human lie detector”. The RAST failed to meet the requirements for 

admissibility of scientific testimony (lack of foundation). Despite lack of 

defense objection, the court finds plain error and sets aside findings and 

sentence. 

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(7) Handwriting Analysis. Two more district courts are following the trend to 

limit the expert’s testimony to characteristics and prevent them from either 

testifying that a certain individual was the author of a questioned document or to 

their degree of certainty. United States v. Ruthaford, 104 F. Supp. 2d 1190 (Dist. 

of NE 2000); United States v. Santillan, 1999 U.S. Dist. Lexis 21611 (Northern 

Dist. of CA). 

(8) Hypnosis. Admissible if the military judge finds that the use of hypnosis was 

reasonably likely to result in recall compatible in accuracy to normal human 

memory. United States v. Harrington, 18 M.J. 797 (A.C.M.R. 1984); Rock v. 

Arkansas, 483 U.S. 44 (1987). Proponent must show by clear and convincing 

evidence satisfaction of the following procedural safeguards: 

(a) Independent, experienced hypnotist conducted. 

(b) Hypnotist not regularly employed by the parties. 

(c) Information revealed to the hypnotist is recorded. 

(d) Detailed statement must be obtained from the witness in advance. 

(e) Only hypnotist and subject present during session. 

(9) DNA. United States v. Youngberg, 43 M.J. 379 (1995) (evidence of DNA 

testing is admissible at courts-martial if proper foundation is laid. United States 

v. Davis, 40 F.3d 1069 (10th Cir), cert. denied, 115 S. Ct. 1387 (1995) (statistical 

probabilities are basic to DNA analysis and their use has been widely researched 

and discussed). 

(10) Psychological Autopsy. 

(a) United States v. St. Jean, 45 M.J. 435 (1996). No error in allowing 

forensic psychologist to testify about suicide profiles and that his 

“psychological autopsy” revealed it was unlikely the deceased committed 

suicide. 

(b) United States v. Huberty, 53 M.J. 369 (2000). Applying Daubert and 

Kumho Tire the CAAF affirmed the MJ’s decision to exclude an experts 

opinion that the accused was not an exhibitionist. The court noted that there 

was no body of scientific knowledge to support the expert’s claim that the 

MMPI could be used to conclude that an individual was not an exhibitionist 

and could not have committed a crime. 

(11) Eyewitness Identification. 

(a) United States v. Garcia, 44 M.J. 27, cert. denied, 117 S. Ct. 174 (1996). 

Abuse of discretion, though harmless, to limit testimony concerning the 

unreliability of eye witness identification by preventing testimony on the 

inverse relationship between confidence and accuracy in identifications and 

theories of memory transference and transposition. 

(b) United States v. Brown 49 MJ. 448 (1998). MJ Judge excluded the 

testimony of defense expert in eyewitness identification on 403 grounds. 

Army court said this per se denial was an abuse of discretion but harmless. 

CAAF reviewed and affirmed. CAAF did not address the correctness of that 

part of the Army court’s decision. Nor did CAAF illuminate how Daubert 

factors applied to this kind of expert testimony. The court did not announce 

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any per se rule on the admissibility of this type of expert testimony. See also 

United States v. Rivers, 49 M.J. 434 (1998). 

(c) United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000). In this case the 

accused was charged with conspiracy and distribution of drugs. Accused 

was a member of a gang and a co-accused and other witnesses testified for 

the defense and denied any wrong doing. In rebuttal the government called a 

police officer to render an expert opinion that part of the gang affiliation code 

was not to testify against another gang member or suffer physical injury. 

Defense said that the witness’s opinion was not reliable and more prejudicial 

than probative. The 9th Circuit, applying Kumho, said the judge did not 

abuse his discretion in admitting this evidence. 

(d) United States v. Smithers, 212 F.3d 306 (6th Cir. 2000). Trial judge 

abused his discretion by excluding a defense expert on the weaknesses of 

eyewitness identification. The trial judge’s comments that he wanted to 

“experiment” were indicative of the abuse of his discretion, as was his failure 

to even conduct a Daubert-type reliability hearing. 

(12) Behavioral Aspects of Child Pornographers. In United States v. Hays, 62 

M.J. 158 (2005), the CAAF held that the military judge did not abuse her 

discretion in admitting testimony of an FBI expert on the behavioral aspects of 

victimization of children. The expert testified that appellant’s e-mail was an 

attempt to persuade another person to sexually abuse a child and photograph it in 

exchange for similar acts from the appellant at a future date. 

(13) Future Dangerousness. United States v. Latorree, 53 M.J. 179 (2000). 

Accused pleaded guilty to sodomizing a 7-year old girl. In sentencing, the 

government expert testified, in response to both defense and government 

questioning, that during treatment most sexual offenders admit to other sexual 

assaults. On appeal, defense claimed it was error for the expert to provide this 

information. CAAF ruled that the expert evidence lacked relevance and failed 

the reliability standards as required by Daubert, but any error in admitting the 

testimony was harmless. 

H. Opinion on Ultimate Issue: The standard is whether the testimony assists the trier of fact, 

not whether it embraces an “ultimate issue” so as to usurp the panel’s function. However, 

ultimate-issue opinion testimony is not automatically admissible. Opinion must be relevant 

and helpful as determined under Rules 401-403 and 702. 

Rule 704. Opinion on Ultimate Issue
 

An opinion is not objectionable just because it embraces an ultimate issue.
 

1. United States v. Hill-Dunning, 26 M.J. 260 (C.M.A. 1988), cert. denied, 488 U.S. 

967 (1988) (psychiatrist is competent to testify as to diagnosis of client and may testify 

that diagnosis is based upon assumption that what client said is the truth; yet, same 

witness may not testify that it is his opinion that what client said is truthful.) 

2. United States v. Lipscomb, 14 F.3d 1236 (7th Cir. 1994) (conclusion of law 

enforcement experts held qualified to opine that circumstances and behavior indicated 

intent to distribute drugs was not a legal conclusion as to a specific intent element). 

3. In United States v. Diaz, 59 M.J. 79 (2003), the CAAF held that it was improper for 

an expert to testify that the death of appellant’s child was a homicide and that the 

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appellant was the perpetrator, when the cause of death and identify of the perpetrator 

were the primary issues at trial. 

I. Polygraph Evidence. In 1991, the President promulgated Rule 707 as a per se ban on all 

polygraph evidence in courts-martial, including the results of an examination, the opinion of 

an examiner, and any reference to an offer to take, the failure to take, or the taking of a 

polygraph examination. 

Rule 707. Polygraph Examinations. 

(a) Prohibitions. Notwithstanding any other provision of law, the result of a polygraph examination, the 

polygraph examiner’s opinion, or any reference to an offer to take, failure to take, or taking of a polygraph 

examination is not admissible. 

(b) Statements Made During a Polygraph Examination. This rule does not prohibit admission of an 

otherwise admissible statement made during a polygraph examination. 

1. In 1996, CAAF held that the categorical ban on polygraph evidence is an 

impermissible infringement on the accused’s 6th Amendment right to present a defense 

provided the accused testifies and had his credibility placed at issue. United States v. 

Scheffer, 44 M.J. 442 (1996). 

2. In United States v. Scheffer, 523 U.S. 303 (1998), the Supreme Court overruled 

CAAF. In an 8 to 1 opinion the Court said that a per se exclusion on polygraph evidence 

does not unconstitutionally abridge the right of an accused to present a defense. Some 

unresolved issues: 

a) Four members of the majority believe the ban is unwise and a more “compelling” 

case my lead to a different result. 

b) Per se ban is somewhat inconsistent with Daubert. 

c) No indication of what level of acceptance is required. 

d) Dissent blasts the inconsistency of a vast DoD program that the government 

argues is unreliable. 

e) Dissent points out that president may have violated Article 36 in the 

promulgation of the rule because there are no issues unique to the military. This 

issue was assumed by CAAF and not briefed to the Court. 

3. United States v. Light, 48 M.J. 187 (1998). Accused was convicted of larceny for 

stealing govt. equipment. During the course of the investigation, he was giving a 

polygraph by CID which he failed. The polygraph failure was one issue that a Texas 

Justice of the Peace used to grant a search warrant of his civilian quarters. Issue, can 

polygraph results be considered to decide PC questions? The court noted, but did not 

resolve, the tension between these rules as to whether polygraph evidence can be 

considered. 

4. United States v. Clark, 53 M.J. 280 (2000). Accused pleaded guilty to larceny and 

false official swearing. In his judge alone case, the stipulation of fact included 

information that the accused failed a polygraph test. The CAAF ruled that it was plain 

error for the military judge to admit this evidence, however, the error did not materially 

prejudice his rights. Therefore, no relief. 

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5. United States v. Southwick, 53 M.J. 412 (2000). Accused convicted of wrongful 

distribution of drugs. She sold the drugs to an informant. At trial, the defense attacked 

the credibility of the informant by trying to demonstrate that the Air Force had not done a 

proper certification of him. In response, the informant testified that he had been 

polygraphed before being accepted as an informant. The defense did not object to this 

evidence. The CAAF held it was harmless error for this evidence to come before the fact 

finders, because the polygraph was not directly related to any issues at trial or the 

informant’s in court testimony. 

6. United States v. Tanksley, 54 M.J. 169 (2000). Buried on page seven of a nine-page 

statement to NIS agents, the accused stated that he refused to take a polygraph 

examination. The government offered the entire statement and the information about his 

refusal to take a polygraph was not redacted. The defense did not object. The CAAF 

ruled that any passing reference to a polygraph examination did not materially prejudice 

the accused. 

7. Unites States v. Morris, 47 M.J. 695 (N-M. Ct. Crim. App. 1997). In this case the 

accused was convicted of false official statements and battery for sexually forcing 

himself on a female friend. The accused was questioned and he initially claimed the 

contact was consensual. Then, in a pre-polygraph interview he admitted that the contact 

was not consensual. The polygraph was never conducted. The MJ prohibited the 

accused from introducing evidence that the investigators never actually gave him a 

polygraph. Judge struck the right balance required by Rule 707 by admitting the 

statement and the circumstances surrounding the statement but not allowing any evidence 

about an offer to take or the taking of a polygraph to be admitted. 

8. United States v. Wheeler, 66 M.J. 590 (N-M. Ct. Crim. App. 2008). Accused was 

charged with conspiracy to commit larceny and only confessed to his crimes after an 

agent told him that he would be convicted based on his failed polygraph but that his 

command would not get the polygraph results if he confessed. At trial, the defense 

moved to admit the polygraph examinations as evidence of the surrounding 

circumstances that led to his confession. The military judge denied the defense motion. 

On appeal, the Navy-Marine Court ruled that the military judge erred in not allowing the 

polygraph evidence. The Navy-Marine Court distinguished this case from Scheffer, 

finding that the accused in this case was not trying to use an exculpatory polygraph to 

bolster his credibility but was attempting to shed light into the res gestae of his 

confession. 

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III. PRODUCTION OF EXPERTS FOR THE DEFENSE 

Rule for Courts-Martial 703. Production of witnesses and evidence 

(d) Employment of expert witnesses. When the employment at Government expense of an expert is 

considered necessary by a party, the party shall, in advance of employment of the expert, and with notice to 

the opposing party, submit a request to the convening authority to authorize the employment and to fix the 

compensation for the expert. The request shall include a complete statement of reasons why employment of 

the expert is necessary and the estimated cost of employment. A request denied by the convening authority 

may be renewed before the military judge who shall determine whether the testimony of the expert is 

relevant and necessary, and, if so, whether the Government has provided or will provide an adequate 

substitute. If the military judge grants a motion for employment of an expert or finds that the Government 

is required to provide a substitute, the proceedings shall be abated if the Government fails to comply with 

the ruling. In the absence of advance authorization, an expert witness may not be paid fees other than those 

to which entitled under subsection (e)(2)(D) of this rule. 

Article 46(a), UCMJ 

The counsel for the Government, the counsel for the accused, and the court-martial shall have equal 

opportunity to obtain witnesses and other evidence in accordance with such regulations as the President 

may prescribe. 

A. Expert Assistant. While the Rules of Evidence establish the requirements for qualifying 

experts and determining the admissibility of expert testimony, the U.C.M.J. and Rules for 

Courts-Martial both provide that the government and accused shall have equal opportunity to 

obtain witnesses and evidence. R.C.M. 703(d) specifically provides for employment of 

defense requested expert witnesses. Related to but distinct from the right to an expert witness 

under R.C.M. 703 is the defense’s right to seek an expert assistant in order to prepare for trial. 

1. An expert assistant is someone detailed to the defense team to assist the accused and 

defense counsel in handling issues that require expert assistance. Military and federal 

civilian case law guarantee the right to expert assistance. United States v. Short, 50 M.J. 

370 (1999); United States v. Ndanyi, 45 M.J. 315 (1996). Expert assistants most 

commonly assist defense counsel in the evaluation of scientific or technical evidence that 

the government intends to offer at trial. Expert assistants can also be helpful in the areas 

of mitigation, member selection, evaluation of physical evidence, or in providing a 

psychological evaluation of the accused. The most important point to remember is that if 

the defense is successful in obtaining an expert assistant that does not mean that she will 

automatically be entitled to have that assistant testify as an expert witness. Ordinarily the 

two will merge but such merger is not automatic. 

2. In United States v. Warner, 62 M.J. 114 (2005), the CAAF held “Article 46 is a clear 

statement of congressional intent against government exploitation of its opportunity to 

obtain an expert vastly superior to the defense’s.” Where the government provides itself 

with a top expert, it must provide a reasonably comparable expert to the defense. 

3. In United States v. Lee, 64 M.J. 213 (2006), commenting on Warner and Article 46, 

CAAF held the playing field is even more uneven when the government benefits from 

scientific evidence and expert testimony and the defense is denied a necessary expert to 

prepare for and respond to the government’s expert. Arguably, Warner and Lee can be 

read together to give the defense a much stronger argument for not only the need for an 

expert witness (especially if the government has an expert), but the need for a particular 

expert witness (or one comparable to the government’s expert). 

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4. United States v. McAllister, 64 M.J. 248 (2007), CAAF held an appellant’s right to 

present a defense was violated when the accused was prevented from employing and 

utilizing a necessary DNA expert at trial. Had the military judge granted the defense 

request for a PCR expert, the members would have heard testimony about the discovery 

of DNA from three previously unidentified individuals. The defense could have used this 

evidence to attack not only the thoroughness of the original test, but the weight that the 

members should have given to the government’s expert testimony. Additionally, the 

CAAF believed the new evidence would have changed the evidentiary posture of the 

case. At trial, the defense had nothing to contradict the character of the government’s 

DNA evidence which excluded all known suspects other that the appellant. The DNA 

evidence was the linchpin of the government’s case. The additional evidence indicated 

that someone other than the appellant, or any other known suspect, was in physical 

contact with the victim at or near the time of her death. It was error for the military judge 

to have denied the defense request for an additional expert and retesting of the 

government’s sample. The CAAF concluded that this evidence could have raised a 

reasonable doubt as to guilt. As such, the court held that the appellant was deprived of 

his constitutional right to a fair hearing as required by the Due Process Clause. The error 

in denying the defense request for expert assistance was not harmless beyond a 

reasonable doubt. As such, the findings and sentence were set aside. 

B. The Gonzalez Test 

1. In order to determine whether the defense is entitled to such assistance, the military 

judge will apply a three-pronged test adopted in United States v. Gonzalez, 39 M.J. 459, 

461 (C.M.A. 1991): 

a) Why is the expert assistance required? 

b) What would expert assistance accomplish for the accused? 

c) Why is the defense unable to gather and present the evidence that the expert 

assistant would be able to develop? 

d) See also United States v. Bresnahan, 62 M.J. 137, 143 (2005) and United States 

v. Freeman, 65 M.J. 451, 458 (2008). 

2. Even though a case may involve difficult issues, this does not mean the defense is 

automatically entitled to expert assistance. United States v. Robinson, 39 M.J. 88 (C.M.A. 

1994). The three-part Gonzalez test requires the defense to show the necessity of having 

the assistance of an expert. Unless the defense can articulate such a need, the convening 

authority, and ultimately the military judge, will likely deny the defense request. 

C. Even where the defense is successful in obtaining an expert assistant, that assistant must 

still meet the requirements of M.R.E. 702 in order to testify as an expert witness. Ordinarily 

the issues of producing the assistant and calling the assistant as an expert witness will merge, 

but such merger is not automatic. 

1. If the defense successfully obtains expert assistance, then the expert becomes a part 

of the defense team. Therefore, communications between the expert and the defense 

counsel or the expert and the accused are privileged under M.R.E. 502. United States v. 

Turner, 28 M.J. 487 (C.M.A. 1989). The government may not interview a defense expert 

assistant without the approval of the defense counsel. 

a) However, once the defense lists the expert as a witness, the government is free to 

contact and interview the witness. United States v. Langston, 32 M.J. 894 

(A.F.C.M.R 1991). 

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b) The limited right to expert assistance is guaranteed by the Due Process Clause, 

federal civilian case law, and military case law, provided certain circumstances exist. 

(1) Ake v. Oklahoma, 470 U.S. 68 (1985). In a capital case, the accused asked for 

a court-appointed psychiatrist to assist with the defense. The trial court denied 

the request. The Supreme Court held when an indigent accused makes a showing 

that expert assistance is needed on a substantial issue in the case both during 

case-in-chief and at sentencing, Due Process requires that the government 

provide that assistance. 

(2) United States v. Garries, 22 M.J. 288 (C.M.A. 1986). The court held that as 

a matter of military due process, servicemembers are entitled to investigative or 

other expert assistance when necessary for an adequate defense, without regard to 

indigence. 

c) Unlike the production of expert witnesses, the appointment of expert assistants 

does not have a source in the R.C.M.s. 

D. Initial Request to the Convening Authority. Typically, but not always, this request is for 

the employment of a civilian expert witness. If the convening authority denies the defense 

request, it may be renewed as a motion for appropriate relief to the military judge. 

1. Defense requests for a witness, including an expert, must be made in writing and 

include the witness’ name and contact information, in addition to a “synopsis of the 

expected testimony sufficient to show its relevance and necessity.” See R.C.M. 703(c). 

2. As with an expert assistant, an accused also has the right to obtain an expert witness 

and produce her for trial at his own expense. If an accused intends to do so, all the notice 

and disclosure requirements outlined in R.C.M. 701(b) concerning witnesses must be 

observed. If, however, the defense is seeking to have an expert witness produced and to 

have the convening authority cover the expense of the witnesses, counsel must show that 

the testimony of the expert is relevant and necessary. United States v. Rivers, 49 M.J. 

434 (1998). 

3. Necessity. The defense must make an initial showing of a particular need for an 

expert witness. The defense may make this showing by proving reasonable probability 

that the expert would provide assistance and denial of assistance would result in a 

fundamentally unfair trial. United States v. Kelley, 39 M.J. 235 (C.M.A. 1994). 

4. Timing. Under R.C.M. 703(d), the defense must make their request before 

employing the expert. Nothing in the Manual for Courts-Martial permits the government 

to ratify previous employment of a defense expert. Therefore, the defense should be wary 

of requesting an expert to complete any work until after a request for assistance has been 

approved by the convening authority. 

E. Request to the Military Judge. Where a request to the convening authority is denied, the 

military judge becomes the “gatekeeper” with regards to expert witnesses. Under M.R.E. 702 

and 104(a), a military judge will determine if an expert witness is needed by the defense. 

United States v. Ndanyi, 45 M.J. 315, 319 (1996). 

1. If the military judge finds that a defense expert is needed, she may order the 

government to provide the expert. If the government fails to comply, the military judge 

may abate the proceedings. R.C.M. 703(d). 

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2. The defense may be entitled to an ex parte hearing to justify their request for a 

defense expert. This is not an absolute right and is only for unusual situations. United 

States v. Garries, 22 MJ 288, 291 (1986); United States v. Kaspers, 47 M.J. 176 (1997). 

3. Except in unusual circumstances, the military judge does not have authority to 

appoint a specific expert. United States v. Thorpe, 38 M.J. 8 (C.M.A. 1993). 

F. Specific Expert Not Required. 

1. Named Expert. The defense is not entitled to its named expert. If the government 

decides an expert is needed, or if the military judge orders the government to produce and 

expert, the government may provide a reasonable substitute. United States v. Ndanyi, 45 

M.J. 315, 319 (1996). 

2. Eminent Expert. The defense is not entitled to an eminent expert in a particular field. 

The defense is only entitled to receive a qualified expert. United States v. Gray, 37 M.J. 

730 (A.C.M.R. 1993). 

3. Adequate Substitute. If the government substitute and the defense expert have 

differing views, the government substitute is not “adequate.” The burden is on the 

defense to show the views of the experts diverge. United States v. Robinson, 43 M.J. 501 

(A.F.C.C.A. 1995). 

a) The defense is not entitled to its named expert. If the government decides an 

expert is needed, or if the military judge orders the government to produce and 

expert, the government may provide a reasonable substitute. United States v. 

Burnette, 29 M.J. 473 (C.M.A 1990). 

b) Except in unusual circumstances, the military judge does not have authority to 

appoint a specific expert. United States v. Thorpe, 38 M.J. 8 (C.M.A. 1993). 

c) If the defense requests an expert and the government provides an expert that has 

a divergent view from the one held by the defense requested expert, then the 

substitute might not be adequate. United States v. Robinson, 43 M.J. 501 

(A.F.C.C.A. 1995). 

d) The defense is not entitled to an eminent expert in a particular field. The defense 

is only entitled to receive a qualified expert. United States v. Gray, 37 M.J. 730 

(A.C.M.R. 1993). 

e) The government cannot secure for itself the top expert in the field and then 

provide the defense with a generalist: “Article 46 is a clear statement of 

congressional intent against government exploitation of its opportunity to obtain an 

expert vastly superior to the defense’s.” United States v. Warner, 62 M.J. 114 

(C.A.A.F. 2005). To do so violates the letter and spirit of Article 46. 

f) However, giving the defense a generalist but then having the government call a 

specialist in rebuttal is not per se unfair. United States v. Anderson, 68 M.J. 378 

(C.A.A.F. 2010). The disparity must cause some prejudice to the accused. 

4. The defense is entitled to expert assistance if the services are necessary. Garries, 22 

M.J. 288; United States v. Robinson, 39 M.J. 88 (C.M.A. 1994). Relevant and necessary. 

Courts may use the Houser factors, United States v. Houser, 36 M.J. 392 (C.M.A. 1993), 

when determining whether the expert’s testimony would be necessary and relevant. 

United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998). 

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5. The standard on appeal is abuse of discretion, tested for prejudice with something 

like a materiality standard: the findings were substantially swayed by the error or would 

have changed the evidentiary posture of the case. United States v. McAllister, 55 M.J. 

270, 276 (2001). 

6. In order to determine necessity, courts apply a two pronged test: “[T]he accused has 

the burden of establishing that a reasonable probability exists that (1) an expert would be 

of assistance to the defense and (2) that denial of expert assistance would result in a 

fundamentally unfair trial.” United States v. Freeman, 65 M.J. 451, 458 (C.A.A.F. 2008) 

(emphasis added). The defense must show more than just a mere possibility that the 

expert would be of assistance. United States v. Lloyd, 69 M.J. 95 (2010) (the defense’s 

desire to “explore all possibilities” did not reach the “reasonable probability” threshold). 

7. Toward that first prong, courts use the three-pronged test adopted in United States v. 

Gonzalez, 39 M.J. 459, 461 (C.M.A. 1991). 

a) Why is the expert assistance needed? The issue must be central to the defense 

theory of the case. United States v. Lloyd, 69 M.J. 95 (2010). In Lloyd, the C.A.A.F. 

used the word “necessary” instead of “needed.” 

b) What would expert assistance accomplish for the accused? 

c) Why is the defense unable to gather and present the evidence that the expert 

assistant would be able to develop? 

(1) Defense counsel are expected to educate themselves to attain competence in 

defending the issues in a particular case. United States v. Kelley, 39 M.J. 235, 

238 (C.M.A. 1994). 

(2) The rapid growth in forensic science techniques at trial may make cases more 

complex than general practitioners can handle on their own. United States v. 

McAllister, 55 M.J. 270, 275 (2001); United States v. Warner, 62 M.J. 114, 118 

(C.A.A.F. 2005). 

(3) In United States v. Lee, 64 M.J. 213 (2006), CAAF commented on Warner 

and Article 46, saying that the playing field is uneven when the government 

benefits from scientific evidence and expert testimony and the defense is denied a 

necessary expert to prepare for and respond to the government’s expert. 

(4) Absent a showing that his case was unusual, when the government offered 

CID laboratory experts in a child sexual assault case, the military judge did not 

abuse his discretion when denying the request. United States v. Ndanyi, 45 M.J. 

315 (C.A.A.F. 1996). 

(5) However, the military judge cannot deny a defense request for an expert 

assistant by telling the defense to use the government’s own expert to prepare for 

trial. United States v. Lee, 64 M.J. 213 (2006). 

(6) Where the defense counsel had already tried 15-20 urinalysis cases; had 

previously worked with an expert assistant on two urinalysis cases; had 

telephonic access to an expert consultant during trial; knew of the appropriate 

sources in the field; and did not raise irregularities in the handling of the urine 

specimen, the military judge did not err in not requiring the physical presence of 

the expert assistant during trial. United States v. Kelley, 39 M.J. 235, 238 

(C.M.A. 1994). 

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8. Defense counsel may have to provide evidence that the favorable evidence they are 

seeking actually exists. United States v. Bresnahan, 62 M.J. 137 (C.A.A.F. 2005). 

9. For cases involving requests for expert assistance in false confessions and 

interrogation techniques, see United States v. Bresnahan, 62 M.J. 137 (C.A.A.F 2005); 

United States v. Freeman, 65 M.J. 451 (C.A.A.F. 2008) (defense counsel may be capable 

of developing the expertise in this area without expert assistance). 

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Chapter 12 

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APPENDIX: SAMPLE DEFENSE REQUEST FOR ASSISTANCE MEMO 

MEMORANDUM THRU SJA 

FOR GCMCA Commander 

SUBJECT: Request for Appointment of Expert Assistance in Neuropsychology to Assist the Defense in United States v. Smith. 

1. Purpose. Pursuant to R.C.M. 703(d), the accused, SGT Ima B. Smith, requests Dr. True Expert, a Department of Defense (DoD) 

employee and a neuropsychologist, be designated as a member of the defense team under Military Rule of Evidence (M.R.E.) 502, and 

U.S. v. Toledo, 25 M.J. 270 (C.M.A. 1987). See attached curriculum vitae of Dr. Expert. 

2. Facts. SGT Smith is charged with violating UCMJ Article 118(1), one specification of premeditated murder; Article 80, two 

specifications of attempted premeditated murder; and Article 126, one specification of aggravated arson. 

3. Law. A military accused has, as a matter of Equal Protection and Due Process, a right to expert assistance when necessary to present 

an adequate defense. U.S. v. Garries, 22 M.J. 288 (C.M.A. 1986); U.S. v. Robinson, 39 M.J. 88 (C.M.A. 1994), and Ake v. Oklahoma, 470 

U.S. 226 (1971). The Court of Appeals for the Armed Forces has embraced a three-part test for determining whether government-funded 

expert assistance is necessary. The defense must show: (1) why the expert assistance is needed; (2) what would the expert assistance 

accomplish for the accused; and (3) why the defense is unable to gather the evidence that the expert assistant would be able to develop. 

See U.S. v. Gonzalez, 39 M.J. 459 (1994). 

4. Basis. All of the above requirements for employment of an expert are present and the defense is entitled to have an expert appointed 

to the defense as a matter of law. The government has begun the process of involuntarily conducting a sanity board on SGT Smith and is 

using the best available Army doctors for this purpose (see attached email). SGT Smith is requesting a single DoD neuropsychologist to 

assist in understanding the work of the sanity board, to suggest additional testing to the sanity board, to interpret the results of 

neuropsychological testing conducted by the sanity board, to critically evaluate the work of the sanity board, and to potentially conduct 

additional testing in order to prepare a rebuttal to the conclusions of the sanity board. 

a. Why Is Expert Assistance Needed? Expert assistance is needed to aid the defense in understanding medical information and 

neuropsychological testing concerning the mental status of SGT Smith on the date of the alleged crimes, to determine whether he is able 

to understand the nature and quality of the wrongfulness of his conduct, to evaluate whether SGT Smith was able to form the premeditated 

intent to commit murder, to evaluate whether SGT Smith is able to intelligently assist in his defense, and to prepare a possible sentencing 

case in extenuation and mitigation for the accused. In short, the defense needs this assistance to better understand how SGT Smith’s brain 

was working at the time of the charged offenses and how it is working now. The knowledge required to do this is specialized, and concerns 

medical and psychological data that is beyond the scope of defense counsel’s understanding. 

b. What Would the Expert Assistance accomplish for the Accused? A neuropsychologist assigned to the defense would assist the 

defense in understanding the wide range of neuropsychological tests that are available to evaluate SGT Smith. This expert would also help 

the defense understand what tests are best suited to evaluate SGT Smith. A neuropsychologist would also assist the defense in interpreting 

and critically evaluating any neuropsychological testing conducted by the sanity board. Dr. Expert would also be able to explain medical 

research in the field of neuropsychology and its relevance to the present case. 

c. Why is the Defense Unable to Gather this Evidence on Their Own? The defense has neither the experience nor expertise to 

adequately prepare to defend this case. Neuropsychological testing and interpretation is a very subjective science, and defense counsel 

does not have, and cannot obtain without expert assistance, even a basic understanding of neuropsychology. Any neuropsychological 

testing done by members of the government sanity board must be subjected to critical analysis, and defense needs an independent 

neuropsychologist to assist them in conducting this critical inquiry. Defense counsel also needs confidentiality and an expert who is 

committed to the defense team and is able to engage in full and frank discussions on all aspects of the case and any issues relating to metal 

competency. Defense cannot discuss possible case theories with the government’s expert. A neuropsychologist appointed to the defense 

team would be free to conduct additional testing without the constraints of the sanity board, to include a complete social history, which is 

critical to sanity board evaluation and testing. A neuropsychologist appointed to the defense would continue to work with the defense in 

all stages of the case and incorporate detailed information of SGT Smith’s social history into the testing and diagnostic process. For all of 

these reasons, the defense requests Dr. Expert be appointed to the defense team, independent of any neuropsychologist who may serve as 

a member of the sanity board. 

5. Conclusion. For the above reasons, the defense requests that you issue an order appointing Dr. Expert as an expert; that you instruct 

him that he is a “defense representative” and thus part of the defense team, and that matters related to her during the course of her 

employment as a member of the defense team will be confidential. Finally, that funds be made available for Dr. Expert to travel to Fort 

Swampy to conduct evaluation and neuropsychological testing of SGT Smith. 

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[Back to Table of Contents] 

CHAPTER 13
 

ARTICLE 32 PRELIMINARY HEARING
 

I. References 

II. What is an Article 32 Preliminary Hearing? 

III. What are its Purposes? 

IV. When is an Article 32 Hearing Necessary? 

V. Scope of the Investigation 

VI. Participants 

VII. Witness and Evidence Production 

VIII. Procedure for Conducting the Hearing 

IX. Report of Investigation 

X. Possible Actions by the Appointing Authority 

XI. Treatment of Defects 

XII. Appx. Article 32 Summary 

I. REFERENCES 

A. U.C.M.J., Article 32 

B. Rules for Court-Martial (RCM) 404A and 405 

C. DA Pam 27-17, Procedural Guide for Article 32 Preliminary Hearing Officer (18 Jun 15). 

II. WHAT IS AN ARTICLE 32 PRELIMINARY HEARING? 

A. The Article 32 investigation is a formal preliminary hearing conducted prior to trial. Article 32, 

UCMJ reads, “No charge or specification may be referred to a general court martial for trial until 

completion of a preliminary hearing unless such hearing is waived by the accused.” 

B. The Article 32 hearing has been labeled the “military equivalent” of a civilian grand jury 

proceeding. United States v. Bell, 44 M.J. 403, 406 (C.A.A.F. 1996). See also United States v. 

Powell, 17 M.J. 975, 976 (A.C.M.R. 1984). 

III. WHAT ARE ITS PURPOSES? 

A. The Article 32 hearing is limited in both scope and purpose. 

B. Statutory Purposes. UCMJ, Art. 32; RCM 405(a) discussion; RCM 405(e). 

1. Determine whether there is probable cause to believe an offense has been committed and 

whether the accused committed the offense. 

2. Determine whether the convening authority has court-martial jurisdiction over the offense 

and the accused. 

3. Consider the form of the charges. 

4. Recommend the disposition that should be made of the case. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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C. Discovery is not a valid purpose. “The preliminary hearing is not intended to perfect a case 

against the accused and is not intended to serve as a means of discovery or to provide a right of 

confrontation required at trial.” RCM 405(a). See also Article 32(b), UCMJ. 

D. Preservation of Testimony. 

1. Article 32 testimony may be admissible as substantive evidence at trial, as a prior inconsistent 

statement under M.R.E. 801(d)(1) or as prior testimony under M.R.E. 804(b)(1). [However, use 

caution: United States v. Austin, 35 M.J. 271 (C.M.A. 1992). Child victim testified in detail at 

the Article 32 but recanted her testimony at trial and refused to talk about the offense. Over 

defense objection, trial court admitted the 15-page transcript of Article 32 testimony as prior 

inconsistent statement pursuant to M.R.E. 801(d)(1)(A) and as former testimony under M.R.E. 

804(b)(1). The transcript was both read to the panel and given to the panel to take into the 

deliberation room. Held: reversible error to send transcript back to deliberation room with panel. 

The transcript was not an exhibit under RCM 921.] 

2. See also United States v. Ureta, 44 M.J. 290 (C.A.A.F. 1996), cert. denied, 519 U.S. 1059 

(1997). Article 32 transcript admissible as prior inconsistent statement and substantive evidence 

on issue of guilt in case of rape and carnal knowledge of 13-year-old daughter, under M.R.E. 

801(d)(1). Accused’s wife testified at Article 32 that accused confessed. After Article 32 

terminated, wife refused to discuss her testimony with Government. Unsure whether wife would 

recant her Article 32 testimony at trial, Government called wife as witness, she recanted, 

acknowledged inconsistency, and over defense objection, Article 32 transcript was admitted and 

taken into deliberations. CAAF held that Article 32 transcript was not admissible under M.R.E. 

608(b) (no extrinsic evidence of prior inconsistent statement when witness available and testifies, 

admits making prior statement, and acknowledges specific inconsistencies), but Article 32 

transcript admissible under M.R.E. 801(d)(1)(A) as substantive evidence and Government can 

call witness to establish foundation for admission. Error to send transcript into deliberations, but 

harmless because unlike Austin, transcript was not the only evidence against accused. 

3. Article 32 testimony may be admissible at trial as former testimony under M.R.E. 804(b)(1), 

when the witness is unavailable. See Austin (above) and United States v. Connor, 27 M.J. 378 

(C.M.A. 1989) (“If the defense counsel has been allowed to cross-examine the Government 

witness without restriction on the scope of cross-examination, then the provisions of M.R.E. 

804(b)(1) and of the 6th Amendment are satisfied, even if that opportunity is not used, and the 

testimony can later be admitted at trial.”). See also United States v. Ortiz, 35 M.J. 391 (C.M.A. 

1992) (Government must establish that the witness was unavailable before former testimony may 

be properly admitted). United States v. Hubbard, 28 M.J. 27 (C.M.A. 1989) (When Article 32 

testimony is offered at trial, the proponent must establish the unavailability of the witness per 

M.R.E. 804(b)(1) and the 6th Amendment). The Government proves unavailability through 

serving a subpoena (with appropriate fees), and in the last resort, a warrant of attachment on the 

witness. 

4. Article 32 testimony may be admissible at trial as residual hearsay for unavailable declarants 

under M.R.E. 807. United States v. Cabral, 47 M.J. 268 (C.A.A.F. 1997), affirming 43 M.J. 808 

(A.F. Ct. Crim. App. 1996). Five-year-old victim of sexual abuse appeared for trial but refused to 

testify. Witness declared “functionally unavailable” and Article 32 videotaped testimony, which 

had “particularized guarantees of trustworthiness” (language suitable for 5 year old, described 

acts not common to experience of 5 year old, use of non-leading questions, no motive to 

fabricate) was admissible as residual hearsay. Caution: What is effect of Crawford v. 

Washington, 541 U.S. 36 (2004) on the continued viability of this opinion? 

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IV. WHEN IS AN ARTICLE 32 HEARING NECESSARY? 

A. Prerequisite to trial by General Court-Martial. Article 32, UCMJ; RCM 405(a). 

1. Not required for trial by special court-martial. 

2. Not required for trial by summary court-martial. 

B. Exceptions to the Article 32 requirement. 

1. Adequate substitute. RCM 405(b). There has already been an investigation into the subject 

matter of the charges before the accused is charged. 

a. United States v. Diaz, 54 M.J. 880 (N-M. Ct. Crim. App. 2000). After the Article 32, the 

accused identified a defect in the preferral of the initial charges, which were dismissed, and 

new charges preferred. The accused requested a new Article 32, contending that the preferral 

defect meant that no charges had been investigated by the first Article 32. The Navy Court 

held the first Article 32 was valid and satisfied the requirements of Article 32. 

b. United States v. Burton, No. 36296, 2007 CCA LEXIS 281 (A.F. Ct. Crim. App. Jul. 16, 

2007) (unpublished). A rape charge was preferred against the accused and the charge was 

investigated in accordance with UCMJ, Article 32. At the investigation, the accused was 

represented by counsel and had an opportunity to cross-examine the victim. The charge was 

referred to trial, but subsequently withdrawn because the accused committed additional 

misconduct. The rape charge was re-preferred (along with several other charges) in an 

identical fashion except the accused’s unit had changed. The charges were once again sent to 

an Article 32 investigating officer. The defense counsel noted that the Government intended 

to rely on the previous Article 32 investigation for the rape charge and objected, demanding 

further investigation into the rape charge under RCM 405(b) because of new evidence calling 

the victim’s credibility into question. The investigating officer did not investigate the rape 

charge, but simply attached a copy of the previous Article 32 investigation to the report of the 

investigation for the three new charges. The defense objected that the original rape charge 

had not been re-investigated and filed a motion to dismiss at trial. The military judge denied 

the motion to dismiss, finding that the original rape charge was identical to the new rape 

charge (except for the unit) and that charge had been properly investigated, so no new 

investigation was required. The AFCCA held that the military judge abused his discretion in 

failing to order a new Article 32 investigation into the rape charge. The court found that 

“[W]hen the government relies on a previously completed Article 32 . . . hearing to support 

re-referral of dismissed charges, with no new recommendations by an investigating officer, 

the investigation is covered by Article 32(c) . . . and an accused has the opportunity to 

demand further investigation.” However, the court held that the error was harmless beyond a 

reasonable doubt because the convening authority had been given the information concerning 

her credibility, the SJA had commented on the victim’s credibility in the Article 34 advice, 

and the defense conducted a detailed cross-examination of the victim at trial. 

2. Accused may waive the investigation. RCM 405(k) 

a. Personal right of the accused. United States v. Garcia, 59 M.J. 447 (C.A.A.F. 2004). 

Accused must personally waive right to Article 32 hearing (attorney cannot waive it for him). 

Court does not proscribe method for waiver. 

b. May be waived for personal reasons. If waived for personal reasons, withdrawal of the 

waiver need only be permitted upon a showing of good cause. United States v. Stone, 37 M.J. 

558 (A.C.M.R. 1993). See also United States v. Nickerson, 27 M.J. 30 (C.M.A. 1988). 

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c. Defense offer to waive is not binding on the Government; investigation may still be held. 

RCM 405(k). 

d. May be waived as a condition of a pretrial agreement. RCM 705(c)(2)(E); United States 

v. Shaffer, 12 M.J. 425 (C.M.A. 1982). Article 32 is not a jurisdictional requirement. RCM 

905(b)(1) Discussion. 

V. SCOPE OF THE INVESTIGATION 

A. Generally. Should be limited to evidence, including witnesses, needed to: 

1. Determine whether there is probable cause to believe an offense(s) was committed and 

whether the accused committed it, 

2. Determine whether jurisdiction over the offense and accused exists; 

3. Consider form of the charges; 

4. Make a recommendation as to disposition. 

B. Investigation of Uncharged Offenses. Article 32(f); RCM 405(e). Preliminary Hearing Officer 

(PHO) may investigate subject matter of the uncharged offense(s) without preferral of additional 

charge(s), provided notice and certain rights are afforded to the accused. 

1. PHO may investigate subject matter of the uncharged offense without preferral of 

new/additional charge(s). 

2. Similarly, if charges are changed to allege a more serious or essentially different offense, 

further investigation should be directed with respect to the new or different matter. See, e.g., 

United States v. Bender, 32 M.J. 1002 (N.M.C.M.R. 1991). 

C. Burden of Proof. RCM 405(j)(2)(H). PHO determines whether “probable cause” exist to 

believe the accused committed the offense. “Probable cause” means “more than a bare suspicion but 

less than evidence that would justify a conviction” Black’s Law Dictionary 1321 (9th ed. 2009). 

D. Non-binding recommendation. IO’s recommendations are only advisory. RCM 405(a) 

Discussion. 

VI. PARTICIPANTS. 

A. Appointing Authority. RCM 405(c). 

1. Any court-martial convening authority (including summary court-martial convening 

authority) may direct an Article 32 investigation. 

2. Usually, the special court-martial convening authority (SPCMCA) will order the 

investigation. 

3. Appointing Authority should be neutral and detached, within reason. 

a. Accuser means a person who (1) signs and swears to charges, any person who (2) directs 

that charges nominally be signed and sworn to by another, and (3) any other person who has 

an interest other than an official interest in the prosecution of the accused. See UCMJ art. 

1(9); RCM 601(c) discussion. 

b. Statutory Disqualification. A convening authority is statutorily disqualified if he or she 

prefers charges or directs another to prefer charges (the first two types of accuser in UCMJ 

art. 1(9)). See, e.g., McKinney v. Jarvis, 46 M.J. 870 (A. Ct. Crim. App. 1997) (convening 

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authority who becomes an accuser by virtue of preferring charges in an official capacity as a 

commander is not, per se, disqualified from appointing a pretrial IO to conduct a thorough 

and impartial investigation of those charges). 

c. Personal Disqualification. A convening authority is personally disqualified if he or she 

has an other-than-official interest in the case (a “Type 3” accuser in Article 1(9), UCMJ). 

1) United States v. Nix, 40 M.J. 6 (C.M.A. 1994). Accuser concept also applies to those 

who forward the charges. Special court-martial convening authority’s (SPCMCA’s) 

girlfriend (later spouse) was acquainted with accused. Record did not establish that 

SPCMCA acted without improper motives. SPCMCA must disclose any potential 

personal interests, and if disqualified, forward without recommendation. 

2) United States v. v. Dinges, 55 M.J. 308 (C.A.A.F. 2001). A convening authority who 

becomes an accuser by virtue of having such a close connection to the offense that a 

reasonable person would conclude he had a personal interest in the case is disqualified 

from taking further action as a convening authority. At a GCM the accused was 

convicted of sodomy arising out of his activities as an assistant scoutmaster with a local 

troop of the Boy Scouts. The Scout Executive terminated his status as an assistant, and 

contacted the CA (who was a district chairman of the Big Teepee District, Boy Scouts of 

America) about the matter. Prior to preferral of charges, the accused was assigned to the 

CA’s wing (a special court-martial convening authority level command). The CAAF 

ordered a DuBay hearing to determine whether the convening authority had an other than 

official interest that would disqualify him under UCMJ art. 1(9) and United States v. Nix, 

40 M.J. 6 (C.M.A. 1994). Based on facts gathered at the DuBay hearing, the CAAF held 

the SPCMCA did not become an accuser because he did not have such a close connection 

to the offense that a reasonable person would conclude he had a personal interest in the 

case. As such, he was not disqualified from taking action as a CA. 

d. Fact that appointing authority has determined to send the accused’s case to a general 

court-martial does not show he is biased. United States v. Wojciechowski, 19 M.J. 577 

(N.M.C.M.R. 1984) (appointing authority was not personally disqualified after telling an NIS 

agent and the defense counsel, prior to completion of the Article 32, that he was “going to 

send (appellant) to a general court-martial”). 

4. Why does statutory vs. personal disqualification matter? It will affect the range of options 

available. 

Action contemplated If statutorily 

disqualified ­

If personally 

disqualified ­

Appointing Article 32 PHO May appoint Article 32 

PHO 

May not appoint Article 

32 PHO 

Dismissal of charges May dismiss May dismiss 

Disposition by other means May dispose of case via 

Article 15, Ltr of 

Reprimand, etc. 

May dispose of case via 

Article 15, Ltr of 

Reprimand, etc. 

Convening a court martial May convene a SCM, 

but not a SPCM or a 

GCM 

May convene a SCM, 

but not a SPCM or a 

GCM 

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Forwarding to superior May forward with May forward but may 

recommendation as to not make 

disposition (must note recommendation 

statutory 

disqualification) 

B. Preliminary Hearing Officer (PHO). RCM 405(d)(1). 

1. Should be a judge advocate. Whenever practicable, the PHO should be a judge advocate. 

RCM 405(d)(1). When not a judge advocate, the PHO should be an officer O-4 or higher. RCM 

405(d)(1), Discussion. 

2. Controls the proceedings. It was not error for the investigating officer (IO) to limit 

redundant, repetitive, or irrelevant questions by the defense counsel. United States v. Lewis, 33 

M.J. 758 (A.C.M.R. 1991). 

3. Disqualified from serving later in same case in any capacity. RCM 405(d)(1). 

4. Must be impartial. 

a. May not be the accuser in the case. 

b. PHO must be impartial, but not disqualified merely because of: 

1) Prior knowledge about the case. United States v. Schreiber, 16 C.M.R. 639 

(A.F.B.R. 1954). 

2) Investigated a related case. United States v. Collins, 6 M.J. 256 (C.M.A. 1979). 

c. The PHO is partial and is disqualified if: 

1) Played a prior role in perfecting the case against the accused. United States v. Lopez, 

42 C.M.R. 268 (C.M.A. 1970); United States v. Parker, 19 C.M.R. 201 (C.M.A. 1955). 

2) Previously formed or expressed an opinion about the accused’s guilt. United States 

v. Natallelo, 10 M.J. 594 (A.F.C.M.R. 1980). 

3) Served as DSJA in the SJA office. United States v. Davis, 20 M.J. 61 (C.M.A. 1985). 

4) Anytime his/her impartiality might reasonably be questioned. A PHO is bound by 

the ethical standards applicable to judges, i.e. Code of Judicial Conduct and the ABA 

Standards for Criminal Justice. ABA Standards for Criminal Justice, Special Functions 

of the Trial Judge, Standard 6-1.6 (3d ed. 2000). United States v. Castleman, 11 M.J. 562 

(A.F.C.M.R. 1981) (IO was close personal friend of accuser, purchased airplane and 

vacationed with accuser two days before Article 32); United States v. Davis, 20 M.J. 61 

(C.M.A. 1985) (IO was XO of NLSO and was defense counsel’s supervisor.) See also 

United States v. Willis, 43 M.J. 889 (A.F. Ct. Crim. App. 1996) (IO not biased, even 

though misapplied 100-mile rule as reason for not interviewing witnesses and considered 

sworn statements of unavailable witnesses and videotaped confession.) 

5. Advice. With regard to substantive matters, any advice received must be from a neutral 

source. United States v. Payne, 3 M.J. 354 (C.M.A. 1977). 

a. Persons performing prosecutorial functions are not neutral. United States v. Grimm, 6 

M.J. 890 (A.C.M.R. 1979). 

b. Advice must not be given ex parte. United States v. Payne, 3 M.J 354 (C.M.A. 1977). 

ABA Standards, Special Functions of the Trial Judge 6-2.1 (1982). After receiving the 

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advice notice must be given of the person consulted, the substance of the advice, and the 

parties must be afforded a reasonable opportunity to respond. Canon 3(A)(4), Code of 

Judicial Conduct (1972). 

6. Ex parte communication. Ex parte communication between government counsel and the 

PHO regarding substantive matters constitute error that will be tested for prejudice. Ex parte 

communication has a presumption of prejudice that may be rebutted by the trial counsel, but 

actual prejudice to accused very unlikely to be found. See United States v. Payne, 3 M.J. 354 

(C.M.A. 1977) (seven meetings with trial counsel); United States v. Whitt, 21 M.J. 658 (A.C.M.R. 

1985) (two “informal” ex parte interviews with three witnesses); United States v. Francis, 25 M.J. 

614 (C.G.C.M.R. 1987) (meeting with CO, trial counsel, and accuser); and United States v. 

Rushatz, 30 M.J. 532 (A.C.M.R), aff’d, 31 M.J. 450 (C.M.A. 1990) (contacting CID, visiting 

housing & finance offices, talking with potential witness). 

a. United States v. Argo, 46 M.J. 454 (C.A.A.F. 1997). Staff Judge Advocate’s request to 

Article 32 IO (a subordinate officer not under his supervision) to: reopen investigation to 

look into issue of unlawful command influence; and reject the defense’s interpretation of 

precedent regarding “no-contact” order did not constitute unlawful command influence. 

Accused suffered no prejudice by a full investigation of the unlawful command influence 

issues. Although SJA’s ex parte contact violated the law, there was no prejudicial impact 

because the IO consulted her own SJA for legal advice and exercised independent judgment; 

and the defense did not enter an objection at any stage of the court-martial process. 

b. United States v. Holt, 52 M.J. 173 (C.A.A.F. 1999). IO’s furnishing trial counsel with 

name and phone number of blood spatter expert who later provided helpful blood test and 

spatter testimony at trial created at least the appearance of impropriety by providing trial 

counsel with what was, in effect, a supplementary report that was neither transmitted to the 

commander who ordered the investigation nor served on the accused. Such communication 

did not prejudice the accused, although the CAAF held that, in the future, such supplementary 

communications must be reported promptly to the command and to the accused. If such a 

matter arises after referral, the information shall be provided promptly to the commander who 

referred the case to trial, the military judge, and the accused. The parties will be in the best 

position to determine whether any motions or objections are warranted based upon the nature 

of the information. 

7. Delay Authority. United States v. Lazauskas, 62 M.J. 39 (C.A.A.F. 2005). CAAF interprets 

RCM 707(c) to exclude, for 120-day calculation purposes, any delay approved by the Article 32 

PHO if the convening authority previously delegated authority to the PHO to approve delays. 

C. Accused. RCM 405(f). 

1. The accused has the following rights prior to the hearing: 

a. Notice of witnesses the government will call, and copies of, or access to, any statements 

made by those witnesses. 

b. Notice of and reasonable access to any evidence the government intends to offer at the 

hearing; 

c. Notice of and reasonable access to evidence within the government’s control that negates 

ore reduces the degree of guilt of the accused. 

2. The accused has the following rights at the hearing: 

a. To be informed of the charges under consideration. 

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b.	 To be represented by counsel. 

c.	 To be informed of the purpose of the investigation. 

d.	 To be informed of the right against self-incrimination under Article 31. 

e.	 To be present throughout the taking of evidence unless the accused: 

1) Is disruptive. 

2) Is voluntarily absent (technically, cannot force accused to be present). 

f. To cross-examine witnesses on matters relevant to the limited scope and purpose of the 

hearing; 

g. Present mattes in defense and mitigation relevant to the limited scope and purpose of the 

hearing; 

h.	 Make a statement relevant to the limited scope and purpose of the hearing. 

D.	 Defense counsel. RCM 405(d)(3). 

1.	 Will be detailed. 

2. Accused may also request individual military counsel (IMC), who will be provided if 

reasonably available. 

3.	 Accused may be represented by civilian counsel at no expense to the Government. 

a.	 Accused entitled to a reasonable time to employ civilian counsel. 

b. Investigation will not be unduly delayed to acquire civilian counsel. United States v. 

Pruner, 33 M.J. 272 (C.M.A. 1991). 

c.	 Use of civilian counsel does not limit the accused’s rights to military counsel. 

E.	 Government Representative (Trial Counsel). RCM 405(d)(2). 

1.	 A judge advocate, not the accuser, will serve as counsel for the government. 

2.	 Shall present evidence relevant to the limited scope and purpsoe of the hearing. 

F.	 Reporter. RCM 405(d)(4). 

1.	 Detailed by, or requested by, the convening authority. 

2.	 Assists the investigating officer in recording the proceeding. 

VII. WITNESS AND EVIDENCE PRODUCTION 

A.	 Witness Production. RCM 405(g)(1-2) 

1. Prior to the hearing, defense shall provide a list of witnesses they want the government to 

produce, and the form of their testimony (i.e., in person, telephonic, video conference). 

2. Government counsel must then decide whether the witness’s testimony is relevant, not 

cumulative, and necessary for the limited scope and purpose of the hearing. 

3. If government counsel objects, defense counsel may ask the PHO to independently decide 

whether the witness is relevant, not cumulative, and necessary. 

4.	 Military Witnesses. RCM 405(g)(1) 

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a. If government does not object, or if the PHO approves defense counsel’s request, 

government counsel will ask the witness’s commander to make the individual available to 

testify. 

b. The witness’s commander will determine whether the individual is available based on 

‘operational necessity or mission requirements.’ The commander will also decide if the 

witness will testify in person, telephone, or other means of remote testimony. The 

commander’s determination is final. The commander must balance the importance of the 

witness against the difficulty of producing the witness, expense, delay, or effect on military 

operations. 

c. In any case, a victim who declines to testify is ‘not available’ for purpose of the hearing. 

5. Civilian Witnesses. RCM 405(g)(2) 

a. If government does not object, or if the PHO approves defense counsel’s request, 

government counsel will invite the witness to provide testimony at the hearing. ’s 

commander to make the individual available to testify. 

b. If any expense will be incurred to produce the civilian witness, the convening authority 

will decide if the witness will testify in person, telephone, or other means of remote 

testimony. The commander’s determination is final. The commander must balance the 

importance of the witness against the difficulty of producing the witness, expense, delay, or 

effect on military operations. 

c. In any case, a victim who declines to testify is ‘not available’ for purpose of the hearing. 

6. Immunized witnesses. Only a General Court-Martial Convening Authority (GCMCA) has 

the authority to grant immunity to witnesses to testify at an Article 32 investigation (or CourtMartial). RCM 704(c) and Discussion. United States v. Douglas, 32 M.J. 694 (A.F.C.M.R. 

1991) (no abuse of discretion in denying defense requested immunity for two witnesses at Article 

32). 

B. Other Evidence 

1. Prior to the hearing, defense shall provide a list of evidence they want the government to 

produce. 

2. Government counsel must then decide whether the evidence is relevant, not cumulative, and 

necessary for the limited scope and purpose of the hearing. 

3. If government counsel objects, defense counsel may ask the PHO to independently decide 

whether the evidence is relevant, not cumulative, and necessary. 

4. Evidence under the control of the government. RCM 405(g)(3)(A). If government does not 

object, or if the PHO approves defense counsel’s request, government counsel will make 

reasonable attempts to obtain the evidence. 

5. Evidence not under the control of the government. RCM 405(g)(3)(B) 

a. If government does not object, the evidence may be requested by noncompulsory means 

or by suboenas duces tecum (SDT). 

b. If the PHO approves defense counsel’s request and issuance of a SDT will not cause 

undue delay, the PHO shall direct the government counsel to issue a SDT. 

VIII. PROCEDURE FOR CONDUCTING THE HEARING. 

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A. General Procedure. 

1. CA is authorized to prescribe specific procedures for conducting the investigation. RCM 

405(c). See United States v. Bramel, 32 M.J. 3 (C.M.A. 1990) (appointing authority’s 

instructions to IO to place a partition between the child witness and the accused okay). 

2. Normally, DA Pam 27-17 (18 Jun 15) will be followed. 

3. The CA will usually require expeditious proceeding and set the deadline for receipt of the 

record of investigation. Per RCM 707(c) and Discussion, the appointing authority may delegate 

limited authority to approve delay to Article 32 PHO. See United States v. Thompson, 46 M.J. 

472 (1997), affirming 44 M.J. 598 (N-M. Ct. Crim. App. 1996). Defense requested delays that 

were granted by the Article 32 investigating officer and later ratified by the convening authority 

after the fact were properly excluded from the speedy trial calculations under RCM 707. 

4. Report of investigation should be forwarded to GCMCA within eight days if accused in 

pretrial confinement. RCM 405(j)(1) discussion. 

B. Military Rules of Evidence. RCM 405(h). Military Rules of Evidence do not apply other than: 

1. M.R.E. 301 (self-incrimination), 302 (statements from mental examination), 303 (degrading), 

and 305 (rights warning); 

2. M.R.E. 412 (rape shield), except the ‘constitutional exception’ enumerated by M.R.E. 

412(b)(1)(c) does not apply at the hearing. (Therefore the accused may not invoke the exception 

when seeking admission of evidence normally excluded by M.R.E. 412.) 

3. Section V (privileges), except the following DO NOT apply: M.R.E. 505(f)-(h) and (j) 

[classified information], M.R.E. 506(f)-(h), (j), (k), and (m) [other government information]; and 

M.R.E. 514(d)(6) [victim advocate information]. 

4. The PHO shall assume the role of the ‘military judge’ as referenced in the M.R.E. listed 

above. The PHO will have the same authority as a military judge to exclude evidence from the 

hearing, and will follow the procedures as stated in those rules. 

5. The PHO does not have the authority to order production of communications covered by 

M.R.E. 513 and 514. 

C. Right to Confrontation. 

Article 32 investigation, while an important pretrial right, is not the equivalent of a crucial trial 

right for Confrontation Clause purposes. See United States v. Bramel, 32 M.J. 3 (C.M.A. 1990). 

It is not improper for accused to be separated from child witness by a screen at Article 32. 

Consider admissibility at trial of testimony obtained in this manner if witness is later unavailable 

in light of Crawford v. Washington, 541 U.S. 36 (2004). 

D. Open vs. Closed Hearing. RCM 405(i)(4). The proceedings may be closed or access restricted 

in the discretion of the appointing authority or the PHO. Ordinarily, though, the proceedings should 

be open. 

1. See ABC, Inc, v. Powell, 47 M.J. 363 (C.A.A.F. 1997). SPCMA’s reasons (maintain integrity 

of military justice system, prevent dissemination of evidence that might not be admissible at trial, 

and shield alleged victims from possible news reports about anticipated attempts to delve into 

each woman’s sexual history) supporting decision to close entire investigation were 

unsubstantiated. The CAAF holds that the accused has a qualified right to an open Article 32 

hearing. 

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a. Closure determination must be a “‘reasoned,’ not ‘reflexive’” one, made on a “case-bycase, witness-by-witness, and circumstance-by-circumstance basis whether closure in a case 

in necessary to protect the welfare of a victim. . . .” 

b. Absent cause shown that outweighs the value of openness (overriding interest articulated 

in the findings), the military accused is entitled to a public Article 32 hearing. The right is 

not absolute. 

c. The press enjoys the same right to a public Article 32 and has standing to complain if 

access is denied. 

2. United States v. Davis, 62 MJ. 645 (A.F. Ct. Crim. App. 2006), aff’d, 64 M.J. 445 (C.A.A.F. 

2007). The IO closed the Article 32 hearing during testimony of two victims of alleged sexual 

assault “due to the sensitive and potentially embarrassing nature of the testimony and in order to 

encourage complete testimony about the alleged sexual offenses.” The IO failed to speak to 

either witness and no evidence existed that the witnesses were reluctant to testify in a public 

hearing. The MJ held that the IO’s decision was not supported by the evidence and was error, but 

the MJ declined to fashion any relief because he could determine no “articulable harm” to the 

accused. The AFCCA agreed that the IO erred in closing the hearing but held that once the MJ 

found that the accused’s rights to a public hearing were violated, however, that “the [MJ]— 

without a showing of prejudice or articulable harm—. . . should have dismissed the affected 

charges to allow for reinvestigation under Article 32.” The AFCCA, however, did not reverse or 

order a new Article 32 hearing because the closure did not adversely affect the accused’s rights at 

trial so setting aside his conviction was not warranted. On appeal, CAAF affirmed, clarifying 

that, on appeal, Article 32 issues will be reviewed under Article 59(a). CAAF noted that the 

AFCCA was correct in holding that the MJ erred by requiring a showing of prejudice before 

providing a remedy. 

3. San Antonio Express-News v. Morrow, 44 M.J. 706 (A.F. Ct. Crim. App. 1996) (cited with 

approval in ABC, Inc. v. Powell). Court denied newspaper’s extraordinary writ to reverse by 

mandamus IO’s decision to close hearing, over defense objection, concerning O-4 charged with 

murder of 11-year old girl. While Article 32 investigations are presumptively public hearings, the 

IO did not abuse discretion, and articulated good reasons supporting her action (citing a need to 

protect against the dissemination of information that might not be admissible in court; to prevent 

against contamination of a potential jury pool; to maintain a dignified, orderly, and thorough 

hearing; and to encourage the complete candor of witnesses called to testify). The court reasoned 

that RCM 405(h)(3) is unclear how competing interests are to be weighed in deciding whether to 

close a hearing, or whether the entire hearing could be closed, so mandamus was not appropriate 

for this area of law that is “developing” and “subject to differing interpretations.” 

4. See also United States v. Anderson, 46 M.J. 728 (A. Ct. Crim. App. 1997) (adopting the 

“stringent test” for closure of court-martial proceedings (citing Press-Enterprise Co. v. Superior 

Court, 478 U.S. 1 (1986)). A court-martial may be closed to the public provided the following 

test is met: 

a. The party seeking closure must advance an overriding interest that is likely to be 

prejudiced; 

b. The closure must be narrowly tailored to protect that interest; 

c. The trial court must consider reasonable alternatives to closure; 

d. And it must make adequate findings supporting the closure to aid in review. 

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5. There is no “national security” exception to these principles. The appointing authority must 

still conduct a case-by-case, witness-by-witness, circumstance-by-circumstance determination. 

a. Denver Post Corp. v. United States, No. 20041215 (A. Ct. Crim. App. Feb. 23, 2005) 

(unpub.). The IO conducted preliminary matters in an open forum and then closed the 

proceeding to hear testimony from a security specialist regarding classified information. 

After receiving the security specialist’s testimony, the IO closed the entire hearing. 

Additional witnesses testified to non-classified information in a closed session later in the 

day. Denver Post filed a writ demanding a stay of the proceeding until ACCA could rule on 

the hearing’s closure. ACCA granted the stay and ruled that the IO erred in closing the entire 

proceeding. Closing a proceeding is only warranted when a “compelling showing [exists] 

that such was necessary to prevent the disclosure of classified information.” Id. at *3 (quoting 

United States v. Grunden, 2 M.J. 116, 121 (C.M.A. 1977)). An IO may only close a 

proceeding “after consideration of the specific substance of the testimony of individual 

witnesses expected by the parties and a factual determination that all of the expected 

testimony of such a witness will reveal classified information.” Id. at *6. Additionally, 

ACCA ordered the Government provide The Denver Post a verbatim transcript of the 

testimony, with classified information redacted. 

b. In re Halabi, Misc Dkt. 2003-07 (A.F. Ct. Crim. App. Sep. 16, 2003) (unpub.) (granting 

writ of mandamus quashing blanket order excluding the public from entire investigation due 

to national security concerns). 

6. For a good analysis of the case law in this area, see Major Mark Kulish, The Public’s Right of 

Access to Pretrial Proceedings Versus The Accused’s Right to a Fair Trial, Army Law., Sept. 

1998, at 1. 

E. Testimony by Witnesses. RCM 405(i)(3)(A). 

1. Witnesses may testify in person, by video teleconference, telephone, or similar remote means. 

2. All testimony must be under oath, except accused may make an unsworn statement. 

IX. REPORT OF INVESTIGATION 

A. Authority. Per RCM 405(j), the PHO must submit a timely report of investigation to the
 

appointing authority. 

B. Contents. The report must include: 

1. Names and organizations/address of defense counsel, whether defense counsel were present 

at proceedings, and if not, why. 

2. Substance of the testimony. Usually summarized, though it may be verbatim. In any case, 

the testimony must be recorded by a ‘suitable recording device.’ See DA Pam 27-17, paras. 3­

3a(2) and 4-1. 

3. Any other evidence considered by the PHO. 

4. A statement regarding availability of witnesses, including the reasons why any were 

unavailable. 

5. An explanation of any delays; 

6. If applicable, a note indicating the failure of government counsel to issue a PHO directed 

subpoena duces tecum; 

7. The PHO’s conclusion whether probable cause exists to believe the listed offenses occurred; 

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8. The PHO’s conclusion whether probable cause exists to believe the accused committed the 

listed offenses; 

9. The PHO’s conclusion whether the charges and specifications are in the proper form; 

10. The PHO’s conclusion whether a court-martial has jurisdiction over the offenses; 

11. Recommendation as to disposition. 

C. Form of the Report. Usually consists of DD Form 457 (Investigating Officer’s Report) and 

attached summarized testimony of witnesses and evidence considered. DA Pam 27-17, para 4-1. 

D. Distribution of the Report. 

1. Original goes to the appointing authority. 

2. One copy goes to the accused. 

X. POSSIBLE ACTION BY THE APPOINTING AUTHORITY. RCM 404 

A. Dismiss the Charges. 

B. Administrative Disposition. 

C. Nonjudicial Punishment. 

D. Referral to SCM or SPCM. 

E. Forwarding with recommendations to GCMCA. 

F. Reopen and order further investigation. 

XI. TREATMENT OF DEFECTS 

A. OVERVIEW. During post-trial appeal, relief for a defective Article 32 may only be granted 

where an accused can show a timely objection and violation of his substantial rights. See Article 

59(a), UCMJ (“A finding or sentence of court-martial may not be held incorrect on the ground of an 

error of law unless the error materially prejudices the substantial rights of the accused.”). 

1. It may be very difficult to show prejudice. See United States v. Von Bergen, 67 M.J. 290 

(C.A.A.F. 2009) (“Article 32, UCMJ, errors are tested on direct review for prejudice as defined 

by Article 59(a)”) (citing United States v. Davis, 64 M.J. 445, 449 (C.A.A.F. 2007)). Von Bergen 

noted military courts have a long history of deciding that the Article 32 proceedings are 

“superseded” by the trial procedures, so the accused’s rights at an Article 32 “merge into his 

rights at trial” (citing United States v. Mickel, 26 C.M.R. 104, 107 (C.M.A. 1958)). Because 

these rights merge, the court held the accused suffered no prejudice, even though he was 

erroneously denied his right to an Article 32 hearing. 

2. “[I]n the event that a pretrial investigation, less complete than is provided here, is held and 

thereafter at the trial full and complete evidence is presented which establishes beyond a 

reasonable doubt the guilt of the accused, there doesn’t seem to be any reason ... that the case 

should be set aside if lack of full compliance doesn’t materially prejudice his substantial rights 

.... Now, if it has, that is and should be grounds for a reversal of a verdict of guilty.” United 

States v. Allen, 5 C.M.A. 626, 633, 18 C.M.R. 255, 257 (1955) (quoting testimony of Mr. Larkin 

at Hearings on H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services, 81st 

Cong., 1st Sess. 998 (1949)). 

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3. “[I]f an accused is deprived of a substantial pretrial right on a timely objection, he is entitled 

to judicial enforcement of his right, without regard to whether such enforcement will benefit him 

at trial. At that stage of the proceedings, he is perhaps the best judge of the benefits he can obtain 

from the pretrial right. Once the case comes to trial on the merits, the pretrial proceedings are 

superseded by the procedures at trial; the rights accorded to the accused at the pretrial stage 

merge into his rights at trial. If there is no timely objection to the pretrial proceedings or no 

indication that these proceedings adversely affected the accused’s rights at the trial, there is no 

good reason in law or logic to set aside his conviction.” United States v. Mickel, 26 C.M.R. 104 

(C.M.A. 1958). 

4. United States v. Davis, 64 M.J. 445 (C.A.A.F. 2007). Case involves closing an Article 32 and 

clarifies the standard for appellate review. “The time for correction of [procedural errors in the 

Article 32] is when the military judge can fashion an appropriate remedy . . . before it infects the 

trial . . . .” CAAF explains that, on appeal, the standard of review of Article 32 procedural errors 

is under Article 59(a), UCMJ, which states, “A finding or sentence of court-martial may not be 

held incorrect on the ground of an error of law unless the error materially prejudices the 

substantial rights of the accused.” 

B. Objections Must Be Timely Made. 

1. Defects discovered during the investigation must be made to the convening authority through 

the PHO. RCM 405(i)(8). 

2. Defects in the report of investigation. RCM 405(j)(5). 

a. Objections must be made to the appointing authority. 

b. Must be made within five days of receipt of report by accused. 

c. Failure to raise the objection within 5 days is a waiver absent good cause. RCM 405(k). 

d. NOTE: Appointing authority not precluded from referring the charges or taking other 

action within the five days. 

C. Motion for Appropriate Relief Must Be Made At Trial. RCM 905(b)(1). 

1. Must be made before plea is entered. 

2. Failure to raise before plea waives the error, absent good cause. RCM 405(k), RCM 905(b) 

and Discussion. 

D. Standards for Motion. 

1. Broad standards. 

a. “[N]o charge or specification may be referred to a general court-martial for trial until 

completion of a preliminary hearing in substantial compliance with this rule.” RCM 405(a). 

b. Failure to substantially comply with the requirements of Article 32, which failure 

prejudices the accused, may result in delay of disposition of the case or disapproval of the 

proceedings. RCM 405(a) Discussion. 

c. Motions for appropriate relief (including a motion to correct defects in the Article 32 

investigation) are designed to cure defects which deprive a party of a right or hinder a party 

from preparing for trial. RCM 906(a); RCM 906(b)(3). 

2. Types of defects. 

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a. Investigation improperly convened. Accused is denied a substantial pretrial right when 

the Article 32 investigation is ordered by an officer who lacks proper authority. United States 

v. Donaldson, 49 C.M.R. 542 (C.M.A. 1975) (jurisdictional error). 

b. Partiality of the PHO. Partiality of the PHO will be tested for prejudice. United States v. 

Cunningham, 30 C.M.R. 402 (C.M.A. 1961). 

c. Denial of right to counsel/ineffective assistance of counsel. 

1) The right to the assistance of counsel of one’s own choice during the pretrial 

investigation is a substantial pretrial right of the accused. United States v. Maness, 48 

C.M.R. 512 (C.M.A. 1974); United States v. Miro, 22 M.J. 509 (A.F.C.M.R. 1986) (“An 

unprepared counsel is tantamount to no counsel at all”). There is no requirement to 

demonstrate prejudice, but 

2) Improper denial of counsel and denial of effective assistance of counsel at the Art. 32 

investigation should be tested for prejudice. United States v. Davis, 20 M.J. 61 (C.M.A. 

1985); United States v. Freedman, 23 M.J. 820 (N.M.C.M.R. 1987). 

E. Remedy. 

1. Ordinarily the remedy is a continuance to re-open the investigation. RCM 906(b)(3) 

discussion. 

2. If the charges have already been referred, re-referral is not required following a re-opening of 

the investigation; affirmance of the prior referral is sufficient. United States v. Clark, 11 M.J. 179 

(C.M.A. 1981). 

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APPENDIX 

Article 32 Summary 

MAJOR POINT SUMMARY 

PRESERVATION AND o Article 32 testimony may be admissible as substantive evidence at 

ADMISSION OF 32 courts-martial (once the foundational elements for each provision 

TESTIMONY are satisfied): 

• M.R.E. 801(d)(1) (prior inconsistent statement); 

• M.R.E. 804(b)(1) (former testimony); 

• M.R.E. 807 (residual hearsay). 

PARTICIPANTS o The appointing authority (AA) must be neutral and detached. An 

AA who is merely a statutory “accuser” has more options than an 

AA with an other than official interest in the case. See United States 

v. Wojciechowski, 19 M.J. 577 (N.M.C.M.R. 1984); McKinney v. 

Jarvis, 46 M.J. 870 (A. Ct. Crim. App. 1997); see also United States 

v. Dinges, 49 M.J. 232 (1998). The preliminary hearing officer must 

be “neutral and detached,” and must avoid ex parte contact. The 

PHO is bound by the ethical standards applicable to judges. PHO 

actions that violate the above, upon appropriate motion, must be 

tested for prejudice to the accused. 

PRODUCTION OF o RCM 405(g)(1)(A) controls whether the Gov’t must secure the 

WITNESSES physical presence of witnesses. A witness is reasonably available if 

within 100 miles of the situs of the investigation and the significance 

of the testimony and personal appearance outweighs the difficulty, 

expense, delay, and effect on military operations of obtaining the 

witnesses’ appearance. Relief from an IO’s misapplication of the 

balancing test is granted only upon a showing of undue prejudice to 

the accused. Alternative means of obtaining the testimony (i.e. 

telephonic direct and cross examination) may negate prejudice. 

PROCEDURE FOR o Speedy Trial Considerations: RCM 707 appears to vest authority to 

CONDUCTING THE exclude article 32 delays from the speedy trial clock only in the AA. 

INVESTIGATION An IO does not have inherent authority to do the same, but it appears 

that the AA can delegate this authority to an IO. United States v. 

Thompson, 46 M.J. 472 (1997). 

o M.R.E. application: Only the rules on privileges, Rape Shield, and 

self-incrimination apply at the Article 32 investigation. RCM 

405(i). 

o Standard for Closure: Whether there is cause that outweighs the 

value of openness. The cause must be an overriding interest 

articulated in the findings. This determination must be made on a 

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case-by-case, witness-by-witness basis. See generally ABC, Inc. v. 

Powell, 47 M.J. 363 (C.A.A.F. 1997); RCM 405(h)(3). 

Treatment of Defects and o	 Objections to the investigation must be made “promptly upon 

discovery” or are waived, absent good cause. RCM 405(h)(2) and 

405(k). 

Remedy 

o	 Objections to the report must be made “timely” (that is, within five 

days of service of the report on the accused) or are waived, absent 

good cause. RCM 405(j)(4) and 405(k). 

o	 Objections not made prior to entry of plea are waived, absent good 

cause. (Defects are nonjurisdictional). Objections are made by 

motion for appropriate relief. RCM 905(b), 905(e) and 906(b)(3). 

o	 If objection is to failure to produce a witness, accused may need to 

request deposition of witness in order to preserve objection. United 

States v. Chuculate, 5 M.J. 143 (C.M.A. 1978). 

o	 The burden of proof that the Government has not substantially 

complied with the provisions of Article 32, to the prejudice of the 

accused, is on the accused by a preponderance of the evidence. 

RCM 405(a), Discussion; RCMs 905(c)(1) and 905(c)(2). 

o	 The remedy to correct a defect is normally a continuance to correct 

the defect. RCM 906(b)(3), Discussion. 

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[Back to Table of Contents] 

CHAPTER 14
 

PRETRIAL ADVICE
 

I.	 Introduction 

II. Pretrial Advice Purposes 

III. Pretrial Advice Preparation 

IV. Pretrial Advice Defects 

V. Sexual Assault Cases 

I. INTRODUCTION 

A. Defined. Pretrial Advice (also known as Article 34 Advice) is the SJA's written advice given to the 

Convening Authority prior to referral. There are mandatory components to the advice (covered in this 

outline and also found at RCM 406), and optional components. 

B. When required. Pretrial Advice is a prerequisite to referral to a General Court-Martial. By regulation, 

he Army requires a Pretrial Advice prior to referral to a Special Court-Martial. AR 27-10, para 5-28(b) 

("The servicing staff judge advocate will prepare a pretrial advice, following generally the format of RCM 

406(b)."). 

II. PRETRIAL ADVICE PURPOSES 

A. Substantial Pretrial Right of the Accused. 

1. Protects accused against trial on baseless charges. 

2. Protects accused against referral to an inappropriate level of court-martial. 

3. Limited veto over convening authority's power to refer charges. 

B. Prosecutorial Tool. 

1. Provides legal advice to the convening authority regarding the charges. 

2. Additional opportunity for the SJA/military justice section to review the charges (form, substance, 

etc) prior to referral. 

III. PRETRIAL ADVICE PREPARATION 

A. Mandatory Contents. UCMJ art. 34. 

1. The Pretrial Advice is required to include: 

a) Conclusions with respect to whether each specification alleges an offense under the code; 

b) Conclusions with respect to whether the allegation of each offense is warranted by the evidence 

indicated in the report of investigation; 

(1) The standard is probable cause. RCM 406(b) discussion. 

c) Conclusions with respect to whether a court-martial would have jurisdiction over the accused 

and the offense; and 
 

 

 

 

 

 

 

 

 

 

 

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d) A recommendation of the action to be taken by the convening authority. 

e) Capital Cases ONLY: The pretrial advice should give notice of aggravating factors prior to 

arraignment, per RCM 1004(b)(1) and (c). 

2. Binding Effect on the Convening Authority 

a) The three legal conclusions are binding on the convening authority. For example, if the Staff 

Judge Advocate concludes there is no jurisdiction over the offense, then then the affected charges 

and their specification CANNOT be referred. 

b) The SJA's recommendation as to referral is non-binding. The convening authority may follow it, 

or not follow it, as s/he deems appropriate. 

c) Sex related offenses. In certain sex related offenses, the Staff Judge Advocate’s recommendation 

as to referral will impact the level of subsequent review of a convening authority’s non-referral 

decision. See AR 27-10, para 5-19. 

3. Practice Tip: When preparing the Pretrial Advice, check RCM 406 to make certain all of the 

mandatory contents are covered. 

B. Optional Contents 

1. Relevant additional information. The discussion to RCM 406(b) states that "[t]he pretrial advice 

should include, when appropriate: a brief summary of the evidence; discussion of significant 

aggravating, extenuating, or mitigating factors; any previous recommendations by commanders or others 

who have forwarded the charges, for disposition of the case." Failure to include this information is not 

error. 

2. Rationale or underlying analysis. There is no requirement that the Staff Judge Advocate include his 

rationale or underlying analysis regarding his legal conclusions or recommendation 

C. Who Prepares/Signs the Advice? 

1. Contents. The SJA is personally responsible for the contents of the advice. The SJA must make an 

independent and informed appraisal in arriving at his conclusions. 

2. Preparation. The SJA does not have to prepare the advice by himself/herself. Trial counsel may 

draft the pretrial advice for the SJA's consideration. 

3. Signature. The SJA (or Acting SJA) must personally sign the pretrial advice. Signing “For the SJA" 

is error. United States v. Hayes, 24 M.J. 786 (A.C.M.R. 1987). 

D. Subsequent Disqualification of the SJA to Prepare Post-Trial Recommendations 

1. Controverted Pretrial Advice. If there sufficiency or correctness of the Pretrial Advice is challenged 

at trial, the SJA may be disqualified from preparing the post-trial recommendation. RCM 1106(b); 

United States v. Lynch, 39 MJ 223 (CMA 1994) (SJA must disqualify self from participating in the posttrial recommendation where the accused raised “a legitimate factual controversy. . .between the SJA and 

the Defense Counsel.”) 

2. Impartiality. Pretrial advice which calls into question the SJA’s impartiality may disqualify the SJA 

from preparing the post-trial recommendation. United States v. Plumb, 47 MJ 771 (A. F. Ct. Crim. App. 

1997) (findings and sentence set aside where pretrial advice (in conjunction with other errors) referred to 

the accused as a "shark in the waters, [who] goes after the weak and leaves the strong alone.") 

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E. Enclosures to the Pretrial Advice. Any enclosure should be listed on the Pretrial Advice itself. 

1. Charge Sheet 

2. Forwarding Letters and Endorsements 

3. Report of Investigation, DD Form 457 

4. Allied papers. 

5. Character and military service of the accused. Pursuant to section 1708 of the 2014 NDAA, the 

discussion to RCM 306(b) no longer includes “the character and military service of the accused” as a 

factor for command consideration in the initial disposition decision. 

F. Discovery 

A copy of the Pretrial Advice must be provided to the defense if the charges are referred to a GCM. 

RCM 406(c). Because 27-10 now mandates pretrial advice in Special Courts-Martial, provide those to 

the defense as well. 

IV. PRETRIAL ADVICE DEFECTS 

A. Accuracy of contents. All conclusions, advice, and information included in the Pretrial Advice must be 

accurate, even if the contents is optional. 

B. Standard for Relief. Information which is so incomplete as to be misleading may result in a 

determination of defective advice, necessitating appropriate relief. RCM 406(b) Discussion. United States 

v. Kemp, 7 MJ 760 (A.C.M.R. 1979); United States v. Murray, 25 MJ 445 (CMA 1988) (Pretrial Advice 

which omitted a charge is a procedural error tested for prejudice, considering several factors: whether the 

charges were serious enough to warrant trial by general court-martial; whether they were supported by the 

evidence before referral; how the appellant pleaded; whether the appellant objected to the advice at trial; and 

whether the error was disclosed to the convening authority during the post-trial process.) 

C. Types of Relief 

1. Continuance to address the defect. Discussion to RCM 906(b)(3). SJA neglects to include the 

mandatory contents: return the case for a new pretrial advice. 

2. Defects are not jurisdictional. 

D. Waiver. Objections are waived if not raised prior to entry of plea or if the accused pleads guilty. RCM 

905(b) and (e); see generally RCM 910(j) 

V. SEXUAL ASSAULT 

A. A GCMCA’s decision not to refer certain sex related offenses must be forwarded for review by a 

superior GCMCA. The level of GCMCA depends on the SJA’s advice. 

B. A certification that the victim was notified of the opportunity to express their views regarding the
 

preferred disposition of the offense for consideration by the convening authority must be included. 

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Pretrial Advice [Back to Beginning of Chapter]
 

C. Authority. AR 27-10, para 5-19(c)(5) (Implementing Section 1744 of the National Defense 

Authorization Act for Fiscal Year 2014) 

Practice Tip: Most OSJAs are notifying victims of the opportunity to express their views regarding the 

preferred disposition of the offense to the convening authority BEFORE the SJA presents their pretrial 

advice, thereby making the victim's preferred disposition a supplemental enclosure to the pretrial advice 

packet. 

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[Back to Table of Contents] 

CHAPTER 15
 

PRETRIAL AGREEMENTS
 

I. INTRODUCTION........................................................................................................................... 1
 

II. BASIC COMPONENTS OF A PTA ............................................................................................. 1
 

III. NEGOTIATION AND FORM OF AGREEMENT..................................................................... 2
 

IV. MILITARY JUDGE’S INQUIRY AT TRIAL............................................................................. 3
 

V. WITHDRAWAL FROM PTA....................................................................................................... 4
 

VI. CONTENT....................................................................................................................................... 6
 

VII. REMEDIES ................................................................................................................................... 14
 

VIII. POST-TRIAL ISSUES AND EFFECTS..................................................................................... 16
 

I. INTRODUCTION 

A. Defined. A pretrial agreement (PTA) is an agreement between the convening authority and the 

accused. Only the convening authority can bind the government. PTAs are governed by RCM 705. 

B. General. A typical PTA includes the accused’s promises to plead guilty in exchange for the 

convening authority’s agreement to limit the sentence imposed at trial when the case reaches her for 

initial action. After the accused enters a plea of guilty at trial, the military judge will examine the 

agreement and ensure the accused understands it. After the judge accepts the plea as providently 

made, the sentencing authority (the military judge or panel) will proceed to sentencing without 

knowledge of the sentence limitation the convening authority has agreed to. This is possible because 

the PTA is physically separated into two parts (i.e. separate pieces of paper): the agreement (or Part I) 

and the quantum (or Part II). The accused will get the benefit of the lesser sentence - that contained 

within the agreement or that announced at trial. For example, suppose the accused agrees to plead 

guilty to larceny in exchange for an approved sentence no greater than 8 months confinement. 

Assume that at trial the military judge adjudges a sentence of only 6 months confinement. In that 

case, the agreement has no effect on the sentence because the convening authority may only approve 

a sentence of 6 months confinement. On the other hand, if the military judge had sentenced the 

accused to 12 months of confinement, then the accused would receive a benefit from the agreement 

because the convening authority would only be able to approve 8 months of confinement. (See PostTrial Process for more information about convening authority action after trial.) 

II. BASIC COMPONENTS OF A PTA 
 

 

 

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A. A promise by the accused to plead guilty to, or to enter a confessional stipulation as to one or 

more charges and specifications, and to fulfill such additional terms or conditions which may be 

included in the agreement and which are not prohibited under RCM 706. 

B. A promise by the convening authority to do one or more of the following: 

1. Refer the charges to a certain type of court-martial; 

2. Refer a capital offense as non-capital; 

3. Withdraw one or more charges or specifications from the court-martial; 

4. Have the trial counsel present no evidence as to one or more specifications or portions thereof; 

and/or 

5. Take specified action on the sentence adjudged by the court-martial. 

C. The following cases help to flesh out the nature of pretrial agreements and their basic use at trial 

United States v. Brice, 38 C.M.R. 134 (C.M.A. 1967); United States v. Monett, 36 C.M.R. 335 

(C.M.A. 1966); United States v. Neal, 12 M.J. 522 (N.M.C.M.R. 1981). 

III. NEGOTIATION AND FORM OF AGREEMENT 

A. Negotiations. PTA negotiations may be initiated by the accused, defense counsel, trial counsel, 

the staff judge advocate, convening authority, or their duly authorized representatives. Either the 

defense or the government may propose any term or condition not prohibited by law or public policy. 

Government representatives must negotiate with defense counsel unless the accused has waived the 

right to counsel. 

B. Proposal. If the accused elects to propose a PTA, the defense shall submit a written offer. All 

terms, conditions, and promises between the parties shall be written. Unwritten, or sub rosa, 

agreements are prohibited. The proposed agreement shall be signed by the accused and defense 

counsel, if any. If the agreement contains any specified action on the adjudged sentence, such action 

shall be set forth on a page separate from the other portions of the agreement. 

1. Terms not in writing. United States v. Mooney, 47 M.J. 496 (C.A.A.F. 1997). Military judge 

erred by accepting accused’s guilty plea and pretrial agreement after it was clear that the pretrial 

agreement was not in writing as required by RCM 705(d)(2). However, while CAAF criticized 

counsels’ and the judge’s disregard for the rule, court held that reversal of conviction not required 

where the specific terms of the oral agreement were placed on the record, all parties 

acknowledged and complied with terms of agreement, and accused conceded that he received the 

benefit of the bargain. 

2. Terms contained in stipulation of fact. United States v. Forrester, 48 M.J. 1 (C.A.A.F. 1998). 

Term in stipulation of fact which required the accused to waive his right to “any and all defenses” 

did not violate RCM 705 or public policy. CAAF cautions the Government not to attempt to avoid 

the requirements of RCM 705(c)(1)(B) by including terms in a document other than the pretrial 

agreement itself (terms must not be in a stipulation of fact). 

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C. Acceptance. The convening authority may either accept or reject an offer of the accused to enter 

into a pretrial agreement or may propose by counteroffer any terms or conditions not prohibited by 

law or public policy. The decision whether to accept or reject an offer is within the sole discretion of 

the convening authority. When the convening authority has accepted a pretrial agreement, the 

agreement shall be signed by the convening authority or by a person, such as the staff judge advocate 

or trial counsel, who has been authorized by the convening authority to sign. 

D. Victim input. Pursuant to RCM 705(d)(3)(b) and AR 27-10, paragraph 17-15, the government 

will provide the victim an opportunity for input as to the pretrial agreement and their potential terms. 

IV. MILITARY JUDGE’S INQUIRY AT TRIAL 

A. General. The military judge is required to ensure the accused understands each provision of the 

PTA and that entry into the agreement was knowing and voluntary. 

B. Providence. The following cases help to flesh out this requirement. 

1. Waiver of Motions. United States v. Felder, 59 M.J. 444 (C.A.A.F. 2004). Military judge did 

not inquire into a term of the PTA regarding defense’s waiver of any motions for sentence credit 

based on Article 13 and/or restriction tantamount to confinement. Accused’s counsel did inform 

the military judge that no punishment under Article 13 or restriction tantamount to confinement 

had occurred. While the judge’s failure to discuss the term was error, the accused failed to show 

the error materially prejudiced a substantial right. 

2. Meeting of the minds. United States v. Dunbar, 60 M.J. 748 (A. Ct. Crim. App. 2004). The 

accused’s PTA stated “[a]ny adjudged confinement of three (3) months or more shall be 

converted into a [BCD], which may be approved; any adjudged confinement of less than three (3) 

months shall be disapproved upon submission by the accused [of a Chapter 10]” with a 

handwritten annotation stating “with an Other Than Honorable (OTH) discharge.” The MJ 

sentenced the accused to a BCD, two months confinement, and reduction to PFC, causing the 

parties to disagree whether the convening authority could approve the BCD. Defense argued the 

convening authority could not approve both an OTH and a BCD discharge. The government’s 

position was that the accused could submit a Chapter 10 and the convening authority must 

disapprove the two months confinement but the PTA did not require the convening authority’s 

approval of the Chapter 10. RCM 910(h)(3) provides, after the sentence is announced, if the 

parties disagree with the PTA terms the MJ shall “conform, with the consent of the Government, 

the agreement to the accused’s understanding or permit the accused to withdraw the plea.” The 

MJ did not clarify the accused’s understanding or attempt to conform the agreement. Court 

granted rescission for lack of meeting of the minds; findings and sentence set aside. 

3. Misconduct clause. United States v. Sheehan, 62 M.J. 568 (C.G. Ct. Crim. App. 2005). 

Military judge failed to cover a misconduct clause and “specially negotiated provisions” of the 

accused’s PTA and provided an incorrect explanation as to another provision. CGCCA found that 

the military judge erred but that his omissions and misleading explanation did not prejudice the 

accused’s substantial personal rights. 

4. Responsibility to ‘police’ terms. United States v. Sharper, 17 M.J. 803 (A.C.M.R. 1984) 

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(“While the military judge may not have the authority to directly intervene in the pretrial 

negotiations between an accused and a convening authority, he does have the responsibility to 

police the terms of pretrial agreements to insure compliance with statutory and decisional law as 

well as adherence to basic notions of fundamental fairness.”). 

V. WITHDRAWAL FROM PTA 

A. General. Under RCM 705(d)(5)(a), “The accused may withdraw from a pretrial agreement at any 

time; however, the accused may withdraw a plea of guilty or a confessional stipulation entered 

pursuant to a pretrial agreement only as provided in RCM 910(h) or 811(d), respectively.” 

B. Entry into a new PTA subsequent to withdrawal. United States v. Bray, 49 M.J. 300 (C.A.A.F. 

1998). A convening authority may increase the sentence cap of a pretrial agreement when an accused 

withdraws a guilty plea after successful completion of a providence inquiry and, in the same courtmartial, later reenters pleas of guilty to the same charges. The accused entered guilty pleas to assault 

and battery on a child, communicating a threat, and drunk driving. During extenuation and mitigation, 

a defense witness testified that the accused could have committed the offenses after being exposed to 

insecticide poisoning. Accused withdrew his guilty plea and from the pretrial agreement, which 

limited confinement to 20 years to pursue the “bug spray” defense. Accused obtained a new pretrial 

agreement after changing his mind. The sentence cap under the new PTA limited confinement to 30 

years. Neither case law nor RCM 705 prohibit a convening authority from increasing a sentence cap 

in a new pretrial agreement after the convening authority properly withdraws from the original 

pretrial agreement. Accused chose to reopen the initial providence inquiry based on the “bug spray” 

defense and voluntarily withdrew from the original agreement after full consultation with counsel. 

The consequences of withdrawal were addressed in the original agreement, explained on the record, 

and the accused failed to object at trial. 

C. Accused’s post-trial withdrawal of plea. United States v. Olson, 25 M.J. 293 (C.M.A. 1987). 

Accused had right to withdraw his guilty plea in light of additional, unanticipated subtraction from 

pay, if he had good-faith belief that he had fully settled his liability to reimburse Government for 

overpayment under allegedly false travel vouchers and if that belief had induced accused’s entry of 

his pleas. 

D. CA withdrawal subsequent to accused beginning performance. 

1. General. Under RCM 705(d)(5)(b), the convening authority may withdraw from a pretrial 

agreement at any time before the accused begins performance of promises contained in the 

agreement, upon the failure by the accused to fulfill any material promise or condition in the 

agreement, when inquiry by the military judge discloses a disagreement as to a material term in 

the agreement, or if findings are set aside because a plea of guilty entered pursuant to the 

agreement is held improvident on appellate review. As a practical matter, once the accused begins 

performance, the convening authority has limited opportunity to withdraw from the PTA. United 

States v. Dean, 67 M.J. 224 (C.A.A.F. 2009); United States v. Manley, 25 M.J. 346 (C.M.A. 

1987) (once accused completed performance of pretrial agreement, as modified by parties at trial, 

the convening authority was not authorized to unilaterally withdraw from the agreement). 

Performance will often take the form of entry into a stipulation of fact. 

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2. Performance before and after execution of the agreement. Appellate courts have strictly 

interpreted convening authority’s right to withdraw from an approved pretrial agreement. United 

States v. Dean, 67 M.J. 224 (C.A.A.F. 2009). On eve of trial, convening authority withdrew from 

pretrial agreement because the accused refused to modify stipulation of fact to include new (postpreferral) misconduct. Relying on RCM 704(d)(4)(B), the court held the convening authority 

could not withdraw once the accused began performance of any promise in the agreement; in this 

case, the accused had signed stipulation of fact, filed an amended witness request (to conform 

with provision in pretrial agreement), and elected trial by judge alone. Government argued the 

parties had a disagreement to a material term, as the Government believed a “good conduct” 

provision was implicit in the agreement; CAAF summarily dismissed that argument and held the 

convening authority improperly withdrew from the agreement. Of note, the accused signed the 

stipulation of fact and elected trial by military judge alone before the convening authority 

approved the pretrial agreement; the accused began performance before there was an approved 

agreement, and the Government could not withdraw once the convening authority signed the 

document. 

3. Meeting of the minds. United States v. Williams, 60 M.J. 360 (C.A.A.F. 2004). Accused’s 

pretrial agreement required him to reimburse his victim(s) “once those individuals and the 

amounts owed have been ascertained.” On the day of trial the government withdrew from the 

PTA reasoning, under RCM 705(d)(4)(B), that the accused’s failure to reimburse his victim 

breached a material PTA term. Defense argued he was not in breach because the term failed to 

establish a time limit, allowing for restitution after trial. Defense requested specific performance 

of the PTA arguing (also under RCM 705(d)(4)(B)) that his execution of a stipulation of fact with 

the government constituted performance and he had not otherwise breached any material term. 

CAAF did not rule whether entrance into a stipulation of fact constitutes performance or whether 

the accused failed to fulfill a material term. CAAF, focusing on the parties’ failure to establish a 

meeting of the minds for the restitution time limit, held, under RCM 705(d)(4)(B), that the 

government can withdraw from a PTA if the MJ “discloses a disagreement as to a material term in 

the agreement.” 

4. Accused fails to perform material term. United States v. Parker, 62 M.J. 459 (C.A.A.F. 

2006). Accused entered into a PTA to plead guilty to AWOL and missing movement by neglect in 

return for the CA suspending any adjudged BCD or confinement in excess of thirty days. The 

military judge, however, rejected the accused’s plea to missing movement by neglect because the 

accused said he only overheard statements by his NCOs, as opposed to a direct or official 

conveyance, regarding the place and time of the movement. When the military judge rejected the 

accused’s plea, the government withdrew from the PTA and moved forward to trial before the 

military judge alone on the charge of missing movement by design. The military judge found the 

accused guilty of missing movement by design and sentenced him to a BCD and five months 

confinement. After trial, the accused submitted a clemency letter stating he did not desire 

suspension of his BCD. CAAF held that the MJ did not erroneously reject the accused’s plea and 

defense never requested the MJ to reopen the plea. Therefore, PTA failed to exist and the 

accused’s express and repeated request for a non-suspended BCD during his unsworn statement 

and clemency matters controls. 

E. Withdrawal by Government before beginning of performance. 

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1. United States v. Pruner, 37 M.J. 573 (A.C.M.R. 1993). Convening authority withdrew from 

proposed agreement by accused. Performance of pretrial agreement was not commenced per 

RCM 705(d)(5)(b) when accused had not yet signed proposed stipulation of fact and had not yet 

requested witnesses. 

2. United States v. Villareal, 52 M.J. 27 (C.A.A.F. 1999). Convening authority could lawfully 

withdraw from pretrial agreement based upon pressure from victim’s family members, who were 

opposed to permitting the accused to plead guilty to manslaughter instead of murder. The decision 

to withdraw was based in part on the advice of the CA’s superior. Afterward, the case was 

forwarded to a third, impartial CA, who convened the court, and the accused pled not guilty. 

CAAF, by a 3-2 vote, held that the military judge did not err in refusing to order specific 

performance of the pretrial agreement. The accused had not relied to his detriment on the 

agreement in any manner that would prejudice his right to a fair trial. 

VI. CONTENT 

A. Permissible Terms/Conditions 

1. Stipulation of fact. A promise to enter into a stipulation of fact concerning offenses to which 

a plea of guilty is entered or as to which a confessional stipulation will be entered. United States 

v. Bertelson, 3 M.J. 314 (C.M.A. 1977). Stipulations of fact are governed by RCM 811. 

a) Aggravation evidence. Government can require the accused to stipulate to aggravation 

evidence or refuse to accept pretrial agreement. United States v. Harrod, 20 M.J. 777 

(A.C.M.R. 1985); United States v. Sharper, 17 M.J. 803 (A.C.M.R. 1984). The Government 

can also require accused to agree to both truth and admissibility of matters contained in the 

stipulation of fact. The stipulation should be unequivocal that counsel and the accused agree 

not only to the truth of the matters stipulated but that such matters are admissible in evidence 

against the accused. 

b) Uncharged misconduct. United States v. Vargas, 29 M.J. 968 (A.C.M.R. 1990). Defense 

counsel objected at trial to the inclusion of the uncharged misconduct and indicated that the 

accused only agreed to the stipulation out of fear of losing the deal. Military judge gave the 

accused an opportunity to withdraw, but the accused elected to adhere to the stipulation; no 

overreaching by the Government. See also United States v. Mezzanatto, 513 U.S. 196 (1995) 

(agreement to waive evidentiary provisions are subject to waiver by voluntary agreement of 

the parties). 

2. Promise to testify. Accused may agree to testify or provide assistance to investigators as a 

witness in the trial of another person. However, it is likely impermissible to require an accused to 

testify without a grant of immunity. See United States v. Profitt, 1997 WL 165434 (A.F. Ct. Crim. 

App. 1997) (unpub); United States v. Rivera, 46 M.J. 52 (C.A.A.F. 1997), affirming 44 M.J. 527 

(A.F. Ct. Crim. App. 1996) (term which required accused to “testify in any trial related in my case 

without a grant of immunity” did not violate public policy, under facts of this case as the accused 

had not been called to testify. Both cases discussed supra. 

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3. Provide restitution. United States v. Mitchell, 46 M.J. 840 (N-M. Ct. Crim. App. 1997). 

Accused who fails to make full restitution pursuant to a defense proposed term in PTA is not 

unlawfully deprived of the benefit of the PTA where the failure to comply with the restitution 

obligation is based on indigency. Accused uttered bad checks and defrauded financial institutions 

of $30,733. The defense proposed a term that required accused to make full restitution in 

exchange for suspension of confinement in excess of 60 months. The accused was sentenced, 

inter alia, to 10 years confinement. While in jail, the accused made partial restitution until his 

business failed. The accused, now indigent, cannot necessarily use indigency to negate operation 

of PTA term requiring full restitution. CA properly vacated suspension under PTA. 

4. Conform accused’s conduct to certain conditions of probation. Generally, the period of 

suspension acceptable relates to the length of the sentence adjudged. 

a) 15 year suspension. United States v. Spriggs, 40 M.J. 158 (C.M.A. 1994) (an 

indeterminate term of suspension of up to 15 years to complete sex offender program was 

inappropriate). 

b) 31 year suspension. United States v. Wallace, 58 M.J. 759 (N-M. Ct. Crim. App. 2003). 

Accused sentenced to life without parole. In accordance with his pretrial agreement, the 

convening authority suspended all confinement in excess of 30 years for the period of 

confinement plus 12 months after accused’s release. Accused argued that the period of 

suspension could only be 5 years from the date sentence was announced. HELD: Pretrial 

agreement provision imposing a suspension period for the period of confinement and one year 

from date of release does not violate public policy. RCM 1108 states that a period of 

suspension should not be unreasonably long. “It is this Court’s opinion that placing Accused 

on probation for 31 years of an adjudged life sentence without possibility of parole is not 

unreasonably long and does not violate public policy.” 

5. Other misconduct provisions. 

a) United States v. Bulla, 58 M.J. 715 (C.G. Ct. Crim. App. 2003). Pretrial agreement 

included a misconduct provision “that permitted the convening authority, among other things, 

to disregard the sentence limiting part of the pretrial agreement if the [accused] committed a 

violation of the UCMJ between the time the sentence was announced at her court-martial and 

the time the convening authority acted on the sentence.” Accused was in an unauthorized 

absence status for two days shortly after the end of court-martial proceedings. Relying on the 

misconduct provision, the convening authority approved the sentence as adjudged, rather than 

as would have been limited by the PTA (which would have suspended the BCD for twelve 

months from action). Although CGCCA had “reservations about some of the potential results 

of this misconduct provision, it held that [the] provision [did] not violate public policy,” at 

least as applied to a sentence element that the convening authority only agreed to suspend. 

Further, accused’s two-day AWOL was a “material breach” of the PTA that released the 

convening authority from the agreement. Finally, court finds that prior to finding accused 

violated the misconduct provision, convening authority should hold a proceeding similar to 

that provided for by Article 72, UCMJ and RCM 1109 (vacation proceedings) and apply a 

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preponderance of the evidence burden of proof. Although convening authority applied a 

lesser, incorrect burden of proof, the error was harmless. 

b) United States v. Tester, 59 M.J. 644 (A. Ct. Crim. App. 2003). Pretrial agreement 

contained deferral of confinement provision and misconduct provision similar to that in Bulla, 

supra. Court held procedures of RCM 1109 (vacation of suspension) must be complied with 

before an alleged violation of such terms may relieve the convening authority of the 

obligation to fulfill the agreement. Convening authority followed provisions to rescind 

deferral of confinement. 

6. Waive unreasonable multiplication of charges. United States v. Mitchell, 62 M.J. 673 (NM. Ct. Crim. App. 2006). The accused agreed in his PTA to waive a motion alleging unreasonable 

multiplication of charges. The military judge reviewed this provision with the accused but did not 

ask him if he had an unreasonable multiplication of charges motion to make. On appeal, defense 

argued that the term violated public policy, requiring the nullification of the accused’s PTA under 

RCM 705(c)(1)(B). Based on the facts of the accused’s case, the provision did not violate public 

policy. 

7. Waive Article 32 Preliminary Hearing and other procedural protections. Accused may 

waive the Article 32 as well as the right to trial by court-martial composed of members or the 

right to request trial by military judge alone, or the opportunity to obtain the personal appearance 

of witnesses at sentencing proceedings. RCM 705(c)(2)(E). 

8. Waiver of admin board in subsequent separation proceedings. United States v. 

Gansemer, 38 M.J. 340, (C.M.A. 1993) (upholding term requiring accused waive separation 

board if punitive discharge was not adjudged; term does not violate public policy or fundamental 

fairness, as accused can ask for discharge in lieu of court-martial and there was no overreaching). 

9. Forfeiture of personal property used in the commission of a crime. United States v. 

Henthorn, 58 M.J. 556 (N-M. Ct. Crim. App. 2003). Accused convicted of receiving child 

pornography in violation of 18 U.S.C. § 2252A. Court holds that provision in pretrial agreement 

that required accused “to forfeit his personal property (laptop computer) pursuant to 18 U.S.C. 

§2253 did not constitute an unauthorized forfeiture or fine and was not an excessively harsh 

punishment.” Because the computer was used in the commission of the crime, its forfeiture was 

consistent with the application of the federal forfeiture statute, and was not a “punishment.” 

“Needless to say, if the [accused] found his agreement too onerous, he could have withdrawn 

from it.” 

10. Waiver of accusatory phase unlawful command influence. United States v. Weasler, 43 

M.J. 15 (C.A.A.F. 1995). Waiver of UCI was not against public policy where the alleged UCI 

motion originated with defense, concerned a matter not affecting the fairness of the adjudicative 

process, and where the waiver also originated with the defense. 

11. Fines. United States v. Smith, 44 M.J. 720 (A. Ct. Crim. App. 1996). Including fines as a 

term in pretrial agreements is a recognized “good reason” for imposing same, where agreement is 

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freely and voluntarily assented to avoid some more dreaded lawful punishment. Accused was 

convicted of felony murder. Military judge imposed a fine as part of the sentence which required 

the accused to pay the $100,000 by the time he is considered for parole (sometime in the next 

century) or be confined for an additional 50 years or until he dies, whichever comes first. The 

court held the fine was permissible but the contingent confinement provision was not, as it 

circumvented Secretary of Army’s parole authority. (The agreement here was for non-capital 

referral. The issue was that the sentence itself violated public policy.) 

12. Article 13 punishment. United States v. McFadyen, 51 M.J. 289 (C.A.A.F. 1999). Accused’s 

waiver of Article 13 issue as part of pretrial agreement does not violate public policy. For all 

cases in which “a military judge is faced with a pretrial agreement which contains an Article 13 

waiver, the military judge should inquire into the circumstances of the pretrial confinement and 

the voluntariness of the waiver, and ensure that the accused understands the remedy to which he 

would be entitled if he made a successful motion.” Here, accused agreed to plead guilty and, in 

exchange for a sentence limitation, to waive his right to challenge his pretrial treatment under 

Article 13. Accused was an airman who complained about his treatment in pretrial confinement at 

a Navy brig (where he was stripped of rank, prevented from contacting his attorney, and had his 

phone calls monitored). While announcing a prospective rule only, the court found no reason to 

disturb the waiver here: Accused did not contest the voluntariness of waiver, an inquiry was 

conducted by the military judge, the accused was allowed to raise and argue in mitigation his 

claims of ill-treatment at the hands of the Navy, and the military judge was able, if he wished, to 

consider the nature of pretrial confinement in determining the sentence. 

13. Waive comparative sentencing information. United States v. Oaks, 2003 CCA LEXIS 301 

(A.F. Ct. Crim. App. Dec. 10, 2003 ) (unpub.). Term waiving right to present comparative 

sentencing information in unsworn statement does not impermissibly limit right to present a full 

sentence case to the sentencing authority. Compare United States v. Grill, 48 M.J. 131 (C.A.A.F. 

1998) (error where judge precluded accused from presenting sentence comparison material, but 

where there was no agreement to waive his right in exchange for the benefits of a pretrial 

agreement) 

14. Enrollment in a sexual offender treatment program. United States v. Cockrell, 60 M.J. 501 

(C.G. Ct. Crim. App. 2004). MJ failed to discuss with the accused a provision in the PTA 

requiring the accused to enroll in a sexual offender treatment program following his release from 

confinement and the ramifications if he failed to comply with that requirement. While the 

ramifications of failing to comply with the terms of the sexual offender treatment program were 

unclear in the PTA, and left unexplained by the MJ, requiring an accused to enroll in a sexual 

offender treatment program is not a per se impermissible term. 

15. Agreement not to discuss alleged constitutional violation. United States v. Edwards, 58 

M.J. 49 (C.A.A.F. 2003). As part of PTA, accused agreed not to discuss, in his unsworn 

statement, any circumstances surrounding potential constitutional violations occurring during 

AFOSI’s interrogation of him (interrogation after detailing of defense counsel without first 

notifying defense counsel). If a provision is not contrary to public policy or RCM 705, accused 

may knowingly and voluntarily waive it. RCM 705 does not prohibit this pretrial term, and the 

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term did not deprive the accused of the right to a complete sentencing proceeding. Military judge 

conducted detailed inquiry of the accused to determine he knowingly and voluntarily agreed to it, 

and whether he understood the implications of his waiver. 

16. Forum selection (military judge alone). United States v. Burnell, 40 M.J. 175 (C.M.A. 

1994). Government would not agree to two-year sentencing limitation unless accused waived 

members. Accused’s voluntary and intelligent waiver did not violate public interest. See also 

United States v. Andrews, 38 M.J. 650 (A.C.M.R. 1993). Government indicated during pre-trial 

negotiations that if accused elected trial with members, “then the quantum portion would be 

higher than if we went with military judge alone.” Court ruled, “[W]e hold that the change to 

RCM 705 now permits the government to propose as a term of the pretrial agreement, that the 

[accused] elect trial by military judge alone, and the amount of the sentence limitation may 

depend on that election.” See also United States v. McClure, A.C.M.R. No. 9300748 (A.C.M.R. 

Nov. 23, 1993) (unpub.) (convening authority’s handwritten counter-offer on pretrial agreement 

stated: “The foregoing is accepted only if the accused elects to be tried by military judge alone.”). 

But see United States v. Young, 35 M.J. 541 (A.C.M.R. 1992) (Appellate courts might invalidate a 

pretrial agreement if accused asserts (s)he was “coerced” into waiving trial by members.) 

Ultimately, a service or command policy, such as standardized pretrial agreements, which 

undermines the legislative intent of Article 16 “will be closely scrutinized.” But, agreements are 

permissible if waivers contained in them are a “freely conceived defense product.” United States 

v. Zelenski, 24 M.J. 1 (C.M.A. 1987). 

B. Prohibited Terms/Conditions 

1. Terms which are not voluntarily. 

2. Terms which deprive the accused of certain Constitutional protections, such as: the right to 

counsel; the right to due process; the right to challenge the jurisdiction of the court-martial; the 

right to a speedy trial; the right to complete sentencing proceedings; and the complete and 

effective exercise of post-trial and appellate rights. 

a) Complete sentencing proceedings (request BCD). United States v. Libecap, 57 M.J. 

611 (C.G. Ct. Crim. App. 2002). Accused contended that the pretrial agreement, requiring him 

to request a bad conduct discharge at trial, was unenforceable. The appellate court concluded 

that RCM 705(c)(1) prohibited the provision because it deprived the accused of a complete 

sentencing proceeding by negating the value of putting on a defense sentencing case. 

Moreover, the requirement to request a bad conduct discharge improperly placed the accused 

in the position of either giving up a favorable pretrial agreement or forgoing a complete 

sentence proceeding. The provision was against public policy for similar reasons. The accused 

was prejudiced by the provision, even though he had not requested a bad conduct discharge at 

trial, because he was precluded from telling the military judge that he wanted a second chance 

and from arguing for a sentence that did not include a punitive discharge. Since the accused 

had specifically stated that the error did not affect the voluntariness of his pleas, the appellate 

court determined that the appropriate remedy was a rehearing on sentence. 

b) Waive speedy trial. 

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(1) When issue not raised by facts. The language of RCM 705 prohibits waiver of a 

speedy trial. RCM 707 specifies speedy trial rights in the military. United States v. 

McLaughlin, 50 M.J. 217 (C.A.A.F. 1999) addresses a case where the accused offered to 

waive a speedy trial issue in his pretrial agreement. The accused had been in pretrial 

confinement for 95 days. The accused later claimed that waiver was impermissible under 

RCM 705. CAAF held that under the MCM this waiver was unenforceable. The military 

judge should have declared it impermissible, upheld the remainder of the agreement, and 

then asked the accused if he wished to litigate the issue. The military judge did not do 

that, so the case was unclear as to whether the accused would have waived the issue 

anyway, even without a PTA. Nevertheless, the accused did not make a prima facie 

showing or colorable claim of a speedy trial violation. Despite the 95-day delay, the 

accused failed to show prejudice, that he had demanded trial, or that the amount of time to 

investigation was unreasonable. 

(2) When issue raised by facts. The accused had been in pretrial confinement for 117 days 

at the time of arraignment. Accused offered to waive all non-constitutional and nonjurisdictional motions. The military judge determined there was a speedy trial issue, and 

that the term was proposed by the government. The court held that there was a colorable 

speedy trial claim and that waiver was not harmless error. Finding and sentence set aside. 

United States v. Benitez, 49 M.J. 539 (N.M. Ct. Crim. App. 1998). 

3. Term involving individual military counsel. Agreement to an increase in the confinement 

cap from 12 to 13 months to allow a delay so the accused could obtain individual military counsel 

“inferentially implicated appellant’s right to individual military counsel,” and violated public 

policy. Court reassessed sentence and affirmed only 11 months confinement. United States v. 

Copley, No. 20011015 (A. Ct. Crim. App. Feb. 26, 2004) (unpub.). 

4. Waiver of clemency or parole. A PTA term limiting the accused’s right to clemency or 

parole violates the RCM 705(c) right to a complete and effective exercise of post-trial and 

appellate rights. United States v. Tate, 64 M.J. 269 (C.A.A.F. 2007). In that case, the accused 

agreed to decline any clemency or parole offered to him for a period of twenty years. The MJ 

sentenced the accused to life without parole but the PTA limited the accused’s confinement to 

fifty years, which, but for his PTA term, would have made him eligible for clemency in five years 

and parole in ten years. Allowing such a term would improperly impede the ability of service 

secretaries to exercise their clemency and parole powers, “as well as ultimate control of sentence 

uniformity” throughout their respective service. CAAF struck the PTA’s specific term but ruled 

the stricken term did not impair the balance of the agreement and the plea. See also United States 

v. Thomas, 60 M.J. 521 (N-M. Ct. Crim. App. 2004) (violating public policy where PTA 

precluded an accused from accepting clemency and the accused’s sentence could include death 

and required a mandatory minimum of confinement for life). 

5. Terms which deprive the accused of a complete sentencing proceeding. It is permissible to 

waive personal appearance of sentencing witnesses, so long as other methods are available for 

presenting that evidence to the factfinder (like telephonic testimony or stipulations of expected 

testimony). A term, originating with accused, that prohibited accused from presenting testimony 

of witnesses located outside of Hawaii either in person, by telephone, letter, or affidavit, violated 

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public policy because it impermissibly deprived the accused of a complete sentencing proceeding. 

United States v. Sunzeri, 59 M.J. 758 (N-M. Ct. Crim. App. 2004). 

6. Terms which are fundamentally unfair. 

a) Terms which incentivize counterintuitive sentencing argument. Accused pled guilty in 

exchange for a pretrial agreement which would suspend an adjudged bad-conduct discharge, 

provided confinement for more than four months was adjudged. Confinement adjudged was 

for less than four months, and convening authority did not suspend the discharge. Agreement 

found to be contrary to public policy and fundamentally unfair. United States v. Cassity, 36 

M.J. 759 (N.M.C.M.R. 1992). 

b) Retirement eligibility. A provision requiring the accused not to request transfer to the 

reserves if a punitive discharge was not adjudged violated public policy based on the 

accused’s eligibility for retirement. United States v. Schmelzle, No. 200400007, 2004 CCA 

LEXIS 148 (N-M. Ct. Crim. App. July 14, 2004) (unpub) 

c) Immunity/Court “tax.” Pretrial agreement in which the quantum portion was increased if 

the accused raised claims of de facto immunity encumbered the accused’s due process right to 

challenge the jurisdiction of the court-martial. The litigation of non-frivolous claims of lack of 

jurisdiction and immunity are not the proper subjects for plea bargaining. United States v. 

Conklan, 41 M.J. 800 (A. Ct. Crim. App. 1995). 

d) Impartial tribunal. Improper to have accused waive military judge’s disqualification in 

pretrial agreement after judge’s impartiality is reasonably questioned. United States v. Keyes, 

33 M.J. 567 (N.M.C.M.R. 1991) 

C. Problematic Terms/Conditions 

1. Waive all waivable motions. A “waive all waivable motions” provision raises an issue as to 

whether the accused knowingly waived the issue. Under RCM 910(f)(4), the military judge must 

ensure the accused understands the pretrial agreement. If the accused and counsel did not 

anticipate a motion at trial, yet purported to waive all motions, the waiver of the unanticipated 

motion was arguably unknowing. In Gladue, the court addressed this issue. The accused pled 

guilty pursuant to a pretrial agreement agreeing to “waive any waiveable [sic] motions.” At trial, 

military judge asked the defense what motions were waived by this provision; defense counsel 

stated the only contemplated motions were for a continuance, suppression of evidence, change of 

venue, and entrapment. On appeal (and for the first time), the accused argued multiplicity or, 

alternatively, unreasonable multiplication of charges. The CAAF found the accused waived those 

issues in the pretrial agreement. Implicit in the court’s reasoning was that the facts giving rise to a 

motion for multiplicity or unreasonable multiplication of charges were known. Even though 

counsel did not list those motions as being waived, the accused in fact waived the right to make 

that motion in the PTA, and also by not raising them at trial. The court found that “if an accused 

waives a right at trial, it is “extinguished” and will not be reviewed on appeal.” United States v. 

Gladue, 67 M.J. 311 (C.A.A.F. 2009). 

Despite the CAAF’s decision in Gladue, military judges, in an abundance of caution, should ask 

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defense counsel what specific motions are being waived under a “waive all waivable motions” 

provision. This practice precludes challenges on appeal that an accused was unaware of other 

motions or (more problematic) believed he was waiving a non-waivable motion (like speedy 

trial). Military practitioners should also 

Practitioners should also review United States v. Rivera, 46 M.J. 52 (C.A.A.F. 1997), affirming 

44 M.J. 527 (A.F. Ct. Crim. App. 1996) (term in PTA which required that accused waive “all 

pretrial motions” was too broad, and purported to deprive accused of right to make motions that 

could not be bargained away); United States v. Jennings, 22 M.J. 837, 838-39 (N.M.C.M.R. 1986) 

(provision in pretrial agreement to “waive any pretrial motion I may be entitled to raise” is “null 

and void” as “contrary to public policy”); and United States v. Silva, 1997 CCA LEXIS 267 (NM. Ct. Crim. App. 1997) (unpub.) (Term in PTA, which required accused to “waive all waiveable 

motions” not contrary to public policy and RCM 705(c)(1)(B). Such a term does not include 

motions that are nonwaivable under RCM 705(c)(1)(B)). 

2. Testifying without Immunity. A PTA is valid where, inter alia, the accused promised to 

testify without grant of immunity against any other military members and where the MJ 

questioned the accused and counsel extensively during providence. United States v. Profitt, 1997 

CCA LEXIS 117 (A.F. Ct. Crim. App. Apr. 4, 1997) (unpub.). See also United States v. Rivera, 

46 M.J. 52 (C.A.A.F. 1997), affirming 44 M.J. 527 (A.F. Ct. Crim. App. 1996) (term which 

required accused to “testify in any trial related in my case without a grant of immunity” did not 

violate public policy, under facts of this case as accused had not yet been called to testify). 

4. Waive any and all defenses where no defenses existed. A term which required the accused 

to waive his right to “any and all defenses” did not violate RCM 705 or public policy. The 

accused was charged with attempted housebreaking, attempted larceny, violation of a lawful 

general regulation, and aggravated assault. Requirement to waive all defenses was not overly 

broad, considering that the accused failed to raise any defense during the providence inquiry or 

sentencing. United States v. Forrester, 48 M.J. 1 (C.A.A.F. 1998). 

5. Vacation of suspension term. Government argued that a term in the PTA permitted the 

SPCMCA to execute vacation of suspension without forwarding the case to GCMCA for action. 

Court held that although PTA does not indicate that accused wanted to waive those rights; 

Congressional intent was to grant accused an important procedural due process right for vacation 

actions and it is doubtful whether such rights are waivable. United States v. Perlman, 44 M.J. 615 

(N-M. Ct. Crim. App. 1996), 48 M.J. 353 (C.A.A.F. 1998) (sum. disp.) (affirming but expressing 

no opinion on whether term was lawful). See also United States v. Smith, 46 M.J. 263 (C.A.A.F. 

1997) (holding that PTA term providing for vacation proceedings and processing under Article 72 

and RCM 1109 in the event of future misconduct cannot be interpreted as waiver of the 

GCMCA’s authority to review and take action on vacation). 

3. Confessional Stipulations. 

a) Problematic. Accused offered a PTA in which he agreed to plead not guilty and, in 

exchange for a sentence limitation, to enter into a confessional stipulation and present no 

evidence. The stipulation admitted basically all elements of the offenses except the 

wrongfulness of marijuana use and the intent to defraud concerning the bad check offenses. 

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CAAF found the provision violated the prohibition against accepting a confessional 

stipulation as part of a pretrial agreement promising not to raise any defense. United States v. 

Davis, 50 M.J. 426 (C.A.A.F. 1999). 

b) Limitations on use. 

(1) If the accused fails to satisfy the military judge's inquiry into the providency of his 

plea, a confessional stipulation may be used at trial with consent of the accused. Otherwise 

military judge would not be at liberty to consider matters presented in the unsuccessful 

attempt to plead guilty. United States v. Matlock, 35 M.J. 895 (A.C.M.R. 1992). 

Prosecution cannot receive the benefit of the stipulation without the concomitant 

limitations of the pretrial agreement. See United States v. Cunningham, 36 M.J. 1011 

(A.C.M.R. 1993). 

(2) Unless otherwise agreed to by the accused, confessional stipulation in connection with 

guilty pleas may not be considered by military judge as to those charges to which accused 

has pled not guilty (contested charges). United States v. Banks, 36 M.J. 1003 (A.C.M.R. 

1993). Confessional stipulation is the equivalent of entering a guilty plea to a charged 

offense; accused must knowingly and voluntarily consent to any use of stipulation beyond 

the limited purpose of facilitating providence inquiry. United States v. Rouviere, No. 

9200242 (A.C.M.R. Aug. 24, 1993) (unpub.). 

(3) United States v. Craig, 48 M.J. 77 (C.A.A.F. 1998). Military judge erred by advising 

the accused that her confessional stipulation (which contained facts substantiating both 

guilty and not guilty pleas to drug offenses) waived her constitutional rights against selfincrimination, to a trial of by the facts, and to confront and cross-examine witnesses 

against her. 

(4) United States v. Dixon, 45 M.J. 104 (C.A.A.F. 1996). Where a stipulation leaves room 

for the defense to reasonably contest certain elements, and the defense in fact does so, a 

stipulation is not confessional. Accused entered mixed pleas to stealing mail. He entered 

into a stipulation of fact, in conjunction with his pretrial agreement, regarding two 

uncontested specifications, and the Government presented evidence on the remaining two 

specifications. Specification 3 involved a larceny of mail matter. The stipulation 

established that accused removed mail matter from its lawful place and did not intend to 

return the parcel to the addressee. There was no requirement to do a United States v. 

Bertelson, 3 M.J. 314 (C.M.A. 1977) inquiry. The stipulation was not “confessional” 

because it did not effectively establish an express admission that accused’s removal of 

mail matter was done with an intent to steal. 

VII. REMEDIES 

A. General. The remedy for a breached PTA depends on the breach. Depending on the issue, 

withdrawal, specific performance, or rescission may be available. Additionally, an unenforceable 

term may be declared void. 

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B. Unenforceable Terms. The usual remedy is to declare the term void and unenforceable. 

Whether the remainder of the PTA remains enforceable depends on the existence and language of any 

severance clause in the PTA. See generally United States v. McLaughlin, 50 M.J. 217 (C.A.A.F. 

1999) (a term requiring accused to “waive the speedy trial issue” is impermissible under RCM 

705(c)(1)(B) and the military judge should have declared it void and unenforceable, while upholding 

the rest of the agreement; judge should have also asked the accused if he wanted to raise the issue). 

C. Specific performance. 

1. United States v. Lundy, 60 M.J. 52 (C.A.A.F. 2004). Accused entered into PTA term, whereby 

the convening authority agreed to defer any and all reductions and forfeitures until the sentence 

was approved and suspend all adjudged and waive any and all automatic reductions and 

forfeitures. For sexually assaulting his children, the accused (a SSG) was sentenced to a DD, 

confinement for 23 years, and reduction to E-1, which subjected him to automatic reduction and 

forfeitures. 

The convening authority attempted to suspend the automatic reduction IAW the PTA to provide 

the accused’s family with waived forfeitures at the E-6, as opposed to the E-1, rate. The parties, 

however, overlooked AR 600-8-19 which precludes a CA from suspending an automatic 

reduction unless the convening authority also suspends any related confinement or discharge 

which triggered the automatic reduction. ACCA stated no remedial action was required because 

the accused’s family was adequately compensated with transitional compensation (TC), which 

ACCA concluded the accused’s family was not entitled to because they were receiving waived 

forfeitures, albeit at the E-1 rate. 

CAAF reversed, holding if a material term of a PTA is not met by the government three options 

exist: (1) the government’s specific performance of the term; (2) withdrawal by the accused from 

the PTA, or (3) alternative relief, if the accused consents to such relief. Additionally, CAAF held 

an accused’s family could receive TC while receiving either deferred or waived forfeitures if the 

receipt of TC was based on a discharge and if the receipt of TC was based only on the accused 

receiving forfeitures, the family could receive TC if not actively receiving the deferred or waived 

forfeitures. On remand, ACCA, ruled specific performance was “more appropriate because the 

[accused] has not indicated he would consent to any particular alternative relief.” In January 2005, 

the Secretary of the Army (SECARMY) granted an exception to AR 600-8-19 allowing the 

suspension of the rank reduction and the provision of forfeitures at the E6 rate without requiring 

the CA to suspend the discharge or confinement triggering the automatic reduction. SECARMY 

did not approve interest on the E6 forfeiture amount and ACCA ruled it did not have the authority 

to provide the approximately $3,000 in interest on the original amount owed to the accused and 

remanded the case to the SA to approve the interest payment or to otherwise return the case to 

ACCA to set aside the findings and sentence. 

In Fall 2005, SECARMY made the interest payment. In Summer 2006, CAAF issued another 

Lundy opinion, holding that the accused bore the burden to show that the timing of the payment 

was material to his decision to plead guilty. 

2. United States v. Perron, 58 M.J. 78 (C.A.A.F. 2003). In Perron, the accused agreed to plead 

guilty in exchange for sentence limitations that included pay and allowances going to his family. 

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However, prior to trial the accused’s term of service expired and once convicted he entered into a 

no-pay status. As a matter of clemency the accused’s counsel asked the convening authority to 

release Perron from confinement “to gain immediate employment . . . to allow for the financial 

relief his family desperately needs.” The convening authority did not grant the request, opting 

instead to grant alternative relief. A tortured set of appeals and remands followed concerning the 

adequacy of the alternative relief. The issue that finally reached CAAF was whether convening 

authorities and appellate courts may “fashion an alternative remedy of [their] own choosing” 

against the accused’s wishes. CAAF said no: “It is fundamental to a knowing and intelligent plea 

that where an accused pleads guilty in reliance on the promises made by Government in a pretrial 

agreement, the voluntariness of that plea depends on the fulfillment of those promises by the 

Government . . . Imposing alternative relief on an unwilling [accused] to rectify a mutual 

misunderstanding of a material term in a pretrial agreement violates the [accused]’s Fifth 

Amendment Right to due process.” 

D. Withdrawal. United States v. Sheffield, 60 M.J. 591 (A.F. Ct. Crim. App. 2004). Accused pled 

guilty to numerous military offenses and was sentenced to a BCD, four months confinement, and 

reduction to E-1. The accused’s PTA contained a term that the CA would “waive automatic 

forfeitures in the amount of five hundred dollars, which sum was to be paid to the guardian appointed 

by the accused to care for his minor dependents.” The SJAR failed to mention this term and the CA 

did not pay the five hundred dollars to the accused’s dependents. On appeal, the accused requested 

the court to disapprove his adjudged BCD, or in the alternative, to allow him to withdraw from the 

plea. The government contended specific performance was appropriate. AFCCA held the government 

could not specifically perform because the accused could not receive the benefit of his PTA bargain 

(for his dependents to receive five hundred dollars per month during his incarceration). Likewise, the 

court failed to approve the accused’s request to disapprove his BCD because the government did not 

agree to the alternative relief. The original PTA was nullified and findings and sentence set aside. 

VIII. POST-TRIAL ISSUES AND EFFECTS 

A. Approved sentence not explicitly conforming to the terms of the pre-trial agreement. 

Generally, convening authority action not conforming explicitly to the terms of the PTA may be 

acceptable if the approved sentence is of lesser severity than the one agreed to in the PTA. 

1. Suspended sentences. United States v. Barraza, 44 M.J. 622 (N.M. Ct. Crim. App. 1996) 

(extending suspension of confinement from 12 months (agreed) to 36 months (approved) did not 

increase severity of sentence where the CA also decreased unsuspended confinement from 46 

months (agreed) to 14 months (approved)); United States v. Hayes, No. 9002521 (A.C.M.R. Aug. 

29, 1991) (unpub). In pretrial agreement, convening authority would suspend for 12 months any 

confinement over 20 months. The adjudged sentence was confinement for 5 years, total forfeiture 

of all pay and allowances, reduction to E-1, and dishonorable discharge. At action, convening 

authority approved confinement for 36 months (confinement over 18 months suspended for 18 

months), TF, reduction to E-1, and dishonorable discharge. HELD: Reducing confinement by two 

months and increasing the period of suspension by six months is more favorable to the accused 

than the pretrial agreement, so action was proper. 

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2. Forfeitures. United States v. Sparks, 15 M.J. 895 (A.C.M.R. 1983) (approving adjudged 

sentence which included an additional two months forfeiture of pay was less severe than the PTA 

where the confinement adjudged was also two months less than the PTA) 

3. Discharges. United States v. Barratt, 42 M.J. 734 (A. Ct. Crim. App. 1995). No PTA. 

Adjudged sentence was 16 months confinement, total forfeiture of all pay and allowances, and 

reduction to E-1. Accused requested convening authority substitute bad-conduct discharge for 

reduction in confinement to 6 months. At action, convening authority approved new sentence of 

bad-conduct discharge and 6 months confinement. HELD: CA may not approve a punitive 

discharge when punitive discharge not adjudged at trial. Punitive discharge, as a matter of law, is 

not a LIO punishment to confinement. See 10 U.S.C § 3811. 

B. Post-Trial Agreement. It is permissible for the accused and convening authority to enter into a 

post-trial agreement, even though this eliminates any judicial scrutiny of the agreement, as would 

happen at trial. 

1. Renegotiation of Pre Trial Agreement. United States v. Pilkington, 51 M.J. 415 (C.A.A.F. 

1999). An accused has the right to enter into an enforceable post-trial agreement with the 

convening authority when the parties decide that such an agreement is mutually beneficial. 

Accused pled guilty to conspiracy to maltreat subordinates, maltreatment, false official 

statements, and assault. In a pretrial agreement, the convening authority agreed to suspend the 

bad-conduct discharge for 12 months. Accused and the convening authority agreed, in a post-trial 

agreement, that the latter could approve the punitive discharge as long as he “limited confinement 

to 90 days.” On appeal, the accused argued that the post-trial agreement should be invalidated 

because it prevented judicial scrutiny of the terms and conditions. The court refused to invalidate 

the agreement, noting that the accused proposed the agreement after full consultation with 

counsel, stated that he voluntarily entered the agreement, and the post-trial agreement was directly 

related to the convening authority’s obligations under the sentencing provisions of the pretrial 

agreement. Additionally, the court held that while the trial court did not review the post-trial 

agreement, the intermediate appellate court always have the opportunity to review such 

agreements. 

Post-Trial Agreement. United States v. Dawson, 51 M.J. 411 (C.A.A.F. 1999). Accused and CA 

agreed to a PTA in which the first 30 days of any adjudged punishment would be converted into 

15 days’ restriction. Confinement in excess of 30 days would be suspended. The accused received 

100 days confinement and a BCD. She was placed on restriction, missed a muster, and was 

notified of pending vacation proceedings. She went AWOL, but was later apprehended and placed 

in confinement. Accused entered a new agreement with the CA where she agreed to waive the 

right to appear at a hearing to vacate the suspension of her sentence (the SJA had opined the one 

held in her absence was illegal), to waive any claims she might have concerning postapprehension confinement, and to release the CA from the prior agreement. In return, the CA 

would withdraw the new absence charge, and provide day-for-day credit toward her time served 

in “pretrial confinement” (on the new charge). The SJA advised that, based on the errors that 

occurred in the first trial, he should disapprove all confinement. The CA approved the BCD and 

disapproved the confinement. CAAF held that this was a valid post-trial agreement that did not 

involve post-trial renegotiation of an approved PTA. The agreement related to proceedings 

collateral to the original trial, and did not require the approval of a military judge. 

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­

CHAPTER 16
 

MOTIONS
 

I. INTRODUCTION..................................................................................................................................... 1
 

II. MOTIONS GENERALLY. R.C.M. 905. ............................................................................................... 2
 

III. MOTIONS FOR APPROPRIATE RELIEF. R.C.M. 906. .................................................................. 5
 

IV. MOTIONS TO SUPPRESS. .................................................................................................................... 7
 

V. MOTIONS TO DISMISS. R.C.M. 907. ................................................................................................. 7
 

VI. MISTRIAL. R.C.M. 915.......................................................................................................................... 8
 

VII. MOTIONS FOR FINDING OF NOT GUILTY. R.C.M. 917............................................................ 10
 

VIII. POST-TRIAL SESSIONS. R.C.M. 1102. ............................................................................................. 11
 

IX. MOTIONS WAIVER CHECKLIST .................................................................................................... 12
 

X. MOTIONS PRACTICE OVERVIEW.................................................................................................. 13
 

XI. WRITING THE MOTION .................................................................................................................... 14
 

XII. ARGUING THE MOTION.................................................................................................................... 15
 

XIII. SPECIAL VICTIM COUNSEL (SVC) PROGRAM IMPACT.......................................................... 15
 

XIV. GETTING BETTER BY READING:................................................................................................... 16
 

I. INTRODUCTION 

A. This chapter covers motions—both the art and science. First addressed is the "science," with each rule discussed 

in detail. Following the rule-by-rule breakdown is a motions waiver checklist. At the end of this chapter is a section 

on the "art" of effective motions practice techniques, followed by a series of templates. 

B. The following Rules for Courts-Martial and Military Rules of Evidence govern motions practice and form the 

content of this section of the chapter: 

1. R.C.M. 905. Motions generally. 

2. R.C.M. 906. Motions for appropriate relief. 

3. R.C.M. 907. Motions to dismiss. 

4. R.C.M. 915. Mistrial. 

5. R.C.M. 917. Motion for a finding of not guilty. 

6. R.C.M. 1102. Post-trial sessions. 

7. M.R.E. 304. Confessions and admissions. 
 

 

 

 

 

 

 

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8. M.R.E. 311. Search and seizure. 

9. M.R.E. 321. Eyewitness identification. 

II. MOTIONS GENERALLY. R.C.M. 905. 

A. Definition. 

1. A motion is a request to the judge for particular relief. 

2. Based on specific grounds (rule or case law). 

3. Notice should be given to the judge and opposing counsel. 

4. Litigated at an Article 39(a) session, usually after arraignment, before a plea is entered. RCM 905(h). 

a. When one of the parties so requests, RCM 905(h) requires that the military judge hold a hearing on a 

written motion). See United States v. Savard, 69 M.J. 211 (C.A.A.F. 2010). 

b. Other than with respect to privileges, the military judge is not bound by the rules of evidence at an Article 

39(a) motions hearing. MRE 104(a), see also MRE 1101(b) (“The rules with respect to privileges in Section 

III and V apply at all stages of all actions, cases, and proceedings.”); RCM 909(e)(2) (applying the MRE 

104(a) privileges rule to mental capacity hearings). 

B. Preparation - Offer of proof. 

1. United States v. Hodge, 26 M.J. 596 (1988) (A.C.M.R. 1988), aff’d, 29 M.J. 304 (C.M.A. 1989). An offer of 

proof should be specific and should include the names and addresses of witnesses and a summary of expected 

testimony. 

2. United States v. Stubbs, 23 M.J. 188 (C.M.A.), cert. denied, 484 U.S. 846 (1987). “[T]rial judges should not 

let the litigants lapse into a procedure whereby the moving party will state the motion and then launch right into 

argument without presenting any proof but buttressing his/her argument with the assertion that so and so would 

testify as indicated, if called. The other party then counters with his/her own argument and offers of proof ... Do 

not let counsel stray into stating what someone would say if they were called. Force them to call the witness, 

provide valid real and documentary evidence or provide a stipulation. Sticking to proper procedure will save you 

time and grief and provide a solid record.” Id. at 195. 

3. United States v. Alexander, 32 M.J. 664 (1991) (A.F.C.M.R. 1991), aff’d, 34 M.J. 121 (C.M.A. 1992). Court 

notes that “Counsel based much of their arguments on offers of proof; although opposing counsel frequently 

disagreed with the proffers, no additional evidence was tendered” Counsel and judges must be careful to establish 

a proper factual basis for evidentiary rulings. Id. at 667 n.3. 

4. Notice. 

a. Emphasis on prior notice to counsel and the military judge. 

b. R.C.M. 905(i). Written motions shall be served on all parties. When? Exceptions? 

c. Local judiciary rules. United States v. Williams, 23 M.J. 362 (C.M.A. 1987). A local rule is invalid if it 

conflicts with the Manual for Courts-Martial. 

d. Timeliness. 

5. Motions which must be made prior to the plea (or else they are waived). R.C.M. 905(b). 

a. Defects in the charges and specifications. 

b. Defects in preferral, forwarding, and referral. 

c. Suppression of evidence. 

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d. Discovery and witness production. 

e. Severance of charges, specifications, or accused. 

f. Individual Military Counsel (IMC) requests. 

6. Motions which should be made before final adjournment (or else waived). 

a. Continuance. R.C.M. 906(b)(1). 

b. Speedy trial. R.C.M. 907(b)(2)(A). Note: If speedy trial right alleges an Article 10 violation, a plea of 

guilty does not waive appellate review of this issue. Additionally, failure to raise an Article 10 motion prior 

to plea may not result in forfeiture of the issue for purposes of appeal. See United States v. Mizgala, 61 M.J. 

122, 127 (2005) (stating that a speedy trial right under Article 10 should not be subject to rules of “waiver and 

forfeiture associated with guilty pleas”). 

c. Release from pretrial confinement. R.C.M. 906(b)(8). 

d. Statute of limitations. R.C.M. 907(b)(2)(B). 

e. Former jeopardy. R.C.M. 907(b)(2)(C). 

f. Grant of immunity. R.C.M. 907(b)(2)(D). 

7. Motions which may be made at any time, including appellate review. 

a. Lack of jurisdiction over accused or offense. R.C.M. 905(e). 

b. Failure to allege an offense. R.C.M. 905(e). 

c. Improperly convened court. 

d. Unlawful command influence. But see United States v. Weasler, 43 M.J. 15 (1995) Pretrial agreement 

initiated by accused waived any objection to UCI on appeal. Waiver of UCI in accusatory phase, as 

distinguished from adjudicative stage, is permissible. 

C. Waiver – R.C.M. 905(e) 

1. Failure to comply with timeliness requirements is generally considered a waiver unless the military judge 

finds good cause to consider the untimely motion. 

2. United States v. Coffin, 25 M.J. 32, 34 (C.M.A. 1987) (finding that M.R.E. 311(d)(2) “should be liberally 

construed in favor of permitting an accused the right to be heard fully in his defense”). 

3. There is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be 

clearly established that there was an intentional relinquishment of a known right or privilege. See United States v. 

Sweeney, 70 M.J. 296 (C.A.A.F. 2011). 

D. Burden of Proof – R.C.M. 905(c) 

1. Who has the burden? 

a. The moving party – R.C.M. 905(c)(1), 

b. Except, the Government has the burden of proof for: 

(1) Jurisdiction – R.C.M. 905(c)(2)(B). 

(2) Speedy trial – R.C.M. 905(c)(2)(B). 

(3) Statute of limitations – R.C.M. 905(c)(2)(B). 

(4) Suppression motions: confessions, evidence, identifications – M.R.E. Sect. III. 

(5) Unlawful command influence. 

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2. What is the standard? 

a. Preponderance of evidence. 

b. Clear and convincing evidence standard for subterfuge inspections (three triggers for higher standard) 

(M.R.E. 313(b)); consent searches (M.R.E. 314(e)(5)); and, “unlawful” identifications (M.R.E. 321). 

c. Command influence. When defense raises an issue of UCI at trial by some evidence sufficient to render a 

reasonable conclusion in favor of the allegation, burden shifts to the Government to prove, beyond a 

reasonable doubt (United States v. Biagase, 50 M.J. 143 (1999)) that command influence did not occur. If the 

Government is unable to do so, then the trial court (or the appellate court) must be satisfied beyond a 

reasonable doubt that the findings and sentence were unaffected. See United States v. Thomas, 22 M.J. 388 

(C.M.A. 1986), cert. denied, 479 U.S. 1085 (1987) (reviewing court may not affirm the findings and sentence 

unless it is persuaded beyond a reasonable doubt that the findings and sentence have not been affected by the 

existence of unlawful command influence). 

E. Appeal of Rulings. 

1. Defense: extraordinary writs. 

2. Government appeals: R.C.M. 908. 

F. Effect of a Guilty Plea. 

1. General rule: guilty plea waives all issues which are not jurisdictional or do not deprive an accused of due 

process. Waived by guilty plea: 

a. Suppression of evidence, confessions, identifications. 

(1) See, e.g., United States v. Cooper, 32 M.J. 83 (C.M.A. 1991) (accused who pleaded guilty without 

condition or restriction to offense of adultery did not preserve for appellate review his motion to suppress 

items seized in an illegal search by pleading not guilty to rape of the same victim at the same place and 

time). 

(2) See, e.g., United States v. Hinojosa, 33 M.J. 353 (C.M.A. 1991). Accused’s motion to suppress 

statements to CID was denied. Accused then entered guilty pleas to some of the offenses and not guilty to 

the remaining offenses. The government, however, elected to present no evidence on the contested 

allegations and those specifications were dismissed. Accused’s guilty pleas foreclosed any appellate 

relief from the unsuccessful suppression motion. 

b. Pretrial processing defects. 

2. Not waived by guilty plea: 

a. Jurisdiction. United States v. Conklan, 41 M.J. 800, 805 (A. Ct. Crim. App. 1995) (accused may not 

bargain away “non-frivolous, good faith claims of lack of jurisdiction and transactional immunity.”) 

b. Article 10 violation. Mizgala, 61 M.J. at 127. See United States v. Dubouchet, 63 M.J. 586 (2006) 

distinguising Mizgala as standing for the proposition that only litigated Article 10 issues survive a waiver 

stemming from a guilty plea. 

c. Failure to allege an offense. 

d. Unlawful command influence. But see Weasler, 43 M.J. 15 (condition in PTA waiving command 

influence motion, originating from defense, does not violate public policy). 

e. Post-trial defects. 

3. Another Exception. United States v. Lippoldt, 34 M.J. 523 (1991) (A.F.C.M.R. 1991). Prior to entry of plea, 

defense moved to require the prosecution to elect to proceed on either conspiracy to possess marijuana or 

distribution of same marijuana as an aider or abettor. Military judge wanted the pleas entered as a basis for 

development of the facts so that he could decide the motion. No waiver. 

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G. Conditional Guilty Plea. R.C.M. 910(a)(2). Will not waive pretrial motions made a part of the conditional 

guilty plea. 

III. MOTIONS FOR APPROPRIATE RELIEF. R.C.M. 906. 

A. General. A motion for appropriate relief is a request for a ruling to cure a defect which deprives a party of a right 

or hinders a party from preparing or presenting its case. 

B. Continuances. Some common grounds: 

1. Witness unavailable. Continuance requested. See, e.g., United States v. Mow, 22 M.J. 906 (1986) 

(N.M.C.M.R. 1986); United States v. Maresca, 28 M.J. 328 (C.M.A. 1989). 

2. Obtaining civilian counsel. 

a. Three tries you’re out. United States v. Thomas, 22 M.J. 57 (C.M.A. 1986) (Military judge did not abuse 

discretion in refusing the accused a fourth continuance to permit attendance of civilian counsel where judge 

had gone to great lengths to accommodate accused’s wishes and where civilian counsel failed to make even a 

written appearance.) 

b. Compare United States v. Wilson, 28 M.J. 1054 (1989) (N.M.C.M.R. 1989) (Judge abused discretion in 

denying civilian counsel’s only request for delay after he had made a personal appearance and could not try 

case earlier due to “existing professional obligations.”) 

3. Illness of counsel, judge, witness, member. 

4. Order of trial of related cases. 

5. Insufficient opportunity to prepare. United States v. Galinato, 28 M.J. 1049 (1989) (N.M.C.M.R. 1989) (After 

military judge denied request for delay, defense counsel went “on strike” and refused to participate in case. Held: 

Accused denied assistance of counsel.) 

C. Motions Concerning Charges and Specifications. R.C.M. 307; 906. 

1. Amend charges or specifications. R.C.M. 603, 906(b)(4). 

2. Bill of particulars. R.C.M. 906(b)(6). 

3. Multiplicity. R.C.M. 307, 906(b)(12), 907(b)(3)(B), 1003(c)(1)(c). 

4. Sever duplicitous specifications. R.C.M. 307, 906(b)(5). 

5. Sever offenses, but only to prevent manifest injustice. R.C.M. 906(b)(10). In United States v. Giles, 59 M.J. 

374 (2004), the CAAF held that a military judge abused his discretion in denying the appellant’s motion for 

severance of new perjury charges on a rehearing of an earlier drug-related attempt offense. In order to prove the 

perjury charge, the Government had to prove a materiality element, which required evidence of the earlier 

conviction. The CAAF stated that the MJ’s ruling caused actual prejudice to the accused and prevented a fair 

trial. 

D. Defective Article 32 Investigation or Pretrial Advice. R.C.M. 405, 406. 

E. Discovery. R.C.M. 701, 914. 

F. Witness Production. R.C.M. 703, 1001. 

G. Individual Military Counsel or Detailed Counsel Request. R.C.M. 506. 

H. Pretrial Restraint. R.C.M. 305. 

I. Mentally Incompetent to Stand Trial. R.C.M. 706; 909; 916. 

J. Change Location of Trial. R.C.M. 906(b)(11). 

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K. Sever Accused. R.C.M. 307; 906(b)(9). 

L. Reopen Case. R.C.M. 913(c)(5). United States v. Fisiorek, 43 M.J. 244 (1995). 

M. Miscellaneous. See, e.g., Stubbs, 23 M.J. 188. Defense moved to recuse entire prosecution office because of 

prior contact between one prosecutor and accused on a legal assistance matter. 

N. Motion in limine (M.R.E. 906(b)(13)). 

1. Definition. A preliminary ruling on the admissibility of evidence made outside the presence of members. 

2. Procedure. Government or defense may make a motion in limine. 

3. Rulings. The decision when to rule on a motion in limine is left to the discretion of the military judge. 

Discussion to R.C.M. 906(b)(13). Judicial economy and judicial accuracy constitute “good cause” which, under 

R.C.M. 905(d), allows a military judge to defer ruling on an in limine motion until presentation of the merits. 

a. See, e.g., United States v. Helweg, 32 M.J. 129 (C.M.A. 1991) (separate litigation of motion would have 

replicated large segments of a trial on the merits and in the judge-alone format; the judge is not required to 

hear the case twice). 

b. See also United States v. Cannon, 33 M.J. 376 (C.M.A. 1991) (it is appropriate to defer ruling on the 

admissibility of evidence until such time as it becomes an issue). 

4. Common uses of a motion in limine. 

a. Admissibility of uncharged misconduct. See, e.g., United States v. Thompson, 30 M.J. 99 (C.M.A. 1990). 

Defense moved in limine to suppress a sworn statement accused made one year before charged offenses 

wherein accused admitted to bad checks, extramarital affair and financial problems. Trial counsel intended to 

use statement as evidence of scheme or plan under M.R.E. 404(b). 

b. Motions to keep out M.R.E. 413/414 evidence should be made in limine. 

c. Admissibility of prior conviction for impeachment. 

d. Admissibility of impeachment evidence as to credibility. 

e. Admissibility of witness’s out-of-court statements. 

f. Admissibility of a victim’s sexual behavior or predisposition under M.R.E. 412(b). 

g. Motions to suppress evidence other than confessions, seizures, or identifications. See R.C.M. 905(b)(3) 

(discussion). 

h. Preemptive strike by the government to exclude anticipated favorable defense evidence. Examples: 

(1) United States v. Huet-Vaughn, 43 M.J. 105 (1995). The Government made 2 motions in limine and 

prevented the accused, an Army physician, from presenting evidence of motives and reasons for refusing 

to support Desert Shield and views on unlawfulness of the war on charge of desertion with intent to avoid 

hazardous duty. 

(2) United States v. West, 27 M.J. 223 (C.M.A. 1988). The Government’s motion in limine limited the 

defendant’s testimony on his request for a polygraph and for sodium pentothal. 

(3) United States v. Rivera, 24 M.J. 156 (C.M.A. 1987). Defense failure to make an offer of proof does 

not constitute appellate waiver where Government makes a preemptive strike to exclude evidence and 

evidentiary issue is apparent from the record. 

i. Preservation for appellate review of issue raised by motion in limine. 

(1) The accused must testify to preserve review of a denied motion in limine on the admissibility of 

accused’s prior conviction. United States v. Sutton, 31 M.J. 11, 21 (C.M.A. 1990). This holding reverses 

prior military practice and adopts the U.S. Supreme Court ruling in Luce v. United States, 469 U.S. 38 

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(1984). See also United States v. Gee, 39 M.J. 311 (C.M.A. 1994) (character testimony) and United 

States v. Williams, 43 M.J. 348 (1995). 

(2) United States v. Sheridan, 43 M.J. 682 (A.F. Ct. Crim. App. 1995). Counsel do not have to repeat 

objections during trial if they first obtain unconditional, unfavorable rulings from the military judge in 

out-of-court sessions. See M.R.E. 103(a)(2); R.C.M. 801(e)(1)(A) (finality of ruling); R.C.M. 906(b)(13). 

However, a preliminary, tentative ruling may require a subsequent objection to preserve issue for appeal. 

United States v. Jones, 43 M.J. 708 (A.F. Ct. Crim. App. 1995). 

5. Time. Rulings are generally made at the earliest possible time unless the military judge, for good cause, 

defers ruling until later in the trial. Written motions may be disposed of before arraignment and without an Article 

39(a) session. A party may request oral argument or an evidentiary hearing concerning disposition of the motion. 

R.C.M. 905(h). 

6. Essential findings. R.C.M. 905(d). Where factual issues are involved, the military judge shall state essential 

findings on the record. 

7. Reconsideration. R.C.M. 905(f). The military judge on his or her own, or at the request of either party, may 

reconsider any ruling not amounting to a finding of not guilty any time before authentication of the record. Read 

in conjunction with R.C.M. 917(f). Motion for a Finding of Not Guilty. Reconsideration of a granted motion for 

a finding of not guilty is not permitted. 

IV. MOTIONS TO SUPPRESS. 

A. General. A motion to suppress is based on an alleged constitutional violation. 

B. Procedure. M.R.E. 304(d) [pretrial statements], 311(d) [search & seizure], 321(c) [eyewitness identification]. 

1. Disclosure by the Government. 

2. Notice of motion by defense. 

3. Specific grounds for objection. 

a. United States v. Miller, 31 M.J. 247 (C.M.A. 1990). Motion to suppress statement under M.R.E. 

304(d)(2)(A) must be made prior to plea. Absent motion, no burden on prosecution to prove admissibility; no 

requirement for specific findings by MJ; and, no duty to conduct a voluntariness hearing. 

b. United States v. Vaughters, 42 M.J. 564 (A.F. Ct. Crim. App. 1995), aff’d, 44 M.J. 377 (C.A.A.F. 1996). 

Accused challenged admissibility solely on technical Edwards violations. On appeal, asserts AFOSI also 

coerced confession by threatening to tell neighbors and alleged drug dealers that he had informed on them. 

As motion to suppress did not raise coercion issue, court held accused had forfeited or “waived” issue on 

appeal. 

4. Burden on the prosecution by preponderance. If the underlying facts involve an alleged subterfuge 

inspection, the standard is higher for the government. Under M.R.E. 313(b), the burden is clear and convincing if 

the purpose of the inspection is to discover contraband and is directed immediately following report of specific 

offense, specific individuals are selected, or persons examined are subject to substantially different intrusions; if 

none of the three factors are present, the burden remains by preponderance). See United States v. Shover, 45 M.J. 

119 (C.A.A.F. 1996) (finding clear and convincing standard met by the government). 

5. Essential findings of fact, prior to plea. 

6. Guilty plea waives, except conditional guilty plea. 

V. MOTIONS TO DISMISS. R.C.M. 907. 

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A. General. A motion to dismiss is a request that the trial judge terminate the proceedings as to those charges and 

specifications without a trial on the merits. 

B. Nonwaivable Grounds. Can be raised anytime, including appellate review. 

1. Lack of Jurisdiction. 

2. Failure to Allege an Offense. 

3. Unlawful Command Influence. 

4. Improperly Convened Court. 

C. Waivable Grounds. Must be raised before final adjournment of trial. 

1. Speedy Trial. But see Mizgala, 61 M.J. at 127 (stating that court will not apply forfeiture of Article 10 

issues). 

2. Statute of Limitations. 

a. Unlimited - capital offenses, AWOL in time of war. 

b. Five years - all other offenses. 

c. Child Abuse offenses – life of child, or within five years of date crime committed, whichever is longer 

d. Two years - Article 15 nonjudicial punishment. 

3. Former Jeopardy. 

4. Presidential Pardon. 

5. Grant of Immunity. 

6. Constructive Condonation of Desertion. 

7. Prior Article 15 Punishment for same, minor offense. United States v. Pierce, 27 M.J. 367 (C.M.A. 1989). 

Prior Article 15 punishment for serious offense does not bar subsequent trial for same offense, but the accused 

must be given complete sentence credit for any punishment resulting from the Article 15 proceeding. United 

States v. Edwards, 42 M.J. 381 (C.A.A.F. 1995). The military judge may apply the required credit in fashioning a 

sentence. 

D. Permissible Grounds. May be dismissed upon timely motion by the accused. 

1. Misleading Specification. 

2. Multiplicity. 

E. Other Grounds. 

1. Vindictive or Selective Prosecution. 

2. Constitutional Challenges. 

a. Equal protection. 

b. First Amendment. 

c. Privacy rights. Unger v. Ziemniak, 27 M.J. 349 (C.M.A. 1989). Direct observation of urine collection 

during urinalysis is not per se an unreasonable invasion of privacy. 

d. Lack of notice. 

e. Ex post facto laws. 

VI. MISTRIAL. R.C.M. 915. 

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A. General 

1. A drastic remedy. The judge should declare a mistrial only when “manifestly necessary in the interest of 

justice” due to circumstances which “cast substantial doubt upon the fairness or impartiality of the trial.” United 

States v. Waldron, 36 C.M.R. 126, 129 (C.M.A. 1966). United States v. Brooks, 42 M.J. 484 (1995) (MJ should 

not have declared mistrial based on his improper inquiry into members’ deliberative process). 

a. See, e.g., United States v. King, 32 M.J. 709 (1991) (A.C.M.R. 1991), rev’d on other grounds, 35 M.J. 

337 (C.M.A. 1992). Mistrial not required even though trial counsel improperly communicated to civilian 

psychologist who was defense representative. Factors considered by the court: the psychologist would have 

eventually asked for the background information provided by the trial counsel; any advantage to the trial 

counsel from the information was minimal; and there was no bad faith on the part of the trial counsel. 

b. But see United States v. Diaz, 59 M.J. 79 (C.A.A.F. 2003), in which the CAAF held that a military judge 

abused his discretion in denying a motion for a mistrial when two witnesses --one of them an expert -­

testified they believed death of appellant’s daughter was a homicide and appellant was the perpetrator. The 

combined prejudicial impact of the testimony could not be overcome by a curative instruction, particularly 

since the testimony went to the two main issues of the case: the cause of the death and the identity of the 

perpetrator. 

2. Effect. A declaration of a mistrial shall have the effect of withdrawing the affected charges and specifications 

from the court-martial. 

3. First consider alternative measures. 

a. United States v. Balagna, 33 M.J. 54 (C.M.A. 1991). Witness testimony before panel included reference 

to accused’s submission of Chapter 10 request. The MJ gave curative instruction immediately. Defense 

motion for mistrial was denied. MJ gave second curative instruction during findings. Held no error to deny 

motion for mistrial. 

b. United States v. Taylor, 53 M.J. 195 (C.A.A.F. 2000). Military Judge did not abuse his discretion in 

denying a defense request for mistrial where trial counsel made several impermissible references to accused’s 

gang affiliation in his opening statement. Curative instruction to members was sufficient, in spite of the fact 

that during the trial several members asked questions about the accused’s gang affiliation. 

c. United States v. Mobley, 34 M.J. 527 (1991) (A.F.C.M.R. 1991), aff’d, 36 M.J. 34 (C.M.A. 1992). 

Instructions advising members of accused’s right to remain silent; that they could not draw any adverse 

inference from accused’s failure to testify; and, that trial counsel’s exposition of the facts was argument and 

not evidence ameliorated any prejudice caused by trial counsel’s comments during closing argument that 

called attention to the accused’s failure to testify. 

d. United States v. Skerrett, 40 M.J. 331 (C.M.A. 1994)(no mistrial warranted where MJ admonished panel 

twice to disregard testimony concerning dismissed specification and each member individually assured MJ 

that excluded testimony would not influence consideration of remaining specifications. 

4. Government can usually re-refer charges. See United States v. Mora, 26 M.J. 122 (C.M.A. 1988) (upholding 

new referral after a mistrial in a military judge alone case). 

B. Retrial barred if mistrial declared after jeopardy attaches and before findings under R.C.M. 915(c)(2) if: 

1. Defense objects and judge abuses discretion. Burtt v. Schick, 23 M.J. 140 (C.M.A. 1986). Trial counsel 

requested mistrial when defense divulged accomplice’s sentence. Granted over defense objection; abuse of 

discretion, double jeopardy barred retrial. 

-- OR -­

2. Intentional prosecution misconduct induces mistrial. United States v. Diangelo, 31 M.J. 135 (C.M.A. 1990). 

Trial counsel’s cross examination of accused elicited juvenile arrest record. Fact of arrest record had not 

previously been disclosed to defense despite discovery request. Trial court granted mistrial. CMA holds that 

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conduct of trial counsel did not amount to prosecutorial misconduct and therefore, under R.C.M. 915(c)(2)(B), 

retrial of the accused was not barred. 

C. Defense Motion for Mistrial. Examples of grounds raised in motions for mistrial: 

1. Court members’ actions. 

a. United States v. Johnson, 23 M.J. 327 (C.M.A. 1987). Two motions for mistrial based on a member 

inadvertently seeing autopsy photos and a Government witness riding with a member. 

b. West, 27 M.J. 223. A motion for a mistrial based on an inattentive or sleeping court member. 

c. United States v. Knight, 41 M.J. 867 (A. Ct. Crim. App. 1995) (extensive, frequent and member initiated 

communications with third party intended to gain improper and extrajudicial information relevant to key 

issues in case warranted mistrial). 

d. United States v. Hamilton, 41 M.J. 22 (C.M.A. 1994) (mistrial not required by trial counsel’s inadvertent, 

but improper, social conversation with president of court where no information regarding accused’s case was 

discussed and president was removed for cause). 

2. Military judge’s actions. 

a. United States v. Burnett, 27 M.J. 99 (C.M.A. 1988). “From early in the trial the relations between the 

military judge and the civilian defense counsel had been less than harmonious.” Defense counsel held in 

contempt. Trial proceeded. Motion for mistrial denied. 

b. United States v. Donley, 33 M.J. 44 (C.M.A. 1991). Military judge did not err when he failed, sua 

sponte, to declare a mistrial over a defense objection. During general court-martial for premeditated murder 

of accused’s wife the president of court-martial over-heard sidebar conference during which military judge 

and counsel discussed inadmissible hearsay. Military judge offered to declare a mistrial but defense counsel 

objected. 

c. Noncompliance with discovery rules. United States v. Palumbo, 27 M.J. 565 (1988) (A.C.M.R. 1988), 

pet. denied, 28 M.J. 265 (C.M.A. 1989). Mistrial not necessary as trial judge gave proper curative 

instructions after the trial counsel elicited statements made by the accused which were not disclosed to the 

defense before trial and also elicited testimony that the accused had invoked his rights. 

VII. MOTIONS FOR FINDING OF NOT GUILTY. R.C.M. 917. 

A. Procedure. 

1. Sua sponte or defense motion. 

2. Defense must specifically state where evidence is insufficient. 

3. Opposing counsel shall be given an opportunity to be heard. 

4. After the evidence on either side is closed and before findings are announced. 

B. Standard. 

1. Deny motion if there is any evidence which, together with all reasonable inferences and presumptions, could 

reasonably tend to establish every element of the offense. 

2. The evidence shall be viewed in the light most favorable to the prosecution, without an evaluation of the 

credibility of witnesses. See, e.g., United States v. Felix, 25 M.J. 509 (1987) (A.F.C.M.R. 1987). Allegations of 

deviation from standard operating procedure at a drug-testing lab. Trial judge did not abuse his discretion when 

he denied the defense motion for a finding of not guilty. 

3. Grant motion if the government has introduced no evidence at all of an offense occurring during the charged 

dates of the offense. In United States v. Parker, 59 M.J. 195 (C.A.A.F. 2003), the Government charged the 

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accused with raping a woman in 1995. At trial, the woman testified that the rape had actually occurred in 1993. 

The Government unsuccessfully moved to amend the charge, but persuaded the military judge give a variance 

instruction that would permit the members to substitute 1993 for 1995. The CAAF held the military judge erred 

in denying the defense’s R.C.M. 917 motion for the 1995 rape offense; the Government had introduced no 

evidence of any sexual interaction between the accused and the victim in 1995. 

C. Effect. 

1. If motion is granted only as to part of a specification, a lesser included offense may remain. 

2. If motion is denied, it may be reconsidered at any time before authentication of the Record of Trial. R.C.M. 

917(f). see also United States v. Griffith, 27 M.J. 42 (C.M.A. 1988). Trial judge stated he had no power to set 

aside findings of guilty by court members. (He had previously denied a motion for a finding of not guilty due to 

the lower standard for such motions.) HELD: “We are convinced that, if before authenticating the record of trial, 

a military judge becomes aware of an error which has prejudiced the rights of the accused—whether this error 

involves jury misconduct, misleading instructions, or insufficient evidence—he may take remedial action.” Id. at 

47. 

3. If motion is granted, it may not be reconsidered. 

VIII. POST-TRIAL SESSIONS. R.C.M. 1102. 

A. Purpose. Corrective, clean-up the record, fix obvious errors, and inquire into new matters affecting findings or 

sentence. 

B. Hearing. Article 39(a) session or proceeding in revision directed by the military judge or the convening authority. 

C. Time. Military judge - any time before the record is authenticated. Convening Authority - before initial action or 

if directed by a reviewing authority. R.C.M. 1102(b)(2) & (d). 

D. Grounds 

1. Investigate alleged court member misconduct. United States v. Stone, 26 M.J. 401 (C.M.A. 1988). Post-trial 

allegations by appellant’s father concerning laughter and festive atmosphere within the deliberation room and an 

improper comment by a court-member made during a recess. A post-trial hearing was not required in this case, 

but court indicates that it is an appropriate mechanism in such cases. 

2. Change plea when alleged cocaine was caffeine. United States v. Washington, 23 M.J. 679 (1986) (A.C.M.R. 

1986), review denied, 25 M.J. 197 (C.M.A. 1987). Cocaine was caffeine. A post-trial session was appropriate. 

3. Lost tapes of the announcement of findings and sentencing proceedings. United States v. Crowell, 21 M.J. 760 

(1985) (N.M.C.M.R. 1985), review denied, 23 M.J. 281 (C.M.A. 1986). A post-trial session, before 

authentication of the record, was appropriate to recreate lost verbatim tapes. 

4. Newly discovered evidence. 

a. United States v. Scaff, 29 M.J. 60 (C.M.A. 1989). “Article permitting MJ to call court into session 

without presence of members at any time after referral of charges to court-martial empowers judge to convene 

post-trial session to consider newly discovered evidence and to take whatever remedial action is appropriate.” 

Until he authenticates the record, the MJ can set aside the findings of guilt and sentence. If the convening 

authority disagrees with the MJ, the only remedy is to direct trial counsel to move for reconsideration or to 

initiate government appeal. See United States v. Meghdadi, 60 M.J. 438 (C.A.A.F. 2005) (military judge 

abused his discretion in denying appellant’s motion for a post-trial 39(a) session to inquiry into newly 

discovered evidence and fraud on the court). 

b. Fisiorek, 43 M.J. 244 (MJ applied incorrect legal standard in denying accused opportunity to reopen case 

to present newly discovered evidence). 

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IX. MOTIONS WAIVER CHECKLIST 

MOTION HOW WAIVED 

Suppression of Confession 1. Failure to raise before submission of plea [after proper disclosure 

or Admission. by trial counsel under MRE 304(d)(1)], except for good cause 

shown, as permitted by the military judge. MRE 304(d)(2)(A)]. 

2. Plea of guilty regardless of whether the motion was raised prior to 

plea, unless conditional plea. MRE 304(d)(5). 

3. When a specific motion or objection has been made, the burden on 

the prosecution extends only to the grounds upon which the 

defense moved to suppress the evidence. MRE 304(e). 

Suppression of evidence 1. Failure to raise before submission of plea [after proper disclosure 

seized from the accused by trial counsel under MRE 311(d)(1)], except for good cause 

or believed owned by the shown, as permitted by the military judge. MRE 311(d)(2). 

accused. 

2. Plea of guilty, regardless of whether the motion was raised prior to 

plea. MRE. 311(i). 

3. When a specific motion or objection has been made, the burden on 

the prosecution extends only to grounds upon which the defense 

moved to suppress. MRE 311(e)(3). 

Suppression of Eyewitness 1. Failure to raise before submission of plea [after proper disclosure 

ID. by trial counsel under MRE 321(c)(1)], except for good cause 

shown, as permitted by the military judge. MRE 321(c)(2)(A). 

2. Plea of guilty, regardless of whether raised prior to plea. MRE 

321(g). 

3. When a specific motion or objection has been made, the burden 

on the prosecution extends only to grounds upon which the 

defense moved to suppress. MRE 321(d). 

Defects (other than Failure to raise before plea is entered. R.C.M. 905(b)(1). 

jurisdiction) in preferral, 

forwarding, investigation, 

or referral of charges. 

Motions for discovery Failure to raise before plea is entered. R.C.M. 905(b)(4). 

(RCM 701), or for 

production of witnesses or 

evidence. 

Defects in Charges or Failure to raise before plea is entered. R.C.M. 905(b)(2). 

Specs (other than juris. or 

stating offense). 

Motions for severance of Failure to raise before plea is entered. R.C.M. 905(b)(5). 

charges or accused. 

Objections to denial of Failure to raise before plea is entered. R.C.M. 905(b)(6). 

IMC request or for 

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retention of detailed 

counsel when IMC granted. 

Lack of jurisdiction over Not Waivable. R.C.M. 907(b)(1)(A). 

accused. 

Command Influence Generally Not Waivable. but see U.S., 43 M.J. 15. (Defense 

initiated waiver of UCI in accusatory phase for favorable PTA is 

permissible), and United States v. Drayton, 45 M.J. 180 (1996). 

(Failure to raise accusatory UCI constitutes waiver.) 

Failure to State Offense Not Waivable. RCM 907(b)(1)(B). 

Improperly Convened CM Not Waivable. 

(Incorrect Member Subst.) 

Speedy Trial 1. Waived if not raised before final adjournment. R.C.M. 

907(b)(2)(A), and 905(e). 

2. Plea of guilty, except as provided in R.C.M. 910(a)(2). R.C.M. 

707(e); note: Article 10 issues not waived by GP. 

Statute of Limitations Waived if not raised before final adjournment, provided it appears 

that the accused is aware of his right to assert the statute, otherwise 

the judge must inform the accused of the right. R.C.M. 907(b)(2)(B). 

Use of Victims Past Sexual Failure to file written motion 5 days before trial. MRE 412(c)(1)(A). 

Behavior or Predisposition. 

Former Jeopardy Waived if not raised before final adjournment of the court. R.C.M 

.907(b)(2)(C). 

Pardon, grant of immunity, Waived if not raised before final adjournment of the court. R.C.M. 

condonation of desertion or 907(b)(2)(D). 

prior punishment under 

Articles 13 & 15. 

NOTE: RCM 910(j) provides that [except for a conditional guilty plea under RCM 910(a)(2)] a plea of guilty 

which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the 

objection relates to the factual issue of guilt of the offenses to which the plea was made. 

RCM 910(a)(2) provides that, with the approval of the military judge and the consent of the government, an 

accused may enter a conditional plea of guilty, reserving in writing the right, on further review or appeal, to 

review the adverse determination of any specified pretrial motion. 

X. MOTIONS PRACTICE OVERVIEW 

A. Theme Matters. 

1. Your judge is a human being. When you write, prove, and argue your motions, you need to remember that 

your judge, like most people, wants to right a wrong. Your job is to show her what is wrong with this particular 

issue and get her to not only fix it, but want to fix it. So, you need to find an appropriate theme for this motion. 

That theme may not be exactly the same as the theme of your case at large, but still needs to give the judge a 

reason to do what you want her to do. Show the actual harm that will come to this victim if the evidence of prior 

sexual behavior is admitted. Show how this command has not taken this court-martial – and the accused’s rights 

– seriously. This issue is part of a dramatic story, so tell that story. 

2. In a complex case, you may have a theme that runs through several motions – that the accused is not getting a 

fair trial, etc. Don’t hesitate in this motion to reference other motions that have that same theme. Let the military 

judge and appellate judges know that the problem is bigger than just this one issue. 

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B. Pick the Right Fight 

1. According to James McElhaney, you need to pick the right fight. James McElhaney, McElhaney’s Trial 

Notebook 11 (4th ed. 2005). Concede the obvious. You damage your credibility when you don’t. If your 

command has done something wrong, concede that wrong and see if you can settle on a remedy. If you can’t, 

litigate the remedy. 

2. Don’t file frivolous motions. This is an ethical rule (AR 27-26, Rule 3.1) but also makes good trial sense. 

The rules don’t provide a good definition of frivolous, other than to say that an action is frivolous “if the client 

desires to have the action taken solely for the purpose of harassing or maliciously injuring a person or if the 

lawyer is unable to either make a good faith argument on the merits of the action taken or to support the action 

taken by a good faith argument for the extension, modification or reversal of existing law.” AR 27-26, Rule 3.1 

Comment. 

C. Watch Your Tone 

1. In adversarial settings, when a party sees the other party do something, he or she is likely to immediately 

jump to a negative inference about that action. Most of the time, however, the other party is just doing their job 

and has no sinister intent. 

2. Keep your cool. Keep personal accusations and negative inferences about the other party’s intentions out of 

your motion. When you write nasty things in your motion, only one person looks bad. 

XI. WRITING THE MOTION 

A. To start, you should write each of your motions. Don’t just rely on what is in the motions bank. Often, you will 

have no knowledge about the person who wrote that motion. She could have been the greatest lawyer ever – or 

something short of the greatest. Use old motions as idea generators. See what issues other people have spotted. See 

what cases they have cited. Look at those cases. Then, look at your facts and see what works. The key is to start 

from scratch for each motion. You will get efficient at these soon enough. 

B. Keep some basic rules in mind. Keep your motion short, and keep your motion simple. You are balancing the 

interests of two audiences: the military judge, and the appellate judges. The military judge will read your motion but 

it really serves as a read-ahead for the motions hearing. None of it really matters until you prove your facts at the 

hearing. Your job is to familiarize her with the issue without causing her to fall asleep at her desk. At the same time, 

you need to develop your argument enough so that if you forget to make the legal point at the hearing, the issue is still 

preserved for appeal. (If you forget to prove the factual issue, generally speaking you will be out of luck). 

C. See the attached motions shell for a good method for writing your motions. This motion is in the format found in 

the United States Army Trial Judiciary Rules of Practice before an Army Court-Martial. (A similar format is built 

into Military Justice Online.) You don’t need all of that hyper-formal stuff (“Here comes the Government, by and 

with counsel . . . .” You also don’t need to put the judicial circuit. The judicial circuits represent the way that the 

Army Trial Judiciary has organized their judges for administrative purposes. Your court-martial stands alone. 

D. You can use the IRAC formula (issue, rule, analysis, conclusion) – and your judges will probably appreciate it if 

you do. You want to have a clean, clear argument, and that formula helps you to accomplish that goal. 

E. Just like with the trial in general, you want to start by writing your argument first. You do not need to write a law 

review article. Most of the time, the nature of the law is not at issue. The problem is the application of fact to law. 

Brief statements followed by the source of law are generally good enough. You don’t have to be a Bluebook geek, 

but you should have citations that generally follow the inside back cover of the Bluebook (use the Court Documents 

and Legal Memoranda format, not the Law Review format). If your judge is a Bluebook geek, then you don’t want to 

blow your credibility by not even making an effort. 

F. After you state the law, state which facts apply to the immediate problem, and then tell the military judge how 

those facts either do or do not satisfy the law. Explicitly state the inferences that you want her to draw. Then, tell the 

judge how you want her to solve the problem (your conclusion). 

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G. Once you have written your argument, cut and paste it to the “Statement of Facts” section. Then, go through what 

you just pasted and delete out all of the statements of law and all of the inferences. The facts that are left are called 

“determinative facts.” They are the facts that determine or directly inform the issue before the military judge. Now, 

go through and add any other facts that are needed for the story to flow and that are needed to support the theme that 

is specific to this motion. Don’t put in a bunch of irrelevant facts just because you think they will make the judge get 

angry at, or sympathetic toward, the accused. The judge will be neutral, and all you will have done is hidden the facts 

that matter. 

H. When you are done with that, go to the “Witnesses/Evidence” section. You need to prove every determinative 

fact. Putting them in your statement of facts is not enough. Prove it. 

1. Just stapling a document to the motion may not be enough. The Military Rules of Evidence (MRE) might 

apply to your issue. According to MRE 1101, the MREs apply to Art. 39(a) sessions unless some other rule says 

the rules don’t apply. One of those rules is MRE 104, which says the MREs don’t apply (other than the rules 

related to privileges) in motions about the qualification of a person to be a witness, the existence of a privilege, 

the admissibility of evidence, an application for a continuance, or the availability of a witness. In addition, the 

MREs don’t apply to competence hearings (see RCM 909(e)(2)). The key is to know that the rules apply unless 

you find an exception somewhere. 

2. List all of the evidence you intend to admit and the witnesses you intend to call. For the defense, if you want 

the Government to produce the witness or evidence, then you will also need to comply with RCM 703. If the 

witness’ credibility is not at issue or what they say will not be at issue, then consider entering into a stipulation of 

expected testimony. (If calling the witness live will help you, then don’t enter the stipulation). And, if you can 

agree on certain facts, consider entering into a stipulation of fact. 

I. Then, file the motion and get ready to call witnesses, do direct and cross-examinations, and present argument. 

J. Consider filing a proposal for what you want the military judge to write – a proposed findings of fact, proposed 

conclusions of law, or even a proposed ruling. 

K. If things change after you file your motion, file a supplemental. You may learn things through discovery, 

investigation, or even from litigating other motions that might impact your argument. Adjust if you need to.
 

XII. ARGUING THE MOTION 

A. Motions hearings are a great opportunity to hone your trial skills in an environment that is somewhat safer than 

when the panel members are in the room. Prepare your direct, cross, and argument with the same rigor that you 

would if the members were in the room. 

B. Remember, the law will not likely be the issue. This is not a law school moot court competition. Your job in 

argument is to tell the military judge why she should believe the facts that you presented in the hearing (credibility); 

what those facts mean (inferences); and why the facts satisfy or don’t satisfy the law. Don’t waste your time doing 

case briefs. You may need to state the legal factors to provide the military judge a framework for solving the 

problem, and might want to point to cases that have similar facts where the military judge or appellate judges solved 

the problem in your favor, but that is about as far as you need to go. 

C. Don’t resort to characterizing what the other party has done. If you think their argument is weak, show why it is 

weak by pointing to the facts. Do you think you help the military judge to solve the problem when you say, “Their 

argument is smoke and mirrors”? You don’t. You do help the military judge if you say, “Their argument is weak 

because of X, Y, and Z.” 

XIII. SPECIAL VICTIM COUNSEL (SVC) PROGRAM IMPACT 

A. Pursuant to LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013), a victim of sexual assault has a right to be heard 

through counsel on issues implicating MRE 412 (rape shield), MRE 513 (psychiatrist - patient privilege), and MRE 

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514 (victim advocate – victim privilege). The right to be heard necessarily involves access to court documents and 

legal and factual presentation relevant to the issues. 

B. Rule 2.3.1 of the Rules of Practice Before Army Courts-Martial. All parties will serve the SVC with copies of 

motions and responses, as well as any accompanying documents which touch on the interest of the victim. 

C. Filing of motions by Special Victim Counsel. An SVC, who has been identified on an Electronic Docket Request 

or has filed a notice of appearance may be heard before the court to the extent allowed by applicable law and subject 

to rulings and direction of the military judge. An SVC may file such motions and other pleadings with the court as 

deemed necessary to protect the interests of the client. Copies of all SVC filings will be served on all counsel 

participating in the case. Filings by the SVC should comply with the format and deadlines established by the military 

judge for the parties to the extent practicable. When filing a motion on behalf of a minor client, the SVC shall 

identify the client by initials in any pleadings with the court. 

XIV. GETTING BETTER BY READING: 

A. Lieutenant Colonel Patricia A. Ham, Making the Appellate Record: A Trial Defense Attorney’s Guide to
 

Preserving Objections – the Why and How, Army Law., Mar. 2003, at 10.
 

B. James McElhaney, Dirty Dozen: Do You Want to Write a Really Bad Brief? Here Are 12 Ways to Do It, ABA J., 

June 2011, at 24. 

C. James McElhaney, Listen to What You Write, ABA J., Jan. 2011, at 20. 

D. James McElhaney, Style Matters, ABA J., June 2008, at 28. 

E. James McElhaney, Telling It to the Judge, ABA J., Nov. 2006, at 22. 

F. James McElhaney, Story Line, ABA J., Apr. 2006, at 26. 

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APPENDIX 

MOTION SHELL 

UNITED STATES OF AMERICA	 )
 

) (Prosecution)(Defense)
 

v.	 ) Motion for Appropriate Relief: 

)
 

(Last Name), (First Name) (MI) ) Date
 

(Rank), U.S. Army, )
 

(BN), (BDE) )
 

10th Mountain Division (Light Infantry) )
 

Fort Drum, New York 13603 )
 

) 

RELIEF SOUGHT 

The (Prosecution)(Defense) requests that the Court (do what) because (briefly state the reason). 

The (Prosecution)(Defense) (does)(does not) request oral argument. 

BURDEN OF PROOF AND STANDARD OF PROOF 

The Defense has the burden of proof on any factual issue. R.C.M. 905(c)(2). The standard of proof on 

any factual issue is preponderance of the evidence. R.C.M. 905(c)(1). 

(A short statement should work for most motions. If the motion is from MRE Section III, see the particular rule – 

generally, the government will have the burden and may have a higher standard. See also RCM 905(c)(2)(B) for 

other occasions where the government has the burden). 

FACTS 

(It may be wise to complete this section last. Include the facts required to support the 

argument, determinative facts, and include other facts only if they are required for the judge 

to make sense of the determinative facts or if they affect witness credibility, bias, etc. After you 

write the argument section, you should be able to use that part of the motion to present the 

facts into a chronological narrative. It often helps both parties to agree to undisputed facts – 

it helps focus the motion hearing and the issues. When there are undisputed facts, include 

this language in the motion: “The Prosecution and Defense, with the express consent of the 

accused, agree to stipulate to the following facts for the purposes of this motion.”) 

WITNESSES / EVIDENCE 

(Include witnesses or evidence that will support every fact that you have raised. The Defense almost always has 

the burden, so you have to prove the facts – the government may have to produce the witnesses, but you have to 

prove the facts.) 

LEGAL AUTHORITY AND ARGUMENT 

(Use the “IRAC” formula. If you have multiple arguments, do an IRAC for each, and use a separate header for 

each. Go ahead and use “Law”, “Fact Analysis” and “Conclusion” as your headers.) 

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1. Article 10 Violation. 

a. The issue is whether XXX. 

b. Law. The test under Article 10, UCMJ, is whether the government proceeded with reasonable 

diligence in bringing the case to trial. United States v. Bell, 38 M.J. 358 (C.M.A. 1993). Stated in the inverse, 

the government cannot negligently fail to bring charges. Id. The remedy for an Article 10 violation is dismissal 

of all charges with prejudice. Kossman, at 262. The standard of review on appeal is de novo. United States v. 

Cooper, 58 M.J. 54 (2003). Article 10 analysis should include the Barker v. Wingo factors (United States v. 

Birge, 52 M.J. 209 (1999)), but is not limited to those factors because Article 10 is more exacting than standard 

Sixth Amendment analysis (United States v. Mizgala, 61 M.J. 217 (2005)). 

(Use simple statements of the law followed by a case cite. Generally, the law is not in dispute, and the judge knows 

the law. If the law is unclear or is in dispute, you may make a more detailed argument.) 

c. Fact analysis. Barker v. Wingo Factors. Many of the factors named above which serve to 

demonstrate an Article 10 violation are present in the facts of this case. 

(State the facts that support your proposition, and explain why the facts support your proposition. State the 

inferences that the judge needs to make. Tell him why these facts matter. After you have written your argument, 

you will know the determinative facts. Those are the facts you put in the statement of facts, above.) 

1. Length of delays. 

2. Reason for the delay. 

d. Conclusion. (State your position on the issue). 

2. Unlawful Command Influence. 

a. The issue is XXX. 

b. Law. 

c. Fact Analysis. 

d. Conclusion. 

CONCLUSION 

(Restate the relief requested paragraph here.) 

SIGNATURE BLOCK 

CPT, JA 

Defense Counsel 

(Note: No certificate of service is required.) 

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[Back to Table of Contents] 

CHAPTER 17
 

PLEAS
 

I. INTRODUCTION............................................................................................................. 1
 

II. CONDITIONAL GUILTY PLEA. RCM 910(A)(2). .................................................... 2
 

III. PLEADING PROCEDURE- GUILTY PLEA AND PROVIDENCE INQUIRY....... 4
 

IV. USE OF GUILTY PLEA IN MIXED PLEA CASES.................................................... 6
 

V. ACCEPTANCE OF PLEAS AND ENTERING FINDINGS........................................ 8
 

I. INTRODUCTION. 

A. Five Recognized Pleas. RCM 910(a)(1). 

1. Not Guilty: “Your honor, the accused, SGT Archie, pleads, to all Charges and Specifications, 

Not Guilty.” ** Not Guilty Only by Reason of Lack of Mental Responsibility is not recognized 

in RCM 910(a)(1). It is treated as irregular plea under RCM 910(b), which equates to a plea of 

not guilty. “The accused pleads as follows: To the Specification: Not Guilty only by reason of 

lack of mental responsibility.” 

2. Guilty: “Your honor, the accused, SGT Archie, pleads as follows: To the Specification and 

to The Charge: Guilty.” 

3. Guilty by Exceptions: (example of AWOL terminated by apprehension) “Your honor, the 

accused, SGT Archie, pleads as follows: To the Specification: Guilty, except the words, ‘he was 

apprehended.’ To the excepted words: Not Guilty. To the Charge: Guilty.” 

4. Guilty by Exceptions and Substitutions: (pleading to wrongful appropriation rather than 

larceny, using Exceptions and Substitutions) “Your honor, the accused, SGT Archie, pleads as 

follows: To the Specification: Guilty, except the word ‘steal,’ substituting therefor the words 

‘wrongfully appropriate.’ To the excepted word: Not Guilty; to the substituted words: Guilty. 

To the Charge: Guilty.” 

5. Guilty to a Named Lesser Included Offense: (pleading to wrongful appropriation as a 

lesser included offense of larceny) “Your honor the accused, SGT Snuffy, pleads as follows: To 

the Specification: Not Guilty, but Guilty to the lesser included offense of wrongful 

appropriation.” Remember, that in order to plead to a LIO, the specification to which the accused 

is pleading guilty must actually be an LIO- just because the Manual says it is an LIO does not 

make it so- you must conduct an elements test. 

B. How to Enter Pleas. 

Step 1: Plead to the Specification; 

Step 2: Plead to the excepted words or figures (if applicable); 

Step 3: Plead to the substituted words or figures (if applicable); AND 

Step 4: Plead to the Charge. 

C. Effect of Pleas. 

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1. Government’s burden of proof. Plea of not guilty places burden upon government to prove 

elements of the charges offense(s). A guilty plea relieves government of burden to prove 

elements of offense(s). 

2. Waiver. By pleading Guilty (unconditionally) the accused waives certain things: 

a) Factual issues of guilt. 

(1) Objections: under RCM 910(j), a plea of guilty that results in a finding of guilty 

waives any objection, whether or not previously raised, insofar as the objection relates to 

the factual issue of guilt. 

b) Defects not raised at trial that are neither jurisdictional nor tantamount to a denial of due 

process. 

c) Motion to suppress confession. M.R.E. 304(d)(5) see United States v. Hinojosa, 33 M.J. 

353 (C.M.A. 1991) (guilty plea waived right to contest motion denying suppression of 

confession). 

d) Speedy Trial. See United States v. Tippit, 65 M.J. 69 (C.A.A.F. 2007) 

(1) Speedy trial rights provided under the 6th Amendment and RCM 707 are waived. 

RCM 707(e) 

(2) Article 10 challenges not waived at trial are waived. 

(3) Properly litigated Article 10 challenges are not waived. 

(4) Trial counsel disqualification. See United States v. Bradley, 68 M.J. 279 (C.A.A.F. 

2010) 

3. No Waiver. The following issues are not waived by an unconditional guilty plea: 

a) Unlawful command influence. United States v. Johnston, 39 M.J. 242 (C.M.A. 1994). 

b) Jurisdiction. United States v. Coffey, 38 M.J. 290 (C.M.A. 1993) 

c) Ineffective assistance of counsel. 

d) Properly litigated Article 10 motion. United States v. Mizgala, 61 M.J. 122 (C.A.A.F. 

2005). Id. “A fundamental, substantial, personal right... should not be diminished by 

applying ordinary rules of waiver and forfeiture associated with guilty pleas.” 

e) Multiplicious charging. An unconditional guilty plea, ordinarily, waives multiplicity 

issues, unless those issues constitute plain error. United States v. Rhine, 67 M.J. 646 

(A.F.Ct.Crim.App. 2009) (citing United States v. Powell, 49 M.J. 460, 464-65 (C.A.A.F. 

1998). 

f) Statute of limitations. Accused can, though, on the record, voluntarily and expressly 

waive the statute of limitations as a bar to trial. United States v. Province, 42 M.J. 821 (N-M 

Ct. Crim. App. 1995). 

g) Selective prosecution not waived in situations in which facts necessary to make the claim 

were not fully developed at the time of plea. United States v. Henry, 42 M.J. 231 (C.A.A.F. 

1995). 

II. CONDITIONAL GUILTY PLEA. RCM 910(A)(2). 

A. RCM 910(a)(2). With the approval of the military judge and the consent of the Government, an 

accused may enter a conditional plea of guilty, reserving the right, on further review or appeal, to 

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review of the adverse determination of any specified pretrial motion. If the accused prevails on 

further review or appeal, the accused shall be allowed to withdraw the plea of guilty. The Secretary 

concerned may prescribe who may consent for Government; unless otherwise prescribed by the 

Secretary concerned, the trial counsel may consent on behalf of the Government. 

B. Coordination with OTJAG. 

1. In the Army, SJAs should consult with the Criminal Law Division, OTJAG, prior to the 

government’s consent to an accused entering a conditional plea of guilty. 

a) AR 27-10, para. 5-26b (“Because conditional guilty pleas subject the government to 

substantial risks of appellate reversal and the expense of retrial, SJAs should consult with the 

Chief, Criminal Law Division, ATTN: DAJA–CL, Office of The Judge Advocate General, 

HQDA, prior to the government’s consent regarding an accused entering a conditional guilty 

plea at court-martial”) 

b) Once this coordination is complete, the Trial Counsel may consent, on behalf of the 

government, to the entering of the conditional guilty plea by the accused in accordance with 

R.C.M. 910(a)(2).”). See generally RCM 910(a)(2) (“The Secretary concerned may prescribe 

who may consent for the Government...”). 

C. Issue Should be Case Dispositive. 

1. The motion or issue in question should be case dispositive. (Analysis R.C.M. 910). But note, 

only the Air Force requires that the issue be case dispositive. (See AFI 51-201, para 8.3). 

2. Practice Tip: where a conditional guilty plea is NOT case dispositive as to either the issue 

preserved for appeal or to all of the charges in a case, the military judge should address as part of 

the providence inquiry the understanding that the accused and the parties have as to the result of 

the issue prevailing on appeal. 

3. Additionally, even if the conditional plea issue is not case dispositive, it might be best to 

narrowly tailor the conditional plea. 

United States v. Mapes, 59 M.J. 60 (C.A.A.F. 2003). Accused convicted of involuntary 

manslaughter and various other offenses arising from his injection of a fellow soldier with a 

fatal dose of heroin. Accused entered into a pretrial agreement that permitted him to enter a 

conditional plea pursuant to RCM 910(a)(2) that preserved his “right to appeal all adverse 

determinations resulting from pretrial motions.” At trial, accused moved to dismiss all 

charges due to improper use of immunized testimony and evidence derived from that 

immunized testimony in violation of Kastigar v. United States, 406 U.S. 441 (1972). 

Although the CAAF dismissed most of the charges and specifications due to the Kastigar 

violation, accused was permitted to withdraw his plea to those remaining offenses which 

were not directly tainted by that violation, as the violation caused or played a substantial role 

in the GCM referral of those offenses. In so doing, CAAF noted that although military 

practice, unlike its federal civilian counterpart, does not limit conditional pleas to issues that 

are dispositive, there should be “cautious use of the conditional plea when the decision on 

appeal will not dispose of the case.” See also United States v. Proctor, 58 M.J. 792 (A.F. Ct. 

Crim. App. 2003) 

D. Military Judge and Government Counsel Must Consent. RCM 910 Analysis at A21-60 (“There is 

no right to enter a conditional guilty plea. The military judge and the government each have complete 

discretion whether to permit or consent to a conditional guilty plea.” 

E. Issue Must be Raised at Trial. United States v. Forbes, 19 M.J. 953 (1985) (A.F.C.M.R. 1985) 

(accused’s failure to make motion to suppress drug test waived issue despite conditional plea). 

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III. PLEADING PROCEDURE- GUILTY PLEA AND PROVIDENCE 

INQUIRY 

A. In general. 

1. After the accused is arraigned under RCM 904, the military judge will call on accused and 

counsel to enter a plea. If the accused pleads guilty to any offense, the military judge will follow 

this procedure to ensure the plea is voluntary and accurate. An accused must admit his own guilt 

in court. See RCM 910(d)-(e). Alford pleas or nolo contendere pleas are not allowed. 

2. The origin and purpose of the providence (Care) inquiry. “The record must reflect not only 

that the elements of each offense charge have been explained to the accused, but also that the 

military trial judge or the president has questioned the accused about what he did or did not do, 

and what he intended (where this is pertinent) to make clear the basis for a determination by the 

military trial judge or president whether the acts or the omissions of the accused constitute the 

offense or offenses to which he is pleading guilty.” United States v. Care, 40 C.M.R. 247, 253 

(C.M.A. 1969). 

B. Elements of the Providence Inquiry- RCM 910(c)-(e) 

1. Military judge must explain the offenses to the accused and ensure the accused understands: 

a) Waiver of rights (with respect to the charges/specifications to which he has pled guilty). 

b) The right against self-incrimination, trial of the facts by the court, and right of 

confrontation 

c) Elements of the offense(s) to which accused has pled guilty 

d) And agrees that the plea admits every element, act, or omission and relevant intent 

e) That he may be convicted on the plea alone without any further proof 

f) The maximum sentence available based on the plea alone 

g) His opportunity to consult with counsel 

h) That he is entering the plea knowingly and voluntarily. 

2. Military judge must advise the accused of his rights on the record. RCM 910(c). 

3. Military judge must advise the accused of the elements of the offense. RCM 910(c)(1) and 

Discussion. 

a) Where there is a challenge in defining a term of an element, there are three sources to 

find the meaning of terms not defined in statute: “(1) the plain meaning of the term; (2) the 

manner in which Article III courts have construed the term; and (3) the guidance gleaned 

from any parallel UCMJ provisions.” United States v. Craig, 67 M.J. 742 (N-M Ct. Crim. 

App. 2009)(citing United States v. Kuemmerle, 67 MJ 141 (C.A.A.F. 2009). 

b) When the military judge has to define a term of art (like attempt), appellate courts will 

ascertain whether the plea was knowing and voluntary by looking at the record of trial and 

deciding whether it is clear from the entire record that the accused knew the elements, 

admitted them freely, and pled guilty because he was guilty. See United States v. Redlinski, 

58 M.J. 117 (C.A.A.F. 2003). 

C. Factual Predicate for Plea 

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1. The accused shall be questioned under oath about the offense(s) as part of the guilty plea 

inquiry. RCMs 910(c)(5), 910(e) The military judge must ascertain why the accused believes he 

is guilty and advise the accused of the elements of the offense. 

a) Leading questions by the military judge are generally disfavored. United States v. Nance, 

67 M.J. 362 (C.A.A.F. 2009) 

b) If the military judge conducts too little of an inquiry, the case may be set aside. United 

States v. Bailey, 20 M.J. 703 (1985) (A.C.M.R. 1985) and United States v. Frederick, 23 M.J. 

561 (1985) (A.C.M.R. 1986) (military judge’s inquiry requiring simple yes or no answers 

when asked whether he did that which the specification alleged was inadequate). 

c) The colloquy is between the Military Judge and the accused- not between the Military 

Judge and counsel. See United States v. Hartman, 69 M.J. 467 (C.A.A.F. 2011)(where 

military judge asked the trial counsel questions regarding the accused’s conduct within the 

confines of the Marcum factors in a consensual sodomy case, the court held the plea 

improvident because the Military Judge failed to discuss those factors with the accused). 

2. Factual Predicate for the Plea- appellate review and the “Substantial Basis” test. In reviewing 

a military judge’s acceptance of a plea under the abuse of discretion standard, appellate courts 

apply a “substantial basis” test: Does the record as a whole show a substantial basis in law or fact 

for questioning the guilty plea? United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008) 

a) Questions of Fact: “The standard for reviewing a military judge’s decision to accept a 

plea of guilty is an abuse of discretion.” A military judge abuses his discretion “if he accepts 

a guilty plea without an adequate factual basis to support the plea. 

(1) **Example of “substantial basis” in fact: where the factual predicate of the guilty 

plea falls short. 

b) Questions of Law: “The military judge’s determinations of questions of law arising 

during the plea inquiry are reviewed de novo.” 

(1) **Example of “substantial basis” in law: an accused who knowingly admitted the 

facts necessary to prove he or she met all the elements of an offense, but was not advised 

of an available defense. 

c) Military Judge Must Resolve Potential Defenses 

(1) If any potential defense is raised by the accused or by any other matter presented, the 

military judge should explain such a defense to the accused and should not accept the 

plea unless the accused admits facts which negate the defense. RCM 910 Discussion. 

(2) If a potential defense is raised after findings are entered, then the military judge must 

reopen the inquiry. RCM 910(h)(2). 

(3) Lack of personal recollection not a bar to pleading guilty. United States v. Moglia, 

3 M.J. 216 (C.M.A. 1977). Accused need not describe from personal recollection all the 

circumstances necessary to establish a factual basis for the plea. Nevertheless the 

accused must be convinced of, and able to describe all the facts necessary to establish 

guilt. See also RCM 910(e) Discussion; United States v. Wiles, 30 M.J. 1097 (1989) 

(N.M.C.M.R. 1989). 

D. Inquiry into the Pretrial Agreement (PTA). 

1. The military judge must fully explore the terms of the PTA with the accused to ensure he 

understands them. This includes both the offer portion and the quantum (though the judge does 

not see the quantum until after sentence is announced). 

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a) United States v. Soto, 69 M.J. 304 (C.A.A.F. 2011) (where a term in the quantum 

whereby the accused agreed to ask for a BCD was not discussed with the accused on the 

record, there was a substantial basis in law to question the plea. The plea was deemed 

improvident.) 

b) United States v. Green, 1 M.J. 453 (C.M.A. 1976) (military judge must establish “on the 

record that an accused understands the meaning and effect of each condition as well as the 

sentence limitations imposed by any existing pretrial agreement”). 

c) United States v. Felder, 59 M.J. 444 (C.A.A.F. 2004). Military judge did not inquire into 

a term of the PTA regarding defense’s waiver of any motions for sentence credit based on 

Article 13 and/or restriction tantamount to confinement. Defense counsel did inform the MJ 

that no punishment under Article 13 or restriction tantamount to confinement had occurred. 

While the MJ’s failure to discuss the term was error, the accused failed to show the error 

materially prejudiced a substantial right. 

2. Military judge cannot expand PTA terms. United States v. Brehm, ARMY 20070688, [not 

available on Westlaw] (A. Ct. Crim. App. May 13, 2009) (unpublished). Accused pled guilty to 

indecent liberties with a child for an offense committed in 1999; charges were not forwarded until 

October 2006. At that time, the CAAF had not released its opinion in United States v. Lopez de 

Victoria, 66 M.J. 67 (C.A.A.F. 2008), which held that the 2003 amendment to Article 43, UCMJ 

(excepting child abuse offenses from the five-year statute of limitations) did not apply 

retroactively. At the guilty plea, the military judge asked the accused if he intended to waive a 

possible statute of limitations challenge from “any hypothetical ruling” by the CAAF. The 

ACCA ruled that the military judge exceeded his authority by adding an additional term to the 

pretrial agreement (specifically, waiver of a potential statute of limitation defense). The court 

noted it would have “less concern” if the pretrial agreement expressly discussed a “bargained-for 

waiver of a hypothetical future defense.” 

E. Inquiry into the Stipulation of Fact 

1. The military judge must conduct an inquiry into the stip of fact (if there is one) to ensure that 

the accused understands the sitp of fact and has agreed to its contents knowingly and voluntarily. 

2. Stipulations of fact and polygraphs. United States v. Clark, 53 M.J. 280 (C.A.A.F. 2000). 

Accused submitted a false claim, then took a polygraph (which he failed). He was charged and 

elected to plead guilty. Accused and convening authority agreed to PTA which included a 

promise to enter into “reasonable stipulations concerning the facts and circumstances” of his 

case. MJ at trial noticed the polygraph in the stipulation, noted that accused had agreed to take a 

polygraph test and that the “test results revealed deception.” There was no objection to the 

stipulation and he admitted the stipulation into evidence. Applying M.R.E. 707 and United States 

v. Glazier, 26 M.J. 268, 270 (C.M.A. 1988), CAAF held it was plain error for military judge to 

admit the evidence of the polygraph, even via a stipulation. 

IV. USE OF GUILTY PLEA IN MIXED PLEA CASES 

A. Panel Not Notified of Guilty Plea. Generally, the panel will not be informed when the accused 

enters mixed pleas. RCM 910(g) Discussion; RCM 913(a) (if mixed pleas have been entered, the 

military judge should ordinarily defer informing the members of the offenses to which the accused 

pled guilty until after the findings on the remaining contested offenses have been entered). Thus, 

where an accused pleads guilty to offense A, but not guilty to offense B, military judge should defer 

informing court members of the plea to offense A until after findings are announced on contested 

offense B. United States v. Smith, 23 M.J. 118, 120 (C.M.A. 1986). See also United States v. 

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Hamilton, 36 M.J. 723 (1992) (A.C.M.R. 1993) (reversible error to advise members that accused had 

pled guilty to other offenses). 

B. Entering Findings. Typically, the military judge will enter findings immediately after acceptance 

of a plea. RCM 910(g). However, where the accused pleads guilty to a lesser included offense and 

the prosecution intends to go forward on the contested charge: (1) the military judge should not enter 

findings after the accused pleads pursuant to RCM 910(g)(2); and (2) prior to commencement of trial 

on the merits, military judge will instruct the members that they should “accept as proved the matters 

admitted in the plea, but must determine whether the remaining elements are established” pursuant to 

RCM 920(e) Discussion. 

C. Exceptions 

1. If the accused requests members be informed of guilty pleas; or 

2. If guilty plea is to a lesser included offense and the trial counsel intends to prove the greater 

offense. RCM 913(a), Discussion. United States v. Irons, 34 M.J. 807 (1992) (N.M.C.M.R. 

1992) (military judge committed error in not cleaning up flyer, which reflected greater offense to 

which the accused pled not guilty and which the government did not intend to pursue, was not 

waived by accused’s failure to object; sentence set aside). 

3. In cases of multiple offenses, however, the military judge should instruct the panel that it may 

not use the plea of guilty to one offense to establish the elements of a separate offense. RCM 

920(e) Discussion. Cf. Hamilton, 36 M.J. 723 (A.C.M.R. 1993). 

D. Use of providence inquiry admissions in mixed pleas. 

1. Use of providence inquiry during merits phase in mixed plea. 

a) United States v. Grijalva, 55 M.J. 223 (C.A.A.F. 2001). Accused shot his wife. At trial, 

MJ rejected the accused’s plea of guilty to attempted premeditated murder, but accepted his 

plea to the lesser-included offense of aggravated assault by intentional infliction of grievous 

bodily harm. On the merits (of the greater offense) the MJ used not only the accused’s plea 

to the lesser offense, but also his admissions during the GP inquiry. The MJ then convicted 

the accused of attempted premeditated murder. Following settled case law, CAAF held the 

MJ properly used the accused’s plea to the lesser-included offense, but erred by considering 

statements made by the accused during the plea inquiry. 

b) United States v. Ramelb, 44 M.J. 625 (A. Ct. Crim. App. 1996). Providence inquiry can 

be used only to establish common elements between LIO and greater offenses. After accused 

pled guilty to LIO of wrongful appropriation, TC proved greater offense of larceny through 

testimony about what accused said in providence inquiry concerning intent. TC must obtain 

independent evidence to prove greater offense. 

2. Use of providence inquiry admissions on sentencing. 

a) Rule. United States v. Holt, 27 M.J. 57 (C.M.A. 1988). Sworn testimony given by 

accused during providence inquiry may be received as admission at sentencing hearing and 

can be provided either by properly authenticated transcript or by testimony of court reporter 

or other persons who heard what accused said during providence inquiry. 

b) United States v. Dukes, 30 M.J. 793 (1990) (N.M.C.M.R. 1990). Court indicated that 

Holt permits the trial counsel to offer an accused’s responses during the providence inquiry 

into evidence, “but that such responses are not automatically in evidence . . . an accused must 

be given notice of what matters are being considered against him . . . opportunity to object . . . 

on grounds of improper aggravation, undue prejudice, or whatever.” See also United States 

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v. Irwin, 42 M.J. 479 (C.A.A.F. 1995) (accused’s description of his misconduct–AWOL, 

rape, sodomy, 

c) indecent acts, kidnapping, threats, and unlawful entry–was so detailed and graphic that 

trial counsel played tape to members; tape was proper aggravation under RCM 1001(b)(4) 

and not cumulative because there was no stipulation of fact). 

d) United States v. Figura, 44 M.J. 308 (C.A.A.F. 1996). CID agent charged with forgery. 

Trial counsel sought to use providence inquiry to establish the dates of checks, where written, 

and where the checks were cashed because information did not appear in stipulation of fact. 

Parties agreed to have MJ summarize for court members the information stated during 

providence inquiry, rather than have a written stipulation or spectator testimony. Court held 

there is no demonstrative right or wrong way to introduce evidence taken during providence 

inquiry, and that MJ giving summary to members was probably to accused’s advantage. 

3. Exclusion of witnesses from providence inquiry. 

a) United States v. Langston, 53 M.J. 335 (C.A.A.F. 2000). Defense requested exclusion of 

witnesses from courtroom during providence inquiry. Military judge refused the request, 

ruling incorrectly that M.R.E. 615 did not apply to providence inquiry. CAAF held the 

accused was not prejudiced, however, as the bulk of the witnesses’ testimony went to victim 

impact. 

b) See M.R.E. 615 on excluding “victims” from trial proceedings. 

V. ACCEPTANCE OF PLEAS AND ENTERING FINDINGS. 

A. Findings Entered Upon Acceptance of Plea. Ordinarily, a military judge will enter findings upon 

acceptance of the accused’s guilty plea, but not if the trial counsel intends to “prove up” a greater 

offense. See United States v. Baker, 28 M.J. 900 (1989) (A.C.M.R. 1989) (military judge who knew 

that trial counsel intended to prove rape improperly entered findings pursuant to pleas of guilty to 

lesser included offense of carnal knowledge). 

B. Refusal of Military Judge to Accept Pleas 

1. Improvident Pleas. 

a) For a plea to be inconsistent with factual and legal guilt, there must be more than the 

possibility of a defense; however, if the accused raises an inconsistency the MJ must resolve 

it. United States v. Johnson, 25 M.J. 553 (C.M.A. 1987). If accused’s comments or any 

other evidence reasonably raises a defense, military judge must explain elements of defense 

to accused. It is not relevant that comments are not credible; the sole question is whether 

accused made a statement during the trial that was in conflict with his plea. 

b) Confusion about maximum sentence may render plea improvident. United States v. 

Castrillion-Moreno, 7 M.J. 414 (C.M.A. 1979). But see United States v. Hunt, 10 M.J. 222 

(C.M.A. 1981) (all factors are examined to determine if misapprehension of maximum 

punishment affected guilty plea, or whether the factor was insubstantial in accused’s 

decision). See also United States v. Poole, 26 M.J. 272 (C.M.A. 1988); United States v. 

Kyle, 32 M.J. 724 (1991) (A.F.C.M.R. 1991); United States v. Hemingway, 36 M.J. 349 

(C.M.A. 1993). 

2. Irregular Pleas. RCM 910(b) 

a) Plea that does not admit guilt. Alford and nolo contendre pleas are not recognized 

under the UCMJ. If the accused attempts to enter such a plea (which purports to be a guilty 

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plea without admitting guilt) military judge is required to enter a plea of not guilty on the 

accused’s behalf. 

b) Guilty plea in capital case. United States v. Fricke, 53 M.J. 149 (C.A.A.F. 2000). 

Military judge did not err in accepting accused’s plea to premeditated murder where there 

was no written record of CA withdrawing capital referral and re-referring as non-capital case. 

Military judge noted noncapital referral on record with no objection of parties. 

C. Effect of Refusal to Accept Guilty Plea. 

1. Plea(s) of not guilty entered on behalf of accused. 

No automatic recusal of military judge; however in a trial by military judge alone, refusal of 

the request for trial by military judge alone will normally be necessary when a plea is rejected 

or withdrawn after findings. RCM 910(h)(2)Discussion. United States v. Rhule, 53 M.J. 647 

(A. Ct. Crim. App. 2000) (finding the Army preference is for the MJ to recuse himself) 

2. Use of testimony gained from “busted” (unsuccessful) providence inquiry. 

a) RCM 910(e) allows for accused to be prosecuted for making false statements during a 

providence inquiry. 

b) M.R.E. 410(a) addresses the “Inadmissibility of Pleas, Plea Discussions, and Related 

Statements” made during the course of “any judicial inquiry” regarding a plea of guilty which 

is later withdrawn. M.R.E. 410(a) goes on to state, however, that such statement(s) are 

admissible “in any proceeding wherein another statement made in the course of the same plea 

or plea discussions has been introduced and the statement ought in fairness be considered 

contemporaneously with it.” See United States v. Doran, 564 F.2d 1176 (5th Cir. 1977), cert. 

denied, 435 U.S. 928 (1978). See also United States v. Mezzanato, 513 U.S. 196 (1995) 

(statements made during plea negotiations admissible where accused decided to plead not 

guilty and understood the nature of agreement). 

D. Accused’s Withdrawal of Guilty Plea. RCM 910(h)(1). 

1. Prior to acceptance by military judge—A matter of right. 

2. Prior to announcement of sentence—for good cause only. 

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Chapter 18
 

Voir Dire & Challenges
 

I. INTRODUCTION..................................................................................................................................... 1
 

II. BACKGROUND ....................................................................................................................................... 1
 

III. CHALLENGING THE ENTIRE PANEL.............................................................................................. 2
 

IV. INVESTIGATING COURT MEMBERS............................................................................................... 4
 

V. VOIR DIRE ............................................................................................................................................... 6
 

VI. CHALLENGES FOR CAUSE – GENERALLY ................................................................................. 10
 

VII. CHALLENGES FOR CAUSE – ACTUAL BIAS ............................................................................... 12
 

VIII. CHALLENGES FOR CAUSE – IMPLIED BIAS............................................................................... 12
 

IX. CHALLENGES FOR CAUSE – LOGISTICS..................................................................................... 20
 

X. PEREMPTORY CHALLENGES GENERALLY............................................................................... 24
 

XI. DISCRIMINATORY PEREMPTORY CHALLENGES – BATSON ............................................... 25
 

XII. PRACTICE TIPS: VOIR DIRE GOALS AND HOW TO REACH THEM.................................... 31
 

I. INTRODUCTION 

A. In General. The Sixth Amendment right to a jury trial does not apply to military servicemembers. However, a 

military accused enjoys the right to trial before court members, as provided by Congress in Article 25, UCMJ. See 

United States v. Witham, 47 M.J. 297, 301 (C.A.A.F. 1997) (“Again, we note that a military accused has no right to a 

trial by jury under the Sixth Amendment. He does, however, have a right to due process of law under the Fifth 

Amendment, and Congress has provided for trial by members at a court-martial.”) (citations omitted). To ensure the 

impartiality of panel members, they are subject to voir dire by the military judge and counsel. Article 41, UCMJ, and 

R.C.M. 912 control the process. Both sides have an unlimited number of challenges for cause against panel members. 

See Article 41(a)(1), UCMJ. Both sides are also allowed one peremptory challenge of the members. See Article 

41(b)(1). 

B. The Sixth Amendment right to a trial by an impartial jury of the “state” does not apply to the military because 

panel members are selected not from the “state” but from those in the military service per Article 25, UCMJ. 

applies to military practice, through the Due Process Clause. 

Whelchel v. McDonald, 340 U.S. 122, 127 (1950). The Sixth Amendment right to an “impartial” jury, however, 

C. “Part of the process due is the right to challenge for cause and challenge peremptorily the members detailed by the 

convening authority.” Witham, 47 M.J. at 301
 

D. “The reliability of a verdict depends upon the impartiality of the court members. Voir dire is fundamental to a fair 

trial.” United States v. Jefferson, 44 M.J. 312 (C.A.A.F. 1996). 

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A. The Rules for Courts-Martial describe the sole purpose of voir dire to be a conduit for an intelligent use of 

challenges. R.C.M. 912 (discussion). 

1. “The purpose of voir dire and challenges is, in part, to ferret out facts, to make conclusions about the 

members’ sincerity, and to adjudicate the members’ ability to sit as part of a fair and impartial panel.” United 

States v. Bragg, 66 M.J. 325, 327 (C.A.A.F. 2008). 

2. Under Article 25, UCMJ, the convening authority personally selects panel members with two significant 

limitations: 

a. The convening authority cannot select members in any manner that systematically excludes a group of 

otherwise qualified candidates (for example, potential members cannot be excluded on the basis of rank, 

religion, race, or gender). 

b. The convening authority cannot “stack” a panel to obtain a certain result (for example, cannot pick 

members who will dole out harsh sentences). 

3. “The reliability of a verdict depends upon the impartiality of the court members. Voir dire is fundamental to a 

fair trial.” Jefferson, 44 M.J. 312. 

B. Impartial Members. Court members must be impartial. To ensure this impartiality, both sides have an unlimited 

number of challenges for cause against panel members. See Article 41(a), UCMJ. 

C. Military Judge Controls Voir Dire. Under R.C.M. 912(d), “The military judge may permit the parties to conduct 

the examination of members or may personally conduct the examination.” The Discussion to R.C.M. 912(d) suggests 

a preference for allowing counsel to question members (noting that “[o]rdinarily, the military judge should permit 

counsel to personally question the members”) but does not give counsel a right to personally question members. 

Under this rule and attendant case law, the military judge remains in virtually complete control of voir dire. 

D. Order Of March: Depending on the military judge the process generally follows this order: 

1. Selection of members. 

2. Drafting of a court-martial convening order (CMCO). 

3. Selected members complete questionnaires. 

4. Case is referred to a certain CMCO. 

5. After case is docketed, members are excused who are unavailable for the trial date and alternate members are 

added. 

6. Counsel review questionnaires for the members who will sit. 

7. On the day of trial, members come to court and are sworn as a group; the military judge then asks the entire 

group questions (Military Judges’ Benchbook recommends 28 preliminary questions for group voir dire). 

8. Both counsel (normally with trial counsel going first and defense second) ask the group questions. 

9. Parties may request permission from the military judge to question member(s) individually as necessary. 

10. After all questioning, trial counsel asserts challenges for cause. 

11. Defense then asserts challenges for cause. 

12. Trial counsel can use a peremptory challenge and then defense counsel can use a peremptory challenge. 

13. Finally, challenged members are excused and the trial proceeds. 

III. CHALLENGING THE ENTIRE PANEL 

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A. In General. There may be cases in which the defense has some reason to believe that the military panel, or the 

“venire,” has been improperly selected. In such cases, defense may wish to challenge entire panel. R.C.M. 912(b) sets 

out the procedure for mounting such a challenge. 

1. Before voir dire begins, a party may move to stay the proceedings on the ground that members were selected 

improperly. 

2. Once defense makes an offer of proof that, if true, would constitute improper selection of members, the 

moving party shall be entitled to present evidence. If the military judge determines the convening authority 

improperly selected the members, the military judge shall stay proceedings until members are properly selected. 

3. Waiver. Failure to make a timely motion under this section waives the issue of improper selection except 

where: 

a. The issue relates to the minimum required number of members under R.C.M. 501(a); 

b. The member does not have the requisite qualifications (for example, does not satisfy Article 25 criteria; or 

where the member is not active duty, not a commissioned or warrant officer, or is an enlisted member where 

the accused has not requested enlisted members); or 

c. The accused has requested a panel comprised of one-third (1⁄3) enlisted members, and they are not present 

or there is an inadequate explanation for their absence. 

4. Defense counsel challenging panel selection frequently allege that the panel was “packed” or “stacked” to 

achieve a desired result; panel stacking is prohibited. United States v. Roland, 50 M.J. 66, 69 (C.A.A.F. 1999); 

United States v. White, 48 M.J. 251, 254 (C.A.A.F. 1998). 

B. Matters Considered By Convening Authority. Under R.C.M. 912(a)(2), a copy of written materials considered by 

the convening authority in selecting the detailed members shall be provided to any party upon request. This 

information includes the SJA’s advice to the convening authority for panel selection, the nominations from 

subordinate commanders, and other documents presented to the convening authority. While the rule states that “such 

materials pertaining solely to persons who were not selected for detail as members” need not be provided, the military 

judge has the authority to direct such information be disclosed for good cause. 

C. Theories for Attacking Panel Selection – In General. In selecting panel members, the convening authority cannot 

systematically exclude otherwise qualified personnel from serving. United States v. Dowty, 60 M.J. 163, 171 

(C.A.A.F. 2004); Roland, 50 M.J. at 68-69. 

1. Attacking Selection – Exclusion Of Nominees By Rank 

a. General rule. Convening authority cannot systematically exclude personnel from panel selection based on 

rank. Dowty, 60 M.J. at 171 (“[S]ystemic exclusion of otherwise qualified potential members based on an 

impermissible variable such as rank is improper.”); United States v. Bertie, 50 M.J. 489, 492 (C.A.A.F. 1999) 

(“[W]e have also held that deliberate and systematic exclusion of lower grades and ranks from court-martial 

panels is not permissible.”); United States v. Morrison, 66 M.J. 508, 510 (N-M Ct. Crim. App. 2008). 

However, servicemembers in the grades of E-1 and E-2 are presumptively unqualified under Article 25 and 

may be excluded from selection. United States v. Yager, 7 M.J. 171 (C.M.A. 1979) (exclusion of persons in 

grades below E-3 permissible where there was a demonstrable relationship between exclusion and selection 

criteria embodied in Article 25(d)(2)). 

b. Rationale. United States v. Benson, 48 M.J. 734 (A.F. Ct. Crim. App. 1998). Convening authority violated 

Article 25 by sending memorandum to subordinate commands directing them to nominate “officers in all 

grades and NCOs in the grade of master sergeant or above” and then by failing to select members below the 

rank of master sergeant (E-7). Convening authority testified that he did not intend to violate Article 25, but he 

never selected a member below the grade of E-7; AFCCA held that systematic exclusion of junior enlisted 

members is inappropriate, as most junior enlisted have sufficient education and experience as to be eligible to 

serve (specifically, many E-4s have served at least 5 years on active duty and 88 percent have some form of 

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post-secondary education, and the majority of E-5s have served 10 or more years on active duty and 18 

percent have an associate’s or higher degree). 

c. Examples. United States v. Daigle, 1 M.J. 139, 141 (C.M.A. 1975) (improper for convening authority to 

systematically exclude lieutenants and warrant officers); United States v. Smith, 37 M.J. 773 (1993) 

(A.C.M.R. 1993) (improper for convening authority to return initial panel selection documents and direct 

subordinate commanders to provide Soldiers in the grades of E-7 and E-8). Cf. United States v. Nixon, 33 

M.J. 433 (C.M.A. 1991) (noting a panel consisting of only members in the grades of E-8s and E-9s creates an 

appearance of evil and is probably contrary to Congressional intent,but affirming because the convening 

authority testified he complied with Article 25 and did not use rank as a criterion). 

d. Paperwork cannot inadvertently exclude qualified personnel. United States v. Kirkland, 53 M.J. 22 

(C.A.A.F. 2000). The SJA solicited nominees from subordinate commanders via a memo signed by the 

SPCMCA. The memo sought nominees in various grades. The chart had a column for E-9, E-8, and E-7, but 

no place to list a nominee in a lower grade. To nominate E-6 or below, nominating officer would have had to 

modify form. No one below E-7 was nominated or selected for the panel. CAAF held that where there was an 

“unresolved appearance” of exclusion based on rank, “reversal of the sentence is appropriate to uphold the 

essential fairness . . . of the military justice system.” 

e. May replace nominees with others of similar rank. United States v. Ruiz, 46 M.J. 503 (A.F. Ct. Crim. 

App. 1997), aff’d, 49 M.J. 340 (C.A.A.F. 1998) (convening authority did not improperly select members 

based on rank when, after rejecting certain senior nominees from consideration for valid reasons, he requested 

replacement nominees of similar ranks to keep the overall balance of nominee ranks relatively the same). 

2. Attacking Selection – Exclusion Of Nominees Based On Unit Of Assignment. United States v. Brocks, 55 

M.J. 614 (A.F. Ct. Crim. App. 2001), aff’d, 58 M.J. 11 (C.A.A.F. 2002). Base legal office intentionally excluded 

all officers from the medical group from the nominee list, because all four alleged conspirators and many of the 

witnesses were assigned to that unit. Citing United States v. Upshaw, 49 M.J. 111, 113 (C.A.A.F. 1998), the court 

said, “[a]n element of unlawful court stacking is improper motive. Thus, where the convening authority’s motive 

is benign, systematic inclusion or exclusion may not be improper.” Held: Exclusion of medical group officers did 

not constitute unlawful command influence. 

3. Difficult To Mount Challenges: Hard To Find Evidence Of Impropriety. 

a. Composition of panel is not enough to show impropriety. United States v. Voorhees, 50 M.J. 494 

(C.A.A.F. 1999) (disproportionate number of high-ranking panel members did not create presumption of 

impropriety in selection). 

b. Paperwork errors may not be enough to show impropriety. Roland, 50 M.J. 66 (SJA’s memo soliciting 

nominees E-5 to O-6 was not error); Upshaw, 49 M.J. 111 (good faith administrative error resulting in 

exclusion of otherwise eligible members (E-6s) was not error). 

c. Convening authority selecting commanders. United States v. White, 48 M.J. 251 (C.A.A.F. 1998). A CA 

who issues a memorandum directing subordinate commands to include commanders, deputies and first 

sergeants in the court member applicant pool, and then proceeds to select more commanders than noncommanders for court-martial duty does not engage in court-packing absent evidence of improper motive or 

systematic exclusion of a class or group of candidates. No systematic exclusion because the CA’s memo 

instructed that “staff officers and NCOs” and “your best and brightest staff officers” should be nominated to 

serve as member. See Effron, J., and Sullivan, J., concurring in the result, but criticizing the majority’s 

willingness to equate selection for command with selection for panel duty. 

IV. INVESTIGATING COURT MEMBERS 

A. Panel Questionnaires. Under R.C.M. 912(a)(1), trial counsel may (and shall upon request of defense counsel) 

submit to members written questionnaires before trial. “Using questionnaires before trial may expedite voir dire and 

may permit more informed exercise of challenges.” R.C.M. 912(a)(1) Discussion. 

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1. Required questions: Under R.C.M. 912(a)(1), the following information shall be requested upon application 

by defense counsel and may be requested by trial counsel in written questionnaires: date of birth; sex; race; 

marital status and sex, age, and number of dependents; home of record; civilian and military education, including, 

when available, major areas of study, name of school or institution, years of education, and degrees received; 

current unit to which assigned; past duty assignments; awards and decorations received; date of rank; and whether 

the member has acted as accuser, counsel, investigating officer, convening authority, or legal officer or staff judge 

advocate for the convening authority in the case, or has forwarded the charges with a recommendation as to 

disposition. 

2. Additional questions: Under R.C.M. 912(a), “Additional information may be requested with the approval of 

the military judge.” 

3. Format: Under R.C.M. 912(a), “Each member’s responses to the questions shall be written and signed by the 

member.” 

B. Disclosure By Members At Trial. 

1. Members under oath. Before voir dire, trial counsel administer to panel members an oath to “answer truthfully 

the questions concerning whether you should serve as a member of this court-martial.” DA Pam 27-9, Military 

Judges’ Benchbook, at 36. See also R.C.M. 807(b)(2) Discussion (providing suggested oath for panel members); 

R.C.M. 912(d) Discussion (“If the members have not already been placed under oath for the purpose of voir dire, 

they should be sworn before they are questioned.”) (citation omitted). 

2. Instruction about impartiality. After panel members are sworn, the military judge instructs, “With regard to 

challenges, if you know of any matter that you feel might affect your impartiality to sit as a court member, you 

must disclose that matter when asked to do so.” DA Pam 27-9, Military Judges’ Benchbook, at 41. 

3. Broad inquiry. The military judge asks 28 standard questions during group voir dire, including, “Having seen 

the accused and having read the charge(s) and specification(s), does anyone feel that you cannot give the accused 

a fair trial for any reason?” Id. at 42. 

4. Members have duty to disclose. United States v. Albaaj, 65 M.J. 167 (C.A.A.F. 2007). Accused’s brother 

testified as a merits witness. He was also recalled briefly as a defense sentencing witness, offering evidence in 

extenuation and mitigation. One of the members, LTC M, had a previous working relationship with the brother, 

that defense described as “extremely antagonistic.” During voir dire, military judge instructed the members to 

disclose any matter that might affect their partiality. During trial, the defense called the brother as a witness and 

LTC M did not indicate at any time that he knew him, even after he recognized him. Following a DuBay hearing, 

military judge found LTC M and the brother had professional contact while the brother was at Range Control and 

the member developed negative impressions of the brother that were memorialized in several e-mails. However, 

LTC M testified that, between the last e-mail and the trial (a period of 15 months), LTC M “developed a favorable 

opinion” of the brother. At the DuBay hearing, military judge found that LTC M “did not fail to honestly answer a 

material question on voir dire and that [LTC M] did not fail to later disclose his knowledge of [the brother] in bad 

faith.” CAAF reversed. Applying the test from McDonough Power Equip. v. Greenwood, 464 U.S. 548 (1984), 

CAAF found that LTC M violated his duty of candor as a panel member. First, LTC M incorrectly indicated that 

he did not know the brother during voir dire and then “fail[ed] to correct the misinformation.” Second, LTC M 

“failed to disclose information that was material to the conduct of a fair and impartial trial” because as a result of 

the nondisclosure, the parties were unaware of LTC M’s relationship with the brother. Third, the “correct 

response . . . would have provided a valid basis for challenge.” Applying the implied bias standard, CAAF found 

that “[a] reasonable public observer of this trial would conclude that [LTC M’s] actions injured the perception of 

fairness in the military justice system.” 

C. Disclosure by Trial Counsel or Government. 

1. Affirmative duty to disclose. United States v. Glenn, 25 M.J. 278 (C.M.A. 1987). Case reversed because 

Deputy Staff Judge Advocate failed to disclose that member was his sister-in-law. Court reversed even though 

member signed affidavit swearing that she had no prior knowledge of the case and was not affected by the 

relationship. 

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2. Close calls and trial counsel duty to disclose. United States v. Modesto, 43 M.J. 315 (C.A.A.F. 1995). Colonel 

was charged with conduct unbecoming (performing as female impersonator at gay club, sodomy with another 

male, indecent touching with another male, cross-dressing in public). Trial counsel failed to disclose that male 

panel member had dressed as a woman at Halloween Party. Court held that reversal was unwarranted because 

incident would not have been valid grounds for challenge, so effective voir dire was not prevented. Despite the 

outcome, the CAAF noted, “Both the SJA and the trial counsel have an affirmative duty to disclose any known 

ground for challenge for cause.” Id. at 318. 

3. Practice Point: Government should liberally disclose information that might be a basis for a challenge for 

cause. 

D. Defense Duty to Discover. 

1. Under R.C.M. 912(f)(4), most grounds for challenging a member may be waived. The rule notes that waiver 

extends those matters “the party knew of or could have discovered by the exercise of diligence the ground for 

challenge and failed to raise it in a timely manner.” 

2. United States v. Dunbar, 48 M.J. 288 (C.A.A.F. 1998). When panel member questionnaire contains 

information that may result in disqualification, the defense must make reasonable inquiries into the member’s 

background either before trial or during voir dire. The Government may not be required to provide the 

background for the disqualifying information in every situation. The accused was charged with dereliction of 

duty, conduct unbecoming an officer, and fraternization. A member’s questionnaire revealed that she had testified 

as an expert witness in child-abuse cases prosecuted by the trial counsel. The defense failed to conduct voir dire 

on this issue. The defense waived the issue by failing to conduct voir dire after reviewing the questionnaire and 

then failing to exercise a causal or peremptory challenge. There was no additional affirmative requirement for the 

Government to disclose the information. 

3. United States v. Briggs, No. ACM 35123 (f rev), 2008 CCA LEXIS 227 (A.F. Ct. Crim. App. June 13, 2008) 

(unpublished). Accused was charged with selling survival vests and body armor taken from C-5s. This equipment 

was used to protect the flight crews operating these aircrafts. On appeal, defense argued for a new sentencing 

hearing because a member was a pilot. Essentially arguing implied bias, the defense claimed that the member, as a 

pilot, could not have been impartial because the crime involved “stealing safety and survival gear off an aircraft.” 

First, the court noted the Supreme Court standard: “[F]or an accused to be entitled to a new trial due to an 

incorrect voir dire response the ‘party must first demonstrate that a juror failed to answer honestly a material 

question on voir dire, and then further show that a correct response would have provided a valid basis for a 

challenge for cause.’” (quoting McDonough Power Equip., Inc., 464 U.S. at 556). In this case, the court held the 

member did not fail to honestly answer a material question. Rather, he truthfully stated he worked with C-5 

aircraft, which the accused “with his years and background in the Air Force” would have understood to mean the 

member was a pilot. In biting language, the court noted, “[T]here is no evidence that the member failed to 

honestly answer a material question by not stating the obvious.” 

V. VOIR DIRE 

A. Purposes Of Voir Dire. The questioning of panel members (known as voir dire) exists so parties can intelligently 

exercise both challenges for cause and peremptory challenges. See R.C.M. 912(d) Discussion, (“The opportunity for 

voir dire should be used to obtain information for the intelligent exercise of challenges.”); Bragg, 66 M.J. at 327 

(“The purpose of voir dire and challenges is, in part, to ferret out facts, to make conclusions about the members’ 

sincerity, and to adjudicate the members’ ability to sit as part of a fair and impartial panel.”). In addition to this 

primary purpose, there are three secondary purposes of voir dire: 

1. Educate the panel and defuse weaknesses in the case. But see R.C.M. 912(d) Discussion (“[C]ounsel should 

not purposely use voir dire to present factual matter which will not be admissible or to argue the case”). 

2. Establish a theme. 

3. Build rapport with members 

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4. See also Francis A. Gilligan and Fredric I. Lederer, Court-Martial Procedure § 15-53.00 at 15-29 (3d ed. 

2006) (“Although voir dire can be used for many other purposes, such as highlighting various issues, educating 

the court members, or building rapport between counsel [and] members, such uses are improper unless done in the 

otherwise proper process of voir dire.”); id. n.164 (“This is not to deny that voir dire may play a legitimate tactical 

role. Few questions can be asked in an entirely neutral fashion, and to require neutrality might well defeat the very 

purpose of voir dire. . . . The key, however, is that questions may not be asked for other purposes; they must have 

independent legitimacy as a proper part of the process of voir dire and challenges.”). 

B. Military Judge Controls Voir Dire – In General. 

R.C.M. 912(d). Challenge of selection of members; examination and challenges of members. 

The military judge may permit the parties to conduct the examination of members or may 

personally conduct the examination. In the latter event the military judge shall permit the parties 

to supplement the examination by such further inquiry as the military judge deems proper or the 

military judge shall submit to the members such additional questions by the parties as the 

military judge deems proper. A member may be questioned outside the presence of the other 

members when the military judge so directs." 

1. Rule. “Generally, the procedures for voir dire are within the discretion of the trial judge.” Jefferson, 44 M.J. at 

318. See also R.C.M. 912(d) (printed above) and Discussion (“The nature and scope of the examination of 

members is within the discretion of the military judge.”). 

2. Broad latitude to military judge in controlling voir dire. “Neither the UCMJ nor the Manual for CourtsMartial gives the defense the right to individually question the members.” United States v. Dewrell, 55 M.J. 131, 

136 (C.A.A.F. 2001) (upholding military judge’s practice of requiring written voir dire questions from counsel 

seven days before trial and denying defense and trial counsel requests to personally question the members). The 

court suggested that the military judge who reserves voir dire to the bench must conduct sufficient questioning to 

expose grounds for challenge: “The military judge’s questions properly tested for a fair and impartial panel and 

allowed counsel to intelligently exercise challenges.” Id. at 137. 

3. Military judge may reserve voir dire to the bench. 

a. Before impaneled. United States v. Belflower, 50 M.J. 306 (C.A.A.F. 1999) (holding military judge did 

not abuse his discretion in prohibiting individual voir dire by defense counsel of four members where counsel 

did not ask any questions on group voir dire that would demonstrate the necessity for individual voir dire). 

b. After impaneled. United States v. Lambert, 55 M.J. 293 (C.A.A.F. 2001). Right after the members 

returned a verdict of guilty to one specification of indecent assault, the civilian defense counsel asked military 

judge to allow voir dire of the members because one member took a book titled Guilty as Sin into the 

deliberation room. The military conducted voir dire of the member who brought the book into the deliberation 

room, but did not allow the defense an opportunity to conduct individual or group voir dire. Noting that 

neither the UCMJ nor the Manual gives the defense the right to individually question the members, and 

analyzing the issue under an abuse of discretion standard, CAAF held the military judge did not err by 

declining to allow defense counsel to voir dire the members. 

4. Preference for group voir dire. Belflower, 50 M.J. 306. Military judge did not abuse his discretion in 

prohibiting individual voir dire by defense counsel of four members where defense did not ask any questions on 

group voir dire that would demonstrate the necessity for individual voir dire. 

5. Military judge may restrict method of voir dire. Jefferson, 44 M.J. 312. Military judge did not abuse 

discretion by: refusing to permit “double-teaming” by defense counsel during voir dire; limiting individual voir 

dire regarding burden of proof, inelastic attitude toward members, and credibility of witnesses when defense 

counsel admitted that initial questions in these areas were confusing. However, military judge did abuse discretion 

in not allowing defense to reopen voir dire to explore issue of potential bias of two members who stated they had 

friends or close relatives who were victims of crimes. 

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6. Military judge may require questions be submitted in writing and in advance. Dewrell, 55 M.J. at 136 

(upholding military judge’s practice of requiring written voir dire questions from counsel 7 days before trial); 

United States v. Torres, 25 M.J. 555 (1987) (A.C.M.R. 1987) (military judge may require counsel to submit 

questions in writing for approval); R.C.M. 912(d) Discussion (“The nature and scope of the examination of 

members is within the discretion of the military judge.”). However, the military judge may not deny otherwise 

proper questions solely because they were not previously submitted in writing. 

7. Liberal voir dire and appellate review. In limiting voir dire, military judge should consider that liberal voir 

dire can save cases on appeal. See Dowty, 60 M.J. 163 (affirming a “novel” panel selection process, in part, due 

to the military judge allowing defense counsel to conduct extensive voir dire of members concerning their 

selection as panel members); United States v. Simpson, 58 M.J. 368 (C.A.A.F. 2003) (in high profile case 

involving allegations of unlawful command influence and unfair pretrial publicity, court notes repeatedly that the 

military judge permitted counsel to conduct extensive individual voir dire prior to trial). 

C. Military Judge Controls Voir Dire – Properly Disallowed Questions. 

1. Jury nullification. In United States v. Smith, 27 M.J. 25 (C.M.A. 1988), accused was charged with 

premeditated murder of his wife. Defense counsel wanted to ask members, “Are you aware that a conviction for 

premeditated murder carries a mandatory life sentence?” Military judge could preclude defense counsel from 

asking this question where “jury nullification” was motive. Court noted that voir dire should be used to obtain 

information for the intelligent exercise of challenges. A per se claim of relevance and materiality simply because a 

peremptory challenge is involved is not sufficient. The broad scope of challenges does not authorize unrestricted 

voir dire. 

2. “Commitment” questions. In United States v. Nieto, 66 M.J. 146 (C.A.A.F. 2008), accused was charged with 

wrongful use based solely on a positive urinalysis result. During voir dire, trial counsel walked the panel through 

the Government’s case, asking specific questions about the reliability of urinalysis results. Trial counsel then 

received an affirmative response from each member to this confusing question: “Does any member believe that 

any technical error in the collection process, no matter how small[,] means that the urinalysis is per se invalid?” 

During individual voir dire, trial counsel aggressively attempted to rehabilitate members from this answer (which 

suggested the members would vote not guilty if evidence showed “any” technical error in the urinalysis collection 

process), using fact-intensive hypothetical questions related the accused’s urinalysis. On appeal, defense argued 

the trial counsel’s hypothetical questions improperly forced the members to commit to responses based on 

evidence not yet before them, denying a fair trial. Because there was no objection at trial, CAAF upheld the case 

under a plain error analysis. However, three judges wrote concurring opinions arguing that counsel cannot ask 

members to commit to findings or a sentence based on case-specific facts previewed in voir dire; the three judges 

even suggested that a military judge could commit plain error by not ending such questioning (presumably the 

questions would have to be particularly egregious to trigger a plain error finding). This case may have had a 

different result if the defense counsel had objected at trial. 

3. Overly broad. In United States v. Toro, 34 M.J. 506 (1991) (A.F.C.M.R. 1991), trial counsel improperly 

converted lengthy discourses on the history and mechanics of drug abuse, and on the misconduct of the accused 

and others, into voir dire questions by asking whether the members “could consider this information in their 

deliberations?” 

4. Sanctity of life. In United States v. Nixon, 30 M.J. 501 (1989) (A.F.C.M.R. 1989), accused was charged with 

unpremeditated murder of his Filipino wife. Air Force court found there was no abuse of discretion when military 

judge allowed trial counsel to ask panel whether Asian societies place a lower premium on human life and to ask 

if any member opposes capital punishment. 

5. Vague or “trick” questions. United States v. Smart, 21 M.J. 15, 20 (C.M.A. 1985) (“We are aware that the 

liberal voir dire of court members which often occurs may lure a member into replies which are not fully 

representative of his frame of mind.”). 

a. United States v. Dorsey, 29 M.J. 761 (1989) (A.C.M.R. 1989). In case for cocaine use, defense counsel 

asked, “Does anyone feel that the accused needs to explain why his urine tested positive for cocaine?” All 

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members replied yes. MJ properly denied challenges to all panel members based on members’ responses to 

judge’s inquiries concerning prosecution’s burden of proof. 

b. United States v. Rood, No. NMCCA 200700186 SPECIAL COURT-MARTIAL, 2008 CCA LEXIS 96 

(N-M Ct. Crim. App. Mar. 20, 2008) (unpublished). Accused was charged with several offenses, including 

wrongful use of marijuana. During voir dire, civilian defense counsel asked the panel, “Does any member 

believe that a positive urinalysis alone proves a knowing use of a controlled substance?” The senior member 

of the panel, a Navy Captain, responded in the affirmative. The military judge then properly instructed the 

members that use of a controlled substance may be inferred to be wrongful, but that such an inference was not 

required. All members agreed that they could follow the military judge’s instructions. During individual voir 

dire, the senior member said, “My opinion is that you are personally responsible for everything that goes into 

your body.” He further elaborated: 

CC: This belief that you are responsible for everything that goes into your body is a firmly held 

belief? 

Member: I believe, yes. 

The defense challenged the member for cause for implied bias. The military judge rejected the 

challenge and the appellate court affirmed. “The beliefs he articulated in response to the defense 

counsel’s questions were objectively reasonable for an average citizen not versed in the nuances 

of criminal law.” The member also “clearly evinced his willingness to follow the court’s 

instructions on the law regarding . . . a drug urinalysis case.” The court seemed bothered by the 

civilian defense counsel’s questioning, specifically framing a general voir dire question with a 

mild misstatement of law (whether a positive urinalysis proves wrongful use), arguably to trigger 

challenges for cause. 

D. Military Judge Controls Voir Dire – Limits. 

1. Insufficient questioning of members. In United States v. Richardson, 61 M.J. 113 (C.A.A.F. 2005), four 

members stated they had professional dealings with detailed trial counsel. Military judge briefly questioned all 

four members about the nature of these dealings, and all four responded that they would not give the 

government’s case more or less credence based on their experience with the trial counsel. Defense counsel then 

questioned the first three members but did not ask about their relationship with the trial counsel. For the fourth 

member, defense counsel asked several questions about the member’s dealings with trial counsel. Following that 

questioning, the defense counsel asked to “briefly recall” the other three members who had prior dealings with 

trial counsel. The military judge denied the request, noting that all members said they would not give the trial 

counsel “any special deference” and concluding, “I think there’s been enough that’s been brought out.” Id. at 116. 

CAAF held the military judge abused his discretion by refusing to reopen voir dire to question the members about 

their relationships with the trial counsel. CAAF reasoned that further inquiry was necessary to determine whether 

the relationships with trial counsel were beyond a cursory professional connection. Id. at 119. 

2. Member with friends or relatives who are crime victims. In Jefferson, 44 M.J. 312, military judge abused 

discretion by not allowing defense to reopen voir dire to explore potential bias of two members who said they had 

friends or close relatives who were victims of crimes. (Note, CAAF found no abuse of discretion in military judge 

refusing to permit “double-teaming” by defense counsel during voir dire or limiting individual voir dire regarding 

burden of proof, inelastic attitude toward members, and credibility of witnesses as defense counsel admitted those 

questions were confusing). 

3. Urinalysis questions. United States v. Adams, 36 M.J. 1201 (1993) (N.M.C.M.R. 1993) (abuse of discretion 

not to allow defense counsel to voir dire prospective members about their previous experiences with or expertise 

in drug urinalysis program, and their beliefs about the reliability of the program). 

E. Waiver of Voir Dire Issues. 

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1. Defense counsel should ensure the record clearly shows any voir dire issues that may be raised on appeal. 

Merely asking the military judge for individual voir dire without stating a legally-cognizable basis is likely 

waiver: 

A number of options were available to the defense counsel: (1) Defense counsel could have asked more 

detailed questions during group voir dire regarding the issues now raised on appeal; (2) defense counsel 

could have asked the military judge to re-open group voir dire; or (3) if he was concerned about the 

limited value of group voir dire alone, defense counsel could have requested an Article 39(a) session to 

call the military judge’s attention to specific matters, thus making a record for appeal. In the absence of 

such actions, the sparse record we are presented in this case provides no basis for reversal. Belflower, 50 

M.J. at 310-11 (emphasis supplied). 

2. United States v. Williams, 44 M.J. 482 (C.A.A.F. 1996). MJ did not unreasonably and arbitrarily restrict voir 

dire by denying a defense request for individual voir dire of member (SGM) who expressed difficulty with the 

proposition that no adverse inference could be drawn if accused failed to testify, and another member (MAJ) who 

disclosed that he had a few beers with one of the CID agents who would be a witness. Defense counsel did not 

conduct additional voir dire. The MJ granted the defense challenge for cause against the SGM. The defense 

peremptorily challenged the MAJ based on a theory that the denial of individual voir dire deprived the defense of 

an opportunity to sufficiently explore the basis for a challenge for cause. Court holds “[s]ince defense counsel 

decided to forego questioning, he cannot now complain that his ability to ask questions was unduly restricted.” 

F. Denial of questions tested for abuse of discretion. 

1. Rule. United States v. Belflower, 50 M.J. 306 (C.A.A.F. 1999) (military judge did not abuse his discretion in 

prohibiting individual voir dire by defense counsel of four members where defense did not ask any questions on 

group voir dire that would demonstrate the necessity for individual voir dire). 

2. Generally, military judge will only abuse discretion if no questions are permitted into valid area for potential 

challenge. United States v. McDonald, 57 M.J. 747 (N-M Ct. Crim. App. 2002), rev’d on other grounds, 59 M.J. 

426 (C.A.A.F. 2004). Military judge required written questions beforehand, and asked several government 

questions (some of which the MJ revised) over defense objection. Questions involved whether members ever 

discussed with their children what they should do if someone propositions them in an inappropriate way, and how 

the members thought a child would do if an adult solicited them for sex. Citing the Belflower standard (that “the 

appellate courts will not find an abuse of discretion when counsel is given an opportunity to explore possible bias 

or partiality”), the court found no abuse of discretion: “Whether it is the Government or the accused, we believe 

that the aforementioned rules governing the content of voir dire apply equally. In other words, the TC had as 

much right to obtain information for the intelligent exercise of challenges as the DC.” 

VI. CHALLENGES FOR CAUSE – GENERALLY 

R.C.M. 912. Challenge of selection of members; examination and challenges of members. 

(f) Challenges and removal for cause. 

(1) Grounds. A member shall be excused for cause whenever it appears that the member: 

(A) Is not competent to serve as a member under Article 25(a), (b), or (c); 

(B) Has not been properly detailed as a member of the court-martial; 

(C) Is an accuser as to any offense charged; 

(D) Will be a witness in the court-martial; 

(E) Has acted as counsel for any party as to any offense charged; 

(F) Has been an investigating officer as to any offense charged; 

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(G) Has acted in the same case as convening authority or as the legal officer or 

staff judge advocate to the convening authority; 

(H) Will act in the same case as reviewing authority or as the legal officer or staff 

judge advocate to the reviewing authority; 

(I) Has forwarded charges in the case with a personal recommendation as to 

disposition; 

(J) Upon a rehearing or new or other trial of the case, was a member of the courtmartial which heard the case before; 

(K) Is junior to the accused in grade or rank, unless it is established that this could 

not be avoided; 

(L) Is in arrest or confinement; 

(M) Has informed or expressed a definite opinion as to the guilt or innocence of 

the accused as to any offense charged; 

(N) Should not sit as a member in the interest of having the court-martial free 

from substantial doubt as to legality, fairness, and impartiality." 

A. Each side has an unlimited number of challenges for cause. See Article 41(a)(1), UCMJ; R.C.M. 912(f). 

1. Nondiscretionary bases. R.C.M. 912(f)(1)(A)-(M) list rarely-used scenarios that require a panel member be 

excused, to include a member who is “in arrest or confinement,” “an accuser to any offense charged,” or “a 

witness in the court-martial.” 

2. Discretionary bases. R.C.M. 912(f)(1)(N) allows a member to be challenged for actual bias and implied bias. 

B. Actual Bias & Implied Bias. Actual and implied bias are based on R.C.M. 912(f)(1)(N), which provides that a 

member should be excused if serving would create a “substantial doubt as to [the] legality, fairness, and impartiality” 

of the proceedings. Actual and implied bias each have a separate test (set forth below), though a challenge for cause 

often invokes both principles. United States v. Armstrong, 54 M.J. 51 (C.A.A.F. 2000). 

C. Rationale For Actual And Implied Bias Doctrines. “[T]he text of R.C.M. 912 is not framed in the absolutes of 

actual bias, but rather addresses the appearance of fairness as well, dictating the avoidance of situations where there 

will be substantial doubt as to fairness or impartiality. Thus, implied bias picks up where actual bias drops off because 

the facts are unknown, unreachable, or principles of fairness nonetheless warrant excusal.” Bragg, 66 M.J. at 327. 

D. Liberal Grant Mandate. Military judges are charged to liberally grant challenges for cause from the defense. 

United States v. James, 61 M.J. 132 (C.A.A.F. 2005). The liberal grant mandate does not apply to Government 

challenges. 

1. Rationale. The convening authority selects the panel members and can be said to have an unlimited number of 

peremptory challenges. Per James, “Given the convening authority’s broad power to appoint [panel members], we 

find no basis for application of the ‘liberal grant’ policy when a military judge is ruling on the Government’s 

challenges for cause.” Id. at 139. Additionally, the court noted the SJA may excuse one third of the panel 

members under R.C.M. 505(c)(1)(B). By contrast, the accused “has only one peremptory challenge at his or her 

disposal.” James, 61 M.J. at 139 

2. Long history. United States v. Reynolds, 23 M.J. 292, 294 (C.M.A. 1987) (“We again take the opportunity to 

encourage liberality in ruling on challenges for cause. Failure to heed this exhortation only results in the creation 

of needless appellate issues.”); United States v. Moyar, 24 M.J. 635, 638, 639 (1987) (A.C.M.R. 1987) (“The 

issue of denial of challenges for cause remains one of the most sensitive in current military practice. . . . Military 

law mandates military judges to liberally pass on challenges. Notwithstanding this mandate . . . some trial judges 

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have at best only grudgingly granted challenges for cause and others frustrate the rule with pro forma questions to 

rehabilitate challenged members.”). 

E. Rehabilitating Members. Once a member gives a response that shows a potential grounds for challenge, counsel 

or the military judge may ask questions of that member to rehabilitate him or her. See United States v. Napolitano, 53 

M.J. 162 (C.A.A.F. 2000) (member indicated on questionnaire disapproval of civilian defense counsel’s behavior in 

another case; judge did not abuse discretion in denying challenge for cause because member retracted opinion and 

said he was not biased against the counsel). Counsel should consider these questions when attempting to rehabilitate a 

member: 

1. Can you follow the judge’s instructions regarding the law? 

2. Will you base your decision only on the evidence presented at trial, rather than your own 

personal experience? 

3. Have you made your mind up right now concerning the type of punishment the accused 

should receive if convicted? 

4. Can you give this accused a full, fair, and impartial hearing? 

Note, these standard questions may not be sufficient, especially if counsel only gets “naked 

disclaimers” from the members. Counsel should tailor questions to the facts of the case and get 

clear, unequivocal answers. But see United States v. Townsend, 65 M.J. 460, 465 (C.A.A.F. 

2008) (“[T]here is a point at which numerous efforts to rehabilitate a member will themselves 

create a perception of unfairness in the mind of a reasonable observer.”). 

VII. CHALLENGES FOR CAUSE – ACTUAL BIAS 

A. Standard. Whether the bias is such that the member will not yield to the evidence presented and the judge’s 

instructions. United States v. Terry, 64 M.J. 295, 302 (C.A.A.F. 2007); United States v. New, 55 M.J. 95, 99 

(C.A.A.F. 2001; United States v. Warden, 51 M.J. 78, 81 (C.M.A. 1999). Appellate courts give great deference to the 

military judge’s rulings on actual bias because it is a question of fact, and the military judge was able to observe the 

demeanor of the challenged member. United States v. Bragg, 66 M.J. 325 (C.A.A.F. 2008); United States v. 

Napolitano, 53 M.J. 162, 166 (C.A.A.F. 2000). The credibility of the member is key, so actual bias is a subjective 

determination made by the military judge. 

B. Rarely Used To Excuse A Member. For example, in United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007), accused 

was charged with rape and indecent assault. During voir dire, the senior panel member was asked whether his 

judgment would be affected because he had two teenage daughters. He responded, “[I]f I believed beyond a 

reasonable doubt that an individual were guilty of raping a young female, I would be merciless within the limit of the 

law.” Trial counsel attempted to rehabilitate the member, who said, “I believe I could” when asked if he could 

consider the full range of permissible punishments. Despite the member’s initial statement (which suggested he had 

an actual bias), the court ruled the case was not one of actual bias because the member said he could be fair and the 

military judge made “observations of those statements.” Id. at 276. The case was ultimately reversed on implied bias 

grounds (that ruling is discussed below). 

VIII. CHALLENGES FOR CAUSE – IMPLIED BIAS 

A. A. Standard. United States v. Elfayoumi, 66 M.J. 354 (C.A.A.F. 2008). Challenge for cause based on implied bias 

is reviewed on an objective standard, through the eyes of the public. “Implied bias exists "when most people in the 

same position would be prejudiced.” United States v. Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996). In applying implied 

bias, the focus is on “the perception or appearance of fairness of the military justice system.” United States v. New, 55 

M.J. 95, 100 (C.A.A.F. 2001). Accordingly, “issues of implied bias are reviewed under a standard less deferential than 

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abuse of discretion but more deferential than de novo.” United States v. Strand, 59 M.J. 455, 459 (C.A.A.F. 2004). In 

Elfayoumi, the court provided this summary: 

"Implied bias exists when most people in the same position as the court member would be prejudiced. To test whether 

there is substantial doubt about the fairness of the trial, we evaluate implied bias objectively, through the eyes of the 

public, reviewing the perception or appearance of fairness of the military justice system. This review is based on the 

“totality of the circumstances.” Although we review issues of implied bias for an abuse of discretion, because we 

apply an objective test, we apply a less deferential standard than we would when reviewing a claim of actual bias." 

B. In General. 

1. Common issues. Implied bias can be expansively applied, as the test considers the public’s perception of the 

military justice system. Several cases have raised implied bias based on (1) member’s knowledge of the case, 

issues, or witnesses; (2) member’s rating chain relationship with other members; (3) member being a victim of a 

similar crime or knowing a victim of a similar crime; (4) member’s predisposition to punishment; and (5) 

potential unlawful command influence. Each of these bases is discussed below: 

2. Example. United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007). Accused was charged with rape and indecent 

assault. During voir dire, the senior panel member was asked whether his judgment would be affected because he 

had two teenage daughters. He responded, “[I]f I believed beyond a reasonable doubt that an individual were 

guilty of raping a young female, I would be merciless within the limit of the law.” Trial counsel attempted to 

rehabilitate the member, who said, “I believe I could” when asked if he could consider the full range of 

permissible punishments. While the court found no actual bias, the military judge erred and should have granted 

the challenge for cause based on implied bias and the liberal grant mandate. CAAF reasoned that the answers he 

gave, in response to the voir dire questions and rehabilitation questions, “create[d] the perception that if [he], the 

senior member of the panel, were convinced of the Appellant’s guilt he would favor the harshest sentence 

available, without regard to the other evidence. 

C. Grounds for Challenge– Knowledge of Case, Issues, Witnesses. 

1. Generally. United States v. Briggs, 64 M.J. 285 (C.A.A.F. 2007). Air Force technical sergeant was tried for 

larceny of survival vests from the aircraft he was responsible for maintaining and re-selling them. Military judge 

denied challenge for cause against CPT H, the wife of the appellant’s commander; she had learned from her 

husband that “vests went missing.” In finding that the member lacked actual bias, the military judge did not 

address the liberal grant mandate or implied bias. On appeal, using the implied bias theory, CAAF found the 

military judge erred in denying the challenge for cause. The court cited a number of reasons why this challenge 

should have been granted, including: the safety of the member’s husband’s unit was placed at risk by the accused, 

the husband’s performance evaluation could have been affected by the accused’s criminal misconduct, and the 

member’s husband was responsible for the initial inquiry into the misconduct and recommendation as to 

disposition. See also United States v. Minyard, 46 M.J. 229 (C.A.A.F. 1997) (military judge should have granted 

challenge for cause against member whose husband investigated case against accused, despite member’s claim 

that she knew little about the case, that she and he husband did not discuss cases). 

2. Knowledge of the case. United States v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999). In a high profile case, some 

knowledge of the facts of the offense or an unfavorable inclination toward an offense is not per se disqualifying. 

The critical issue is whether a member is able to put aside outside knowledge, association, or inclination, and 

decide the case fairly and impartially on its merits. Accused was convicted of various offenses arising out of 

issues related to Operation Uphold Democracy in Haiti. The defense challenged the entire panel based on the 

following: an acquittal would damage the reputation of the members individually, the general court-martial 

convening authority, and the 10th Mountain Division; several members knew key witnesses against the accused 

and would give their testimony undue weight; that members were exposed to and would be affected by pretrial 

publicity; and members evinced an inelastic attitude about a possible sentence in the case. The court held that 

there was no actual bias; members are not automatically disqualified based on professional relationships with 

other members or with witnesses; and some knowledge of the facts or an unfavorable inclination toward and 

offense is not per se disqualifying. 

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a. United States v. Hollings, 65 M.J. 116 (C.A.A.F. 2007). Military judge did not abuse his discretion in 

denying this challenge for cause for a member that the defense alleged met the definition of legal officer 

under R.C.M. 912(f)(1)(G). Under the facts elicited at trial, the member did not meet the definition of “legal 

officer.” The accused also argued on appeal that the challenge should have been granted under an implied bias 

theory because he was a “career legal officer, he was familiar with [the accused’s] case as a result of his 

duties, and at least some of those duties were legal in nature.” The member’s responses during voir dire did 

not reveal any actual or implied bias. 

b. United States v. Baum, 30 M.J. 626 (1990) (N.M.C.M.R. 1990). Military judge improperly denied two 

causal challenges: first member was the sergeant major of alleged co-conspirator who had testified at separate 

Article 32, was interviewed by chief prosecutor, and had voluntarily attended accused’s Article 32 

investigation; second member was colonel who headed depot inspector’s office, had official interest in 

investigation, and had discussed cases with chief investigator and government witness. 

3. Member’s “possible” knowledge of case may require excusal. Bragg, 66 M.J. 325. Accused was a Marine 

recruiter charged with rape and other offenses involving two female high school students. Member stated during 

voir dire that he learned information about the case before trial. While he could not recall how he obtained this 

information, he knew the “general identity” of the victim, the general nature of the offense, and the investigatory 

measures taken by law enforcement. The member had been the deputy chief of staff for recruiting and, in that 

capacity, he normally read relief for cause (RFC) packets of recruiters. The member could not recall if he had 

reviewed the accused’s RFC packet, though he said that if he had, he “probably would have” recommended relief. 

The member said he could be impartial despite his prior knowledge of the case. CAAF reversed: “In making 

judgments regarding implied bias, this Court looks at the totality of the factual circumstances.” In this case, the 

member may have recommended adverse action against the accused, so he should have been excused. 

4. Member knows about pretrial agreement. United States v. Jobson, 31 M.J. 117 (C.M.A. 1990). Knowledge of 

pretrial agreement does not per se disqualify the court member. Whether the member is qualified to sit is a 

decision within the discretion of the military judge. 

5. Member knows about accused’s sanity report. United States v. Dinatale, 44 M.J. 325 (C.A.A.F. 1996). In an 

indecent acts on minors case, military judge did not clearly abuse his discretion by denying a challenge for cause 

against a member (Chief of Hospital Services at the local military hospital) where voir dire supported the 

conclusion that the member’s review of sanity report was limited to reading the psychologist’s capsule findings, 

member did not recall seeing accused’s report, member stated that she could decide the case based on the 

evidence and MJ instructions, and mental state of accused was not an issue at trial. 

6. Member knows trial counsel. United States v. Hamilton, 41 M.J. 32 (C.M.A. 1994). Military judge denied 

challenges for cause against three officer members who had been past legal assistance clients of assistant trial 

counsel. Professional relationship not a per se basis for challenge. Members provided assurances of impartiality. 

7. Member is a potential witness. United States v. Perez, 36 M.J. 1198 (1993) (N.M.C.M.R. 1993). Three officer 

members stated during voir dire that they observed “stacking incident” (assault on a warrant officer). In reversing, 

court held potential witnesses in case should have been excused for cause. 

8. Member’s outside investigation. United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). Accused, who 

worked in the comptroller’s disbursing office, was convicted of rape at a contested court-martial by members. 

LTC F, the eventual panel president, was the deputy comptroller and had pretrial knowledge of the accused and 

co-accused’s cases through his own investigative efforts and newspaper articles. MJ granted seven of eight 

defense challenges for cause but denied the challenge against LTC F without making findings. CAAF held that 

LTC F’s “inquiry went beyond a routine passing of information to a superior—. . . his inquires were so through 

thorough that he subjectively believed he knew all there was to know—that he had the ‘complete picture.’” Under 

the implied bias standard, an objective observer could reasonably question LTC F’s impartiality and that the MJ 

erred in denying defense’s challenge for cause. Findings reversed. Cf. United States v. Nigro, 28 M.J. 415 

(C.M.A. 1989) (in a bad check case, military judge properly denied challenge for cause against member who 

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called credit union to ask about banking procedures; member’s responses to inquiries were clear and unequivocal 

that he could remain impartial and follow judge’s instructions). 

9. Experience with key trial issues. Daulton, 45 M.J. 212. In a child sexual abuse case, military judge erred in 

failing to grant a defense challenge for cause against a member who stated that her sister had been abused by her 

grandfather, and was shocked when she first heard of her sister’s allegations, “but had gotten over it.” The 

member’s responses to the MJ’s rehabilitative questions regarding her ability to separate her sister’s abuse from 

the evidence in the trial were not “resounding.” 

10. Member with position and experience. United States v. Lattimore, 1996 WL 595211 (A.F. Ct. Crim. App. 

1996) (unpub.). In case involving stealing and use of Demerol, no abuse of discretion to deny challenge for cause 

against O-6-member who was a group commander and former squadron commander; had preferred charges in 

three or four courts-martial; recently forwarded charges of drug use; sat through portion of expert forensic 

toxicologist in unrelated drug case; and who indicated that, although not predisposed to give punitive discharge, 

some form of punishment was appropriate if accused was found guilty, but would consider sentence of no 

punishment. No per se exclusion for commanders and prior commanders who have preferred drug charges. 

11. Knowledge of witnesses. 

a. United States v. Ai, 49 M.J. 1 (C.A.A.F. 1998). Military judge did not abuse his discretion in denying a 

challenge for cause against a member who was a friend and former supervisor of a key government witness. 

In a graft case, during voir dire, an officer member revealed that a key government witness had previously 

worked for him as a food manager for one year three years ago. The member indicated, during group and 

individual voir dire, that the relationship would not affect him as a member and he would follow all MJ 

instructions. CAAF recognized that while R.C.M. 912(f)(1)(N) is broad enough to permit a challenge for 

cause against a member on the basis of favoring witnesses for the prosecution, there was no “historical basis” 

in the record to support the challenge. The work relationship was limited in duration, negating any inference 

of predisposition. 

b. United States v. Napoleon, 46 M.J. 279 (C.A.A.F. 1997) (holding that under both actual and implied bias 

standard, military judge properly denied challenge for cause against member who had official contacts with 

special agent-witness who was “very credible because of the job he has” and had knowledge of case through a 

staff meeting). 

c. United States v. Arnold, 26 M.J. 965 (1988) (A.C.M.R. 1988). Member who had seen witness in another 

trial and formed opinion as to credibility should have been excused. However, the mere fact that a witness had 

appeared before the member in another case is not grounds by itself to grant a challenge; if so, this would 

virtually prohibit the repeated use in different trials of witnesses such as police officers and commanders. 

d. Practice point. Trial and defense counsel should read a list of anticipated witnesses to the members during 

voir dire. 

D. Grounds for Challenge – Rating Chain Relationship. If one member is in the rating chain of one or more other 

members, that may be a basis for challenge. It is not a per se basis for challenge. United States v. Murphy, 26 M.J. 

454 (C.M.A. 1988) (rating chain relationship is not an automatic disqualification; inquiry of both parties is necessary). 

1. Rating chain as a voting block. 

a. United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001), recon. denied, United States v. Wiesen, 57 M.J. 48 

(C.A.A.F. 2002). During voir dire, COL Williams, a brigade commander and the senior member, identified 

six of the other nine members as his subordinates. The defense argued implied bias and attempted to 

challenge COL Williams. The military judge denied this causal challenge. The defense then used their 

peremptory challenge to remove COL Williams, but preserved the issue for appeal by stating, “but for the 

military judge’s denial of [our] challenge for cause against COL Williams, [we] would have peremptorily 

challenged [another member].” The court concluded, “Where a panel member has a supervisory position over 

six of the other members, and the resulting seven members make up the two-thirds majority sufficient to 

convict, we are placing an intolerable strain on public perception of the military justice system.” CAAF held 

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“the military judge abused his discretion when he denied the challenge for cause against COL Williams.” 

Finding prejudice, findings and sentence were set aside. 

b. But see United States v. Bagstad, 67 M.J. 599 (N-M. Ct. Crim. App. 2008), aff’d on other grounds, 68 

M.J. 177 (C.A.A.F. 2010) (affirming based on defense counsel waiver without addressing issue before the NMCCA). In a case similar to Wiesen, court upheld military judge’s denial of challenge against senior member 

who rated another panel member, even though the rater and ratee constituted the two-thirds necessary to 

convict on a three-member panel. In questionable reasoning, N-MCCA held the case had different “contextual 

facts” from Wiesen, as the senior member was a Capt (O-3) and the junior member was a GySgt (E-7); the 

court added that the NCO was three years old older than the officer and had served seven years longer. 

Further, the third panel member was a 1stSgt (E-8). The court noted that the “camaraderie between, and 

respect and deference for, senior NCO’s, is significant.” In this context, N-MCCA concluded the presence of 

two senior NCOs serving on a panel with a company grade officer weakens “any reasonable perception” that 

the rating chain relationship could have improperly influenced deliberation; hence, an informed public would 

not question the fairness of this proceeding. 

2. Counsel must develop record. United States v. Blocker, 33 M.J. 349 (C.M.A. 1991) (noting obligation is on 

the party making the challenge to inquire into any rating chain relationships; military judge has no sua sponte duty 

to conduct such inquiry); Murphy, 26 M.J. 454 (rating chain relationship is not an automatic disqualification; 

careful inquiry of both parties is necessary). 

3. Military judge may abuse discretion if questions about rating chain are not allowed. United States v. Garcia, 

26 M.J. 844 (1988) (A.C.M.R. 1988) (rating relationship merits inquiry and appropriate action based on members’ 

responses). Cf. United States v. DeNoyer, 44 M.J. 619 (A. Ct. Crim. App. 1996). Identification of supervisory or 

rating chain relationship not enough to support individual member questioning. After defense asked panel in 

excess of 25 questions, some repetitious, in various areas, and then identified possible rating or supervisory 

relationships among five of the nine members, MJ denied defense request for individual voir dire. No abuse of 

discretion by denying defense request for individual voir dire. However, ACCA cautioned that granting defense 

requests would have eliminated appellate issues and enhanced perception of fairness. 

E. Grounds for Challenge – Victim (or Indirect Victim) of Similar Crime. 

1. Considerations in victim analysis: 

a. Who was victim? Panel member or a family member? 

b. How similar was the accused’s crime to the one the victim was involved in? 

c. Was victim’s crime unsolved? 

d. Traumatic? How many times a victim? 

e. Does the member give clear, reassuring, unequivocal answers about his impartiality. 

2. Close relationship with victim of similar crime. Terry, 64 M.J. 295. Military judge erred in not granting 

challenge for cause under the implied bias theory and liberal grant mandate. In rape trial, member’s girlfriend 

(whom he intended to marry) was raped, became pregnant, terminated their relationship, and named the child after 

him. Although six years had passed, “most members in [the member’s position] would have difficulty sitting on a 

rape trial . . . . Further, an objective observer might well have doubts about the fairness of Appellant’s courtmartial panel.” 

3. Relative who died because of pre-natal drug use. United States v. Miles, 58 M.J. 192 (C.A.A.F. 2003). 

Military judge abused his discretion by failing to grant challenge for cause based on implied bias where, during 

voir dire in guilty plea case involving wrongful use of cocaine, member revealed his ten-year-old nephew died as 

a result of mother’s pre-natal use of cocaine. Member described tragedy in article in base newspaper scheduled for 

publication shortly after court-martial. Trial counsel commented that event “evidently” was “a very traumatic 

experience” for the member. “We conclude that asking [the member] to set aside his memories of his nephew’s 

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death and to impartially sentence Appellant for illegal drug use was ‘asking too much’ of him and the system.” 

Sentence set aside. 

4. Wife victim of domestic violence. United States v. White, No. 2001132 (A. Ct. Crim. App. Dec. 8, 2003) 

(unpub.). Appellant charged with attempted murder of wife; convicted of assault with intent to inflict grievous 

bodily harm and other offenses. Military judge abused discretion by denying challenge for cause of member 

whose wife was victim of domestic abuse by her first husband. Individual voir dire revealed wife suffered a 

broken neck from abuse; member stated that “I’ve told him, simply, that, ‘If I ever see you and you look like 

you’re going to raise a hand for her, I’m gonna kill you and then we’ll sort it out later.’ That’s kind of the way I 

feel about it.” While court found no abuse of discretion as to actual bias, the court found error as to implied bias. 

Notably, court gave MJ less discretion on implied bias because he did not address that issue on the record. “On 

these facts, an objective observer would likely question the fairness of the military justice system.” Findings set 

aside. 

5. Members in robbery case were victims of robbery/burglary. Member in a robbery case had been a robbery 

victim seven times. Another member, a two-time victim of burglary, indicated “it’s hard to say” if those prior 

incidents would influence his deliberations; it “might trigger something from the past, and again it may not” 

Smart, 21 M.J. 15. Perfunctory claims of impartiality are not enough; challenge should have been granted to keep 

outcome “free from doubt.” But see United States v. Fulton, 44 M.J. 100 (C.A.A.F. 1996) (member on robbery 

and larceny case not disqualified even though prior victim of burglary). 

6. Panel was robbed during court-martial for larceny. United States v. Lavender, 46 M.J. 485 (C.A.A.F. 1997). 

The implied bias doctrine will not operate to entitle an accused on trial for larceny to have the entire panel 

removed for cause after two members had money stolen from their unattended purses in deliberation room. The 

implied bias doctrine is only applied in rare cases. See United States v. Godinez, 784 F. Supp. 522 (N.D. Ill.), 

aff’d, 975 F.2d 316 (7th Cir. 1992) (holding due process does not require a new trial every time a juror has been 

placed in a potentially compromising situation; doctrine of implied bias appropriately applied to defendant 

convicted of murder during a burglary where judge denied challenges for cause against members who changed 

vote from “not guilty” to “guilty” after becoming victims of burglary during overnight recess in sequestered 

hotel). 

7. Minor victim of gun violence. United States v. Henry, 37 M.J. 968 (1993) (A.C.M.R. 1993). E-8 member in 

aggravated assault case involving shooting at NCO Club had been caught in crossfire during similar incident 15 

years earlier in off-post bar fight. Member indicated that he could remain fair and impartial. 

8. Victim of dissimilar crime not disqualified. United States v. Smith, 25 M.J. 785 (1988) (A.C.M.R. 1988). 

Member in a rape case had been a larceny victim. Challenge denied; any recent crime victim is not automatically 

disqualified. 

9. Member duty to disclose. United States v. Mack, 36 M.J. 851 (1993) (A.C.M.R. 1993). Officer member in an 

assault case failed to disclose that he had been held at gunpoint, tied up, and threatened with death during armed 

robbery thirty years earlier. Member indicated that he had “forgotten about it.” Returned for DuBay hearing to 

determine (1) was there a failure to honestly answer a material question?; (2) would the correct (honest) response 

provide a valid basis for challenge for cause? Case affirmed after DuBay hearing. 

10. The outer limits. Victims of similar crimes have been allowed to sit as members, provided they unequivocally 

evince an ability to be open-minded and consider the full range of permissible punishments. 

a. United States v. Basnight, 29 M.J. 838 (1989) (A.C.M.R. 1989). Member was victim of three larcenies 

and his parents were victims of two larcenies. Denial of challenge for cause proper in light of member’s 

candor and willingness to consider complete range of punishments. 

b. United States v. Reichardt, 28 M.J. 113 (C.M.A. 1989). Larceny of ATM card and money; member’s wife 

had been victim of a similar crime. Not error to deny challenge based on judge’s inquiry, unequivocal 

responses, and judge’s findings. 

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c. But see United States v. Campbell, 26 M.J. 970 (1988) (A.C.M.R. 1988). Challenge should have been 

granted based on equivocal responses. Member “waffled” in response to questions about his impartiality. 

Member “[w]ould try to be open-minded, somewhat objective, but ‘not sympathetic to thieves.’” 

F. Grounds for Challenge – Inelastic Predisposition to Sentence. A member is not automatically disqualified merely 

for admitting an unfavorable inclination or predisposition toward a particular offense. 

1. Draconian view of punishment. United States v. Schlamer, 52 M.J. 80 (C.A.A.F. 1999). Member disclosed 

her severe notions of punishment (“rape = castration;” “you take a life, you owe a life”). Nevertheless, she was 

adamant that she had not made up her mind in accused’s case, that she believed in the presumption of innocence, 

and that she would follow the judge’s instructions. CAAF held the military judge did not abuse his discretion in 

denying the challenge. Similarly, the judge’s grant of a Government challenge against a member who had 

received an Article 15 and stated he would be “uncomfortable” judging the accused was within the judge’s 

discretion and comported with the “liberal grant” mandate. 

2. Would you consider no punishment as a sentencing option? United States v. Martinez, 67 M.J. 59 (C.A.A.F. 

2008) (per curiam). Accused pled guilty to a single specification of wrongful use of methamphetamines and 

elected sentencing before members. During general voir dire, member was asked if he could consider “no 

punishment” during sentencing; he said “no,” adding, “He obviously knew it was wrong and came forward with 

his guilt, and there has to be punishment for it.” During follow-up questioning, member said he could consider the 

full range of sentencing options, to include no punishment, however: “[W]e’ll weigh it from no punishment to the 

max. I can do that, but something has to be done.” CAAF unanimously reversed, reasoning that the member 

should have been excused for implied bias, as a reasonable person would question the fairness of the proceedings 

because the member stated “something has to be done” when asked about sentencing. Case seems inconsistent 

with Rolle, discussed infra. 

a. But cf. United States v. Rolle, 53 M.J. 187 (C.A.A.F. 2000). Accused, a Staff Sergeant, pled guilty to use 

of cocaine. Much of voir dire focused on whether the members could seriously consider the option of no 

punishment or whether they felt a particular punishment (like a punitive discharge) was appropriate. One 

member, CSM L, stated “I wouldn’t” let the accused stay in the military, and “I am inclined to believe that 

probably there is some punishment in order there . . . I very seriously doubt that he will go without 

punishment.” CSM L conversely noted there was a difference between a discharge and an administrative 

elimination from the Army. Another member, SFC W, stated, “I can’t [give a sentence of no punishment] . . . 

because basically it seems like facts have been presented to me because he evidentially [sic] said that he was 

guilty.” Military judge denied the challenges for cause against CSM L and SFC W; CAAF noted that 

“[p]redisposition to impose some punishment is not automatically disqualifying.” (citing Jefferson, 44 M.J. at 

319; United States v. Tippit, 9 M.J. 106, 107 (C.M.A. 1980)). “[T]he test is whether the member’s attitude is 

of such a nature that he will not yield to the evidence presented and the judge’s instructions.” 

b. United States v. Martinez, 67 M.J. 59 (C.A.A.F. 2008) (per curiam). During voir dire in drug case, 

member stated, there is “no room in my Air Force for people that abuse drugs – you know – violate the 

articles and law that we have set forth.” After several rehabilitation questions, the member hesitated about 

whether he would consider the full range of punishment, to include no punishment: “So, there has to be a 

punishment to fit the crime—whatever that case may be. . . . [W]e’ll weigh it from no punishment to the max. 

I can do that, but something has to be done.” CAAF reversed, finding the member “did not disavow an 

inelastic attitude toward punishment.” 

c. United States v. McLaren, 38 M.J. 112 (C.M.A. 1993). Despite member’s initial responses that he could 

not consider “no punishment” as an option where accused charged with rape, sodomy, and indecent acts, 

member’s later responses showed he would listen to the evidence and follow the judge’s instructions. 

Member’s responses to defense counsel’s “artful, sometimes ambiguous" questioning” does not necessarily 

require that a challenge for cause be granted. The majority opinion included this conclusion: “I would have 

substantial misgivings about holding that a military judge abused his discretion by refusing to excuse a court 

member who could not in good conscience consider a sentence to no punishment in a case where all parties 

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agree that a sentence to no punishment would have been well outside the range of reasonable and even 

remotely probable sentences.” Id. at 119 n.*. 

d. United States v. Czekala, 38 M.J. 566 (A.C.M.R. 1993), aff’d, 42 M.J. 168 (C.A.A.F. 1995). Member 

indicated an officer convicted of conduct unbecoming should not be permitted to remain on active duty. 

Member stated she would follow guidance of military judge. Denial of challenge for cause not abuse of 

discretion. 

e. United States v. Greaves, 48 M.J. 885 (A.F. Ct. Crim. App. 1998). Accused pled guilty to wrongful use of 

cocaine. Military judge did not abuse his discretion by failing to grant a challenge for cause against member 

who stated during voir dire that, while he would keep an open mind, he thought that a sentence of no 

punishment would be an unlikely outcome, adding that in “99.9 percent of the cases, some punishment would 

be in order.” Id. at 887. Court held the member did not express an inflexible attitude toward sentencing; he 

merely stated “what should be patently obvious to all; while a sentence to no punishment is an option which 

should be considered, it is not often appropriate.” Greaves, 48 M.J. at 887 

3. Member’s strong predisposition to punitive discharge may require excusal. United States v. Giles, 48 M.J. 60 

(C.A.A.F. 1998). Military judge “clearly” abused his discretion by failing to grant a challenge for cause against a 

member who demonstrated actual bias by his inelastic attitude toward sentencing in a case involving attempted 

possession of LSD with intent to distribute and attempted distribution of LSD. While member indicated that he 

could consider all evidence and circumstances, he responded to defense questions that anyone distributing drugs 

should be punitively discharged and that he had not heard of or experienced any circumstance where a punitive 

discharge would not be appropriate. These responses disqualified member under R.C.M. 912(f)(1)(N). But see 

Rolle, 53 M.J. 187, a later case with similar facts but an opposite outcome. 

4. Suggested rehabilitation questions for sentencing predisposition: 

a. Are you aware that punishment can range from no punishment, to the slight punishment of a letter of 

reprimand, all the way to a discharge and confinement? 

b. Do you understand that you should not decide on a punishment until you hear all of the evidence? 

c. Can you follow the judge’s instructions regarding the law? 

d. Will you listen to all of the evidence admitted at trial, before deciding a sentence? 

e. Can you give this accused a full, fair, and impartial hearing. 

G. Grounds for Challenge – Unlawful Command Influence. 

1. Courts maintain that it is in the “rare case” where implied bias will be found. United States v. Youngblood, 47 

M.J. 338 (C.A.A.F. 1997). Application of the implied bias standard is appropriate to determine whether a military 

judge abused his discretion in denying challenges for cause against court members based on counsel argument 

that members were affected by unlawful command influence. Prior to court-martial, each member attended staff 

meeting where convening authority and SJA gave a presentation on standards, command responsibility, and 

discipline; during presentation, SJA and convening authority expressed dissatisfaction with a previous 

commander’s disposition of an offense. 

2. United States v. Stoneman, 57 M.J. 35 (C.A.A.F. 2002). Six of nine members either received email from 

brigade commander threatening to “declare war on all leaders not leading by example,” to “CRUSH all leaders in 

this Brigade who don’t lead by example” or attended a “leaders conference” where the same issues were 

discussed. MJ denied defense challenges for cause based on implied bias, but did not conduct a hearing 

concerning claim of UCI. Reversed and remanded for DuBay hearing. Case illustrates nexus between UCI and 

implied bias. Quantum of evidence to raise UCI is “some evidence;” quantum of evidence to sustain challenge for 

cause is greater. Just because burden not met on challenge does not mean burden not met to raise UCI. “[I]n some 

cases, voir dire might not be enough, and . . . witnesses may be required to testify on the issue of UCI.” 

H. Grounds for Challenge – Member has Bias Against/For Counsel. 

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1. Negative bias against specific counsel. Napolitano, 53 M.J. 162 (member indicated on questionnaire 

disapproval of civilian defense counsel’s behavior in another case; judge did not abuse discretion in denying 

challenge for cause because member retracted opinion and said he was not biased against the counsel; different 

result likely if member has had adversarial dealings with counsel). See also United States v. Rome, 47 M.J. 467 

(C.A.A.F. 1998) (military judge abused discretion by failing to grant a challenge for cause, based on implied bias, 

against member who judge determined had engaged in unlawful command influence in previous unrelated courtmartial and who defense counsel had personally and professionally embarrassed through cross examination in 

previous high-profile case). 

2. Bias against defense attorneys (in general). Townsend, 65 M.J. 460. When asked his “opinions of defense 

counsels,” member said he had a “mixed view.” While he respected military defense counsel as military officers 

with high ethical and moral standards, he had a “lesser respect for some of the ones you see on TV, out in the 

civilian world,” an apparent reference to the member’s regular viewing of the television show Law and Order. 

Court upheld military judge’s denial of the challenge for cause, noting no actual or implied bias was present. 

3. Positive bias for specific counsel. United States v. Peters, 74 M.J. 31 (C.A.A.F. 2015) (member bias based on 

the professional relationship between a member and the trial counsel; battalion commander disclosed on voir dire 

that he has regular engagements with trial counsel about legal issues and even had a phone conversation the night 

before voir dire about another legal issue and closed the conversation with, “I’ll see you tomorrow.” Trial 

Counsel provided “testimonial” that LTC is one of the most conscientious and thoughtful commanders within the 

brigade. . . . He takes this incredibly seriously as evidenced by his answers.” Defense counsel challenged the 

LTC for cause, which was denied by the Military Judge after he considered the implied bias liberal grant mandate. 

In a 3-2 decision, CAAF determined that the TC’s comments amounted to a personal endorsement and 

emphasized that a military judge should err on the side of granting a challenge for cause. The majority concluded 

that the relationship in this case rose to the level of implied bias requiring reversal. The dissenters each wrote 

separately, emphasizing largely pragmatic concerns with the majority’s analysis. 

I. Grounds For Challenge – Accused Should Testify. United States v. Ovando-Moran, 48 M.J. 300 (C.A.A.F. 1998). 

No abuse of discretion to deny challenge for cause against member who considered it unnatural if accused failed to 

testify. Court reasoned that MJ’s explanation of accused’s right to remain silent and member’s statement that he 

would put preconceptions aside supported view that that member’s “misperception” was not a personal bias against 

accused. 

J. Grounds For Challenge – Accused Should Plead Guilty. United States v. White, No. 20061313 (A. Ct. Crim. App. 

Aug. 11, 2010) (unpublished). During individual voir dire, panel member said he observed a trial of one of his 

Soldiers who had been charged with sexually abusing a child. He said he resented the Soldier – who was clearly guilty 

– for pleading not guilty and forcing the child victim to testify. The trial counsel asked the member a few 

rehabilitation questions and the member agreed the other case would not affect his deliberations in the present case. 

The ACCA held the military judge did not abuse her discretion in denying the defense challenge for cause. Relying on 

United States v. Elfayoumi, 66 M.J. 354, 357 (C.A.A.F. 2008), the court noted that panel members are also members 

of society who may have strongly-held personal views which is part of the “human condition.” In this case, a 

reasonable observer understanding the human condition would not question the neutrality, impartiality, and fairness of 

the proceeding. 

IX. CHALLENGES FOR CAUSE – LOGISTICS 

A. Timing Of Challenges. UCMJ art. 41. 

1. UCMJ art. 41(a). If exercise of challenge for cause reduces court below minimum required per Article 16 (5 

members for GCM, 3 members for SPCM), the parties shall exercise or waive all other causal challenges then 

apparent. Peremptories will not be exercised at this time. 

2. UCMJ art. 41(b). Each party gets one peremptory. If the exercise of a peremptory reduces court below the 

minimum required by Article 16, the parties must use or waive any remaining peremptory challenge against the 

remaining members of the court before additional members are detailed to the court. 

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3. UCMJ art. 41(c). When additional members are detailed to the court, the parties get to exercise causal 

challenges against those new members. After causal challenges are decided, each party gets one peremptory 

challenge against members not previously subject to a peremptory challenge. 

4. See United States v. Dobson, 63 M.J. 1 (C.A.A.F. 2006). The accused selected an enlisted panel to hear her 

contested premeditated murder case. After the military judge’s grant of challenges for cause (CfCs) and 

peremptory challenges (PCs) the GCMCA needed to twice detail additional members for the court-martial to 

obtain 1⁄3 enlisted members, as required by Article 25, UCMJ. 

The issue on appeal was whether the MJ erred by granting the parties’ PCs after the 1⁄3 enlisted 

quorum, as required by Article 25, UCMJ, was busted after the 1st and 2nd CfCs were granted. 

While 1⁄3 enlisted quorum was broken after the 1st and 2nd CfCs, the panel membership never 

dropped below five members as required for a general court-martial under Article 16, UCMJ. 

The defense argued that the MJ should not have granted the parties’ PCs once the 1⁄3 enlisted 

quorum was broken under Article 25, UCMJ even though the total membership requirements of 

Article 16, UCMJ were met. Article 41, UCMJ states that if the exercise of CfCs drops panel 

membership below Article 16 requirements that additional members will be detailed and PCs 

will not be granted at that time. Article 41, UCMJ, however, does not address panel membership 

falling below Article 25, UCMJ 1⁄3 enlisted requirements. The CAAF held that the MJ did not 

error by granting PCs when Article 25 quorum was lacking but Article 16 quorum was met. The 

CAAF reasoned that “[t]he enlisted representation requirement in Article 25 employs a 

percentage, not an absolute number[, unlike Article 16,]. . . [a]s a result, there are circumstances 

in which an enlisted representation deficit under Article 25 can be corrected through exercise of 

a peremptory challenge against an officer.” Defense also objected to the GCMCA detailing two 

additional officers to the panel after the 1st CfCs were granted as an attempt to dilute enlisted 

representation. The CAAF stated that the accused is entitled only to 1⁄3 enlisted membership and 

the rules do not “require the [GCMCA] to add only the minimum number and type [of members] 

necessary to address a deficit under Article 16 or 25. 

B. Preserving Denied Causal Challenges. R.C.M. 912(f)(4). 

1. Background. Executive Order Amended R.C.M. 912(f)(4) and the “But For” Rule. See Executive Order 

13387 – 2005, dated 18 October 2005. R.C.M. 912(f)(4) was amended by deleting the fifth sentence and adding 

other language to state: “When a challenge for cause has been denied the successful use of a peremptory challenge 

by either party, excusing the challenged member from further participation in the court-martial, shall preclude 

further consideration of the challenge of that excused member upon later review.” 

2. Old rule. United States v. Jobson, 31 M.J. 117 (C.M.A. 1990). The CMA translated the old version of R.C.M. 

912 (f)(4) as follows: 

a. If counsel does not exercise her peremptory challenge, she waives her objection to the denied causal 

challenge. She preserves the denied causal if she uses her peremptory against any member of the panel. But... 

b. If she uses her peremptory against the member she unsuccessfully challenged for cause and fails to state 

the “but for” rule, she waives your objection to the denied causal. So... 

c. Counsel preserves her denied causal if she uses her peremptory against the member she unsuccessfully 

challenged for cause and she states the “but for” rule (i.e., “I’m using my peremptory to excuse Member X; 

but for your denial of my challenge for cause of Member X, I would have used my peremptory on Member 

A.”). 

3. Current rule. R.C.M. 912(f)(4). If “objectionable” member does not sit on the panel (for example, if defense 

counsel uses preemptory challenge to excuse the member), the appellate court will not review the military judge’s 

denial of a challenge for cause for that member. The challenge will also be waived on appeal if the party 

exercising the challenge does not exercise its peremptory challenge against another member. 

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a. Ross v. Okla., 487 U.S. 81 (1988). Defense had to use peremptory challenge to remove juror who should 

have been excused for cause; no violation of Sixth Amendment or due process right to an impartial jury. 

“Error is grounds for reversal only if the defendant exhausts all peremptory challenges and an incompetent 

juror is forced upon him.” 

b. United States v. Medina, 68 M.J. 587, 592 (N-M Ct. Crim. App. 2009). Defense counsel challenged 

member on implied bias grounds at trial and the military judge denied the challenge. Following the denial, 

defense did not exercise a peremptory against any member. The court held, “Failure to exercise a peremptory 

challenge against any member constitute[s] waiver of further review of an earlier challenge for cause, 

therefore, this issue is without merit.” (citing R.C.M. 912(f)(4)). 

c. Cf. United States v. Eby, 44 M.J. 425 (C.A.A.F. 1996). The defense failed to preserve for appeal the issue 

of prejudice under R.C.M. 912(f)(4) by using its peremptory challenge against a member who survived a 

challenge for cause without stating that the defense would have peremptorily challenged another member if 

military judge had granted the challenge for cause. 

C. During-Trial Challenges. Although challenges to court members are normally made prior to presentation of 

evidence, R.C.M. 912(f)(2)(B) permits a challenge for cause to be made “at any other time during trial when it 

becomes apparent that a ground for challenge may exist.” Peremptory challenges may not, however, be made after 

presentation of evidence has begun. 

1. United States v. Camacho, 58 M.J. 624 (N-M Ct. Crim. App. 2003). During lunch break after completion of 

Government case on merits and rebuttal, the President of panel was overheard stating to government witness, “It’s 

execution time,” and making certain gestures, “including a vulgar one with his finger.” Challenge for cause 

granted, which left only two members in this BCD-Special CM. Four new members were detailed, two of whom 

remained after voir dire and challenges. The remaining members were read all testimony without original 

members present. While the case was affirmed, the court noted, “Of great importance in this case is the fact that 

the defense offered no objection to the detailing of new members and the reading of testimony to those members . 

. . .” 

2. United States v. Bridges, 58 M.J. 540 (C.G. Ct. Crim. App. 2003). After findings, DC moved to impeach 

findings due to unlawful command influence (SJA email reporting child sex abuse case). DC claimed that, had 

she known of email, she would have questioned members about it and “might have elicited some information as 

to bias.” BUT, DC did not challenge any member for cause at that time or specifically ask the military judge to 

permit additional voir dire on the issue. HELD: The email on its own was not “an apparent ground for challenge 

for cause.” As such, the military judge did not abuse his discretion by failing to sua sponte reopen voir dire. 

3. United States v. Millender, 27 M.J. 568 (1988) (A.C.M.R. 1988). During break in court-martial, member 

asked legal clerk if it would be possible to learn the “other sentence.” Challenge denied; no exposure to extrajudicial information which could influence deliberations. Court noted the legal clerk did not answer the member’s 

questions and immediately reported the question to the military judge (who properly investigated and found no 

outside information had been given to the member). 

4. United States v. Arnold, 26 M.J. 965 (A.C.M.R. 1988). If member recognizes a witness, conduct individual 

voir dire to test for bias. 

D. Challenges after Trial. 

1. United States v. Sonego, 61 M.J. 1 (C.A.A.F. 2005). Members sentenced the accused after his guilty plea to 

ecstasy use. During voir dire CPT Bell, a member, stated in response to the MJ’s group voir dire questions that he 

did not have an inelastic predisposition as to punishment. Approximately a month after the accused’s courtmartial his attorney was representing another airman for drug use. During that court-martial CPT Bell stated that 

any service member convicted of a drug offense should receive a BCD. A verbatim transcript was not made for 

this second court-martial because it resulted in acquittal but the defense attorney submitted an affidavit recounting 

CPT Bell’s different responses. On an issue of first impression the CAAF granted review to determine the 

“measure of proof required to trigger an evidentiary hearing” based on an allegation of juror dishonesty. Noting 

that the federal circuits differ on this issue, the CAAF adopted a “colorable claim” test requiring “something less 

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than proof of juror dishonesty before a hearing is convened.” The court, ordering a DuBay hearing, ruled that the 

defense attorney’s affidavit constituted a “colorable claim” of juror dishonesty to warrant a further evidentiary 

hearing. 

2. United States v. Humpherys, 57 M.J. 83 (C.A.A.F. 2002). Defense submitted a post-trial motion for a 

new trial based on discovery that two members were in the same rating chain, although both answered the military 

judge’s question on that issue in the negative. The military judge held a post-trial 39(a) session and questioned the 

involved members, during which both responded that they did not remember the military judge asking the 

question, and their answers were not an effort to conceal the rating chain relationship. The military judge 

concluded the members’ responses during trial were “technically . . . incomplete,” but their responses in the 

Article 39(a) session caused him to conclude he would not have granted a challenge for cause based on the 

relationship. He denied the defense motion for new trial. HELD: affirmed. In order to receive a new trial based on 

a panel member’s failure to disclose info during voir dire, defense must make two showings: (1) that a panel 

member failed to answer honestly a material question on voir dire; and (2) that a correct response would have 

provided a valid basis for a challenge for cause. “[A]n evidentiary hearing is the appropriate forum in which to 

develop the full circumstances surrounding each of these inquiries.” Appellate court’s role in process is to “ensure 

the military judge has not abused his or her discretion in reaching the findings and conclusions.” Here the military 

judge did not abuse his discretion where he determined that “full and accurate responses by these members would 

not have provided a valid basis for a challenge for cause against either or both.” 

3. United States v. Dugan, 58 M.J. 253 (C.A.A.F. 2003). The military judge refused to grant a post-trial 39(a) 

session to voir dire members concerning UCI in deliberations. The CAAF remanded for a DuBay hearing. Under 

these circumstances, MRE 606(b) “permits voir dire of the members regarding what was said during deliberations 

about [the alleged UCI comments of a commander], but the members may not be questioned regarding the impact 

of any member’s statements or the commander’s comments on any member’s mind, emotions, or mental 

processes.” 

E. Military Judge’s Duty AND Sua Sponte ChallengeS. Challenges. Under R.C.M. 912(f)(4), a military judge 

may excuse a member sua sponte for actual or implied bias: “Notwithstanding the absence of a challenge or waiver of 

a challenge by the parties, the military judge may, in the interest of justice, excuse a member against whom a 

challenge for cause would lie.” However, failure to excuse a member sua sponte will normally not require reversal. 

1. United States v. Velez, 48 M.J. 220 (C.A.A.F. 1998). In a case involving two specifications of rape and two 

specifications of assault, the MJ did not err by failing, sua sponte, to remove three panel members based on 

implied bias. The implied bias doctrine was not invoked because the record established the following: the member 

who admitted knowing one of the rape victims had a tenuous relationship with victim, disavowed that this 

relationship would influence him, and the defense failed to challenge the member on such grounds; second 

member disavowed that command relationship with government rebuttal witness would influence him, and the 

defense counsel failed to challenge the member on that ground; the third member frankly disclosed that he had 

two friends who were victims of rape, and that he has a 15-year-old daughter he wanted to protect from rape, but 

disavowed improper influence and stated that he would follow the MJ’s instructions. 

2. United States v. Strand, 59 M.J. 455 (C.A.A.F. 2004). Court member was son of officer who acted as 

convening authority in the case. The member’s father acted to excuse and detail new members in the absence of 

the regular GCMCA. The defense did not challenge the son for cause. On appeal, the defense contended that the 

military judge had a sua sponte duty to remove the son for implied bias. The court held that the military judge did 

not abuse his discretion in declining to sua sponte excuse the member, and declined to adopt a per se “familial 

relationship” basis for excusal. Here, the government revealed the familial relationship, and the military judge 

allowed both parties a full opportunity to voir dire the member. Although the military judge may excuse an 

unchallenged member in the interest of justice, there must be justification in the record for such a drastic action. 

The record in this case did not reveal an adequate justification for such action. 

3. See also United States v. Collier, No. NMCCA 200601218 SPECIAL COURT-MARTIAL, 2008 CCA 

LEXIS 53 (N-M Ct. Crim. App. Feb. 21, 2008) (unpublished). In a bizarre case, trial counsel challenged a 

member for cause, based on implied bias. Defense counsel objected to the challenge, which the government then 

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withdrew. On appeal, defense argued the military judge should have excused the member sua sponte for implied 

bias. During voir dire, the member stated he was an Administration Officer, knew three of the witnesses in the 

case (he interacted with them on a daily basis and was in the rating chain for two of them), and recognized the 

accused’s name from reviewing personnel rosters. The member had been on a cruise for seven months and had no 

knowledge of the facts of the case. In response to the government challenge for cause of this member, the defense 

counsel said: “[W]e feel that there’s no problem with him. He’s been on [a] cruise and has no knowledge of any 

of that.” The military judge asked defense counsel why he objected to the government challenge and, before 

counsel could answer, the trial counsel withdrew the challenge for cause, but added, “We were more concerned 

with appearance. But, we’ll withdraw our challenge for cause, if defense objects to that.” In affirming the case, 

the court noted the member’s minimal knowledge of the accused was “matter-of-fact and devoid of emotion.” The 

member also stated that his professional relationship with three government witnesses would not affect his 

assessment of their testimony. Finally, in deciding there was no bias, the court noted “perhaps most tellingly” that 

the defense counsel at trial objected to the challenge. 

X. PEREMPTORY CHALLENGES GENERALLY 

Rule: One per side, unless new members are detailed. See Article 41(b)(1), UCMJ. 

A. Additional Peremptory. United States v. Carter, 25 M.J. 471 (C.M.A. 1988). Judge improperly denied 

defense request for additional peremptory after panel was “busted” and new members were appointed; however, error 

was harmless. See also Rivera v. Illinois, 556 U.S. (2009) (noting “there is no freestanding constitutional right to 

peremptory challenges” and a peremptory challenge is “a creature of statute.”). 

1. No Sixth Amendment right to a peremptory challenge. Ross v. Oklahoma, 487 U.S. 81(1988). 

2. No Fifth Amendment due process right to peremptory challenge. United States v. Martinez-Salazar, 528 U.S. 

504 (2000). 

3. But Cf. United States v. Pritchett, 48 M.J. 609 (A.F. Ct. Crim. App. 1998). Military judge erred to the 

prejudice of the accused by denying the accused his statutory right to exercise a peremptory challenge against one 

of the new court members added after the original panel as supplemented fell below quorum. In a forcible sodomy 

and indecent liberties with a child case, the panel twice fell below quorum. After the third voir dire, the military 

judge denied both sides the right to exercise peremptory challenges. The defense implied that it desired to exercise 

the challenge and the MJ replied, “I don’t want to hear anymore about it. I ruled.” The exercise of a peremptory 

challenge is a statutory right. Deprivation of that right carries a presumption of prejudice, absent other evidence in 

the record, requiring automatic reversal. 

B. No conditional peremptory challenges. United States v. Newson, 29 M.J. 17 (C.M.A. 1989). It was improper for 

judge to allow trial counsel to “withdraw” peremptory challenge after defense counsel reduced enlisted membership 

below one-third quorum. But see United States v. Owens, No. NMCCA 200100297, 2005 CCA LEXIS 182 (N-M Ct. 

Crim. App. June 17, 2005) (unpub.). Government exercised its peremptory challenge (PC), defense exercised its PC, 

and the MJ then asked defense if they had any objection to the government’s PC. Defense objected but prior to the 

MJ’s ruling the government withdrew its PC and then the MJ allowed the government to PC a different member to 

which procedure the defense objected. While “ordinarily” the government must exercise its PC prior to the defense 

and the MJ cannot alter this procedure “without a sound basis,” the N-MCCA reasoned that a sound basis existed 

because of the defense’s untimely objection which if timely made would have allowed the government to exercise its 

PC prior to the defense. In the alternative, even if the MJ erred no prejudice accrued to the accused particularly where 

the member, who the government tried to PC with defense o 

C. If additional members are detailed (busted quorum). If the exercise of a peremptory reduces court below the 

minimum required, the parties must use or waive any remaining peremptory challenge against the remaining members 

of the court before additional members are detailed to the court. Id. (unpub.). Government exercised its peremptory 

challenge (PC), defense exercised its PC, and the MJ then asked defense if they had any objection to the government’s 

PC. Defense objected but prior to the MJ’s ruling the government withdrew its PC and then the MJ allowed the 

government to PC a different member to which procedure the defense objected. While “ordinarily” the government 

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must exercise its PC prior to the defense and the MJ cannot alter this procedure “without a sound basis,” N-MCCA 

reasoned that a sound basis existed because of the defense’s untimely objection which if timely made would have 

allowed the government to exercise its PC prior to the defense. In the alternative, even if the MJ erred no prejudice 

accrued to the accused particularly where the member, who the government tried to PC with defense objection, 

ultimately sat on the case. 

XI. DISCRIMINATORY PEREMPTORY CHALLENGES – BATSON 

A. In General. Batson v. Kentucky prohibits the use of unlawful discrimination in the exercise of a peremptory 

challenge. The Batson case expressly prohibited race-based challenges. Subsequent Supreme Court cases have 

extended Batson to forbid peremptory challenges based on race or gender. 

1. The origin. Batson v. Kentucky, 476 U.S. 79 (1986). The Supreme Court held that a party alleging that an 

opponent was exercising peremptory challenges for the purpose of obtaining a racially-biased jury had to make a 

prima facie showing of such intent before the party exercising the challenges was required to explain the reasons 

for the strikes (prosecutor had used peremptory challenges to strike all four of the African-Americans from the 

venire, with the result that Batson, an African-American, was tried by an all-white jury). The three-part Batson 

test requires: (1) a prima facie case of discrimination, (2) then the provision of a race neutral reason, and (3) proof 

of purposeful discrimination. 

2. Military application. The Supreme Court has never specifically applied Batson to the military. 

However, military caselaw has applied Batson to peremptory challenges through the Fifth Amendment. Military
 

courts have, in some instances, made Batson even more protective of a member’s right to serve. Under Batson, 

counsel cannot exercise a peremptory challenge based on race or gender.
 

a. United States v. Santiago-Davila, 26 M.J. 380 (C.M.A. 1988) (equal protection right to be tried by a jury 

from which no racial group has been excluded is part of due process and applies to courts-martial). Court in 

Santiago recognized that “in our American society, the Armed Services have been a leader in eradicating 

racial discrimination,” and held that government’s use of only peremptory challenge against minority court 

member raised prima facie showing of discrimination. 

b. In the military, a trial counsel addressing a Batson challenge cannot proffer a reason that is “unreasonable, 

implausible, or that otherwise makes no sense.” See United States v. Tulloch, 47 M.J. 283, 287 (C.A.A.F. 

1997). By contrast, civilian courts only need a reason that is not “inherently discriminatory,” even if 

explanation is not “plausible.” See Rice v. Collins, 546 U.S. 333 (2006). 

c. United States v. Moore, 28 M.J. 366 (C.M.A. 1989) adopted a per se rule that “every peremptory 

challenge by the Government of a member of the accused's race, upon objection, must be explained by trial 

counsel” This is further expanded by Powers below: 

3. Making a Batson challenge. If either side exercises a challenge against a panel member who is a member of a 

minority group, then the opposing side may object and require a race-neutral reason for the challenge. 

4. Batson applies to defense. United States v. Witham, 47 M.J. 297 (C.A.A.F. 1997) (holding Batson applicable 

to defense in courts-martial); Georgia v. McCollum, 505 U.S. 42(1992) (holding that the Constitution prohibits a 

civilian criminal defendant from engaging in purposeful racial discrimination in the exercise of peremptory 

challenges). If the government can show a prima facie case, the burden shifts to the defense to provide a race 

neutral reason for their peremptory challenge. 

B. Parameters of Race-Based Challenges. 

1. Accused and member need not be of the same racial group. Powers v. Ohio, 499 U.S. 400 (1991). “The Equal 

Protection Clause prohibits a prosecutor from using the State’s peremptory challenges to exclude otherwise 

qualified and unbiased persons from the petit jury solely on their race. . . .” 

a. Court’s holding removes the requirement from Batson that the accused and challenged juror be of the 

same race. 

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b. Court’s ruling in Powers is very broad. Focuses on both the rights of the accused as well as the 

challenged member. 

c. Prosecutors must now be prepared to articulate a race-neutral reason for all peremptory challenges, 

regardless of the races of the accused or member. 

2. Race defined. Hernandez v. New York, 500 U.S. 352 (1991) (extending Batson to potential jurors who were 

bilingual Latinos, with the Court viewing Latinos as a cognizable race for Batson purposes and referring to 

Latinos as both a race and as an ethnicity). See also United States v. Martinez-Salazar, 528 U.S. 304 (2000) (“a 

defendant may not exercise a peremptory challenge to remove a potential juror solely on the basis of the juror’s 

gender, ethnic origin, or race”). To date the Supreme Court has applied Batson only to classifications which have 

received heightened scrutiny; race, gender, and ethnic origin (thus far limited to Latinos). But see Rico v. 

Leftridge-Byrd, 340 F.3d 178 (3d Cir. 2003) (Batson prohibits the exercise of peremptory challenges based on 

ethnic origin of Italian-Americans). 

C. Parameters of Gender-Based Challenges. As discussed above, Batson applies to gender-based challenges. J.E.B. 

v. Ala., 511 U.S. 127 (1994). JEB held that the Equal Protection Clause prohibits litigants from striking potential 

jurors solely on the basis of gender. Ruling extends the concept that private litigants and criminal defense attorneys 

are “state actors” during voir dire for purposes of Equal Protection analysis. See also United States v. Omoruyi, 7 F.3d 

880 (9th Cir. 1993) (prosecutor claimed that he used peremptory challenges against two single females because he 

thought they “would be attracted to the defendant” because of his good looks; court finds this was gender-based 

discrimination). 

1. Applies to military. United States v. Witham, 47 M.J. 297 (C.A.A.F. 1997) (gender, like race, is an 

impermissible basis for the exercise of a peremptory challenge by either the prosecution or the military accused). 

2. Trial counsel must provide gender-neutral reason for striking member. United States v. Ruiz, 49 M.J. 340 

(C.A.A.F. 1998) (the per se rule developed in United States v. Moore, 28 M.J. 366 (C.M.A. 1989), is applicable to 

Government peremptory challenges based on gender whether a MJ requests a gender neutral reason or not). 

3. Generally, additional voir dire is unnecessary. United States v. Bradley, 47 M.J. 715 (A.F. Ct. Crim. App. 

1997). Accused charged with rape and assault. Trial counsel’s exercise of peremptory challenge against one of 

two remaining members based on fact that member challenged was investigating officer on a case involving the 

legal office was gender-neutral and valid under Batson, and did not require military judge to grant defense request 

for additional voir dire to explore the basis of the trial counsel’s supporting reason. Neither Witham nor Tulloch 

elevate a peremptory challenge to the level of a causal challenge (party making peremptory challenge need only 

provide a race neutral explanation in response to a Batson challenge). 

4. Occupation-based peremptory challenges (subterfuge for gender?). United States v. Chaney, 53 M.J. 383 

(C.A.A.F. 2000). The government used its peremptory challenge against the sole female member. After a defense 

objection, TC explained that member was a nurse. Military judge interjected that in his experience TCs “rightly or 

wrongly” felt members of medical profession were sympathetic to accuseds, but that it was not a gender issue. 

Defense did not object to this contention or request further explanation from TC. CAAF upheld the military 

judge’s ruling permitting the peremptory challenge, noting that the military judge’s determination is given great 

deference. CAAF noted it would have been preferable for the MJ to require a more detailed clarification by TC, 

but here DC failed to show that the TC’s occupation-based peremptory challenge was unreasonable, implausible 

or made no sense. 

D. Parameters of Race- And Gender-Neutral Reasons. The Supreme Court has held that the “genuineness of the 

motive” rather than “the reasonableness of the asserted nonracial motive” is what is important. Purkett v. Elem, 514 

U.S. 765 (1995) (Missouri prosecutor struck two African-American men from panel stating “I don’t like the way they 

looked,” and they “look suspicious to me;” this is a legitimate hunch, and the Batson process does not demand an 

explanation that is “persuasive or even plausible;” only facial validity, as determined by trial judge, is required). See 

Rice, 546 U.S. 333. The prosecutor struck a minority female because (1) she had rolled her eyes in response to a 

question from the court; (2) she was young and might be too tolerant of a drug crime, and (3) she was single and 

lacked ties to the community. The trial judge did not observe the eye roll but allowed the challenge based on the 

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second and third grounds. The trial judge noted that the government also used a PC against a white male juror because 

of his youth. The Supreme Court, citing Purkett, 514 U.S. 765, stated that a race neutral explanation “does not 

demand an explanation that is persuasive, or even plausible, so long as the reason is not inherently discriminatory, it 

suffices.” See also Hernandez, 500 U.S. 352 (“[A]n explanation based on something other than the race of the juror. . . 

Unless a discriminatory intent is inherent in the prosecutor’s explanation the reason offered will suffice.”). 

1. Different standard for trial counsel. Peremptory challenges are used to ensure qualified members are selected, 

but, in the military, the convening authority has already chosen the “best qualified” after applying Article 25, 

UCMJ. Therefore, under Batson, Moore, and Witham, trial counsel may not strike a person on a claim that is 

unreasonable, implausible, or otherwise nonsensical. Tulloch, 47 M.J. 283. Tulloch is a departure from Supreme 

Court precedent, which requires only that counsel’s reason be “genuine.” Purkett, 514 U.S. 765. 

a. Tulloch: Accused was African-American. Trial counsel moved to strike African-American panel member 

based on “demeanor,” claiming member appeared to be “blinking a lot” and “uncomfortable.” CAAF held this 

was insufficient to “articulate any connection” between the purported demeanor and what it indicated about 

the member’s “ability to faithfully execute his duties on a court-martial.” Trial counsel’s peremptories are 

assessed under a “different standard.” 

b. Trial counsel must be able to defend the peremptory challenge as non-pretext. 

c. Counsel cannot simply affirm his good faith or deny bad faith in the use of the peremptory. 

d. Counsel must articulate a connection between the observed behavior, etc., and a colorable basis for 

challenge (e.g., “member’s answers to my questions suggested to me she was not comfortable judging a case 

based on circumstantial evidence alone,” etc.). 

e. Military judge should make findings of fact when the underlying factual predicate for a peremptory 

challenge is disputed, particularly where the dispute involves in-court observations of the member. The 

military judge should make “findings of fact that would establish a reasonable, plausible race-neutral 

explanation for a peremptory challenge by the Government of a member chosen as ‘best qualified’ by a senior 

military commander.” Tulloch, 47 M.J. 283. 

2. Fact-specific inquiry and inconsistent results. 

a. United States v. Robinson, 53 M.J. 749 (A. Ct. Crim. App. 2000). Trial counsel’s proffered reason for 

striking minority member (that he was new to the unit and that his commander was also a panel member) was 

unreasonable. Counsel did not articulate any connection between the stated basis for challenge and the 

member’s ability to faithfully execute the duties of a court-martial member. Sentence set aside. 

b. United States v. Shelby, 26 M.J. 921 (1988) (N.M.C.M.R. 1988). Trial counsel peremptorily challenged 

junior African-American officer in sodomy trial of African-American accused. Inexperience of junior member 

was accepted racially-neutral explanation, even though other junior enlisted members remained. 

c. United States v. Curtis, 28 M.J. 1074 (1989) (N.M.C.M.R. 1989), rev’d on other grounds, 33 M.J. 101 

(C.M.A. 1991). Trial counsel challenged African-American member who stated that serving on court-martial 

in a capital case would be a good “learning experience.” Upheld as a racially-neutral explanation. 

d. United States v. Woods, 39 M.J. 1074 (1994) (A.C.M.R. 1994). TC says, “We just did not get the feeling 

that SSG Perez was paying attention and would be a good member for this panel. It had nothing to do with the 

fact that his last name was Perez. I mean there is no drug stereotype here.” Court holds TC’s articulated basis 

(inattentiveness) was not pretext for intentional discrimination. 

3. The numbers game and protecting quorum. United States v. Hurn, 55 M.J. 446 (C.A.A.F. 2001). The DC 

objected after the TC exercised the government’s peremptory challenge against panel’s only non-Caucasian 

officer. TC’s basis “was to protect the panel for quorum.” CAAF held the reason proffered did not satisfy the 

underlying purpose of Batson, Moore, and Tulloch, which is to protect the participants in judicial proceedings 

from racial discrimination. 

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a. Case remanded for DuBay hearing based on TC’s affidavit, filed two and a half years after trial, which set 

forth other reasons for challenging the member in question. 

b. Post-DuBay: United States v. Hurn, 58 M.J. 199 (C.A.A.F. 2003). In DuBay hearing, TC testified he also 

removed the member because the member had expressed concern about his “pressing workload.” MJ 

determined challenge was race-neutral. CAAF affirmed, finding no clear error: “The military judge’s 

determination that the trial counsel’s peremptory challenge was race-neutral is entitled to great deference and 

will not be overturned absent clear error” (internal quotations and citations omitted). But see Greene, below 

(holding where part of the reason for a challenge is not race-neutral, the entire reason must fail). 

4. Valid logistical reasons for using peremptory. United States v. Clemente, 46 M.J. 715 (A.F. Ct. Crim. App. 

1997). Trial counsel’s use of peremptory challenge to remove only Filipino member of panel because member 

was scheduled to go on leave during the trial was race neutral. Defense counsel acquiesced in objection by stating 

that “it would accept it and was ready to go ahead and continue. 

E. Mixed Motive Challenges Are Improper. United States v. Greene, 36 M.J. 274 (C.M.A. 1993). Two reasons for 

exercise of peremptory challenge: one reason was facially valid and race-neutral; the second amounted to a “gross 

racial stereotype” and was clearly not race neutral. Where part of the reason for a challenge is not race neutral, the 

entire reason must fail. Findings and sentence set aside. See also McCollum, 505 U.S. at 54 (civilian defendant’s use 

of peremptory challenges based on racial consideration was prohibited). 

F. Beyond Race/Ethnic Group And Gender, Batson Is Generally Inapplicable. 

1. Marital status. Peremptory challenges based on marital status do not violate Batson. United States v. Nichols, 

937 F.2d 1257 (7th Cir. 1991). 

2. Age. Peremptory challenges based on age do not violate Batson. Bridges v. State, 695 A.2d 609 (Md. Ct. 

Spec. App. 1997). 

3. Religion. The Supreme Court has not ruled on whether Batson extends to religious-based peremptory
 

challenges.
 

a. United States v. Williams, 44 M.J. 482 (C.A.A.F. 1996). Trial counsel peremptorily challenged a member 

who was the senior African-American officer after he indicated that he was a member of the Masons. The 

accused was also a Mason. No abuse of discretion for the MJ to grant the peremptory challenge where the TC 

indicated the race neutral reason was that the member and accused were members of the same fraternal 

organization. While recognizing that the Supreme Court has not extended Batson to religion, the court noted 

that the record in this case was “devoid of any indication of [the member’s] religion.” CAAF cites Casarez v. 

Texas, 913 S.W.2d 468, 496 (Tex. Crim. App. 1994) (on rehearing), and State v. Davis, 504 N.W.2d 767 

(Minn. 1993), cert. denied, 511 U.S. 1115 (1994), as authority that Batson does not apply to religion. 

b. Two federal circuits have decided the status of religion-based Batson strikes on the merits. 

(1) United States v. DeJesus, 347 F.3d 500 (3d Cir. 2003). Court drew a distinction between a strike 

motivated by religious beliefs and one motivated by religious affiliation. The court found strikes 

motivated by religious beliefs (i.e. heightened religious activity) were permitted; no occasion to rule on 

issue of religious affiliation. The Seventh Circuit makes the same distinction in dicta, but did not resolve 

the issue because the court found no plain error. United States v. Stafford, 136 F.3d 1109 (7th Cir. 1998). 

(2) United States v. Brown, 352 F.3d 654 (2d Cir. 2003). Batson applies to challenges based on religious 

affiliation. “Thus, if a prosecutor, when challenged, said that he had stricken a juror because she was 

Muslim, or Catholic, or evangelical, upholding such a strike would be error. Moreover, such an error 

would be plain.” Strikes at issue involved heightened religious activity, so did not violate Batson. 

c. One circuit has not addressed the issue. United States v. Girouard, 521 F.3d 110, 113 (1st Cir. 2008) 

(“We have never held that Batson applies to cases of religious discrimination in jury selection. Even 

assuming, arguendo, that Batson does apply to claims of religious discrimination, we find no clear error in the 

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district court’s action. It is therefore unnecessary to resolve the open question of whether Batson does indeed 

apply to religious discrimination.”). 

d. States are split on whether Batson extends to religion. Compare Thorson v. State, 721 So. 2d 590, 594 

(Miss. 1998) (extending Batson to peremptory strikes based on religion); State v. Purcell, 18 P.3d 113, 120 

(Ariz. Ct. App. 2001) (concluding that Batson extends to peremptory challenges based on religious 

affiliation); with Davis, 504 N.W.2d at 771 (rejecting argument that Batson includes peremptory strikes based 

on religious affiliation); State v. Gowdy, 727 N.E.2d 579, 586 (Ohio 2000) (permitting peremptory challenge 

based on juror wearing a cross); Casarez v. State, 913 S.W.2d 468, 496 (Tex. Crim. App. 1994) (en banc) 

(holding that state interests in peremptory challenges warrant excluding jurors based on religious affiliation); 

James v. Commonwealth, 442 S.E.2d 396, 398 (Va. 1994) (same). 

4. Membership in organization. United States v. Williams, 44 M.J. 482 (C.A.A.F. 1996). Accused and senior 

officer member of panel were members of the Masons. Peremptory challenge based on “fraternal affiliation” is 

race-neutral. 

G. Recent Application of Batson. Snyder v. Louisiana, 552 U.S. 472 (2008). A civilian defendant was convicted of 

first-degree murder and sentenced to death. On appeal, defense argued the trial court erred by allowing the 

prosecution to use a peremptory challenge against an African-American juror despite a Batson challenge. In a 7-2 

decision, the Court ruled the trial judge committed “plain error” by denying the Batson challenge. 

1. Before jury selection, 85 prospective jurors were questioned during normal voir dire. Of those 85, only 36 

survived challenges for cause; five of those remaining jurors were black. Under Louisiana practice, each side had 

12 peremptory challenges. “[A]ll 5 of the prospective black jurors were eliminated by the prosecution through the 

use of peremptory strikes.” At issue on appeal, the defense lodged a Batson challenge against the prosecution’s 

peremptory challenge of one of the five black prospective jurors. Pursuant to Batson and its progeny, the 

prosecution gave two race-neutral reasons for using a peremptory. First, the prospective juror “looked very 

nervous” during questioning. Second, the prospective juror was a student teacher and said during voir dire that he 

was concerned jury duty might keep him from completing his requirements for the semester. Based on this second 

challenge, the prosecution speculated, “[H]e might, to go home quickly, come back with guilty of a lesser verdict 

so there wouldn’t be a penalty phase.” 

2. The Court looked at the other 50 members of the venire who said that jury duty would be an “extreme 

hardship.” Of those 50, there were 2 white members who had serious scheduling conflicts. First, Mr. Laws was a 

general contractor; he said that he had “two houses that are nearing completion” so if he served on the jury, those 

people would not be able to move in to their homes. Mr. Laws further said that he his wife recently had a 

hysterectomy so he was taking care of his children. He added, “[S]o “so between the two things, it’s kind of bad 

timing for me.” Second, Mr. Donnes approached the court with an “important work commitment” later that week; 

though not developed on the record, it was important enough that Mr. Donnes re-raised the conflict on the second 

day of jury selection. 

3. The Court focused on the third Batson step, concluding that the prosecution’s “pretextual explanation 

naturally gives rise to an inference of discriminatory intent.” During jury selection, the judge’s law clerk called 

the dean at the prospective juror’s university, who said he could complete his student teaching observation even if 

he served on the jury. The Court concluded that the student teaching obligations were not a valid reason for 

exercising a peremptory, particularly in light of the other conflicts offered by two white jurors who ultimately sat 

as members. 

H. Procedural Issues. 

1. Timing. Defense should object to government’s peremptory challenge immediately after it has been stated by 

the government. See United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999). The accused attacked military practice 

because it unnecessarily permits the Government a peremptory challenge even when it has not been denied a 

challenge for cause, contrary to Ford v. Georgia, 498 U.S. 411 (1991), which states: “The apparent reason for the 

one peremptory challenge procedure is to remove any lingering doubt about a panel member’s fairness . . . .” In 

the military, accused asserted that “the [unrestricted] peremptory challenge becomes a device subject to abuse.” 

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The CAAF noted that Article 41(b) provides accused and the trial counsel one peremptory challenge. Neither 

Ford, nor any other case invalidates this judgment of Congress and the President. 

2. Privacy. Military judge should use appropriate trial procedures to best protect privacy interest of challenged 

member. 

3. Type of proceedings to substantiate reasons. 

a. Argument by defense is typically enough to complete the record. But see United States v. Downing, 56 

M.J. 419 (C.A.A.F. 2002). Appellant failed to meet burden of establishing that a court-martial panel member 

should have been dismissed for cause (bias), so it did not matter that the trial judge may have applied the 

wrong standard for challenge. 

b. Affidavit, adversary hearing, and argument allowed, but evidentiary hearing denied. United States v. 

Garrison, 849 F.2d 103 (4th Cir.), cert. denied, 109 S. Ct. 566 (1988). See also Ruiz (above). 

4. Findings on record. 

a. Judge should enter formal findings concerning sufficiency of proffered reasons. MJ should make findings 

of fact when underlying factual predicate for a peremptory challenge is in dispute. See Tulloch above and 

United States v. Perez, 35 F.3d 632, 636 (1st Cir. 1994). 

b. Military judge not required to raise the issue sua sponte, question member, or recall member for
 

individual voir dire. See Clemente and Bradley, above. 

5. Waiver. To preserve the Batson issue, defense counsel should make timely Batson challenge as well as object 

to the race- and gender-neutral reasons offered by trial counsel. Failure to object at both stages may constitute 

waiver. 

a. United States v. Galarza, No. 9800075 (A. Ct. Crim. App. May 31, 2000) (unpub.) (where (unpub.). 

Where defense made Batson objection to TC’s peremptory challenge of a female panel member, and TC 

stated member showed “indecisiveness” during voir dire, DC’s failure to object or to dispute TC’s proffered 

gender-neutral explanation for the peremptory challenge waived issue on appeal). appeal. 

b. United States v. Irvin, No. ACM 35167, 2005 CCA LEXIS 99 (A.F. Ct. Crim. App. Mar. 24, 2005) 

(unpub.). Trial counsel peremptorily challenged only African-American panel member in a contested rape 

court-martial. MJ asked the TC for a race-neutral Batson reason, sua sponte, for the challenge. TC responded 

that the panel member might have preconceived ideas or positions from a rape court-martial she had 

previously sat on the week prior and she had previously heard testimony from one of the investigators. MJ 

accepted this reason and defense did not object to the TC’s reason or the MJ’s ruling. AFCCA held the 

defense counsel’s failure to object waived the issue and further that the MJ did not abuse his discretion in 

finding no purposeful discrimination by the TC. 

6. Making the record of a Batson challenge – the outer limits. United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999). 

Military judge erred in not requiring counsel to articulate a “race-neutral” explanation for the Government’s use 

of its peremptory challenge against one of only two African-American panel members. Trial counsel did, 

however, provide a statement at the next court session, stating a race-neutral explanation for the challenge 

(claiming the member’s responses concerning the death penalty were equivocal). Trial counsel’s statement 

provided a sufficiently race-neutral explanation for the challenge, and the court found that public confidence in 

the military justice system had not been undermined. The military judge is required to make a determination as to 

whether trial counsel’s explanation was credible or pretextual and, optimally, an express ruling on this question is 

preferred. However, here the military judge clearly stated his satisfaction with trial counsel’s disavowal of any 

racist intent in making the challenge. 

a. Avoid the issue. Government should use peremptory challenge sparingly and only when a challenge for 

cause has not been granted. The requirements of Batson will likely be satisfied if a facially-valid challenge for 

cause was denied before trial counsel exercised peremptory challenge: 

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b. United States v. Allen, 59 M.J. 515 (N-M Ct. Crim. App. 2003). Government challenged officer panel 

member for cause “based on the fact he had previously been a criminal accused in a military justice case and, 

therefore, would likely hold the Government to a higher standard of proof than required by law.” Military 

judge denied challenge for cause; government exercised its peremptory against the same member and defense 

made Batson challenge. Government gave same reason for peremptory as for challenge for cause. Court held 

the TC articulated a reasonable, race neutral and plausible basis for challenge. 

XII. PRACTICE TIPS: VOIR DIRE GOALS AND HOW TO REACH THEM 

A. Information Gathering. 

1. The first goal (and the only one officially sanctioned by the Rules for Court-Martial) is information gathering. 

Panel members cannot sit unless they can be fair and impartial (RCM 912(f)(1)(N)), so you need to be able to 

gather information on fairness and impartiality in order to make meaningful use of peremptory and causal 

challenges. 

2. In civilian trials, the prospective juror pool is very large and somewhat represents a cross-section of society. 

Civilian attorneys have a bigger information gathering challenge that military attorneys do. Civilian attorneys 

really know nothing about these people and one of their primary goals is to get rid of the jerks and weirdos. We 

don’t have that problem. The convening authority has already screened this population and we should not expect 

jerks and weirdos to make the cut. Therefore, you can really refine your information gathering goals. 

3. The problem is that panel members, like most human beings, will not say socially unacceptable things in 

public. Many psychological studies have shown that when people are put in group settings, they generally will say 

what they think the group expects them to say. If you ask panel members who are sitting in a formal court-room 

in their Army Service Uniform and who might themselves be a field-grade officer and whose boss might also be 

on the panel, “Do you look at pornography,” don’t expect a lot of hands to go up. If you ask, “Would you be 

concerned if your daughter dated outside of your race,” don’t expect a lot of hands to go up. 

4. To get responses that will accurately tell you whether a panel member might have a bias or belief that will 

impact your case, you need to ask those questions in a safe place – written individual voir dire. 

a. All of your panel members will have already completed a written questionnaire, but that questionnaire 

contains vanilla questions and answers. You want the panel members to complete a supplemental 

questionnaire where you provide them with a forum that will allow them to expose their beliefs without 

causing themselves personal embarrassment, and where they can have some “outs” (as in, shift the questioned 

belief or behavior to someone else). Here, you are much more likely to get reflective and accurate answers. 

b. You will need to identify what experiences, biases, and beliefs exist that might impact how your panel 

members will solve the problem in your case. If your case involves homosexual conduct, or pornography, or 

cross-racial sexual relationships, or cross-racial violence, or a sexual-assault victim that has behaved in ways 

that are contrary to traditional sex role expectations, or [add a bias or belief here], then you need to explore 

that with your panel members. 

(1) In a case involving pornography or non-traditional sexual behavior, you might ask: “Have you or 

someone you are close to (a college roommate, brother or sister, close friend) ever regularly looked at 

pornography? If someone else did, did your opinion of him or her change after you found out? Explain 

how it changed.” 

(2) In a case involving cross-racial sexual relationships, you might ask: “If your son or daughter became 

romantically involved with someone from another race, how would that concern you? And then have a 

scale from “0” (not concern me at all) to “10” (concern me greatly).” 

(3) You can ask similar questions about homosexuality (if your son or daughter told you he or she was 

gay, would that concern you, and then a scale). Or, the relationship between race and violence (Imagine 

that you are at home sleeping in bed with your wife, with the kids in their rooms, when you hear a 

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window break and the unmistakable sounds of someone in your house. Now, what is the color of the skin 

of the person that you imagined was in your house?) Or, the validity of the mental health field as a real 

science (In your opinion, are psychology and psychiatry valid sciences or psycho-babble, with a scale). 

Or, whether they associate a stigma with seeking help for mental health problems (Have your or has 

someone close to you been to a mental health professional? If someone else, did your opinion of him or 

her change? How?) 

(4) Take a look back at those questions. If they were asked in a group setting, what would the answers 

have been? Most likely, the socially acceptable answers. So, reduce these types of questions to something 

that is close to an anonymous survey (the written supplemental) and see if you can get accurate replies. 

You might even consider having a psychologist or psychiatrist help you to draft the questions. An added 

benefit of asking the questions via a supplemental questionnaire is that the members won’t know which 

party is seeking the information. 

c. You might also look for other indicators of belief systems, like what news shows they watch and what 

magazines they receive. And you might look for the ways that they learn: “[O]ne of the most important things 

to look for is how the different jurors learn. Are they more creative or more logical? Would they rather look at 

a graph or read a book? What magazines to they read? What kind of entertainment do they enjoy? What kinds 

of games do they like to play?” James McElhaney, Making Limited Time for Voir Dire Count, A.B.A. J., 

Dec. 1998, at 66. 

d. You should also ask about life experiences that might impact how the panel member will approach the 

problem. The military judge will ask some of these questions in front of everybody. For example, “Has 

anyone, or any member of your family, or anyone close to you personally ever been the victim of an offense 

similar to the offense charged?” In a case of child molestation, if a panel member was molested as a child but 

has not told anyone, do you think he or she will raise her hand and say that he or she has in front of all of 

these strangers? The better place to ask that question is in written voir dire. 

e. As with anything else in trial work, the decision to submit an additional questionnaire needs to be goal 

oriented. If you don’t need to gather information via a supplemental questionnaire in this particular case, 

don’t. 

f. And, you need to start working on this early. You need to identify these issues, structure arguments 

around them, and draft written voir dire questions during the trial preparation process – not on the day before 

trial. Generally, to do a written supplemental questionnaire, you will need to distribute the questionnaires a 

week or two before trial so that they can be sent to the members, the members can complete them, and then 

the questionnaires can be collected and reviewed by the attorneys. Using this process forces you to get your 

thoughts together well before trial. 

5. Individual spoken voir dire. 

a. If the panel member has responded in a way that causes you concern, you should consider challenging 

them based solely on their written response. If the military judge wants more, then bring the issue up in 

individual spoken voir dire – not in group spoken voir dire. Give the prospective panel member as much 

anonymity as you can. 

6. Note how using written questionnaires and individual spoken voir dire greatly simplifies the process of voir 

dire. You don’t have to come up with complex charts and try to keep up with who’s hands go up when in response 

to what questions. You get the answers you need ahead of time, on paper, or later when just one person is on the 

stand. Voir dire can be pretty easy. 

7. Again, only do individual spoken voir dire if you need to. If you don’t have a good reason for doing it, don’t 

do it. 

8. The bottom line is: if you want to learn particular information about this panel member, use written voir dire 

to discovery that information and then use individual spoken voir dire to follow-up the written voir dire, if 

needed. Don’t waste your group spoken voir dire time doing information gathering. 

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B. Education 

1. The next goal is education – not education on your theory or theme of your case, but education on the 

counter-intuitive things the panel members will have to deal with. 

2. Don’t educate on your theory. 

a. When you theory-shop or theme-shop with your panel, you might think you are doing what lawyers 

should be doing, and other lawyers might be impressed, but your panel members will not be impressed. First, 

you risk coming across as a used-car salesman or as a lawyer trying to pull a lawyer-trick. According to James 

McElhaney, “Arguing your case before the jury panel members even know what it’s about triggers genuine 

sales resistance. So does trying to push the jurors into making commitments about how they are going to 

decide the case.” James McElhaney, Making Limited Time for Voir Dire Count, A.B.A. J. Dec. 1998, at 66­

67. 

b. And when you ask questions that you think are related to your case, like, “Would you agree that cops 

sometimes lie?”, you are insulting their intelligence. Of course they know that cops sometimes lie. What they 

want to know is, did a cop lie in this case. And they want to wait until they hear the case to deal with that 

issue. They don’t want to feel like you are pressuring them to agree with you before they know the facts. 

c. Look at these questions, for example: 

(1) Do you believe that, under certain circumstances, eyewitness’ memory might not be accurate? 

(2) How do you feel about witnesses who testify after receiving special treatment from the government? 

(3) Do you think criminals might lie in order to get a better deal from the government? 

(4) Do you agree that many words of the English language have various meanings? 

(5) Do you agree that the mere presence at the scene of the crime does not establish guilt? 

d. Each of these questions only has one answer. The panel members know that so they wonder why you are 

asking them and why you want them to state something so obvious. You might think you are doing something 

clever, but they are wondering why you are wasting their time and insulting their intelligence with questions 

like this. 

e. As a good rule of thumb, if what you intend to ask is really an inference, then don’t ask the question. Note 

that for all of the questions above, you can just argue that statement. Instead of asking those questions, do 

what the panel members want you to do: put on the evidence, and then argue the inferences. They will 

appreciate that. 

3. So, if we aren’t going to theory-test and theme-test, what are we going to educate the panel members about? 

4. Educate them on the counter-intuitive aspects of the law or of your case, and on generally-held beliefs that run 

counter to your case. This is how you will use group oral voir dire. 

a. The judge is going to ask some perfunctory questions that address some of these issues, particularly 

system bias that runs against the accused. However, all of these questions only illicit the socially acceptable 

response. There is only one to answer, “The accused has pled not guilty to all charges and specifications and 

is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable 

doubt. Does anyone disagree with this rule of law?” No panel member is going to raise her hand while 

wearing her Army Service Uniform and say, “You know what, your honor? I cannot abide by that 

fundamental principle of American law.” The panel members will only respond with the socially acceptable 

answer, but you need to be aware that they will still likely solve the problem before them by relying on 

deeply-embedded generalizations about human behavior. 

b. Note, your goal is to educate them about these beliefs, not to challenge them for cause. Some panel 

members will respond with answers that show that they have beliefs that run counter to your case. That is 

okay. You are going to make them aware of their beliefs so that they will be more receptive to counter18-33
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

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arguments and other belief structures. (You are not going to win most challenges for cause in this area, 

anyway, because the other party or the military judge will be able to ask questions that will rehabilitate the 

panel member). 

c. As James McElhaney states, “A sermonette and long strings of questions will not change how anybody 

feels about basic issues. Even if they seem to go along with you, they will not reject their personal opinions. 

They will keep their personal opinions and reject you.” James McElhaney, Making Limited Time for Voir 

Dire Count, A.B.A. J., Dec. 1998, at 66. 

d. We need to find a way to get them to be aware of their underlying beliefs so that they will not act on 

them. To do this, you want them to describe the 800-pound gorilla in the room (the belief they would 

otherwise use to solve the problem). And then you want to kill the gorilla. 

e. Kill the gorilla. Don’t challenge the panel member. 

f. You want them to gain insight on how the natural way that they might have solved the problem contains 

error. (For a good discussion of the neurological reasons why you explore these beliefs with the panel 

members, read Jonah Lehrer’s book, How We Decide). 

g. For the defense counsel, there are several places in the law where the law runs counter to our intuitive 

problem-solving processes. 

(1) For example, if the accused does not testify, we all draw negative inferences from that (he must have 

something to hide; if I were falsely accused, I would testify to set the record straight, so so should he – he 

isn’t, so therefore he is guilty). Because normal people draw an inference that runs counter to 

constitutional protections (here, the right not to testify), the law says, “Don’t do that.” 

(2) Same for the prohibition against drawing a negative inference if the defense does not put on a case (if 

evidence that said he didn’t do it were available, of course he would put it on – so it must not exist), or for 

the inference that just because the person is sitting at that table, they must have done something wrong (he 

has been through transmittals from commanders, an Art. 32, and the CG referral – all those people think 

he did something wrong, or else he would not be sitting at this table). Those last two instances implicate 

the presumption of innocence, and it turns out that 60-80% of jurors presume guilt. 

h. h) from the judge that tells them not to use those generalizations does not mean that they will not use 

those lifelong-held generalizations to solve the problem. It just means that they will not talk out loud about 

their use of those generalizations. 

i. How to kill the gorilla. 

(1) In group voir dire, ask this simple question: “What is the first thing that comes to your mind when 

you hear that the accused will not testify?” Wait a few moments. There may be some silence. Eventually, 

someone will say, “He is guilty.” Now, don’t rush to challenge that person. Instead, say, “Thank you, 

SFC Jones.” And then ask, “Did anyone else think that?” Then say, “Thank you, [Names].” Then, have 

them describe the elephant. Ask, “Okay, MAJ Smith, why do you think that?” Continue asking questions 

until the 800-pound gorilla is fully described. 

(2) Do not be judgmental with the answers. Instead, validate them. Say, “Thank you, MAJ Smith, I see 

your point” or variations on that. 

(3) Then, ask, “Okay, why would someone who is innocent not take the stand?” Again, wait a few 

moments. There may be some silence. But then somebody will start finding the swords: “He might not be 

a good public speaker;” “His attorney might have told him not to;” “He have has some embarrassing 

skeletons in his closet;” “He might be afraid that a trained federal prosecutor will twist his words;” “He 

might be really nervous, particularly when this much is at stake.” (If no one comes up with a reason after 

several moments have gone by, then toss them a sword to get them talking.) 

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(4) The key is to have them list all of the reasons that no one ever wants to testify. Then ask, “Does 

everyone now see why the military judge told you not to hold it against SGT Adams if he doesn’t testify? 

Please raise your hand if you can see that. Everyone raised their hand. Thank you.” 

(5) For the presumption of innocence, you might ask, “What is the first thing you think when you see that 

the government has gone through all this trouble to bring the accused to trial?” The answer will probably 

be, “He did something wrong.” Then you respond with, “Why could it be that innocent people are brought 

in to court?” Let them grab some swords. (“He was framed.” “He was the best of several suspects.” “He 

was in the wrong place at the wrong time.” “Someone misidentified him.”) If they can’t find any, ask 

them, “Well, have any of you ever been accused of doing something you didn’t do? Either recently, or 

even as a kid?” Have them describe the situations. Then ask, “Now, does everyone see the reason why we 

have this presumption of innocence? Please raise your hand if you see that. Everyone raised their hand. 

Thank you.” 

(6) You killed the gorilla. Now, the panel members are much less likely to rely on the life-long held 

generalizations that work against your client. Note, you didn’t try to challenge anyone. 

5. Again, you need to have a good reason for doing group spoken voir dire. If you do not have a good reason for 

doing it, don’t do it. You only need to do this when the bias might exist in your case. If your client is going to 

testify or put on evidence, then you don’t need to explore those system biases. Only have them describe the 800­

pound gorillas that need killing. 

6. For the trial counsel prosecuting an acquaintance sex assault case where the victim has behaved in ways prior 

to the assault that are outside of traditional sex-role expectations, you will run into two beliefs that will hurt your 

case, both of which shift blame to the victim: first, she asked for it, and second, she assumed the risk that this 

would happen. 

a. If slightly more than one-third of your panel members has one of these beliefs (and research shows that 

these are commonly-held beliefs) and you don’t deal with these beliefs, then you may have an acquittal 

coming. 

b. If your victim did something like drink with the accused ahead of time and then consensually engaged in 

kissing or oral sex, but then claims that the accused forced sexual intercourse on her, then some panel 

members might think that she asked for it. Essentially, she shares culpability for what happened next. If she 

had not done all of those things, then this guy would not have lost control of his libido. 

c. You can counter that by asking, “Are there circumstances where a woman can get a man so worked up 

that, even if she says no later, it is too late to say no?” Wait. Someone may raise their hand. Ask why they 

think that way. Have them describe the 800-pound gorilla and see if other people agree, using the same 

technique as above. 

d. Then, give them a sword. Ask them, “Okay, well, if someone comes up to you and asks to borrow $50, 

and you say, ‘I won’t loan you $50, but I will loan you $25,’ can that person then go ahead and take the other 

$25? Who thinks no? Everybody raised their hands.” 

e. If your victim placed herself in a risky situation, particularly by her own voluntary drinking, then you 

need to address this assumption of risk. You might first ask, “If a woman does X, Y, and Z, do you think she 

assumes some risk in what might happen to her?” Wait. You will probably get several people who agree. Ask 

why they think that way. Describe the 800-pound gorilla. 

f. The next step is to see if they think that because she assumed some risk, the offender might be less 

culpable. Ask, “Well, if someone gets really drunk and stumbles out of a bar, they have placed themselves at 

risk of getting mugged. If someone does mug them, do we let the mugger go because the victim was drunk?” 

Or you might ask, “If a well-dressed business man goes to a ATM late at night in a crime-ridden part of town 

and gets mugged, do we let the mugger go because the victim was in dangerous situation? 

7. The bottom line is: describe those generalizations (describe the 800-pound gorilla) and then have the panel 

members find reasons why those generalizations are dangerous (have them find some swords); then, have them 

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Voir Dire & Challenges 

kill the gorilla. Again, you need to have a good reason for doing group spoken voir dire. If you do not have a good 

reason for doing it, don’t do it. 

C. Rapport and Persuasion 

1. The third and fourth goals of voir dire, rapport and persuasion, are really byproducts of what you have 

accomplished in written and spoken voir dire. You have established rapport with the panel by not wasting their 

time; by asking questions that matter; and by showing them that you are prepared. Don’t ask test-like questions. 

Show an interest in what they are saying. Don’t ask judgmental questions, and don’t judge their answers. Validate 

all of their responses. 

2. And by addressing the biases and beliefs that run counter to your case, you have made them more open to the 

case you are about to present. 

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CHAPTER 19
 

SENTENCING & CREDIT
 

I. Overview 

II. The Government’s Case 

III. The Defense Case 

IV. The Victim’s Statement 

V. Punishments 

VI. Instructions 

VII. Sentencing Credit 

VIII. Deliberations 

IX. Announcement of Sentence 

X. Impeachment of Sentence 

XI. Reconsideration of Sentence 

I. OVERVIEW R.C.M. 1001(A)(1). 

A. Matters to be presented by the government. R.C.M. 1001(b). Counsel may present: 

1. Service data relating to the accused from the charge sheet. 

2. Personnel records reflecting the character of the accused’s prior service. 

3. Prior convictions. 

4. Circumstances directly relating to or resulting from the offense(s). 

5. Opinion evidence regarding past duty performance and rehabilitative potential. 

B. Victim impact statement. R.C.M. 1001A 

C. Defense counsel presents the case in extenuation and mitigation. R.C.M. 1001(c). 

D. Rebuttal and surrebuttal. R.C.M. 1001(d). 

E. Additional matters. R.C.M. 1001(f). 

F. Arguments. R.C.M. 1001(g). 

G. Rebuttal argument at MJ’s discretion. R.C.M. 1001(a)(1)(F). 

II. THE GOVERNMENT’S CASE R.C.M. 1001(B). 

A. Service data relating to the accused taken from the charge sheet. R.C.M. 1001(b)(1). 

1. Name, rank and unit or organization. 

2. Pay per month. 

3. Current service (initial date and term). 

4. Nature of restraint and date imposed. 

5. Note: Personal data is ALWAYS subject to change and should be verified PRIOR to trial 

and announcement by counsel in open court. Consider promotions, reductions, time-in-grade pay 

raises, calendar year pay changes, pretrial restraint, etc. 

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B. Personnel records reflecting character of prior service. R.C.M. 1001(b)(2). 

1. “Under regulations of the Secretary concerned, trial counsel may obtain and introduce from 

the personnel records of the accused evidence of . . . character of prior service” (emphasis added). 

These records may include personnel records contained in the Official Military Personnel File 

(OMPF) or located elsewhere, unless prohibited by law or other regulation. Army Regulation 

(AR) 27-10, para. 5-29a implements RCM 1001(b)(2). 

2. AR 27-10, para. 5-29a illustrates, in a non-exclusive manner, those items qualifying for 

admissibility under RCM 1001(b)(2) and (d). 

3. Personnel records are NOT limited to matters contained in a service member’s Military 

Personnel Records Jacket (MPRJ), OMPF or Career Management Information File (CMIF). AR 

27-10, para. 5-29a. The key is whether the record is maintained IAW applicable departmental 

regulations. 

a) United States v. Fontenot, 29 M.J. 244 (C.M.A. 1989). Handwritten statements attached 

to appellant’s DD Form 508s (Report of/or Recommendation for Disciplinary Action) made 

during the appellant’s pretrial confinement not admissible under RCM 1001(b)(2). The 

miscellaneous pieces of paper that accompanied the DD 508s were not provided for in the 

applicable departmental regulation, AR 190-47. The Court of Military Appeals (CMA) did 

not decide whether the DD 508s themselves were admissible. Id. at 248 n.2. 

b) United States v. Ariail, 48 M.J. 285 (1998). National Agency Questionnaire, DD Form 

398-2, completed by accused and showing history of traffic offenses, was admissible under 

RCM 1001(b)(2), where it did not meet admission criteria under RCM 1001(b)(3) [prior 

conviction]. 

c) United States v. Douglas, III, 57 M.J. 270 (2002). A stipulation of fact from a prior courtmartial as evidence of a prior conviction was properly admissible under RCM 1001(b)(2) not 

RCM 1001(b)(3) as part of a personnel record. 

d) United States v. Lane, 48 M.J. 851 (A.F. Ct. Crim. App. 1998). AF Form 2098 

(reflecting the current AWOL status of the accused who was tried in absentia) was admissible 

pursuant to RCM 1001(b)(2). 

e) United States v. Reyes, 63 M.J. 265 (2006). During the sentencing phase, the trial 

counsel offered into evidence Prosecution Exhibit (PE) 6, which was represented to be 

“excerpts” from Reyes’s Service Record Book. Apparently, neither the defense counsel nor 

the military judge checked PE 6 to make sure it was free of any defects, as it was admitted 

without objection. There were a variety of unrelated documents “[t]ucked between the actual 

excerpts” from the Service Record Book. Such documents included the entire military police 

investigation, the pretrial advice from the SJA, inadmissible photographs, and appellant’s 

pretrial offer to plead guilty to charges on which the members had just acquitted appellant. 

The sentence was set aside and a rehearing authorized. 

4. Article 15s (formal). 

a) Ordinarily, to be admissible in sentencing, the proponent must show the accused had 

opportunity to consult with counsel and that accused waived the right to demand trial by 

court-martial. Absent objection by defense counsel, however, Military Rule of Evidence 

(MRE) 103 does not require the military judge to affirmatively determine whether an accused 

had an opportunity to consult with counsel and that the accused waived the right to demand 

trial by court-martial before admitting a record of nonjudicial punishment (NJP) (an 

accused’s “Booker” rights). See United States v. Kahmann, 59 M.J. 309 (2004). 

b) United States v. Rimmer, 39 M.J. 1083 (A.C.M.R. 1994) (per curiam). Exhibit of 

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previous misconduct containing deficiencies on its face is not qualified for admission into 

evidence. Record of NJP lacked any indication of accused’s election concerning appeal of 

punishment, and imposing officer failed to check whether he conducted an open or closed 

hearing. 

5. Letters of Reprimand. 

a) United States v. Zakaria, 38 M.J. 280 (C.M.A. 1993). Applying MRE 403, the court held 

that the MJ erred in admitting LOR given the accused for sexual misconduct with his teenage 

stepdaughter and other teenage girls where accused was convicted of larceny of property of a 

value less than $100.00. “[The reprimand’s] probative value as to his military character was 

significantly reduced because of its obvious reliability problems. In addition, it is difficult to 

imagine more damaging sentencing evidence to a soon-to-be sentenced thief than also 

brandishing him a sexual deviant or molester of teenage girls.” Id. at 283. 

b) United States v. Clemente, 50 M.J. 36 (1999). Two letters of reprimand in accused’s 

personnel file properly admitted pursuant to RCM 1001(b)(2), even though letters were for 

conduct dissimilar to charged offenses. The CAAF noted there was no defense challenge to 

the accuracy, completeness or proper maintenance of the letters, and the evidence directly 

rebutted defense evidence. The court applied an abuse of discretion standard and held that the 

LORs were personnel records that did reflect past behavior and performance, and MRE 403 

was not abused. 

6. Caveats. 

a) No “rule of completeness.” Trial counsel cannot be compelled to present favorable 

portions of personnel records if unfavorable portions have been introduced in aggravation. 

See analysis to RCM 1001(b)(2). 

b) RCM 1001(b)(2) cannot be used as a “backdoor means” of admitting otherwise 

inadmissible evidence. United States v. Delaney, 27 M.J. 501 (A.C.M.R. 1988) (observing 

that government cannot use enlistment document (e.g., enlistment contract) to back door 

inadmissible prior arrests; cannot then use police report to rebut accused’s attempted 

explanations of arrests). Compare with Ariail, 48 M.J. 285 (1998) (holding that information 

on NAQ that had information on prior convictions was admissible under RCM 1001(b)(2)). 

c) United States v. Vasquez, 54 M.J. 303 (2001). Plea-bargaining statements are not 

admissible (MRE 410) even if those statements relate to offenses that are not pending before 

the court-martial at which they are offered. It was error for the judge to admit into evidence a 

request for an administrative discharge in lieu of trial by court-martial. See also United States 

v. Anderson, 55 M.J. 182 (2001). 

7. Defects in documentary evidence. 

a) United States v. Donohue, 30 M.J. 734 (A.F.C.M.R. 1990). Government introduced 

document that did not comply with AF Reg. requiring evidence on the document or attached 

thereto that accused received a copy and had an opportunity to respond. ISSUE: May 

Government cure the defect with testimony that accused did receive a copy and was offered 

an opportunity to respond? “The short answer is no.” Why – because the applicable AF Reg. 

required evidence on the document itself. Absent a specific regulatory requirement such as 

that in Donahue, live testimony could cure a documentary/procedural defect. See also, United 

States v. Kahmann, 58 M.J. 667 (N-M. Ct. Crim. App. 2003), aff’d, 59 M.J. 309 (2004) 

supra. 

b) MJ must apply MRE 403 to RCM 1001(b)(2) evidence. See United States v. Zengel, 32 

M.J. 642 (C.G.C.M.R. 1991) (suppressing a prior “arrest” that was documented in the 

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accused’s personnel records). See also United States v. Stone, 37 M.J. 558 (A.C.M.R. 1993); 

and United States v. Zakaria, 38 M.J. 280 (C.M.A. 1993). 

C. Prior Convictions - Civilian & Military. RCM 1001(b)(3). 

1. There is a “conviction” in a court-martial case when a sentence has been adjudged. RCM 

1001(b)(3)(A). “In a civilian case, a ‘conviction’ includes any disposition following an initial 

judicial determination or assumption of guilt, such as when guilt has been established by guilty 

plea, trial, or plea of nolo contendere, regardless of the subsequent disposition, sentencing 

procedure, or final judgment. However, a ‘civilian conviction’ does not include a diversion from 

the judicial process without a finding or admission of guilt; expunged convictions; juvenile 

adjudications; minor traffic violations; foreign convictions; tribal court convictions; or 

convictions reversed, vacated, invalidated or pardoned because of errors of law or because of 

subsequently discovered evidence exonerating the accused.” 

a) United States v. Caniete, 28 M.J. 426 (C.M.A. 1989). Convictions obtained between date 

of offense for which accused was on trial and date of trial were “prior convictions” per RCM 

1001(b)(3)(A). 

b) Juvenile adjudications are not convictions within the meaning of RCM 1001(b)(3) and 

are therefore inadmissible in aggravation. United States v. Slovacek, 24 M.J. 140 (C.M.A. 

1987). 

2. Use of prior conviction. 

a) United States v. Tillar, 48 M.J. 541 (A.F. Ct. Crim. App. 1998). At sentencing, trial 

counsel offered evidence of 18-year-old special court-martial conviction for larceny of 

property of value less than $100.00. MJ allowed evidence, but instructed panel not to increase 

sentence solely on basis of prior conviction. The Air Force Court upheld admission of the 

conviction, noting only time limitation is whether such evidence is unfairly prejudicial (MRE 

403). 

b) As with all evidence at trial, the military judge must apply the MRE 403 balancing test. 

United States v. Glover, 53 M.J. 366 (2000). 

c) United States v. Cantrell, 44 M.J. 711 (A.F. Ct. Crim. App. 1996). “The proper use of a 

prior conviction . . . is limited to the basic sentencing equation. Evidence is admissible in 

sentencing either because it shows the nature and effects of the crime(s) or it illumines the 

background and character of the offender.” Id. at 714. 

d) “MCM provides only for consideration of prior convictions, and not of any prior criminal 

record in sentencing.” United States v. Delaney, 27 M.J. 501 (A.C.M.R. 1988). 

3. Pendency of appeal. RCM 1001(b)(3)(B). 

a) Conviction is still admissible. 

b) Pendency of appeal is admissible as a matter of weight to be accorded the conviction. 

c) Conviction by summary court-martial or special court-martial without a military judge is 

not admissible until review under UCMJ Article 64 or 66 is complete. 

4. Authentication under Section IX of MRE required. 

5. Methods of proof. 

a) DA Form 2-2 (Insert Sheet to DA Form 2-1, Record of Court Martial Convictions). 

b) DD Form 493 (Extract of Military Records of Previous Convictions). 

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c) Promulgating order (an order is not required for a SCM (RCM 1114(a)(3))). 

d) Record of trial. DD Form 490 (Record of Trial) or 491 (Summarized Record of Trial) for 

special and general courts-martial and DD Form 2329 for SCM. 

e) Arraignment calendar. 

f) State agency records. United States v. Eady, 35 M.J. 15 (C.M.A. 1992). Proof of 

conviction in form of letter from police department and by indictment and offer to plead 

guilty not prohibited under the MRE. But see, United States v. Mahaney, 33 M.J. 846 

(A.C.M.R. 1991). Civilian conviction is not self-authenticating because not under seal. 

g) Use of personnel records of the accused. United States v. Barnes, 33 M.J. 468 (C.M.A. 

1992). Government may use Department of Defense Form 1966/3 to prove accused’s prior 

conviction IAW: 

- MRE 803(6), records of regularly conducted activity; or 

- MRE 801(d)(2), admission by party opponent. 

6. Other considerations 

a) So long as only relevant portions are used and the probative value outweighs the 

prejudicial effect. United States v. Wright, 20 M.J. 518 (A.C.M.R. 1985). 

b) United States v. Kelly, 45 M.J. 259 (1996) (improper for court-martial to consider SCM 

conviction on sentencing when there was no evidence accused was ever advised of the right 

to consult with counsel, or to be represented by counsel at his SCM). 

D. Aggravation Evidence. RCM 1001(b)(4). A military judge has broad discretion in determining 

whether to admit evidence under 1001(b)(4). United States v. Rust, 41 M.J. 472, 478 (1995); United 

States v. Wilson, 47 M.J. 152, 155 (1997); United States v. Gogas, 58 M.J. 96 (2003). 

1. “. . . [E]vidence as to any aggravating circumstances directly relating to or resulting from the 

offenses of which the accused has been found guilty” (emphasis added). See United States v. 

Hardison, 64 M.J. 279 (2007) 

2. Three components – “Evidence in aggravation includes, but is not limited to”: 

a) Victim-Impact: “[E]vidence of financial, social, psychological, and medical impact on or 

cost to any person or entity who was the victim of the offense committed by the accused.” 

b) Mission-Impact: “[E]vidence of significant adverse impact on the mission, discipline, or 

efficiency of the command directly and immediately resulting from the accused’s offense.” 

c) Hate-Crime Evidence: “[E]vidence that the accused intentionally selected any victim or 

any property as the object of the offense because of the actual or perceived race, color, 

religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.” 

3. United States v. Nourse, 55 M.J. 229 (C.A.A.F. 2001). The CAAF held that it was 

permissible to admit evidence of other uncharged larcenies of property from the same victim by 

the accused because such evidence “directly related to the charged offenses as part of a 

continuing scheme to steal from the . . . [victim].” This evidence showed the “full impact of 

appellant’s crimes” upon the victim. See also United States v. Shupe, 36 M.J. 431 (C.M.A. 1993); 

United States v. Mullens, 29 M.J. 398 (C.M.A. 1990). 

4. United States v. Patterson, 54 M.J. 74 (C.A.A.F. 2000). Testimony by government expert 

regarding patterns of pedophiles, to include “grooming” of victims, admissible even though 

expert did not expressly testify the accused was a pedophile. Compare with United States v. 

McElhaney, 54 M.J. 120 (2000) (holding that the military judge erred when he allowed a child 

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psychiatrist to testify about future dangerousness). 

5. United States v. Sittingbear, 54 M.J. 737 (N-M. Ct. Crim. App. 2001). Victim’s testimony 

that she sustained a rectal tear during a rape is admissible even where a sodomy charge had been 

withdrawn and dismissed. 

6. United States v. Alis, 47 M.J. 817 (A.F. Ct. Crim. App. 1998). Accused’s awareness of 

magnitude of crime, and remorseless attitude toward offenses, is admissible in sentencing. 

7. United States v. Wilson, 47 M.J. 152 (1997). Accused convicted of disrespect for commenting 

to another party that, “Captain Power, that f_____g b____h is out to get me.” Officer testified at 

sentencing to “concern” statement caused her. The CAAF held that the testimony was properly 

admissible. 

8. United States v. Zimmerman, 43 M.J. 782 (Army Ct. Crim. App. 1996). Evidence that accused 

was motivated by white supremacist views when he wrongfully disposed of military munitions to 

what he believed was a white supremacist group constituted aggravating circumstances directly 

related to the offense. 

9. United States v. Gargaro, 45 M.J. 99 (1996). Evidence that civilian drug dealer triggered the 

investigation when he was arrested with an AK-47 that he said he obtained from a Fort Bragg 

soldier showed the extent of the conspiracy and the responsibility of the accused’s commander. 

Any unfair prejudice stemming from the fact that the weapon was found in the hands of a drug 

dealer was outweighed by the probative value showing the facts and circumstances surrounding 

the investigation of the charged offenses. 

10. United States v. Hollingsworth, 44 M.J. 688 (C.G. Ct. Crim. App. 1996). Testimony of child 

victim to offense which was the basis of a withdrawn specification admissible when it showed 

extent of scheme with evidence of other transactions. Also, testimony of expert child psychologist 

that sexual abuse victim’s recovery was affected or hindered by the pendency of legal 

proceedings admissible where defense raised factors affecting a victim’s recovery rate and 

expert’s testimony provided a “more complete” explanation of the victim’s prognosis. 

11. United States v. Scott, 42 M.J. 457 (1995). Initial findings to involuntary manslaughter and 

assault with a dangerous weapon set aside (accused fired into a crowd). On appeal, the charge that 

remained was carrying a concealed weapon. Evidence of death and injuries showed 

circumstances “directly related to or resulting from” the accused’s carrying of a concealed 

weapon. 

12. United States v. Terlep, 57 M.J. 344 (2002). Appellant, initially charged with burglary and 

rape, plead to unlawful entry and assault. On sentencing, victim testified she awoke from what 

she thought was a “sex dream” only to discover the appellant on top of her. She testified, in part, 

that “when I told him to get off of me, he had to take his private part out of me and get off. . . .” 

She also testified “He admitted—he said what he had done. He said, ‘I raped you.’” The CAAF 

found that the victim’s testimony did not constitute error. The court noted that although the 

appellant entered into a pretrial agreement to lesser offenses, the victim could testify to “her 

complete version of the truth, as she saw it” limited only by the terms of the pretrial agreement 

and stipulation of fact. Neither the pretrial agreement nor the stipulation of fact limited the 

evidence the government could present on sentencing. The court noted that “absent an express 

provision in the pretrial agreement or some applicable rule of evidence or procedure barring such 

evidence, this important victim impact evidence was properly admitted.” RCM 1001(b)(4) 

provides for “accuracy in the sentencing process by permitting the judge to fully appreciate the 

true plight of the victim in each case.” 

13. United States v. Marchand, 56 M.J. 630 (C.G. Ct. Crim. App. 2001). Expert testimony 

describing impact of child pornography upon minors depicted in images admissible 

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notwithstanding that expert did not establish that the particular victims in the images viewed by 

accused actually suffered any adverse impact, only that there was an increased risk to sexually 

abused minors generally of developing complications from abuse. 

14. United States v. Smith, 56 M.J. 653 (Army Ct. Crim. App. 2001). Unwarned testimony by 

appellant to U.S.D.B. Custody Reclassification Board where appellant said “‘it’s an inmates duty 

to try and escape, especially long-termers” and that he is “‘an escape risk and always will be’” 

admissible on aggravation. 

15. United States v. Gogas, 58 M.J. 96 (2003). Letter from accused to his Congressman 

complaining about being prosecuted for LSD use admissible under 1001(b)(4) as directly related 

to the offense of drug use. The letter highlighted the appellant’s “indifference to anything other 

than his own pleasure.” The court did not rule on whether the evidence was also admissible on the 

issue of rehabilitative potential. 

16. United States v. Dezotell, 58 M.J. 517 (N-M. Ct. Crim. App. 2003). Witness’ testimony that 

appellant’s unauthorized absence and missing movement adversely affected ship’s mission and 

efficiency during a period of heightened responsibilities proper testimony despite the fact that the 

appellant, at the time, was not working for the witness and the witness’ testimony was not subject 

“to precise measurement or quantification.” All that is required is a “direct logical connection or 

relation between the offense and the evidence offered.” 

17. United States v. Powell, 45 M.J. 637 (N.M. Ct. Crim. App. 1997), aff’d, 49 M.J. 360 (1998). 

Uncharged misconduct that accused lost government property, was financially irresponsible, and 

passed worthless checks was not directly related to offenses of which convicted - i.e., failure to 

report to work on time and travel and housing allowance fraud - and therefore not admissible at 

sentencing under RCM 1001(b)(4). The court also noted that “MRE 404(b) does not determine 

the admissibility of evidence of uncharged misconduct during sentencing . . . admissibility of 

such evidence is determined solely by RCM 1001(b)(4) . . . .” Id. at 640. 

18. United States v. Rust, 41 M.J. 472 (1995). Prejudicial error to admit suicide note in 

aggravation phase of physician’s trial for dereliction of duty and false official statement. The 

murder-suicide was too attenuated even if the government could establish link between accused’s 

conduct and murder-suicide, and clearly failed MRE 403’s balancing test. 

19. United States v. Davis, 39 M.J. 281 (C.M.A. 1994). Victim’s testimony as to how he would 

feel if the accused received no punishment not admissible as evidence of impact evidence under 

RCM 1001(b)(4) or as evidence regarding accused’s rehabilitative potential under RCM 

1001(b)(5). 

20. United States v. Hardison, 64 M.J. 279 (2007). The military judge committed plain error in 

admitting evidence of Appellant’s pre-service drug use and a service waiver for that drug use. 

Admissible evidence in aggravation must be “directly related” to the convicted crime. 

E. Opinion evidence regarding past duty performance and rehabilitative potential. RCM 

1001(b)(5). 

1. What does “rehabilitative potential” mean? 

a) The term “rehabilitative potential” means potential to be restored to “a useful and 

constructive place in society.” RCM 1001(b)(5). 

b) United States v. Williams, 41 M.J. 134 (C.M.A. 1994). Psychiatric expert’s prediction of 

future dangerousness was proper matter for consideration in sentencing under rule providing 

for admission of evidence of accused’s potential for rehabilitation under RCM 1001(b)(5). 

2. Foundation for opinion testimony. RCM 1001(b)(5)(B). 

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a) The witness must possess sufficient information and knowledge about the accused’s 

“character, performance of duty, moral fiber, determination to be rehabilitated, and nature 

and severity of the offenses” in order to offer a “helpful,” rationally based opinion. RCM 

1001(b)(5)(B), codifying United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989). 

b) United States v. Powell, 49 M.J. 460 (1998). In laying a foundation for opinion evidence 

of an accused’s rehabilitative potential, a witness may not refer to specific acts. 

c) Quality of the opinion depends on the foundation. United States v. Boughton, 16 M.J. 649 

(A.F.C.M.R. 1983). Opinions expressed should be based on personal observation, but may 

also be based on reports and other information provided by subordinates. 

3. Basis for opinion testimony RCM 1001(b)(5)(C). 

Opinion evidence of rehabilitative potential may not be based solely on the severity of the 

offense; must be based upon relevant information and knowledge possessed by the witness of 

the accused’s personal circumstances. RCM 1001(b)(5)(C); United States v. Horner, 22 M.J. 

294 (C.M.A. 1986). 

4. Proper scope of opinion testimony RCM 1001(b)(5)(D). 

a) The scope “is limited to whether the accused has rehabilitative potential and to the 

magnitude or quality of any such potential. A witness may not offer an opinion regarding the 

appropriateness of a punitive discharge or whether the accused should be returned to the 

accused’s unit.” RCM 1001(b)(5)(D). 

b) It is improper for a witness to use a euphemism for a punitive discharge in commenting 

on an accused’s rehabilitative potential. United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989). 

United States v. Warner, 59 M.J. 590 (C.G. Ct. Crim. App. 2003). On cross-examination of 

appellant’s supervisor (whom the defense called to establish that the appellant had 

rehabilitation potential), the government asked the witness about the appellant’s rehabilitative 

potential “in the Coast Guard, given his drug abuse.” The government’s questions were 

improper because they linked the witness’ opinion on rehabilitative potential with award of a 

punitive discharge. 

c) The same rules do not apply to the defense. 

United States v. Griggs, 61 M.J. 402 (2005). Appellant tried and convicted of various drugrelated offenses. On sentencing, the DC offered six letters with opinions on to appellant’s 

rehabilitative potential in the Air Force rather than as a productive member of society. The 

TC objected on the grounds that the statements were recommendations for retention and 

would confuse the members. The military judge ordered the disputed language redacted. The 

AFCCA held that the MJ did not abuse his discretion by ordering the redaction and, even if 

he did, the error was harmless (i.e., there was no prejudice to the appellant). The court cited 

confusion in this area of law as to whether such evidence is proper from the accused as a 

basis for its conclusion. The court also noted that the DC conceded that RCM 1001(b)(5) 

applied to the defense letters. CAAF granted review and concluded “the better view is that 

R.C.M. 1001(b)(5)(D) does not apply to defense mitigation evidence, and specifically does 

not preclude evidence that a witness would willingly serve with the accused again.” 

However, CAAF further restated, as in Aurich, “if an accused ‘opens the door’ by bringing 

witnesses before the court to testify that they want him or her backing the unit, the 

Government is permitted to prove that that is not a consensus view of the command.” 31 

M.J. at 96-97. 

d) Specific acts? R.C.M. 1001(b)(5)(E) and (F). 

On direct, government may not introduce specific acts of uncharged misconduct that form the 

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basis of the opinion. See United States v. Rhoads, 32 M.J. 114 (C.M.A. 1991). 

If the defense opens the door during cross-examination, on redirect the trial counsel should 

also be able to address specific incidents of conduct. United States v. Clarke, 29 M.J. 582 

(A.F.C.M.R. 1989). See also United States v. Gregory, 31 M.J. 236 (C.M.A. 1990) (RCM 

1001(b)(5) witness cannot testify about specific instance of misconduct as basis for opinion 

until cross-examined on specific good acts). 

e) Future Dangerousness. 

United States v. Williams, 41 M.J. 134 (C.M.A. 1994). Psychiatric expert’s prediction of 

future dangerousness was proper matter for consideration in sentencing under rule providing 

for admission of evidence of accused’s potential for rehabilitation under RCM 1001(b)(5). 

Rebuttal Witnesses. United States v. Pompey, 33 M.J. 266 (C.M.A. 1991). The Ohrt/Horner 

rules apply to government rebuttal witnesses to keep unlawful command influence out of the 

sentencing proceedings (a rational basis for expressing opinion is still required). But see 

United States v. Aurich, 32 M.J. 95 (C.M.A. 1990) (observing that where defense witnesses 

testify they want accused back in unit, the government may prove that that is not a consensus 

of the command). 

Absence of rehabilitative potential is a factor for consideration in determining a proper 

sentence; that absence is NOT a matter in aggravation. United States v. Loving, 41 M.J. 213 

(C.M.A. 1994), aff’d, 517 U.S. 748 (1996). MJ’s characterization of accused’s disciplinary 

record and his company commander’s testimony about accused’s duty performance as 

aggravating circumstances was error since lack of rehabilitative potential is not an 

aggravating circumstance. 

F. Matters admitted into evidence during findings. RCM 1001(f). 

1. RCM 1001(f)(2). The court-martial may consider any evidence properly introduced on the 

merits before findings, including evidence of other offenses or acts of misconduct even if 

introduced for a limited purpose. 

2. Statements from providence inquiry. 

a) United States v. Figura, 44 M.J. 308 (1996). There is no demonstrative right way to 

introduce evidence from the providence inquiry, but MJ should permit parties to choose 

method of presentation. How to do it: authenticated copy of trial transcript, witness, tapes. 

See United States v. Irwin, 42 M.J. 479 (1995). Admissibility of various portions of 

providence inquiry should be analyzed in same manner as any other piece of evidence offered 

by the government under RCM 1001. 

b) United States v. English, 37 M.J. 1107 (N.M.C.M.R. 1993). MJ does not have authority 

to consider statements of accused made during providence inquiry, absent offering of 

statements, and defense opportunity to object to consideration of any or all of providence 

inquiry. 

G. “Aggravation evidence” in stipulations of fact. 

1. United States v. Glazier, 26 M.J. 268 (C.M.A. 1988). Inadmissible evidence may be 

stipulated to (subject to RCM 811(b) “interests of justice” and no government overreaching). 

Stipulation should be unequivocal that all parties agree stipulation is “admissible.” 

2. United States v. DeYoung, 29 M.J. 78 (C.M.A. 1989). Military judge must affirmatively rule 

on defense objections, even if the stipulation states that the contents are admissible. Parties 

cannot usurp the MJ’s role. 

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3. United States v. Vargas, 29 M.J. 968 (A.C.M.R. 1990). The stipulated facts constitute 

uncharged misconduct not closely related to the facts alleged; therefore, they were “generally” 

inadmissible. BUT, the accused agreed to permit their use in return for favorable sentence limits, 

and there was no evidence of government overreaching. 

H. Three-step process for analyzing sentencing matter presented by the prosecution per RCM 

1001(b): 

1. Does the evidence fit one of the enumerated categories of RCM 1001(b)? Evidence 

inadmissible under one theory (e.g., prior conviction under 1001(b)(4)) may be admissible under 

another theory (e.g., personnel record under 1001(b)(2)). See e.g., United States v. Ariail, 48 M.J. 

285 (1998); United States v. Douglas, 57 M.J. 270 (2002); United States v. Gogas, 58 M.J. 96 

(2003). 

2. Is the evidence in an admissible form? United States v. Bolden, 34 M.J. 728 (N.M.C.M.R. 

1991). 

3. Is the probative value substantially outweighed by the danger of unfair prejudice, confusion 

of the issues, or misleading the members, or by considerations of undue delay, waste of time, or 

needless presentation of cumulative evidence? MRE 403. See United States v. Zengel, 32 M.J. 

642 (C.G.C.M.R. 1991); United States v. Martin, 20 M.J. 227 (C.M.A. 1985). 

III. THE DEFENSE CASE. RCM 1001(C). 

A. Matters in extenuation. RCM 1001(c)(1)(A). Explains circumstances surrounding commission of 

the offense, including those reasons that do not constitute a legal justification or excuse. 

B. Matters in mitigation. RCM 1001(c)(1)(B). 

1. Personal factors concerning the accused introduced to lessen the punishment; e.g., evidence 

of the accused’s reputation or record in the service for efficiency, fidelity, temperance, courage, 

etc. 

2. United States v. Demerse, 37 M.J. 488 (C.M.A. 1993). Counsel should pay particular 

attention to awards and decorations based on combat service. 

3. United States v. Bray, 49 M.J. 300 (1998). Proper mitigation evidence under RCM 1001(c) 

included the possibility that the accused suffered a psychotic reaction as a result of insecticide 

poisoning. Such evidence might lessen the adjudged sentence, and is therefore relevant. 

4. Retirement benefits. 

a) United States v. Washington, 55 M.J. 441 (2001). At time of trial, accused was a senior 

airman (E-4) who could retire during her current enlistment. The military judge excluded 

defense evidence that estimated the accused’s retirement pay if she retired after twenty years 

in the pay grades of E-4 and E-3. The military judge erred by refusing to admit a summary of 

expected lost retirement of approximately $240,000.00 if accused was awarded a punitive 

discharge. 

b) United States v. Boyd, 55 M.J. 217 (2001). The military judge declined to give a 

requested defense instruction on the loss of retirement benefits that could result from a 

punitive discharge. The accused had fifteen and a half years active service. The court held 

that there was no error in this case, but stated “we will require military judges in all cases 

tried after the date of this opinion (10 July 2001) to instruct on the impact of a punitive 

discharge on retirement benefits, if there is an evidentiary predicate for the instruction and a 

party requests it.” 

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c) United States v. Greaves, 46 M.J. 133 (1997). The military judge should give some 

instructions when the panel asks for direction in important area of retirement benefits. 

C. Statement by the accused. R.C.M. 1001(c)(2). 

1. Sworn statement. RCM 1001(c)(2)(B). 

a) Subject to cross-examination by trial counsel, military judge, and members. 

b) Rebuttable by: 

- Opinion and reputation evidence of character for untruthfulness. RCM 608(a). 

- Evidence of bias, prejudice, or any motive to misrepresent. RCM 608(c). 

- Extrinsic evidence of prior inconsistent statements. RCM 613. 

2. Unsworn statement by accused. RCM 1001(c)(2)(C), not subject to cross 

a) May be oral, written, or both. 

b) May be made by accused, counsel, or both. 

c) Matters covered in unsworn statement. 

- United States v. Grill, 48 M.J. 131 (1998). The right of an accused to make a 

statement in allocution is not wholly unfettered, but must be evaluated in the context of 

statements in specific cases. It was error to sustain the government’s objection to the 

accused making any reference to his co-conspirators being treated more leniently by 

civilian jurisdictions (i.e., not prosecuted, deported, probation). “The mere fact that a 

statement in allocution might contain matter that would be inadmissible if offered as 

sworn testimony does not, by itself, provide a basis for constraining the right of 

allocution.” 

- United States v. Jeffery, 48 M.J. 229 (1998). An accused’s rights in allocution are 

broad, but not wholly unconstrained. The mere fact, however, that an unsworn statement 

might contain otherwise inadmissible evidence – e.g., the possibility of receiving an 

administrative rather than punitive discharge – does not render it inadmissible. 

- United States v. Britt, 48 M.J. 233 (1998). There are some limits on an accused’s 

right of allocution, but “comments that address options to a punitive separation from the 

service . . . are not outside the pale.” Error for the military judge to redact portion of the 

accused’s unsworn statement telling panel that commander intended to discharge him 

administratively if no punitive discharge imposed by court-martial. 

- United States v. Johnson, 62 M.J. 31 (2005). Prior to trial, Appellant took a privately 

administered polygraph examination arranged by the defense. The examiner concluded 

that appellant was not deceptive when he denied knowing that he transported marijuana. 

During the sentencing hearing he sought to refer to his “exculpatory” polygraph test 

during his unsworn statement. The military judge ruled that the test results were 

inadmissible. The CAAF found that polygraph evidence squarely implicates its own 

admonition against impeaching or relitigating the verdict on sentencing. Furthermore, 

the court was not persuaded that exculpatory polygraph information qualifies as 

extenuation, mitigation, or rebuttal under R.C.M. 1001(c). 

- United States v. Barrier, 61 M.J. 482 (2005). The military judge did not err when, 

over defense objection, he gave the “Friedmann” instruction. During appellant’s 

unsworn statement, the military judge called the panel members’ attention to the sentence 

received in an unrelated similar case. The military judge gave an instruction which 

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essentially told the panel members that that part of the accused’s unsworn statement was 

irrelevant and that they should not consider it in determining an appropriate sentence. 

d) United States v. Friedmann, 53 M.J. 800 (A.F. Ct. Crim. App. 2000), pet. denied, 54 M.J. 

425 (2001). Proper for military judge to provide sentencing instruction to clarify for the 

members comments made in the accused’s unsworn statement. 

3. The defense may not present evidence or argument that challenges or re-litigates the prior 

guilty findings of the court. United States v. Teeter, 16 M.J. 68 (C.M.A. 1983). 

4. If accused made an unsworn statement, government may only rebut statements of fact. 

a) United States v. Manns, 54 M.J. 164 (2000). “I have tried throughout my life, even 

during childhood, to stay within the laws and regulations of this country,” was held to be a 

statement of fact and could be rebutted by evidence of the accused’s admission to marijuana 

use. 

b) United States v. Willis, 43 M.J. 889 (A.F. Ct. Crim. App. 1996), aff’d, 46 M.J. 258 

(1997). Government allowed to rebut accused’s expression of remorse with inconsistent 

statements made previously by accused on psychological questionnaire and audio tape of 

telephone message to brother of victim. 

c) United States v. Cleveland, 29 M.J. 361 (C.M.A. 1990). “Although I have not been 

perfect, I feel that I have served well and would like an opportunity to remain in the service. . 

. .” The court determined that the statement was more in the nature of an opinion, 

“indeed, an argument;” therefore, not subject to rebuttal. 

d) United States v. Thomas, 36 M.J. 638 (A.C.M.R. 1992). Accused’s unsworn statement 

commented on his upbringing, pregnant girlfriend, reasons for enlisting in the Army, and the 

extenuating circumstances surrounding his offenses. The accused also apologized to the 

Army and the victim. The court held that it was improper rebuttal to have the 1SG testify that 

the accused was not truthful since character for truthfulness was not at issue. 

5. Relaxed rules of evidence. RCM 1001(c)(3). United States v. Saferite, 59 M.J. 270. The rules 

of evidence apply at sentencing, but the MJ may relax the rules of evidence upon request of 

defense counsel. A relaxation of the rules, however, goes toward whether evidence is reliable and 

authentic; otherwise inadmissible evidence is still not admitted (citing United States v. Boone, 49 

M.J. 187, 198 n.14 (1998)). See also United States v. Steward, 55 M.J. 630 (N-M. Ct. Crim. App. 

2001) (observing that relaxed rules of evidence is not limited to only documentary evidence). 

Relaxing the rules for defense also relaxes the rules to the same extent for trial counsel. 

D. Right to a “Complete Sentencing Proceeding.” United States v. Libecap, 57 M.J. 611 (C.G. Ct. 

Crim. App. 2002) [Libecap I]. On appeal, the appellant argued that a term of his pretrial agreement 

that required him to request a punitive discharge was both a violation of RCM 705 and contrary to 

public policy. The court agreed, setting aside the sentence and authorizing a rehearing on sentence. 

The court found that the provision violated RCM 705(c)(1)(B) because “as a practical matter, it 

deprived the accused of a complete sentencing proceeding.” The court also found that the provision 

was contrary to public policy. 

E. Mental Impairment. United States v. Doss, 57 M.J. 182 (2002). Noting that defense counsel was 

ineffective for failing to present “extant” psychological evidence. 

F. Rebuttal. RCM 1001(d). Government rebuttal evidence must actually “explain, repel, counteract 

or disprove the evidence introduced by the opposing party.” United States v. Wirth, 18 M.J. 214, 218 

(C.M.A. 1984). 

1. United States v. Hursey, 55 M.J. 34 (C.A.A.F. 2001). The military judge abused his discretion 

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when he admitted the testimony of NCOIC of the base Military Justice Division to testify that the 

accused was late for his court-martial as rebuttal to defense evidence of the accused’s 

dependability at work (where NCOIC unable to say whether the accused was at fault or whether 

his being late was unavoidable). Testimony had little probative value, was potentially misleading, 

and time wasting. 

2. Horner and Ohrt apply to government rebuttal witnesses. See United States v. Pompey, 32 

M.J. 547 (A.F.C.M.R. 1990). The basic foundational requirements from those cases govern 

rebuttal witnesses who are testifying about rehabilitation potential; RCM 1001(b)(5) does not 

expressly apply. United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005); United States v. Eslinger, 

70 M.J. 193 (C.A.A.F. 2011). 

3. When to allow rebuttal? United States v. Tilly, 44 M.J. 851 (N-M. Ct. Crim. App. 1996). The 

military judge began to deliberate on sentence, then granted trial counsel motion to reopen 

sentencing to allow rebuttal with newly-discovered evidence. The court found that the beginning 

of the judge’s deliberation was not a bar to reopening the taking of evidence for rebuttal. 

G. Surrebuttal. RCM 1001(d). United States v. Provost, 32 M.J. 98 (C.M.A. 1991). After 

government rebuttal to accused’s first unsworn statement, accused was entitled to make a second 

unsworn statement. But see United States v. Satterley, 55 M.J. 168 (2001). 

H. Witnesses. RCM 1001(e). 

1. Who must the government bring? 

a) United States v. Mitchell, 41 M.J. 512 (A.C.M.R. 1994). The military judge did not err by 

denying accused’s request for Chief of Chaplains as character witness. While acknowledging 

accused’s right to present material testimony, court upheld judge’s exercise of discretion in 

determining the form of presentation. Proffered government stipulation of fact detailed the 

witness’s background, strong opinions favoring the accused, and the government’s refusal to 

fund the witness’s travel. 

b) United States v. Briscoe, 56 M.J. 903 (A.F. Ct. Crim. App. 2002). The appellant alleged 

the military judge erred by not ordering the government to produce the appellant’s father as a 

sentencing witness. The court held that there was no evidence of “extraordinary 

circumstances” that required the production of a live witness; therefore, the military judge’s 

ruling, in light of the government’s offer to enter into a stipulation of fact, was not an abuse 

of discretion. 

IV. STATEMENTS BY THE VICTIM R.C.M. 1001A 

A. VICTIMS : For purposes of this rule, a “crime victim” is an individual who has suffered direct 

physical, emotional, or pecuniary harm as a result of the commission of an offense of which the 

accused was found guilty. R.C.M. 100A(b)(1). This definition touches all classes of victims and is 

not limited to sexual assault victims. 

B. Right to be reasonably heard: R.C.M. 1001A(b)(4) 

1. Capital cases. In capital cases, for purposes of this rule, the “right to be reasonably heard” 

means the right to make a sworn statement. 

2. Non-capital cases. In non-capital cases, for purposes of this rule, the “right to be reasonably 

heard” means the right to make a sworn or unsworn statement. 

C. Content R.C.M. 1001A(C) Can include victim impact or matters in mitigation 

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D. Victim may give a sworn or unsworn statement. If an unsworn, the victim shall provide a copy of 

the statement to all counsel and the military judge after the announcement of findings. R.C.M. 

1001A(e)(1). 

V. PERMISSIBLE PUNISHMENTS R.C.M. 1003. 

A. Reprimand. RCM 1003(b)(1). “A court-martial shall not specify the terms or wording of a 

reprimand. A reprimand, if approved, shall be issued, in writing, by the convening authority [CA].” 

The reprimand, when issued, is placed in the CA’s action. 

B. Forfeiture of pay and allowances. RCM 1003(b)(2). 

1. Adjudged Forfeitures. At a general court-martial (GCM), the court may adjudge forfeiture of 

ALL pay and allowances (a.k.a., “total forfeitures”). At a special court-martial (SPCM), the court 

may adjudge forfeiture of 2/3 pay only. Allowances at a special court-martial are NOT subject to 

forfeiture. 

2. United States v. Dewald, 39 M.J. 901 (A.C.M.R. 1994). Forfeitures may not exceed twothirds pay per month during periods of a sentence when an accused is not in confinement. 

Accordingly, during periods that adjudged confinement is suspended, forfeitures are limited to 

two-thirds pay per month. See RCM 1107(d)(2), discussion. 

3. Partial forfeitures. Unless total forfeitures are adjudged (i.e., forfeiture of ALL pay and 

allowances), partial forfeitures MUST be stated in whole dollar amounts for a specific number of 

months and the number of months the forfeitures will last. RCM 1003(b)(2). 

4. Forfeitures are calculated at reduced pay grade WHETHER suspended or not. United States 

v. Esposito, 57 M.J. 608 (C.G. Ct. Crim. App. 2002). See also RCM 1003(b)(2). 

5. United States v. Stewart, 62 M.J. 291 (2006). Where a sentence to forfeiture of all pay and 

allowances is adjudged, such sentence shall run until such time as the servicemember is 

discharged or returns to a duty status, whichever comes first, unless the sentencing authority 

expressly provides for partial forfeitures post-confinement. 

C. Fine. RCM 1003(b)(3). 

United States v. Tualla, 52 M.J. 228 (2000). A special court-martial is not precluded from 

imposing a sentence that includes both a fine and forfeitures as long as the combined fine and 

forfeitures do not exceed the maximum two-thirds forfeitures that can be adjudged at a special 

court-martial. (A 2002 amendment to RCM 1003(b)(3) reflects this holding.) 

D. Reduction in grade. RCM 1003(b)(4). An enlisted servicemember may be reduced to the lowest 

enlisted grade, or any intermediate grade, as part of a sentence. Any automatic reduction of UCMJ 

art. 58a is not a part of the sentence. 

E. Restriction. RCM 1003(b)(5). No more than 2 months; confinement and restriction may be 

adjudged in the same case but together may not exceed maximum authorized confinement (where 1 

month confinement equals 2 months restriction). 

F. Hard labor without confinement. RCM 1003(b)(6). No more than 3 months; confinement and 

hard labor may be adjudged in the same case but together may not exceed maximum authorized 

confinement (where 1 month confinement equals 1.5 months hard labor w/o confinement); enlisted 

members only; court-martial does not prescribe the hard labor to be performed. 

G. Confinement. RCM 1003(b)(7). 

H. Punitive Separation. RCM 1003(b)(8). 

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1. Dismissal. Applies to commissioned officers and warrant officers who have been 

commissioned. United States v. Carbo, 37 M.J. 523 (A.C.M.R. 1993). 

2.	 DD is available to non-commissioned warrant officers or enlisted. 

3.	 BCD is available only to enlisted. 

4. The 2014 National Defense Authorization Act mandated dishonorable discharge or dismissal 

for servicemembers convicted of rape, sexual assault; rape or sexual assault of a child; forcible 

sodomy, or attempts of any of these offenses. See, Article 56. 

I.	 Death. RCM 1003(b)(9). 

1. Death may be adjudged in accordance with RCM 1004 (mechanics, aggravating factors, 

votes). Loving v. United States, 517 U.S. 748 (1996). 

2. Specifically authorized for thirteen different offenses, including aiding the enemy, espionage, 

murder, and rape. 

3. Requires the concurrence of all the members as to: (1) findings on the merits of capital 

offense, (2) existence of at least one aggravating factor under RCM 1004(c), (3) extenuating or 

mitigating circumstances are substantially outweighed by any aggravating circumstances, 

including aggravating factors, and (4) sentence of death. 

J.	 Maximum Punishment. See Manual for Courts-Martial, Appendix 12. 

1.	 Generally – lesser of jurisdiction of court or punishment in Part IV. 

2.	 Offenses not listed in the Table of Maximum Punishments.
 

a) Included or related offenses.
 

b) United States Code.
 

3.	 Habitual offenders. RCM 1003(d). 

a) Three or more convictions within one year – DD, TF, one year confinement. 

b) Two or more convictions within three years – BCD, TF, three months confinement. 

c) Two or more offenses which carry total authorized confinement of 6 months 

automatically authorizes BCD and TF. 

K. Article 133 punishment. United States v. Hart, 32 M.J. 101 (C.M.A. 1991). In mega-article 133 

specification, the maximum possible punishment is the largest maximum punishment for any offense 

included in the mega-specification. 

L. Prior NJP for same offense. United States v. Pierce, 27 M.J. 367 (C.M.A. 1989). Accused must 

be given credit for prior Article 15 punishment for same offense: day for day, dollar for dollar, and 

stripe for stripe. 

M. Prior board proceedings. United States v. Blocker, 30 M.J. 1152 (A.C.M.R. 1990). Accused 

entitled to credit for consequences of administrative board proceedings arising from same misconduct 

that is the subject of the court-martial. 

VI. INSTRUCTIONS. RCM 1005. 

A. United States v. Boyd, 55 M.J. 217 (2001). Military judges must instruct on the impact of a 

punitive discharge on retirement benefits, if there is an evidentiary predicate for the instruction and a 

party requests it. 

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B. United States v. Duncan, 53 M.J. 494 (2000). The members interrupted their deliberations to ask 

the military judge if rehabilitation/therapy would be required if the accused were incarcerated, and if 

parole or good behavior were available to someone with a life sentence. Instructions on collateral 

consequences are permitted, but need to be clear and legally correct. It is appropriate for the judge to 

answer questions if he/she can draw upon a reasonably available body of information which rationally 

relates to sentencing considerations (here the panel members questions related to both aggravation 

evidence (heinous nature of the crimes) and rehabilitation potential (his potential unreformed release 

into society). 

C. United States v. Stargell, 49 M.J. 92 (1998). Court found proper curative instruction by military 

judge in response to trial counsel argument that accused with nineteen and a half years of service 

“will get an honorable retirement unless you give him a BCD.” In response to defense objection, 

judge instructed members that their decision “is not a vote to retain or separate the member but 

whether or not to give the accused a punitive discharge as a form of punishment.” The majority cited 

to common knowledge in the military that an accused at twenty years is eligible to retire, usually 

under honorable conditions, and if processed for administrative discharge following court-martial 

would be entitled to special consideration. 

D. United States v. Simmons, 48 M.J. 193 (1998). Absent direct evidence that the accused was 

“emotionally or physically abused during his childhood,” there was no requirement for the military 

judge to give an instruction to the panel to consider such information. The court noted a dispute over 

whether the accused actually suffered such abuse. Therefore, the instruction required modification so 

the members could, not must, consider such evidence if they found the accused had in fact been 

abused. 

E. United States v. Thompson, 43 M.J. 703 (A.F. Ct. Crim. App. 1995). Accused introduced 

evidence of child’s upcoming surgery, and offered medical testimony that accused should be present 

for surgery and a few weeks thereafter. In response to member question, the military judge informed 

panel that CA has discretion to defer confinement. No abuse of discretion or improper advice to panel 

on collateral matters where assisted panel in making informed decision. 

VII. SENTENCE CREDIT. 

A. United States v. Rock, 52 M.J. 154 (1999). The CAAF held the military judge did not err in 

applying the sentence credit received by the accused for illegal pretrial punishment against the 

accused’s adjudged sentence rather than the approved sentence (accused was awarded 240 days credit 

against his adjudged confinement as a result of pretrial conditions on his liberty not amounting to 

confinement; the military judge credited the 240 days against the accused’s adjudged sentence not the 

approved sentence; the accused was sentenced to sixty-one months of confinement, thus the judge 

only gave the accused fifty-three months; the accused’s pretrial agreement further reduced the 

sentence to thirty-six months, minus three days of actual pretrial confinement). The court 

distinguished between actual or constructive confinement credit and pretrial punishment credit. 

Actual confinement credit and constructive confinement credit are administrative credits that come 

off of the approved sentence. Pretrial punishment credit for something other than confinement (like 

restrictions on liberty that do not rise to the level of being tantamount to confinement) is generally 

judicial credit and thus comes off of the adjudged sentence. If the military judge determines that 

Allen, Mason, or Suzuki credit is warranted, that sentence credit will be tacked on to the sentence after 

the pretrial agreement is considered. 

B. United States v. Smith, 56 M.J. 290 (2002). No requirement that accused be given credit for 

lawful pretrial confinement when no confinement is adjudged. 

C. United States v. Mosby, 56 M.J. 309 (2002). Solitary confinement, in and of itself, does not equal 

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an intent to punish warranting additional credit under Article 13, UCMJ. 

D. United States v. Bracey, 56 M.J. 387 (2002). Appellant was not entitled to Pierce credit since the 

offenses in question resulted from separate and distinct incidents despite their occurrence close in 

time and involving the same officer (i.e., victim). The CAAF, in holding that the appellant was not 

entitled to Pierce credit stated: “Neither the Constitution nor the UCMJ precludes a person from 

being convicted for multiples offenses growing out of the same transaction, so long as the offenses 

are not multiplicious . . . . Likewise, although Pierce precludes double punishment for the same 

offense, it does not preclude multiple punishments for multiple offenses growing out of the same 

transaction when the offenses are not multiplicious.” 

E. United States v. Spaustat, 57 M.J. 256 (2002). Accused sentenced to reduction to the grade of E1, ten months confinement, and a BCD. The accused’s PTA had a confinement limitation of eight 

months. At trial, the accused successfully brought an Article 13 motion for his treatment while in 

pretrial confinement and was awarded ninety-two days Article 13 credit (day-for-day) as well as 102 

days Allen credit, all of which the judge applied against the lesser sentence provided for in the PTA. 

In announcing the sentence, the judge initially announced a sentence, after incorporating the Article 

13 credit of 202 days and then announced another sentence of 212 days after he was advised by the 

TC that the Article 13 violations did not begin until after day ten of the accused’s placement into 

pretrial confinement, thus reducing the Article 13 credit from 102 days to ninety-two days. Appellant 

argued that the judge, in increasing the sentence from 202 days to 212 days, unlawfully reconsidered 

the sentence. The CAAF held that the judge did not unlawfully reconsider the sentence. The sentence 

was always ten months. All that the judge did was correct his calculation of sentence credits and 

clarify his calculations. Further, the judge did not err in applying the sentence credit to the lesser 

sentence provided for in the PTA. Recognizing the confusion created by its Rock decision, the court 

established a bright line rule for use by all courts effective 30 August 2002: 

1. [I]n order to avoid further confusion and to ensure meaningful relief in all future cases after 

the date of this decision, this Court will require the convening authority to direct application of all 

confinement credits for violations of Article 13 or RCM 305 and all Allen credit against the 

approved sentence, i.e., the lesser of the adjudged sentence or the sentence that may be approved 

under the pretrial agreement, as further reduced by any clemency granted by the convening 

authority, unless the pretrial agreement provides otherwise. 

F. United States v. Sherman, 56 M.J. 900 (A.F. Ct. Crim. App. 2002). Time spent in civilian 

confinement for offenses forming the basis of a subsequent court-martial warrant confinement credit 

under Allen. See also United States v. West, 56 M.J. 626 (C.G. Ct. Crim. App. 2001). 

VIII. DELIBERATIONS. RCM 1006. 

A. What May be Considered. RCM 1006. 

1. Notes of the members. 

2. Any exhibits. 

3. Any written instructions. 

a) Instructions must have been given orally. 

b) Written copies, or any part thereof, may also be given to the members unless either party 

objects. 

4. Pretrial agreement (PTA) terms. 

a) RCM 705(e). Except in a court-martial without an MJ, no member of a court-martial shall 

be informed of the existence of a PTA. 

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b) United States v. Schnitzer, 41 M.J. 603 (Army Ct. Crim. App. 1994), aff’d 44 MJ 380 

(1996). Mention of sentencing limitation in co-actor’s PTA constituted unlawful command 

influence and plain error. Rehearing on sentencing required. See United States v. Royster, 

9400201 (Army Ct. Crim. App. 15 June 1995) (unpub.), limiting Schnitzer to its facts. 

B. Voting on Sentence. UCMJ art. 52, RCM 1006. 

1. Number of votes required: 

a) Death – unanimous. 

b) Confinement for more than ten years – at least three-fourths of the members. 

c) All other sentences – at least two-thirds of the members. 

IX. ANNOUNCEMENT OF SENTENCE. RCM 1007. 

A. Sentence worksheet is used to put the sentence in proper form (See Appendix 11, MCM, Forms of 

Sentences). 

B. President or military judge makes announcement. United States v. Dodd, 46 M.J. 864 (Army Ct. 

Crim. App. 1997). Announcement by court-martial president of sentence did not include bad conduct 

discharge, and court adjourned. When president notified the military judge of incorrect announcement 

within two minutes of adjournment, judge convened a proceeding in revision to include bad conduct 

discharge. The Army Court noted that proceeding in revision inappropriate where it increases severity 

of sentence, no matter how clear that announcement was erroneous. NOTE: Court commends to trial 

judges practice of enforcing requirement that president mark out all inapplicable language on findings 

and sentence worksheets, rather than pursuing own means to clarify intended sentence of court. 

C. Polling prohibited (MRE 606; RCM 1007(c)). 

X. IMPEACHMENT OF SENTENCE. RCM 1008. 

A. Policy: Strong policy against the impeachment of verdicts. 

1. Promotes finality. 

2. Encourages full and free deliberation. 

B. General rule: Deliberative privilege – court deliberations are privileged (MRE 509). United States 

v. Langer, 41 M.J. 780 (A.F. Ct. Crim. App. 1995) (observing that post-trial questionnaire 

purportedly intended for feedback to counsel improperly invaded members' deliberative process). 

C. Exceptions: Court members' testimony or affidavits cannot be used to impeach the verdict except 

in three limited situations. RCM 1008; MRE 606. See United States v. Loving, 41 M.J. 213 (C.M.A. 

1994). 

1. Outside influence (e.g. bribery, jury tampering). 

2. Extraneous prejudicial information. 

a) United States v. Witherspoon, 16 M.J. 252 (C.M.A. 1983) (holding that it was improper 

for court member visit to crime scene). 

b) United States v. McNutt, 62 M.J. 16 (2005). The military judge improperly considered 

the collateral administrative effect of the “good-time” policy in determining Appellant’s 

sentence and this error prejudiced Appellant. “Courts-martial [are] to concern themselves 

with the appropriateness of a particular sentence for an accused and his offense, without 

regard to the collateral administrative effects of the penalty under consideration.” United 

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States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1998). The general preference for prohibiting 

consideration of collateral consequences is applicable to the military judge’s consideration of 

the Army “good-time” credits. 

3. Unlawful command influence. 

a) United States v. Carr, 18 M.J. 297 (C.M.A. 1984) (holding that it was unlawful command 

control for president to order a re-vote after a finding of not guilty had been reached). 

b) United States v. Accordino, 20 M.J. 102 (C.M.A. 1985) (observing that president of court 

can express opinions in strong terms and call for a vote when discussion is complete or 

further debate is pointless; but improper for him to use superiority of rank to coerce a 

subordinate to vote in a particular manner). 

c) United States v. Dugan, 58 M.J. 253 (2003). Post-trial, member submitted RCM 1105/6 

memorandum to defense counsel expressing several concerns, two of which raised potential 

UCI during the sentencing phase: that some members believed a punitive discharge was “a 

given” and that mention was made of a commanders call and that the commander (i.e., 

convening authority) would review the sentence in the case and know what they decided to 

do. On receipt of the memorandum, the defense counsel sought a post-trial 39a session, which 

the military judge denied, citing the deliberative privilege, and finding no UCI. The lower 

court affirmed. The CAAF directed a DuBay hearing to examine the allegation of UCI in the 

sentencing phase with the following limitations: questions regarding the objective 

manifestation of the members during deliberations was permitted whereas questions 

surrounding the subjective manifestations were not. 

D. Threshold relatively high. See United States v. Brooks, 41 M.J. 792 (Army Ct. Crim. App. 1995) 

(observing that there must be colorable allegations to justify judicial inquiry, and even then the judge 

must be very cautious about inquiring into voting procedures). 

XI. RECONSIDERATION OF SENTENCE. RCM 1009. 

A. Time of reconsideration. 

1. May be reconsidered any time before the sentence is announced. 

2. After announcement, sentence may not be increased upon reconsideration unless sentence 

was less than mandatory minimum. 

3. United States v. Jennings, 44 M.J. 658 (C.G. Ct. Crim. App. 1996). Error in sentence may be 

corrected if announced sentence not one actually determined by court-martial. But confusion of 

military judge’s intended sentence and application of Allen credit arose from comments by judge 

after court closed. If ambiguity exists on record as to sentence, must be resolved in favor of 

accused. 

B. Procedure for reconsideration. 

1. Any member may propose reconsideration. 

2. Proposal to reconsider is voted on in closed session by secret written ballot. 

C. Number of votes required. 

1. With a view to increasing sentence – may reconsider only if at least a majority votes for 

reconsideration. 

2. With a view to decreasing sentence – may reconsider if the following vote: 

a) For death sentence, only one vote to reconsider required. 

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b) For sentence of life or more than ten years, more than one-fourth vote for reconsideration. 

c) For all other sentences, more than one-third vote for reconsideration. 

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Crimes 

I.Principals, Art 77
 

II.Accessory After The Fact, Art 78
 

III.Lesser Included Offenses, Art 79
 

IV.Attempts, Art 80
 

V.Conspiracy, Art 81
 

VI.Solicitation, Art 82 & 134
 

VII.Unauthorized Absence - Generally
 

VIII.Absence Without Leave, Art 86
 

IX.Missing Movement, Art 87
 

X.Desertion, Art 85
 

XI.Defenses To Unauthorized Absence 

XII.Protected Status Of Certain Military Victims 

XIII.Disrespect 

XIV.Disobey Personal Order, Art 90(2) & 91(2) 

XV.Violate General Regulation/Order, Art 92(1)
 

XVI.Failure To Obey Local Orders, Art 92(2)
 

XVII.The Lawfulness Of Orders
 

XVIII.Dereliction Of Duty, Art 92(3)
 

XIX.Enlistment Defined
 

XX.Fraudulent Enlist/Appt/Separation, Art 83
 

XXI.Unlawful Enlist/Appt/Separation, Art 84
 

XXII.Cruelty And Maltreatment, Art 93
 

XXIII.Fraternization, Art 134
 

XXIV.Impersonate Officer/Warrant/Nco, Art 134
 

XXV.Malingering, Art 115
 

XXVI.Military Property: Loss/Damage/Destroy/ 

Dispose, Art 108
 

XXVII.Conduct Unbecoming An Officer, Art 133
 

XXVIII.The General Article, Art 134
 

XXIX.Wartime-Related Offenses
 

XXX.Misbehavior Before The Enemy, Art 99
 

XXXI.War Trophies
 

XXXII.Straggling, Art 134
 

XXXIII.Espionage, Art 106a
 

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XXXIV.Offenses Against Person, Arts 128/120a/134
 

XXXV.Homicide, Arts 118/119/134
 

XXXVI.Kidnapping, Art 134
 

XXXVII.Maiming, Art 124
 

XXXVIII.Offenses Against Property
 

a. Larceny/Wrongful Appropriation, Art 121
 

b. Receiving Stolen Property, Art 134
 

c. Robbery, Art 122
 

d. Non-Military Property: Waste/Spoil/ Destroy, Art
 

109
 

e. Protected Places: Burglary, Housebreaking, and 

Unlawful Entry 

f. Arson, Art. 126
 

g. Bad Check Offenses 

h. Bad Check / Insufficient Funds, Art 134
 

i. Forgery, Art 123
 

j. Failure To Pay Just Debt, Art 134
 

k. Altering A Public Record, Art 134
 

l. Frauds Against The United States, Art 132
 

XXXIX.Offenses Against The Administration Of Justice
 

a. Resistance/Breach Of Arrest/Escape, Art 95
 

b. False Official Statement, Art 107
 

c. Perjury, Art 131
 

d. Obstructing Justice, Art 134
 

e. Destruction/Removal/Disposal Of Property To
 

Prevent Seizure, Art 134
 

f. Misprision Of A Serious Offense, Art 134
 

XL.“Evil Words” Offenses
 

a. Threat/Hoax Causing Panic/Fear, Art 134
 

b. Communicating A Threat, Art 134
 

c. Provoking Words Or Gestures, Art 117
 

d. Extortion, Art 127
 

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I. PRINCIPALS. UCMJ ART. 77. 

A. Principal Liability Defined. 

1. Text. “Any person punishable under this chapter who: (1) commits an offense punishable by 

this chapter or aids, abets, counsels, commands, or procures its commission; or (2) causes an act 

to be done which if directly performed by him would be punishable by this chapter; is a 

principal.” Article 77. 

2. Purpose. Article 77 directs that a person need not personally perform the acts necessary to 

constitute an offense to be guilty of that offense. It eliminates the common law distinctions 

between principals in the first degree, principals in the second degree, and accessories before the 

fact. All of these parties to an offense are deemed principals, are equally guilty of the offense, 

and may be punished to the same extent. 

B. Who are “Principals?” The MCM creates two categories of individuals that can be guilty of an 

offense as a principal: 1) Perpetrators & 2) Other Parties. 

1. Perpetrators. “A perpetrator is one who actually commits the offense, either by the 

perpetrator’s own hand, or by knowingly or intentionally inducing or setting in motion” acts by 

an agent or instrument which results in the commission of the offense. MCM, pt. IV, ¶ 1b(2)(a). 

a) United States v. Perry, 27 M.J. 796 (A.F.C.M.R. 1988) (holding accused liable as a 

perpetrator where, although accused never touched the stolen property, he directed another 

airman to grab a paper bag that had been left temporarily unguarded at a local bar). 

b) Suppose Person A intentionally causes an innocent Person B to commit an offense’s act 

against Person B’s will. The offense’s mens rea requirement may be satisfied by Person A’s 

criminal intent. In such a case, only Person A is guilty of a crime. United States v. Minor, 11 

M.J. 608 (A.C.M.R. 1981) (holding accused liable as a principal to sodomy, where accused 

makes himself a party to the co-accused’s threat compelling a victim’s boyfriend to commit 

sodomy on victim). 

c) Authority of government “agent” or “decoy,” however, may prevent liability as a 

perpetrator. United States v. Sneed, 38 C.M.R. 249 (C.M.A. 1968). Accused proposed theft 

of military property to two other soldiers. Soldiers informed military authorities and were 

told to go along with the proposal. Accused subsequently directed one Soldier to load 

military property on a truck and directed the other Soldier to drive away with the military 

property. Because the Soldiers were government “agents or decoys,” the government never 

lost control or possession of the military property and their acts did not constitute a wrongful 

taking. Under the circumstances, the accused never acquired possession, dominion, or 

control; conviction for larceny reversed, and lesser included offense of attempted larceny 

affirmed. See also United States v. Klink, 14 M.J. 743 (A.F.C.M.R. 1982) (larceny upheld 

where accused, along with assistance of two government operatives, actually took goods from 

a government warehouse, carried them to a dock, loaded them into getaway vehicle, and 

helped drive them away). 

2. Other Parties. “If one is not a perpetrator, to be guilty of an offense committed by the 

perpetrator, the person must” meet the two requirements listed at MCM, pt. IV, ¶ 1b(2)(b). 

a) Aider and Abettor. Case law still predominantly describes the MCM’s “Other Party” 

liability as “aider and abettor liability.” Aiding and abetting requires the following proof: 

“(1) the specific intent to facilitate the commission of a crime by another; (2) guilty 

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knowledge on the part of the accused; (3) that an offense was being committed by someone; 

and (4) that the accused assisted or participated in the commission of an offense.” United 

States v. Pritchett, 31 M.J. 213 (C.M.A. 1990). See discussion below regarding the basis for 

principal liability. 

b) Co-conspirators. 

(1) Article 77 is broad enough to encompass vicarious liability of co-conspirators. 

United States v. Browning, 54 M.J. 1, 7 (C.A.A.F. 2000) (holding that prosecution could 

prove larceny and fraudulent claim charges on theory that accused was perpetrator, aider 

and abettor, or co-conspirator, even though conspiracy was not on the charge sheet). 

(2) A conspirator may be convicted of substantive offenses committed by a coconspirator, provided such offenses were committed in furtherance of the agreement 

while the agreement continued to exist and the conspirator remains a party to it. MCM, 

pt. IV, ¶ 5c(5); Pinkerton v. United States, 328 U.S. 640 (1946); United States v. 

Browning, 54 M.J. 1 (C.A.A.F. 2000); United States v. Gaeta, 14 M.J. 383 (C.M.A. 

1983) (members were properly instructed on liability for co-conspirator’s drug 

distribution; citing Nye and Nissen v. United States, 336 U.S. 613 (1949)); United States 

v. Figueroa, 28 M.J. 570 (N.M.C.M.R. 1989) (guilty plea to drug distribution by one coconspirator to another co-conspirator was provident even though accused did not 

physically participate in the distribution). 

c) Basis for Liability: Actus Reus (Assist, encourage, advise, instigate, counsel, command, 

procure) 

(1) Article 77 requires an affirmative step on the part of the accused to be liable as an 

aider and abettor. United States v. Thompson, 50 M.J. 257 (1999). The evidence was 

legally sufficient for a conviction of rape as a principal where the accused participated in 

getting the victim helplessly intoxicated, knew a friend was going to have intercourse 

with the victim, did nothing to dissuade the friend when he looked to the accused for 

approval, and provided the friend with a condom. 

(2) United States v. Speer, 40 M.J. 230 (C.M.A. 1994). An accused aids and abets the 

offense of drug distribution when he verifies purchase price and accepts the cash payment 

from the buyer, even though the delivery of the drugs has been completed, because he 

facilitates the “financial climax of the deal.” The court adopts the “criminal venture” 

approach to aiding and abetting. 

(3) United States v. Bolden, 28 M.J. 127 (C.M.A. 1989). Accused was guilty of larceny 

as an aider and abettor where he suggested and assisted a “sham” marriage to obtain 

quarters allowance and a false rental agreement that overstated the monthly rent. 

(4) United States v. Patterson, 21 C.M.R. 135 (C.M.A. 1956). An accused who blocked 

a door with the intent of preventing the escape of the victim from his assailant aided and 

abetted the assailant. 

(5) United States v. Jacobs, 2 C.M.R. 115 (C.M.A. 1952). Accused and three others 

broke into a private home and assaulted the occupant. Although the accused did not 

personally take property from victim, he aided and abetted the others in committing a 

robbery and was liable as a principal. The “assault provides the necessary act of 

assistance, and accordingly we have before us much more than mere presence at the 

scene of the crime.” 

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(6) United States v. Thomas, No. ARMY 20150205, 2016 WL 4729442, at *1 (A. Ct. 

Crim. App. Sept. 9, 2016) (ACCA notes Article 77 would be the preferred way to charge 

soliciting a child to produce and distribute child pornography, rather than Article 134). 

d) Basis for Liability: Mens Rea (Shared Criminal Intent with Perpetrator) 

(1) In the case of an accomplice, the intent element may be satisfied with “proof that the 

accomplice shared in the perpetrator’s criminal purpose and intended to facilitate the 

intent of the perpetrator with respect to the commission of the offense.” United States v. 

Mitchell, 66 M.J. 176 (C.A.A.F. 2008) (in a guilty plea for aiding and abetting an 

indecent assault, the accused admitted to acting with the specific intent to gratify the 

principal’s lust and sexual desires and the court concluded that there was no need to 

demonstrate that the aider and abettor intended to gratify his own lust and sexual desires). 

(2) The requisite mens rea for aiding and abetting is sharing the criminal intent or 

purpose of the active perpetrator of the crime. United States v. Jacobs, 2 C.M.R. 115, 

117 (C.M.A. 1952) (“[t]he proof must show that the aider or abettor . . . participated in it 

as in something he wished to bring about, that he sought by his action to make it 

successful”) (prosecution under Articles of War, because offense pre-dated effective date 

of the UCMJ); United States v. Bolden, 28 M.J. 127 (C.M.A. 1989); United States v. 

Gosselin, 62 M.J. 349 (2006) (record did not reflect a shared “criminal purpose” of 

introducing drugs onto the base). 

(3) United States v. Fullen, 1 M.J. 853 (A.F.C.M.R. 1976). Accused agreed with two 

others to lure the victim to a dark area where they would grab and rob the victim. 

According to the accused, he was unaware that one of his companions was going to strike 

the victim with a pipe. After the victim fell to the ground, the accused took the victim’s 

wallet, which contained $9. Accused was guilty of robbery, because the intended 

grabbing would have been an assault sufficient for the compound offense of robbery. 

(4) United States v. Patterson, 21 C.M.R. 135 (C.M.A. 1956). Accused pulled victim to 

the floor, and co-accused hit victim with chair. Later the same day, the co-accused struck 

victim several times in the face with a large belt buckle. Victim tried to flee, but accused 

blocked access to the door and co-accused bit victim’s ear. Notwithstanding accused’s 

claim that he did not intend that an aggravated assault be committed, the facts belie his 

claim and support conviction of aggravated assault. Principals are chargeable with 

results that flow as natural and probable consequences of the offense subjectively 

intended. 

(5) An aider or abettor may be guilty of an offense of greater or lesser seriousness than 

the perpetrator, depending on his level of intent. MCM, pt. IV, ¶ 1b(4). United States v. 

Jackson, 19 C.M.R. 319 (C.M.A. 1955). Accused and co-accused assaulted the victim. 

Co-accused stabbed the victim, who subsequently died. Both accused were convicted of 

premeditated murder at a joint trial. Court affirmed co-accused’s conviction but reversed 

accused’s conviction, because of failure to instruct on lesser included offense of 

involuntary manslaughter. The aider and abettor may be guilty in a different degree from 

the principal, and the law holds each accountable according to the turpitude of his own 

motive. Compare United States v. Richards, 56 M.J. 282 (2002) (intent to kill or inflict 

great bodily harm by kicking the victim sufficient to establish guilt as an aider and 

abettor of voluntary manslaughter even though death caused by co-accused stabbing the 

victim). 

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e) Presence at the Scene of the Crime. Appellate courts have considered the extent to which 

presence at the scene of the crime constitutes a sufficient act or evinces sufficient intent to 

establish Article 77 liability. 

(1) Presence is not necessary. Presence at the scene of a crime is not necessary to make 

one a party to the crime and liable as a principal. See United States v. Carter, 23 C.M.R. 

872 (A.F.B.R. 1957) Accused who loaned his car to a friend with the knowledge that it 

was going to be used in the commission of a larceny was guilty of larceny on aiding and 

abetting theory, even though he did not know all the details of how the crime was to be 

committed and was not present at the commission of the crime. 

(2) Presence is not sufficient. Mere presence at the scene of crime does not make one a 

principal. MCM, pt. IV, ¶ 1b(3)(b). See United States v. Shelly, 19 M.J. 325 (C.M.A. 

1985) (holding that mere presence in a misappropriated vehicle did not make the accused 

liable as a principal); United States v. Waluski, 21 C.M.R. 46 (C.M.A. 1956) (holding that 

mere presence was insufficient to support finding that accused aided and abetted the 

driver in the culpably negligent operation of a vehicle); United States v. Johnson, 19 

C.M.R. 146 (C.M.A. 1955) (holding that mere presence with group of pedestrians who 

robbed a passerby was insufficient to support conviction as aider and abettor); United 

States v. Guest, 11 C.M.R. 147 (C.M.A. 1953) (holding that evidence was insufficient to 

support conviction as aider and abettor of murder and larceny, even though the accused 

was present at the scene of the murder, robbery, and subsequent discussion of the sale of 

the stolen property, because he did nothing to encourage or aid the murder or the 

larceny); United States v. Gosselin, 62 M.J. 349 (2006) (mere presence in the car with 

drugs not enough to establish guilt, citing United States v. Burroughs, 12 M.J. 380 

(C.M.A. 1982)). 

(3) Presence may be a factor in establishing liability. United States v. Pritchett, 31 M.J. 

213 (C.M.A. 1990). 

(4) United States v. Cobb, 45 M.J. 82 (C.A.A.F. 1996). Evidence was legally sufficient 

to support accused’s conviction as an aider and abettor to robbery when he was present at 

crime, fully aware of his companion’s impending crime, expected and in fact was offered 

a share of the proceeds, and may have held perpetrator’s feet as he leaned out of vehicle 

to effect robbery. 

(5) United States v. Pritchett, 31 M.J. 213 (C.M.A. 1990). The fact that the wife shared 

an apartment with the accused, the fact that 166 grams of marijuana were stored in a 

coffee can in a dresser in the only bathroom in the apartment, the fact that the accused 

knowingly permitted his residence to be used as a respository for the drugs, the fact that 

the accused was found caught after the sale in possession of a purse that contained 

marked bills from the drug sale, and the fact that the appellant’s fingerprints were found 

on several foil wrapped pieces in the can were sufficient to show that the accused aided 

and abetted his wife’s possession with intent to distribute marijuana. Additionally, his 

immediate presence during the drug sale, “his preliminary drug talk, and his maintenance 

of a drug-sale safe house” were sufficient to constitute active encouragement and 

assistance to support a conviction for aiding and abetting his wife’s drug distribution. 

Finally, the accused’s facilitation of his wife’s drug distribution, the fact that the sale took 

place in a common area of the home while the accused was at home, and the fact that the 

money from the controlled buy was found in the accused’s possession were sufficient to 

show that the accused aided and abetted his wife’s distribution of marijuana. 

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(6) United States v. Dunn, 27 M.J. 624 (A.F.C.M.R. 1988). Accused’s presence at the 

scene of a shoplifting, perpetrated as part of the accused’s criminal training, was 

sufficient to establish his guilt for larceny as an aider and abettor. 

(7) United States v. Hatchett, 46 C.M.R. 1239 (N.M.C.M.R. 1973). Hitchhiker sat in 

back seat of vehicle between accused and active perpetrator. As car moved along, active 

perpetrator robbed victim. Accused was guilty of robbery. He was aware the victim was 

given ride in order to be robbed and his presence in the rear seat of the vehicle “ensured 

the victim could not escape.” 

f) Failure to Stop Crime. Failure to stop a crime does not constitute aiding and abetting 

unless there is an affirmative duty to interfere (e.g., a security guard). If a person has a duty 

to interfere, but fails to do so, that person is a party to the crime if such noninterference is 

intended to and does operate as an aid or encouragement to the perpetrator. MCM, pt. IV, ¶ 

1b(2)(b). See United States v. Thompson, 22 M.J. 40 (C.M.A. 1986) (holding no general duty 

of NCOs to prevent crime absent “identifiable regulation, directive, or custom of the 

service.”); United States v. Simmons, 63 M.J. 89 (2006) (duty of NCO to prevent crime 

within unit may arise, but failure to act must be accompanied by shared criminal purpose). 

(1) Liability found. See United States v. Shearer, 44 M.J. 330 (1996) (affirming 

conviction after of guilty plea to aiding and abetting flight from the scene of an accident 

where accused admitted that he had a duty to report the identity of the driver to Japanese 

authorities at the scene of the accident); United States v. Crouch, 11 M.J. 128 (C.M.A. 

1981) (motor pool guard allowed friends to steal tools); United States v. Ford, 30 C.M.R. 

31 (C.M.A. 1960) (evidence showed that security guard told perpetrators about unsecured 

building and his failure to interfere was intended to encourage fellow guards to steal 

unsecured property). 

(2) No liability found. See United States v. Epps, 25 M.J. 319 (C.M.A. 1987) (under the 

facts, failure to stop barracks larceny did not make accused an aider and abettor); United 

States v. Shelly, 19 M.J. 325 (C.M.A. 1985) (government failed to prove the existence of 

duty of senior vehicle occupant to ensure the safe operation of the vehicle); United States 

v. McCarthy, 29 C.M.R. 574 (C.M.A. 1960) (after advising subordinates not to steal 

hubcaps, lieutenant’s failure to take active measures to prevent crime committed in his 

presence did not establish his guilt as a principal); United States v. Lyons, 28 C.M.R. 292 

(C.M.A. 1959) (holding that a truck guard who accepted money to “see nothing” not 

liable as an aider or abettor where he was not told why he was offered the money and 

there was no evidence that he participated in the venture as something he desired to bring 

about); United States v. Fuller, 25 M.J. 514 (A.C.M.R. 1987) (soldier, whose job was 

fuel handler, had no duty to prevent burning of barracks room). 

g) Duty to Report Crime. As a general rule, mere failure to report a crime does not by itself 

make one an aider and abettor. However, statutory exceptions to this rule may exist in certain 

circumstances. See, e.g., 18 U.S.C. §793(f) (defining criminal offense to fail to report illegal 

disposition of national defense information). Also, the services can require that personnel 

report offenses that they observe. Thus, failure to report a crime may be a dereliction under 

some circumstances. See United States v. Heyward, 22 M.J. 35 (C.M.A. 1985) (Air Force 

regulation imposing special duty to report drug abuse did not violate the Fifth Amendment, 

because it did not compel members to report their own illegal acts but only those of other 

members) cert. denied, 479 U.S. 1011 (1986); United States v. Bland, 39 M.J. 921 

(N.M.C.M.R. 1994) (upholding Navy regulation imposing a general duty to report crime 

which has been observed). 

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C. Principals Are Independently Liable. 

1. One may be convicted as a principal, even if the perpetrator is not identified or prosecuted, or 

is acquitted. MCM, pt. IV, ¶ 1b(6). 

2. Standefer v. United States, 447 U.S. 10 (1980). A defendant can be convicted of aiding and 

abetting the commission of a federal offense, despite the prior acquittal of the alleged actual 

perpetrator of the offense. 

3. United States v. Minor, 11 M.J. 608 (A.C.M.R. 1981). Co-accused forced victim’s boyfriend 

to commit sodomy on victim by threatening him and accused aided and abetted threat by 

encouraging victim’s boyfriend to comply. The accused was properly convicted of sodomy as a 

principal, because the amenability of the actual perpetrator to prosecution is not a requirement for 

criminal liability as an aider and abettor. The actor need not be subject to the UCMJ. 

4. United States v. Crocker, 35 C.M.R. 725, 739-40 (A.F.B.R. 1964). Accused and Holloway 

engaged in assault with a knife upon the victim. The evidence established that Holloway fatally 

stabbed the victim. Holloway was acquitted of murder, and but found guilty of aggravated 

assault. The accused was convicted of unpremeditated murder, and the court affirmed the 

conviction. The acquittal of the active perpetrator has no effect on the accused’s case. 

5. United States v. Duffy, 47 C.M.R. 658 (A.C.M.R. 1973) (officer who ordered NCO to kill 

prisoner guilty as principal despite acquittal of NCO based on lack of mental capacity). 

D. Liability for Other Offenses. The statutory principal is criminally liable for all offenses embraced 

by the common venture and for offenses likely to result as a natural and probable consequence of the 

offense directly intended. MCM, pt. IV, ¶ 1b(5). 

1. United States v. Knudson, 14 M.J. 13 (C.M.A. 1982). Accused loaned money to Shaw to buy 

LSD to be resold at a profit, drove Shaw to off-post residence to buy LSD, and informed 

prospective buyer that Shaw still had LSD. Evidence was sufficient for conviction of wrongful 

introduction and wrongful distribution of LSD. If there is a concert of purpose to do a criminal 

act, all probable results that could be expected are chargeable to all parties concerned. “The fact 

that the accused did not know in advance of the particular transfers or the parties to whom the 

transfers would be made does not relieve him of criminal responsibility.” 

2. United States v. Waluski, 21 C.M.R. 46 (C.M.A. 1956). Accused and Hart stole a jeep. Hart 

drove away from scene at high rate of speed and ran over a pedestrian, killing him. Because there 

was no evidence that accused actively aided and abetted the operation of the vehicle, accused 

could not be convicted of involuntary manslaughter. 

3. United States v. Wooten, 3 C.M.R. 92, 97 (C.M.A. 1952). Aider and abettor of larceny of 250 

pairs of Army issue trousers also liable for wrongful disposition of military property, because it 

was a natural and probable consequence of the theft. 

4. United States v. Self, 13 C.M.R. 227 (A.B.R. 1953). Accused and two co-accused wrongfully 

appropriated jeep and drove away. When stopped at a checkpoint, co-accused shot and killed a 

sentinel. Accused was in the back seat and did nothing during the events at the checkpoint. 

Where an accused has combined with others in the perpetration of an unlawful act under such 

circumstances as will, when tested by experience, probably result in the taking of human life, he 

is equally responsible for a homicide flowing as a natural consequence of such unlawful 

combination. The court reversed the conviction for murder, because the larceny of the vehicle, 

however, was not “so desperate a design that its execution might naturally or probably result in 

the taking of human life.” 

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E. Withdrawal as a Principal. A person may withdraw from a common venture or design and avoid 

liability for any offenses committed after the withdrawal. To be effective the withdrawal must: 

1. Occur before the offense is committed; 

2. Effectively countermand or negate the assistance, encouragement, advice, instigation, 

counsel, command, or procurement; and 

3. Be clearly communicated to the would-be perpetrators or to appropriate law enforcement 

authorities in time for the perpetrators to abandon the plan or for law enforcement authorities to 

prevent the offense. MCM, pt. IV, ¶ 1.b.(7). 

F. Pleading. 

1. All principals are charged as if each was the perpetrator. R.C.M. 307(c)(3) discussion, ¶ H(i). 

2. United States v. Vidal, 23 M.J. 319 (C.M.A. 1987). Accused and PFC Hunt kidnapped 

German woman. Accused drove car to secluded area. PFC Hunt and then the accused had sexual 

intercourse with her in the back seat. Accused charged with a single specification of rape, but the 

specification did not indicate whether he was the perpetrator or an aider and abettor. The court 

affirmed the conviction, because the standard rape specification is sufficient to charge accused as 

perpetrator or aider and abettor, and the prosecution is not required to elect between those two 

theories. See also United States v. Westmoreland, 31 M.J. 160 (C.M.A. 1990) (judge can instruct, 

and accused can be convicted, under an aiding and abetting theory, even though case has not been 

presented on that theory); United States v. Dayton, 29 M.J. 6 (C.M.A. 1989) (government is 

entitled to prosecute the accused for distribution of LSD on the alternate theories that he is guilty 

as a perpetrator or as an aider and abettor). 

G. Relationship to Inchoate Crimes. 

1. Attempts. For an accused to be guilty as an aider and abettor to an attempt, the actual 

perpetrator must have actually attempted the commission of the underlying offense. United 

States v. Jones, 37 M.J. 459 (C.M.A. 1993). Accused aided and abetted perpetrator who took 

“substantial step” with intent to distribute cocaine to an undercover officer. Perpetrator’s failure 

to go through with the transaction did nothing to alter her or accused’s liability. 

2. Solicitation. 

a) The crime of solicitation is complete when the solicitation or advice is communicated. 

Conviction as a principal for aiding and abetting, however, requires that the completion or 

attempt of a crime. 

b) Solicitation pertains to inducing an action in the future; aiding and abetting pertains to 

involvement in ongoing activity. United States v. Dean, 44 M.J. 683 (A. Ct. Crim. App. 

1996) (holding that accused’s call to her co-conspirator “don’t let him get into the door” 

made during ongoing beating was aiding and abetting rather than solicitation). 

c) Solicitation may exist even when the object is predisposed to the crime. United States v. 

Hays, 62 M.J. 158 (2005) (holding that appellant’s request for photographs of a sexual 

encounter between “JD” and a nine-year old girl immediately after the appellant’s inquiry 

into whether JD had engaged in sexual intercourse with the nine-year-old girl was a serious 

request to commit carnal knowledge). The court further stated that neither the MCM nor the 

UCMJ precludes a conviction for solicitation because the object is predisposed towards the 

crime (rejecting the requirement set forth in Dean, 44 M.J. 683 (A. Ct. Crim. App. 1996)). 

II. ACCESSORY AFTER THE FACT. UCMJ ART. 78. 

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A. Introduction. 

1. Text. “Any person subject to this chapter who, knowing that an offense punishable by this 

chapter has been committed, receives, comforts or assists the offender in order to hinder or 

prevent his apprehension, trial or punishment shall be punished as a court-martial may direct.” 

Article 78. 

2. Not a Lesser included Offense of the Underlying Offense--Must Be Independently Charged. 

United States v. Price, 34 C.M.R. 516 (A.B.R. 1963) (holding that neither accessory after the fact 

nor receiving stolen property were lesser included offenses of larceny); United States v. Greener, 

1 M.J. 1111 (N-M.C.M.R. 1977). But see United States v. Michaels, 3 M.J. 846 (A.C.M.R. 1977) 

(permitting accused to enter a substitute plea of accessory after the fact to larceny, even though 

not a lesser included offense of the referred larceny charge). 

3. Acquittal of the Principal Actor Is No Defense. United States v. Marsh, 32 C.M.R. 252 

(C.M.A. 1962) (holding that an accused can be convicted of a violation of Article 78 without 

regard to the separate conviction or acquittal of the principal actor). 

4. Principal Offender Need Not Be Subject to the UCMJ. United States v. Michaels, 3 M.J. 846 

(A.C.M.R. 1977); United States v. Blevins, 34 C.M.R. 967 (A.F.B.R. 1964) (holding that military 

accused can be convicted of a violation of Article 78 without regard for the amenability of the 

principal offender to military jurisdiction). 

5. Failure to Report Offense. The mere failure to report an offense will not make one an 

accessory after the fact. However, such failure may violate a lawful order or regulation and thus 

constitute an offense under Article 92. See infra ¶ XV, this chapter. Also, a positive act of 

concealment and failure to report a serious offense can constitute the offense of misprision of a 

serious offense under Article 134. See infra ¶ II.D., this chapter. 

B. Acts Sufficient for Accessory After the Fact. 

1. United States v. Davis, 42 M.J. 453 (C.A.A.F. 1996). Accused who falsely informed 

investigators that he did not know who committed larceny but hinted that someone other than the 

actual thief was responsible gave “assistance” to the actual offender, thereby making accused an 

accessory after the fact to larceny. 

2. United States v. Foushee, 13 M.J. 833 (A.C.M.R. 1982). Providing Q-tips and alcohol to 

clean blood off the knife used in an assault and to treat offender’s injured ankle constituted 

receipt, comfort, and assistance for the purposes of hindering or preventing the apprehension or 

trial of the offender. However, where evidence showed only that the accused knew the principal 

perpetrator had stabbed the victim with the knife but did not know the perpetrator intended to kill 

or inflict grievous bodily harm, accused could be convicted of being accessory after the fact to 

assault with a dangerous weapon but not assault with intent to murder. See also United States v. 

Marsh, 32 C.M.R. 252 (C.M.A. 1962) (advising perpetrator of theft to get rid of stolen goods and 

thereafter consuming liquor bought with proceeds); United States v. Tamas, 20 C.M.R. 218 

(C.M.A. 1955) (concealing proceeds of a theft for purpose of assisting thief); United States v. 

Blevins, 34 C.M.R. 967 (A.F.B.R. 1964) (concealing and transporting proceeds of theft). 

3. United States v. Michaels, 3 M.J. 846 (A.C.M.R. 1977). Where accused has responsibility to 

protect particular property, accused is an accessory after the fact when he accepts money not to 

disclose completed larcenies. 

C. Liability as a Principal Distinguished. 

1. The co-perpetrator of the offense of possession of heroin cannot be an accessory after the fact 

to the same offense. United States v. McCrea, 50 C.M.R. 194 (A.C.M.R. 1975). 

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2. Act of principal must occur before or during the crime. If the act is after the crime, then it 

must have been part of an agreement or plan before commission of the offense, for the accused to 

be guilty as a principal rather than an accessory after the fact. See United States v. Greener, 1 

M.J. 1111 (N.C.M.R. 1977) (one who is not a party to the original larceny scheme but who after 

the theft removes purloined goods from a cache is an accessory after the fact). 

One is not an accessory after the fact if the offense is still in progress when the assistance is 

rendered. Even though the perpetrator of a larceny has consummated the larceny as soon as any 

taking occurs, others may become aiders and abettors by participating in the continuing 

asportation of the stolen property. United States v. Bryant, 9 M.J. 918 (C.M.R. 1980). But see 

United States v. Manuel, 8 M.J. 822 (A.F.C.M.R. 1979). Notwithstanding that larceny is a 

continuing offense, accused may be convicted of accessory after the fact when, with the intent to 

assist the active perpetrator avoid detention and prosecution, he advises the active perpetrator to 

destroy the stolen property. The purpose of the assistance is critical. If it is to secure the fruits of 

the crime, he is a principal, but if it is to assist the perpetrator in avoiding detection and 

punishment, he is an accessory after the fact. 

3. Principal of one crime may be liable as an accessory after the fact for a related crime arising 

from the same actions. United States v. McCormick, 74 M.J. 534 (A. Ct. Crim. App. 2014), rev. 

denied by 2015 CAAF LEXIS 680 (C.A.A.F. July 27, 2015) . The accused was a driver in a 

drive-by shooting in which the shooter fired thirteen shots into an occupied vehicle. While the 

accused was liable as a principal for aggravated assault for the drive-by shooting, he could have 

become aware of the shooter’s intent to kill the occupants of the vehicle prior to his efforts to 

conceal the shooting after the crime, making him liable for attempted murder as an accessory 

after the fact. 

D. Liability for Misprision of a Serious Offense Distinguished. See ¶ VI.G, ch. 4. 

1. One can be an accessory to any offense; however, misprision requires an offense punishable 

by confinement for more than one year. MCM, pt. IV. ¶ 95c(2). 

2. An accessory must “receive,” “comfort” or “assist” a principal “in order to hinder or prevent 

his apprehension, trial or punishment.” MCM, pt. IV, ¶ 2. Misprision requires a positive act to 

conceal a felony, but it does not require intent to benefit the principal. MCM, pt. IV, ¶ 95.c.(1). 

3. Act Sufficient for Misprision. United States v. Sanchez, 51 M.J. 165 (C.A.A.F. 1999). 

Disposal of knife used in aggravated assault and formulation of plan to avoid detection amounted 

to affirmative assistance supportive of a misprision conviction. 

4. Acts Insufficient for Misprision. United States v. Maclin, 27 C.M.R. 590 (A.B.R. 1958) 

(reversing conviction for misprision, because accused who was burying stolen property did not 

know the prior theft was a felony); United States v. Assey, 9 C.M.R. 732 (A.F.B.R. 1953) 

(lending money to larceny perpetrator to replace stolen goods was not a “positive act of 

concealment”). 

III. LESSER INCLUDED OFFENSES. UCMJ ART. 79. 

A. Introduction. 

1. Text. “An accused may be found guilty of an offense necessarily included in the offense 

charged or of an attempt to commit either the offense charged or an offense necessarily included 

therein.” Article 79. 

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2. In order to determine if one offense is “necessarily included” in another, apply the elements 

test. “Under the elements test, one compares the elements of each offense. If all of the elements 

of offense X are also elements of offense Y, then X is an LIO of Y. Offense Y is called the 

greater offense because it contains all of the elements of offense X along with one or more 

additional elements.” United States v. Jones ̧ 68 M.J. 465, 470 (C.A.A.F. 2010). 

3. Background: Evolution of LIO Doctrine. 

a) The Court of Military Appeals formerly construed Article 79 and its “necessarily 

included” language to mean offenses that are “fairly embraced” in the pleadings and proof of 

the greater offense. United States v. Baker, 14 M.J. 361 (C.M.A. 1983). 

b) In 1989, the Supreme Court held that Fed.R.Crim.P. 31(c) should be construed to include 

only lesser included offenses as established by the statutory elements. Schmuck v. United 

States, 489 U.S. 705 (1989). 

c) In United States v. Teters, 37 M.J. 370, 376 (C.M.A. 1993), the Court of Military Appeals 

stated, “In view of the identity of language of Article 79 and Fed.R.Crim.P. 31(c), we will 

apply the Supreme Court’s more recent holding and abandon the ‘fairly embraced’ test for 

determining lesser included offenses as a matter of law.” 

d) United States v. Foster, 40 M.J. 140 (C.M.A. 1994). Citing Schmuck, the court held: 

“One offense is not necessarily included in another unless the elements of the lesser offense 

are a subset of the elements of the charged offense” (emphasis omitted). This formulation of 

the test for multiplicity and lesser included offenses created a significant issue for offenses 

charged under Art. 134, which requires proof of an element not required for proof of offenses 

under Arts. 80–132: that the conduct was prejudicial to good order and discipline or servicediscrediting. The court held that the phrase “necessarily included” in Art. 79 “encompasses 

derivative offenses under Article 134.” An offense under Art. 134 may, “depending on the 

facts of the case, stand either as a greater or lesser offense of an offense arising under an 

enumerated article.” This is because “the enumerated articles are rooted in the principle that 

such conduct per se is either prejudicial to good order and discipline or brings discredit to the 

armed forces; these elements are implicit in the enumerated articles.” 

e) United States v. Weymouth, 43 M.J. 329 (C.A.A.F. 1995). The CAAF refined its 

holdings in Teters and Foster, adopting the “pleadings-elements” approach: “In the military, 

the specification, in combination with the statute, provides notice of the essential elements of 

the offense” (emphasis omitted). The court cautions that it did not retreat to the “fairly 

embraced” test rejected in Teters: “Either the elements alleging the greater offense (by the 

statute and pleadings) fairly include all of the elements of the lesser offense or they do not. 

As alleged, proof of the greater offense must invariably prove the lesser offense; otherwise 

the lesser offense is not included.” 

f) United States v. Jones ̧ 68 M.J. 465 (C.A.A.F. 2010). The CAAF definitely abandoned 

principles announced in Foster and Weymouth and returned to the “elements test” announced 

in Teters. 

B. Fair Notice: A Fundamental Principle. 

1. The Constitution requires that an accused be on notice as to the offense that must be 

defended against. Jackson v. Virginia, 443 U.S. 307 (1979); Schmuck v. United States, 489 

U.S. 705 (1989). 

2. When one offense is an LIO of another, the accused is on notice that he may be convicted of 

either offense; thus satisfying the Due Process notice requirement. Courts apply a strict elements 

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test for determining whether one offense is an LIO of another. Specifically, the test is derived 

from Article 79, UCMJ, as well as United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) and 

Schmuck v. United States, 489 U.S. 705 (1989). Article 79 states that “[a]n accused may be found 

guilty of an offense necessarily included in the offense charged.” 

3. In order to determine if one offense is “necessarily included” in another, the court compares 

the elements of the two offenses and determines if the elements of the lesser offense are a subset 

of the greater offense. “Under the elements test, one compares the elements of each offense. If 

all of the elements of offense X are also elements of offense Y, then X is an LIO of Y. Offense Y 

is called the greater offense because it contains all of the elements of offense X along with one or 

more additional elements.” United States v. Jones ̧ 68 M.J. 465, 470 (C.A.A.F. 2010). The 

offenses do not have to use “identical statutory language;” rather, the court uses “normal 

principles of statutory construction” to determine the meaning of each element. See also United 

States v. Teters, 37 M.J. 270 (C.M.A. 1993) (adopting the elements test for military LIOs); United 

States v. Foster, 40 M.J. 140 (C.M.A. 1994); United States v. Medina, 66 M.J. 21 (C.A.A.F. 

2008); United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009). 

4. Language describing the elements need not match verbatim. For example, Aggraved Sexual 

Assault by bodily harm is a proper LIO of Rape by force. United States v. Alson, 69 M.J. 214 

(C.A.A.F. 2010). CAAF will normally apply the common and ordinary understanding of the 

words in the statute. Similarly, Assault Consumated by Battery is a proper LIO of Wrongful 

Sexual Contact. United States v. Bonner, 70 M.J. 1 (C.A.A.F. 2011). An offense is included in 

another only if the greater offense “could not possibly be committed without committing the 

lesser offense.” United States v. Oatney, 45 M.J. 185, 188 (C.A.A.F. 1996) (holding that 

communicating a threat was not a lesser included offense of obstruction of justice for purposes of 

multiplicity). 

5. Listings of LIOs in the MCM are not binding on the courts. Until Congress says otherwise, 

LIOs are determined based on the elements defined by Congress for the greater offense. The 

President does not have the power to make one offense an LIO of another by simply listing it as 

such in the MCM. United States v. Jones ̧ 68 M.J. 465, 471–72 (C.A.A.F. 2010). Practitioners 

should not rely on the LIOs listed under each punitive article in Part IV of the MCM, but should 

use the list as a guide and then apply the elements test to be sure that the lesser offense is 

necessarily included. 

6. The previously-employed “closely related offense” doctrine fails to provide the requisite fair 

notice, and is “no longer viable.” United States v. Morton, 69 M.J. 12 (C.A.A.F. 2010) 

(invalidating CCA’s affirmance of two specifications of false official statements as a remedy for 

an improvident guilty plea to two specifications of forgery.) 

7. Application to Article 134. 

a) In comparing elements of offenses to determine whether an Article 134 offense stands as 

a lesser included offense to an offense under Articles 82 through 132, the CAAF has held that 

the terminal element of Article 134—contained in clauses 1 and 2—causes it to fail the 

elements test. United States v. Jones ̧ 68 M.J. 465, 470 (C.A.A.F. 2010). See also United 

States v. McMurrin, 69 M.J. 591 (N.M.Ct.Crim.App. 2010) (applying Jones to hold that 

Negligent Homicide is not a lesser-included offense of Involuntary Manslaughter). 

b) Articles 82 through 132 are not per se prejudicial to good order and discipline or service 

discrediting. Accordingly, clauses 1 and 2 of Article 134 are not per se included in every 

enumerated offense. United States v. Miller, 67 M.J. 325 (C.A.A.F. 2009), overruling in part, 

United States v. Foster, 40 M.J. 140 (C.M.A. 1994). 

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c) Offenses charged under clauses 1 and 2 of Article 134 are not per se lesser included 

offenses of offenses charged under Clause 3 of Article 134. United States v. Medina, 66 M.J. 

21 (C.A.A.F. 2008). 

C. Pleading Issues. 

1. Lesser included offenses to the charged offense need not be separately pled. See R.C.M. 

307(c)(4) discussion. However, where it is unclear whether an offense is a lesser included 

offense, it is prudent to allege both the greater and the purported lesser offenses. 

2. If the MCM suggests that an enumerated article (Articles 82 through 132) has a lesser 

included offense in Art. 134, counsel should consider pleading both the enumerated offense and 

the Article 134 offense. See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010); United States 

v. Miller, 67 M.J. 385 (C.A.A.F. 2009); United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008); 

United States v. Foster, 40 M.J. 140 (C.M.A. 1994). 

3. If a lesser included offense is separately pled in addition to the greater offense, an accused 

may not be convicted of both the lesser and greater offense. See United States v. Hudson, 59 

M.J. 357 (C.A.A.F. 2004). 

4. The Three Clauses of Article 134. Clauses 1 and 2 are not considered LIOs of Clause 3 of 

Article 134. In order to provide the requisite notice that the Government intends to pursue 

Clauses 1 and 2 in addition to Clause 3, the charge sheet should allege a violation of all three 

clauses. This is usually done by adding Clause 1 and/or Clause 2 language (i.e., the terminal 

element) to a Clause 3 specificication. See United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008). 

5. Jones has necessitated a wholesale reexamination of what offenses are LIOs. Recent cases 

have provided some insight. 

a)	 What are LIOs: 

(1)	 Aggravated sexual assault is an LIO of rape by force. United States 

v. Alston, 69 M.J. 214 (C.A.A.F. 2010). 

(2) Assault consummated by a battery is an LIO of wrongful sexual 

contact. United States v. Bonner, 70 M.J. 1 (C.A.A.F. 2011). 

(3) Housebreaking is an LIO of burglary. United States v. Arriaga, 70 

M.J. 51 (C.A.A.F. 2011). 

(4) Aggravated assault is an LIO of maiming.	 United States v. McLean, 

___ M.J. ___ (A.F. Ct. Crim. App. 2011). 

b)	 What are not LIOs: 

(1) Negligent homicide is not an LIO of premeditated murder. United States v. 

Girouard, 70 M.J. 5 (C.A.A.F. 2011). 

(2) Negligent homicide is not an LIO of involuntary manslaughter. United States v. 

McMurrin, 70 M.J. 15 (C.A.A.F. 2011). 

(3) Incapacitation for duty is not an LIO of drunk on station. United States v. Martinez, 

69 M.J. 683 (A. Ct. Crim. App. 2010). 

(4) Indecent act is not an LIO of aggravated sexual assault. United States v. Clifton, ___ 

M.J. ___ (C.G. Ct. Crim. App. 2011). 

D.	 Instructions. 

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1. If there is some evidence admitted at trial that reasonably raises a lesser included offense, 

then the military judge has a sua sponte duty to give an instruction on the lesser included offense. 

United States v. Miergrimado, 66 M.J. 34 (C.A.A.F. 2008); United States v. Rodwell, 20 M.J. 

264, 265 (C.M.A.1985); United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000) (reversing 

involuntary manslaughter conviction for failing to instruct on lesser included offense of negligent 

homicide); United States v. Wells, 52 M.J. 126 (C.A.A.F. 1999) (reversing premeditated murder 

conviction for failing to instruct on lesser included offense of voluntary manslaughter). 

2. If the military judge fails to give an instruction, defense failure to object constitutes waiver, 

absent plain error. R.C.M. 920(f); United States v. Pasha, 24 M.J. 87 , 91 (C.M.A. 1987); United 

States v. Mundy, 9 C.M.R. 130 (C.M.A. 1953). The defense may waive an LIO instruction in 

order to pursue an “all or nothing” trial strategy and there is no rule that prevents the Government 

from acquiescing in such a strategy. See United States v. Upham, 66 M.J. 83, 87 (C.A.A.F. 

2008). The military judge need not oblige, however. As one court observed, “Such a litigation 

tactic remains viable in military jurisprudence, but it is far from being an absolute right or the 

unilateral prerogative of the defense.” United States v. Swemley, No. 200900359 (N.M. Ct. Crim. 

App. Apr. 29, 2010) (unpub.). 

3. An instruction on a lesser included offense is proper when an element of the charged greater 

offense, which is not required for the lesser included offense, is in dispute. United States v. 

Miergrimado, 66 M.J. 34 (C.A.A.F. 2008); United States v. Griffin, 50 M.J. 480 (C.A.A.F.1999) 

(holding that factual issue as to whether accused intended to stab victim with a knife, which he 

knowingly held in his hand, did not require an instruction on the lesser included offense of simple 

battery, because proof of intent to use the dangerous weapon is not required for the greater 

offense). 

IV. ATTEMPTS. UCMJ ART. 80. 

A. Introduction. 

1. Text. “An act, done with specific intent to commit an offense under this chapter, amounting 

to more than mere preparation and tending, even though failing, to effect its commission, is an 

attempt to commit that offense.” Article 80(a). 

2. Elements. MCM, pt. IV, ¶ 4b. 

a) The accused did a certain overt act; 

b) The act was done with the specific intent to commit a certain offense under the code; 

c) The act amounted to more than mere preparation; and 

d) The act apparently tended to effect the commission of the intended offense. 

3. Advisement of Elements During Guilty Plea. Military judge must adequately advise and 

explain each of the four elements of attempt to an accused. United States v. Redlinski, 58 M.J. 

117 (C.A.A.F. 2003). 

B. Overt Act. 

1. Generally. 

a) The overt act need not be alleged in the specification. United States v. Mobley, 31 M.J. 

273 (C.M.A. 1990); United States v. Marshall, 40 C.M.R. 138 (C.M.A. 1969). 

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b) The overt act need not be illegal. United States v. Johnson, 22 C.M.R. 278 (C.M.A. 

1957) (accused guilty of attempted desertion where all acts occurred within limits of 

legitimate pass). 

2. Specific Intent. 

a) The overt act must be done with the specific intent to commit an offense under the 

UCMJ. 

b) Applications. 

(1) Attempted murder requires specific intent to kill, even though murder may require a 

lesser intent. See United States v. Roa, 12 M.J. 210 (C.M.A. 1982) (explaining that, 

because an attempt requires a specific intent, there can be no “attempt” to commit 

involuntary manslaughter “by culpable negligence”); United States v. Allen, 21 M.J. 72 

(C.M.A. 1985) (finding circumstantial evidence sufficient to prove intent to kill required 

for attempted murder). 

(2) Attempted rape requires specific intent to have sexual intercourse by force and 

without consent, even though rape is general intent crime. United States v. Sampson, 7 

M.J. 513 (A.C.M.R. 1979); cf. United States v. Adams, 13 M.J. 818 (A.C.M.R. 1982) 

(assault with intent to commit rape). 

(3) In a prosecution for attempted violation of a lawful general regulation, under Article 

92(1), the accused must have had the specific intent to commit the proscribed act, and it 

is immaterial whether the accused knew the act violated any particular provision of any 

particular regulation. United States v. Foster, 14 M.J. 246 (C.M.A. 1982). 

(4) No attempted sale of heroin where accused intentionally sold brown sugar. United 

States v. Collier, 3 M.J. 932 (A.C.M.R. 1977). 

(5) Transferred or concurrent intent doctrine may be applied to attempted murder. 

United States v. Willis, 43 M.J. 889 (A.F.C.C.A. 1996), aff’d, 46 M.J. 258 (C.A.A.F. 

1997). 

3. More Than Mere Preparation. 

a) Preparation consists of devising or arranging the means or measures necessary for the 

commission of the offense. The required overt act must go beyond preparatory steps and be a 

direct movement towards the commission of the offense. MCM, pt. IV, ¶ 4c(2); United 

States v. Jackson, 5 M.J. 765 (A.C.M.R. 1978) (holding that approaching and asking other 

soldiers if they want to buy a “bag” or “reefer” was not an attempt, but affirming it as a 

solicitation). 

b) For the accused to be guilty of an attempt, the overt acts tending toward commission of 

the consummated offense must amount to more than mere preparation and constitute at least 

the beginning of its effectuation. However, “[t]here is no requirement under the law of 

attempts that the trip to the doorstep of the intended crime be completed in order for the 

attempt to have been committed.” United States v. Anzalone, 41 M.J. 142 (C.M.A. 1994) 

(affirming assault by attempt, where accused retrieved his rifle, locked and loaded a round in 

the chamber, and started toward the victim’s tent, even though he was stopped before he 

reached a point where he could have actually inflicted harm); United States v. Owen, 47 M.J. 

501 (A.C.C.A. 1997) (holding that giving middle-man a map, automobile license number, 

and guidance on method for “hit man,” where accused believed “hit man” had already arrived 

in town for the job, was sufficient overt act for attempted murder). 

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c) The line of demarcation between preparation and a direct movement towards the offense 

is not always clear. Primarily the difference is one of fact, not law. United States v. Choat, 

21 C.M.R. 313 (C.M.A. 1956) (attempted unlawful entry). 

d) After a guilty plea where the accused admits that her acts went beyond mere preparation 

and points to a particular action that satisfies herself on this point, appellate courts will not 

find actions that fall within the “twilight zone” between mere preparation and attempt to be 

substantially inconsistent with the guilty plea. United States v. Smith, 50 M.J. 380 (C.A.A.F. 

1999). 

e) Words alone may be sufficient to constitute an overt act. United States v. Brantner, 28 

M.J. 941 (N.M.C.M.R. 1989) (a recruiter’s request to conduct a “hernia examination” was an 

act deemed more than mere preparation for a charge of attempted indecent assault). 

4. “Substantial Step.” 

a) The overt act must be a “substantial step” toward the commission of the crime. Whether 

the act is only preparatory or a substantial step toward commission of the crime must be 

determined on a case-by-case basis. United States v. Jones, 32 M.J. 430 (C.M.A. 1991) 

(holding that soliciting another to destroy car, making plans to destroy it, and finally 

delivering the car and its keys to that person on the agreed day of the auto’s destruction 

constituted substantial step toward larceny from insurance company); United States v. 

Williamson, 42 M.J. 613 (N.M.C.C.A. 1995) (accused’s acts of putting knife in his pocket 

and “going after” intended victim, without some indication of how close he came to 

completing the crime or why he failed to complete it, were not factually sufficient to 

constitute a substantial step toward the commission of the intended crime); United States v. 

Church, 29 M.J. 679 (A.F.C.M.R. 1989), aff’d, 32 M.J. 70 (C.M.A. 1991) (planning wife’s 

murder, hiring undercover agent to kill wife, making payments for killing, and telling agent 

how to shoot wife constituted substantial step toward murder). 

b) The “Test.” United States v. Byrd, 24 M.J. 286 (C.M.A. 1987). 

(1) The overt act must be a substantial step and direct movement toward commission of 

the crime. 

(2) A substantial step is one strongly corroborative of the accused’s criminal intent and is 

indicative of resolve to commit the offense. 

c) The accused must have engaged in conduct that is strongly corroborative of the firmness 

of the accused’s criminal intent. United States v. Byrd, 24 M.J. 286 (C.M.A. 1987) (accepting 

money from undercover agent and riding to an off-post location to purchase marijuana was 

not strongly corroborative of the firmness of the accused’s intent to distribute marijuana); 

United States v. Presto, 24 M.J. 350 (C.M.A. 1987) (after agreeing to try to get marijuana for 

undercover agent, placing phone calls to drug supplier was not a substantial step toward 

distribution of marijuana); United States v. LeProwse, 26 M.J. 652 (A.C.M.R. 1988) (offering 

to pay two boys to remove their trousers was strongly corroborative of the firmness of the 

accused’s intent to commit indecent liberties); see also United States v. Jones, 32 M.J. 430, 

432 (C.M.A. 1991) (“It is not the acts alone which determine the intent of the person 

committing them. The circumstances in which those acts were done are also indicative of a 

person's intent.”). 

5. Tending to Effect the Commission of the Offense. 

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a) United States v. McGinty, 38 M.J. 131 (C.M.A. 1993) (the accused’s running his fingers 

through the victim’s hair and hugging him was an affirmative step toward committing 

indecent acts). 

b) The overt act need not be the ultimate step in the consummation of the crime. It is 

sufficient if it is one that in the ordinary and likely course of events, would, if not interrupted 

by extraneous causes, result in the commission of the offense itself. United States v. Johnson, 

22 C.M.R. 278 (C.M.A. 1957) (although within the 50 mile limit of his pass, the accused’s 

walking to within the prohibited distance from the East German border, after unsuccessful 

attempts to get taxi drivers to cross the border, was sufficient overt act for attempted 

desertion); United States v. Gugliotta, 23 M.J. 905 (N.M.C.M.R. 1987) (overt act sufficient to 

constitute direct movement to commission of robbery where accused and accomplices made 

plans, procured implements, and went to the site of the crime with the tools for purpose of 

robbing exchange). 

C. Defenses. 

1. Factual Impossibility. Factual impossibility is not a defense to attempt. If the accused’s act 

would constitute a crime if the facts and circumstances were as the accused believed them to be, 

then he may be found guilty of an attempt to commit the intended crime, even though it was 

impossible to commit the intended crime under the actual circumstances. MCM, pt. IV, ¶ 4c(3). 

a) The defense of factual impossibility does not preclude conviction of attempted 

conspiracy where the other purported conspirator is an undercover government agent. United 

States v. Anzalone, 43 M.J. 322 (C.A.A.F. 1995) (attempted conspiracy to commit 

espionage); see also United States v. Valigura, 54 M.J. 187 (C.A.A.F. 2000); United States v. 

Baker, 43 M.J. 736 (A.F.C.C.A. 1995) (conspiracy would have been completed, but for the 

fact that informant did not share accused’s criminal intent); United States v. Roeseler, 55 M.J. 

286 (C.A.A.F. 2001) (factual impossibility not a defense to attempted conspiracy where 

accused agreed to murder the fictitious in-laws of a fellow member of his platoon; because 

the impossibility of the fictitious victims being murdered was not a defense to either attempt 

or conspiracy, it was not a defense to the offense of attempted conspiracy). 

b) United States v. Thomas, 32 C.M.R. 278 (C.M.A. 1962). The accused and two 

companions committed sexual intercourse with a female, whom they believed to be 

unconscious, under circumstances amounting to rape. The female, however, was dead at the 

time of the sexual intercourse. Conviction for attempted rape affirmed. 

c) United States v. Dominguez, 22 C.M.R. 275 (C.M.A. 1957). The accused injected 

himself with a substance he believed to be a narcotic drug. Regardless of the true nature of 

the white powdery substance, accused was guilty of attempted use of a narcotic drug. 

d) United States v. Riddle, 44 M.J. 282 (C.A.A.F. 1996). The accused could be convicted 

of attempted conspiracy to steal military pay entitlements to which he was entitled by law or 

regulation, where he did not believe he was married at the time, even if he was married at the 

time. 

e) United States v. Church, 29 M.J. 679 (A.F.C.M.R. 1989) aff’d 32 M.J. 70 (C.M.A. 1991). 

Evidence supported the accused’s conviction for attempted premeditated murder of his wife, 

although the person he hired to kill his wife was an undercover agent. 

f) United States v. Wilson, 7 M.J. 997 (A.C.M.R. 1979). The accused came upon another 

person who was unconscious. Beside the person was a hypodermic needle and syringe used 

by him to inject heroin. The accused destroyed the needle and syringe to hinder or prevent 

the person’s apprehension for use and possession of narcotics. Because this person was 

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probably dead at the time the items were destroyed, the accused cannot be found guilty of 

accessory after the fact in violation of Article 78. Because the accused believed the person 

was alive at the time he destroyed the needle and syringe, however, he may be found guilty of 

attempted accessory after the fact. 

g) United States v. Longtin, 7 M.J. 784 (A.C.M.R. 1979). The accused sold a substance, 

which he believed to be opium, as opium. The laboratory test was inconclusive, and the 

Government could not prove it was opium. The court affirmed the conviction for attempted 

sale of opium. Had the facts and circumstances been as he believed them to be, he could 

have been convicted of sale of opium. 

h) United States v. Powell, 24 M.J. 603 (A.F.C.M.R. 1987) (attempted larceny even though 

bank denied loan application). 

2. Voluntary Abandonment. 

a) A person who, with the specific intent to commit a crime, has performed an act that is 

beyond mere preparation and a substantial step toward commission of the offense may 

nevertheless avoid liability for the attempt by voluntarily abandoning the criminal effort. 

United States v. Byrd, 24 M.J. 286 (C.M.A. 1987) (recognizing voluntary abandonment as an 

affirmative defense in military justice). 

b) It is a defense to a completed attempt that the person voluntarily and completely 

abandoned the intended crime, solely because of the person’s own sense that it was wrong, 

prior to the completion of the crime. MCM, pt. IV, ¶ 4c(4) (added to the MCM in 1995). 

c) When the actions of the accused have progressed into their last stages and the victim has 

already suffered substantial harm, voluntary abandonment is not a defense to attempt. United 

States v. Smauley, 42 M.J. 449 (C.A.A.F. 1995) (upholding guilty plea to attempted carnal 

knowledge). 

d) The defense of voluntary abandonment is “unavailable if the criminal venture is 

frustrated by any circumstance that was not present or apparent when the actor began his 

criminal course of conduct that makes the accomplishment of the criminal purpose more 

difficult.” United States v. Haney, 39 M.J. 917 (N.M.C.M.R. 1994) (citing United States v. 

Rios, 33 M.J. 436 (C.M.A 1991)). 

e) Applications. 

(1) United States v. Schoof, 37 M.J. 96 (C.M.A. 1993) (fact that accused, later the same 

day, solicited someone to assist him in continuing to pursue the same crime of delivering 

classified microfiche to the Soviet Embassy undermined his claim that he had completely 

renounced his criminal purpose). 

(2) United States v. Rios, 33 M.J. 436 (C.M.A 1991) (accused did not voluntarily 

abandon attempted robbery where he merely postponed the criminal conduct to a more 

advantageous time and transferred the criminal effort to a different but similar victim); 

see also United States v. Haney, 39 M.J. 917 (N.M.C.M.R. 1994) (defense of voluntary 

abandonment not available to an accused where he and another sailor tried to rob a 

vending machine by drilling a hole in the glass and the glass shattered, “prompt[ing] their 

conclusion that continuing in the endeavor would be a ‘bad idea’”). 

(3) United States v. Collier, 36 M.J. 501 (A.F.C.M.R. 1992) (holding that when an 

attempted murder has proceeded so far that injury results, abandonment is not available 

as a defense). 

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(4) United States v. Wilmouth 34 M.J. 739 (N.M.C.M.R. 1991) (accused’s failure to 

deliver classified information because of inability to locate agent could not be attributed 

to a change of heart). 

(5) United States v. Miller, 30 M.J. 999 (N.M.C.M.R. 1990) (abandoning a course of 

action is not voluntary when it is motivated by circumstances that increase the probability 

of detection and apprehension). 

(6) United States v. Walthers, 30 M.J. 829 (N.M.C.M.R. 1990) (where the record 

indicated that the accused abandoned attempt to steal a car stereo, after breaking into the 

car, because of his own sense that it was wrong, the guilty plea to attempted larceny was 

improvident). 

D. Pleading. 

1. Only the elements of the inchoate offense (attempt) need to be alleged – the elements of the 

attempted offense (also called the “predicate” or “target” offense) need not be plead. “However, 

sufficient specificity is required so that an accused is aware of the nature of the underlying target 

or predicate offense.” United States v. Norwood, ___M.J. ___ (C.A.A.F. 2012). 

2. Overt act need not be alleged. United States v. Marshall, 40 C.M.R. 138 (C.M.A. 1969). 

3. Attempted drug offenses. 

a) United States v. Showers, 45 C.M.R. 647 (A.C.M.R. 1972). Specification alleging that 

the accused “did . . . on or about 31 August 1971 attempt to sell some quantity of a habit 

forming drug, to wit: Heroin” was fatally defective, because it fails to allege that the attempt 

was wrongful. Accord United States v. Brice, 38 C.M.R. 134 (C.M.A. 1967); but see United 

States v. Simpson, 25 M.J. 865 (A.C.M.R. 1988) (omission of the word “wrongful” from one 

of four drug distribution specifications not a fatal defect where defendant pled guilty), aff’d, 

27 M.J. 483 (C.M.A. 1988). 

b) United States v. Guevara, 26 M.J. 779 (A.F.C.M.R. 1988). Conviction for attempted use 

of a controlled substance, alleged in the generic, affirmed. Accused intended to use some 

type of controlled substance. 

4. Attempted Robbery. 

a) All the essential elements of robbery must be alleged in an attempted robbery 

specification. United States v. Rios, 15 C.M.R. 203 (C.M.A. 1954) (specification failing to 

allege the attempted taking was from the person or the presence of the victim was fatally 

defective). 

b) United States v. Hunt, 7 M.J. 985 (A.C.M.R. 1979) (specification failing to allege the 

attempted taking was from the person or the presence of the victims was fatally defective; 

conviction of attempted larceny affirmed), aff’d 10 M.J. 222 (C.M.A. 1981). 

c) United States v. Ferguson, 2 M.J. 1225 (N.C.M.R. 1976) (specification alleging, in part, 

that the accused did “attempt to rob a wallet, the property of PFC Hoge,” was fatally 

defective). 

d) United States v. Wright, 35 C.M.R. 546 (A.B.R. 1964) (specification alleging that accused 

“attempted to commit the offense of robbery by entering the Wolfgang Roth Insurance and 

Loan Agency, wearing a mask and armed with a pistol,” was fatally defective). 

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E. Attempt as a Lesser Included Offense. 

1. Text. “An accused may be found guilty of an offense necessarily included in the offense 

charged or of an attempt to commit either the offense charged or an offense necessarily included 

therein.” Article 79. 

2. United States v. Banks, 7 M.J. 501 (A.F.C.M.R. 1979). Attempted destruction of military 

property was a lesser included offense of sabotage, prosecuted under Article 134(3) and 18 

U.S.C. § 2155. 

3. The specification alleging the greater offense and the facts of the case put the defense on 

notice of the existence of the lesser offense of attempt. See United States v. LaFontant, 16 M.J. 

236 (C.M.A. 1983) (affirming lesser included offense of attempted possession of LSD, even though 

members had not been instructed thereon, because the accused was convicted of actual possession 

and there was evidence that accused consciously and intentionally possessed a substance he 

believed to be LSD); United States v. Guillory, 36 M.J. 952 (A.C.M.R. 1993) (plea of guilty to 

attempted possession provident where inquiry establishes guilt to greater offense of possession 

with intent to distribute, even though military judge did not advise accused of elements of 

attempt). 

4. Specific intent requirement. United States v. Roa, 12 M.J. 210 (C.M.A. 1982) (attempt requires 

specific intent even where greater offense does not). 

F. Attempts Expressly Enumerated in Substantive Offenses. 

1. While most attempts should be charged under Article 80, the attempts listed below are 

specifically addressed under the article defining the primary offense and should be charged 

accordingly. MCM, pt. IV, ¶ 4c(6). 

a) Article 85 (desertion). 

b) Article 94 (mutiny). 

c) Article 100 (subordinate compelling surrender). 

d) Article 104 (aiding the enemy). 

e) Article 106a (espionage). 

f) Article128 (assault). 

2. Attempted Conspiracy. Attempted conspiracy is a viable offense under the UCMJ. United 

States v. Riddle, 44 M.J. 282 (C.A.A.F. 1996) (affirming conviction for attempted conspiracy to 

steal military pay entitlements). Attempted conspiracy is applicable where an accused agrees 

with an undercover United States v. Anzalone, 43 M.J. 322 (C.A.A.F. 1995) (holding that attempt 

and conspiracy statutes did not prohibit charge of attempted conspiracy to commit espionage, 

when other alleged conspirator is an undercover government agent); United States v. Roeseler, 55 

M.J. 286 (C.A.A.F. 2001) (affirming conviction for attempted conspiracy to murder fictitious inlaws of fellow soldier). 

3. Solicitation. “Soliciting another to commit an offense does not constitute an attempt.” 

MCM, pt. IV, ¶ 4c(5). 

4. Attempted drug offenses. 

a) If the accused believed the substance was an illegal drug, but the prosecution cannot 

prove it or the substance was actually not an illegal drug, then the accused can be convicted 

of attempting to commit the drug offense. United States v. Dominguez, 22 C.M.R. 275 

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(C.M.A. 1957) (attempted use of narcotic drug); United States v. Longtin, 7 M.J. 784 

(A.C.M.R. 1979) (attempted sale of opium, where laboratory test inconclusive); United States 

v. Gray, 41 C.M.R. 756 (N.C.M.R. 1969) (attempted possession of marijuana and mescaline, 

where substances were not seized). 

b) If the accused did not believe the substance was an illegal drug, however, the accused did 

not attempt to commit a drug offense. United States v. Collier, 3 M.J. 932 (A.C.M.R. 1977) 

(where accused was putting one over on the heroin buyer by selling him brown sugar, guilty 

plea to attempted transfer of heroin was improvident); United States v. Giles, 42 C.M.R. 960 

(A.F.C.M.R. 1970) (accused who knows he has been deceived by seller, but nevertheless 

smokes substance hoping to achieve a “high,” was not guilty of attempted use). 

c) If the accused sold fake drugs, he can be charged and convicted of larceny by false 

pretenses, under Article 121. See United States v. Williams, 3 M.J. 555 (A.C.M.R. 1977) 

(sale of fake LSD) rev’d on other grounds 4 M.J. 336 (C.M.A. 1978). 

5. Attempted Adultery. United States v. St. Fort, 26 M.J. 764 (A.C.M.R. 1988) (man returned 

home unexpectedly and found his wife clad only in bathrobe and the accused naked in a closet). 

V. CONSPIRACY. UCMJ ART. 81. 

A. Introduction. 

1. “Any person subject to this chapter who conspires with any other person to commit an 

offense under this chapter shall, if one or more of the conspirators does an act to effect the object 

of the conspiracy, be punished as a court-martial may direct.” Article 81. 

2. Public Policy Rationale. The concerted activity of a conspiracy is much more dangerous to 

society than the acts of individuals. The criminal enterprise is more difficult to detect because of 

its secrecy, is more likely to succeed because of the combination of strengths and resources of its 

members, and may continue to exist even after the initial object of the conspiracy has been 

achieved. See United States v. Feola, 420 U.S. 671, 693-94 (1975); United States v. Rabinowich, 

238 U.S. 78, 88 (1915). 

3. Elements. MCM, pt. IV, ¶ 5b. 

a) The accused entered into an agreement with one or more persons to commit an offense 

under the code; and 

b) While the agreement continued to exist, and while the accused remained a party to the 

agreement, the accused or at least one of the co-conspirators performed an overt act for the 

purpose of bringing about the object of the conspiracy. 

4. Pleading. Only the elements of the inchoate offense (conspiracy) need to be alleged – the 

elements of the conspired offense (also called the “predicate” or “target” offense) need not be 

plead. “However, sufficient specificity is required so that an accused is aware of the nature of the 

underlying target or predicate offense.” United States v. Norwood, ___M.J. ___ (C.A.A.F. 2012). 

B. Parties to a Conspiracy. 

1. Two or more persons are required in order to have a conspiracy. MCM, pt. IV, ¶ 5c(1). 

a) Co-conspirators need not be subject to the UCMJ. United States v. Rhodes, 29 C.M.R. 

551 (C.M.A. 1960) (co-conspirator was a foreign national). 

b) At least two parties must be culpably involved. There must be a “meeting of minds” 

regarding the criminal object of the conspiracy. United States v. Valigura, 54 M.J. 187 

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(C.A.A.F. 2000) (adhering to the traditional “bilateral theory” and rejecting the modern 

“unilateral theory”; no conspiracy where only co-conspirator was an undercover agent; 

affirming conviction for attempted conspiracy); United States v. LaBossiere, 32 C.M.R. 337 

(C.M.A. 1962). (“it is well settled that there can be no conspiracy when a supposed 

participant merely feigns acquiescence with another’s criminal proposal in order to secure his 

detection and apprehension by proper authorities.”). 

2. Acquittal of accused’s co-conspirators in a separate trial does not preclude conspiracy 

conviction of the accused. United States v. Garcia, 16 M.J. 52 (C.M.A. 1983) (overruling the 

former “rule of consistency”). 

C. “Bilateral Theory” of liability. 

1. Conspiracy, under Article 81, requires a “meeting of the minds” to achieve the purported 

criminal goal. United States v. Valigura, 54 M.J. 187 (C.A.A.F. 2000); United States v. 

LaBossiere, 32 C.M.R. 337 (C.M.A. 1962) (if only two persons involved, one cannot be a 

government agent); United States v. Duffy, 47 C.M.R. 658 (A.C.M.R. 1973) (mentally 

incapacitated co-accused not culpably involved). 

2. The law does not require ‘consistency of verdicts.’ If one of two co-conspirators is acquitted 

of conspiracy in a previous trial, the other co-conspirator may still be tried and convicted of 

conspiracy. United States v. Garcia, 16 M.J. 52, 57 (C.M.A. 1983). 

3. An accused may be convicted of attempted conspiracy with an undercover law enforcement 

agent. United States v. Anzalone, 43 M.J. 322 (C.A.A.F. 1995); United States v. Valigura, 54 

M.J. 187 (C.A.A.F. 2000). 

4. Attempted conspiracy does not require an agreement or shared intent among the expected 

conspirators with respect to the object of the conspiracy. United States v. Roeseler, 55 M.J. 286 

(C.A.A.F. 2001) (accused agreed to murder fictitious parents-in-law of fellow member of
 

platoon). 

D. The Agreement. 

1. No particular words or form of agreement are required, only a common understanding to 

accomplish the object of the conspiracy. This may be shown by the conduct of the parties. The 

agreement need not state the means by which the conspiracy is to be accomplished or what part 

each conspirator is to play. United States v. Whitten, 56 M.J. 234 (C.A.A.F. 2002) (agreement 

formed by circling back to take a duffel bag after spotting it outside a vehicle while driving 

through housing area); MCM, pt. IV, ¶ 5c(2). 

a) “Object of the conspiracy.” 

(1) United States v. Shelton, 62 M.J. 1 (C.A.A.F. 2005). The MJ instructed on lesser 

included offenses of unpremeditated murder and conspiracy to commit unpremeditated 

murder. MJ told the members that they would have to find “that at the time of the killing, 

the accused had the intent to kill or inflict great bodily harm on PFC Chafin.” MJ erred. If 

the intent of the parties to the agreement was limited to the infliction of great bodily 

harm, their agreement was to commit aggravated assault, not unpremeditated murder. 

(2) United States v. Denaro, 62 M.J. 663 (C.G. Ct. Crim. App. 2006). Object must be a 

UCMJ offense. Interfering with a urinalysis constitutes the Article 134 offense of 

wrongfully interfering with an adverse administrative proceeding, thereby establishing 

the unlawful object of the conspiracy. 

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b) United States v. Billings, 58 M.J. 861 (A. Ct. Crim. App. 2003) (evidence established an 

agreement by the accused to commit robbery where accused was leader of the gang and she 

silently concurred when a subordinate outlined the robbery plan as a way to make money for 

the gang and evidence suggested that the accused shared in the proceeds) aff’d, 61 M.J. 163 

(C.A.A.F. 2005). 

c) United States v. Cobb, 45 M.J. 82 (C.A.A.F. 1996) (evidence established agreement to 

commit robbery, where accused brought co-conspirators together, knew of their criminal 

venture, and expected to share in the proceeds). 

d) United States v. Garner, 43 M.J. 435 (C.A.A.F. 1996) (affirming conviction for conspiracy 

to steal insurance funds where accused hired a fellow soldier to kill accused’s wife with 

promise to share her life insurance proceeds). 

e) United States v. Barnes, 38 M.J. 72 (C.M.A. 1993) (“existence of a conspiracy is 

generally established by circumstantial evidence and is usually manifested by the conduct of 

the parties themselves”). 

f) United States v. Matias, 25 M.J. 356 (C.M.A. 1987) (conduct of accused and roommate 

was sufficient evidence of an agreement between them to sell marijuana), cert. denied, 485 

U.S. 968 (1988). 

g) United States v. Jackson, 20 M.J. 68 (C.M.A. 1985) (without saying a word, the coconspirator joined the accused in a conspiracy to commit larceny). 

h) United States v. Brown, 41 M.J. 504 (A. Ct. Crim. App. 1994) (conspiracy to organize a 

strike manifested by circumstantial evidence) aff’d, 45 M.J. 389 (C.A.A.F. 1996). 

i) United States v. Dickey, 41 M.J. 637 (N-M. Ct. Crim. App. 1994), vacated and remanded, 

43 M.J. 170 (C.A.A.F. 1995), aff’d, 46 M.J. 123 (C.A.A.F. 1996) (agreement to commit rape 

need not be expressed but only need be implied). 

j) United States v. Pete, 39 M.J. 521 (A.C.M.R. 1994) (mere involvement in “gripe 

sessions” at which soldiers discussed leaving post without authority to protest conditions did 

not amount to a conspiracy). 

k) United States v. Walker, 39 M.J. 731 (N-M.C.M.R. 1994) (affirming conviction for 

conspiracy to distribute marijuana where accused acted as a lookout and knew his associates 

were selling marijuana), aff’d, 41 M.J. 79 (C.M.A. 1994). 

l) United States v. Graalum, 19 C.M.R. 667, 697-98 (A.F.B.R. 1955) (“conduct of the 

alleged co-conspirators, their declarations to or in the presence of each other, and other 

circumstantial evidence” clearly manifested agreement to commit bribery). 

m) United States v. Triplett, 56 M.J. 875 (A. Ct. Crim. App. 2002) (accused’s acts of 

straddling victim’s chest and placing hands on her throat to facilitate rape by co-conspirator 

established that accused and co-conspirator formed an agreement to rape victim). 

n) United States v. Brown, 9 M.J. 599 (A.F.C.M.R. 1980) (accused’s involvement in first 

two of four thefts was insufficient to establish that the scope and object of the conspiracy, of 

which the accused was a member, included the last two thefts). 

o) United States v. Broaden, No. ARMY 20150414, 2016 WL 4145746, at *3 (A. Ct. Crim. 

App. Aug. 3, 2016): (accused entered an agreement to steal the target’s wallet, and the fact 

that the target had $527 was not enough to convict accused of conspiracy to steal “over 

$500,” as the agreement was not specific as to that amount). 

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2. Mere presence is insufficient basis for inference of agreement. United States v. Wright, 42 

M.J. 163 (C.A.A.F. 1995) (evidence that accused agreed to be present to assist if necessary and to 

assist in disposal of the victim’s body was sufficient proof of agreement to commit premeditated 

murder); United States v. Mukes, 18 M.J. 358 (C.M.A. 1984) (conspiracy requires “deliberate, 

knowing, and specific intent to join the conspiracy, not . . . that [the accused] was merely present 

when the crime was committed”). 

3. A conditional agreement is sufficient for conspiracy if the accused believes that the condition 

is likely to be fulfilled. United States v. Wright, 42 M.J. 163, 166-67 (C.A.A.F. 1995) (citing 

federal case law). 

4. Single Agreement to Commit Multiple Crimes. A single agreement to commit multiple 

offenses is a single conspiracy. 

a) United States v. Mack, 58 M.J. 413 (C.A.A.F. 2003). Accused was convicted separately 

of conspiracy to commit check forgery and conspiracy to commit larceny of the check 

proceeds. On appeal, the government acknowledged there was only one agreement and thus, 

only one conspiracy. The court consolidated the two conspiracy specifications. “[O]ne 

agreement cannot be taken to be several agreements and hence several conspiracies because it 

envisages the violation of several statutes rather than one.” 

b) United States v. Pereira, 53 M.J. 183 (C.A.A.F. 2000). Accused pled guilty to and was 

convicted of separate specifications of conspiracy to commit murder, conspiracy to commit 

robbery, and conspiracy to commit kidnapping. The record established that the accused and 

his co-conspirators formed only one agreement to commit all the underlying offenses. As a 

matter of law, there was only one conspiracy, and the court consolidated the three 

specifications into one specification. 

c) United States v. Inman, No. ARMY 20150042, 2016 WL 2726276, at *2 (A. Ct. Crim. 

App. May 4, 2016), adhered to on reconsideration, No. ARMY 20150042, 2016 WL 

3545504 (A. Ct. Crim. App. June 23, 2016): The court found one conspiracy with diverse 

means to effectuate the object of the conspiracy—namely, to fraudulently allow Mrs. K.I. to 

continue to obtain medical care through TRICARE by falsely claiming she and appellant 

were still married, and using the dependent ID card to obtain medical benefits. The factors 

used to determine the number of conspiracies include: “(1) the objectives and (2) nature of 

the scheme in each alleged conspiracy; (3) the nature of the charge and (4) the overt acts 

alleged in each; (5) the time and (6) location of each of the alleged conspiracies; (7) the 

conspiratorial participants in each; and (8) the degree of interdependence between the alleged 

conspiracies.” 

5. Complex Conspiracies. The scope and structure of conspiracies will vary considerably. The 

simplest form is a single bilateral agreement to commit a single crime. From that simple model, 

conspiracies may evolve into highly complex networks involving agreements between multiple 

parties to commit multiple crimes. In some cases, separate conspiracies are linked together by 

one or more common members. The scope and structure of the conspiracy has critical 

implications for determining liability of co-conspirators for crimes committed in furtherance of 

the conspiracy, resolving of evidentiary issues, and presenting a coherent theory to the panel. 

Two common metaphors used to describe complex conspiracies are the “wheel with spokes” 

conspiracy and the “chain” conspiracy. 

a) A “totality of the circumstances” analysis is the correct approach when determining the 

number of conspiracies in a given case. Federal court decisions have identified a variety of 

factors that may be relevant to determining whether a single or multiple conspiracies exist. 

Among such factors are the following: (1) the objectives of each alleged conspiracy; (2) the 

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nature of the scheme in each alleged conspiracy; (3) the nature of the charge; (4) the overt 

acts alleged in each; (5) the time each of the alleged conspiracies took place; (6) the location 

of each of the alleged conspiracies; (7) the conspiratorial participants in each; and (8) the 

degree of interdependence between the alleged conspiracies. United States v. Finlayson, 58 

M.J. 824 (A. Ct. Crim. App. 2003) (applying the eight factors to find one conspiracy where 

the accused used two suppliers, one of whom also supplied the other, and later had his wife 

join him in his drug distributing venture). 

b) Under the “wheel” metaphor, establishing a single conspiracy requires that the 

prosecution prove that the spokes are bound by a “rim,” which is the concerted action of all 

the parties working together with a single design for the accomplishment of a common 

purpose. The circumstances must lead to an inference that some form of overall agreement 

existed. This agreement may be inferred from the parties’ acts or other circumstantial 

evidence. United States v. Kenny, 645 F.2d 1323, 1334-35 (9th Cir. 1981) (finding a single 

conspiracy in the form of a “wheel” with the defendant as a central “hub” dealing in 

individual transactions with the other defendants as “spokes”), cert. denied, 452 U.S. 920 

(1981). 

c) The government need not show direct contact or explicit agreement between the 

defendants. It is sufficient to show that each defendant knew or had reason to know of the 

scope of the conspiracy and that each defendant had reason to believe that their own benefits 

were dependent upon the success of the entire venture. United States v. Kostoff, 585 F.2d 

378, 380 (9th Cir. 1978). 

d) Once the existence of a conspiracy has been established, evidence of only a slight 

connection is necessary to convict a defendant of knowing participation in it. United States v. 

Dunn, 564 F.2d 348, 357 (9th Cir. 1977). 

E. Overt Act. 

1. The overt act must be independent of the agreement, and it must take place during or after the 

agreement. MCM, pt. IV, ¶ 5c(4)(a). United States v. Kauffman, 34 C.M.R. 63 (C.M.A. 1963) 

(the act of receiving the name and address of his contact, which was not separate from the 

agreement, was not a sufficient overt act for conspiracy to wrongfully communicate with agents 

of East Germany); United States v. Schwab, 27 M.J. 559 (A.C.M.R. 1988) (accused’s 

conversations with his alleged co-conspirator, his statement that he put money aside, and 

co-conspirator’s notes and sketches did not satisfy the overt act requirement for conspiracy to 

commit larceny and wrongful sale of firearms); United States v. Farkas, 21 M.J. 458 (C.M.A. 

1986), cert. denied, 479 U.S. 857 (1986) (act done prior to agreement is not a sufficient overt 

act). 

2. The overt act must be done by one or more of the co-conspirators, but not necessarily the 

accused. MCM, pt. IV, ¶ 5c(4)(a); see United States v. Yarborough, 5 C.M.R. 106 (C.M.A. 1962) 

(in conspiracy to intentionally inflict self-injury, the government could have alleged overt acts 

proven to be committed by the co-conspirator, but the government alleged overt acts by the 

accused that it did not prove). 

3. An overt act by one conspirator is the act of all; the overt act may be performed by any 

member of the conspiracy. Each conspirator is equally guilty even though each does not 

participate in, or have knowledge of, all of the details. MCM, pt. IV, ¶ 5c(4)(c); see United States 

v. Figueroa, 28 M.J. 570 (N.M.C.M.R. 1989). 

4. The overt act need not be criminal. Although committing the intended offense may constitute 

the overt act, it is not essential. Mere preparation may be enough, as long as it manifests that the 

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agreement is being executed. MCM, pt. IV, ¶ 5c(4)(b); United States v. Choat, 21 C.M.R. 313 

(C.M.A. 1956) (obtaining crowbar with which to break and enter a store was sufficient overt act 

for conspiracy to commit larceny); see United States v. Brown, 41 M.J. 504 (A.C.C.A. 1994) 

(agreement may be contemporaneous with the offense itself in a conspiracy to organize a strike), 

aff’d, 45 M.J. 389 (C.A.A.F. 1996). 

5. At least one overt act must be alleged and proved; United States v. McGlothlin, 44 C.M.R. 

533 (A.C.M.R. 1971) (holding that specification alleging conspiracy to commit pandering but not 

alleging any overt act in furtherance of the conspiracy was fatally defective). Government may 

allege several overt acts, but need prove only one; United States v. Reid, 31 C.M.R. 83 (C.M.A. 

1961). 

6. Substitution of proof of an unalleged overt act does not necessarily constitute a fatal variance, 

as long as there is “substantial similarity” between the alleged overt act and the overt act proven 

at trial. United States v. Collier, 14 M.J. 377 (C.M.A. 1983); see United States v. Moreno, 46 M.J. 

216 (C.A.A.F. 1997) (where basic facts remain unchanged, amendment of alleged overt act the 

day before trial was permissible minor change). 

F. Wharton’s Rule. 

1. Some offenses require two or more culpable actors acting in concert. There can be no 

conspiracy where the agreement exists only between the persons necessary to commit such an 

offense. Examples include dueling, bigamy, incest, adultery, and bribery. MCM, pt. IV, ¶ 5c(3). 

2. Iannelli v. United States, 420 U.S. 770, 782-86 (1975). Defendant and seven others were 

convicted of conspiracy to violate and violating 18 U.S.C. § 1955, a federal statute making it a 

crime for five or more persons to operate a prohibited gambling business. Convictions for both 

offenses were affirmed. Wharton’s Rule “has current vitality only as a judicial presumption, to 

be applied in the absence of legislative intent to the contrary. The classic Wharton’s Rule 

offenses—adultery, incest, bigamy, dueling—are crimes that are characterized by the general 

congruence of the agreement and the completed substantive offense. The parties to the agreement 

are the only persons who participate in commission of the substantive offense, and the immediate 

consequences of the crime rest on the parties themselves rather than society at large.” 

3. Rule does not apply where the substantive offense does not demand concerted criminal 

activity, such as drug use or distribution. United States v. Crocker, 18 M.J. 33, 38-39 (C.M.A. 

1984) (drug distribution); United States v. Johnson, 58 M.J. 509 (N-M. Ct. Crim. App. 2003) 

(drug use); United States v. Osthoff, 8 M.J. 629 (A.C.M.R. 1979). 

4. Rule does not apply when the conspiracy involves the cooperation of a greater number of 

persons than is required for commission of the substantive offense. See United States v. Crocker, 

18 M.J. 33, 38 (C.M.A. 1984) (affirming conspiracy conviction where accused accepted money 

and agreed to buy drugs for another airman on a trip to Amsterdam; Wharton’s Rule did not apply 

because only one party to a drug distribution need have a criminal intent); United States v. Jiles, 

51 M.J. 583 (N.M. Ct. Crim. App. 1999) (holding Wharton’s Rule did not apply to conspiracy to 

distribute marijuana). 

5. But see United States v. Parada, 54 M.J. 730 (C.G. Ct. Crim. App. 2001) (Application of 

Wharton’s Rule to drug offenses is a highly fact-dependent determination in which the extent of 

the enterprise in time and reach are prime considerations. Conspiracy to distribute marijuana 

where the only parties involved were the accused, who mailed the drugs, and his friend, who 

received them, was unnecessary “piling-on” of charges); United States v. Viser, 27 M.J. 562 

(A.C.M.R. 1988) (holding Wharton’s Rule does not apply to drug offenses). 

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6. Wharton’s Rule does not apply to conspiracy to violate an anti-black marketing regulation. 

United States v. Wood, 7 M.J. 885 (A.F.C.M.R. 1979) (reasoning that the regulation could be 

violated by one person). 

G. Duration. 

1. Termination. A conspiracy terminates when the object of the conspiracy is accomplished, the 

members withdraw, or the members abandon the conspiracy. United States v. Beverly, 14 

U.S.C.M.A. 468, 471 (C.M.A. 1964). 

a) United States v. Jimenez Recio, 537 U.S. 270 (2003) Conspiracy does not automatically 

terminate simply because the Government has defeated its object. Thus, defendants may be 

convicted of conspiracy, even absent proof they joined the conspiracy before its defeat. 

b) United States v. Ratliff, 42 M.J. 797 (N-M.C.C.A. 1995). Accused and four other Marines 

conspired to rob enough other Marines to finance a trip to Raleigh, North Carolina. After 

successfully getting money from one robbery victim but then failing to get money from two 

other victims that ran away, it was obvious that the co-conspirators did not think that they had 

attained the object of their conspiracy. Therefore, a statement made by a co-conspirator, at 

that time, was not hearsay, under MRE 801(d)(2)(E). 

c) United States v. Hooper, 4 M.J. 830 (A.F.C.M.R. 1978). Accused charged with 

conspiring to violate and violating an Air Force regulation proscribing demonstrations in 

foreign countries by burning a cross. Later, an alleged co-conspirator stated that the accused 

lit the fire. The statement was admissible only if it was made during and in furtherance of the 

conspiracy. “It is well settled that a conspiracy ends when the objectives thereof are 

accomplished, if not earlier by abandonment of the aims or when any of the members of the 

joint enterprise withdraw therefrom.” The object of the conspiracy was the erection and 

burning of the cross. When that was accomplished, the conspiracy terminated. 

2. Withdrawal. 

a) An individual is not guilty of conspiracy if he effectively withdraws before the alleged 

overt act is committed. An effective withdrawal must consist of affirmative conduct that is 

wholly inconsistent with adherence to the unlawful agreement and that shows that the party 

has severed all connection with the conspiracy. A conspirator who effectively withdraws 

from the conspiracy after the performance of the alleged overt act remains guilty of 

conspiracy and of any offenses committed pursuant to the conspiracy up to the time of the 

withdrawal, but he is not liable for offenses committed by the remaining conspirators after his 

withdrawal. MCM, pt. IV, ¶ 5c(6). 

b) United States v. Miasel, 24 C.M.R. 184 (C.M.A. 1957). Accused and six others agreed to 

commit sodomy upon a fellow soldier in the stockade. The group forced the victim to lie 

down while the accused climbed on top of the victim. The accused declined to try to commit 

sodomy. The group took the victim out of the room and committed forcible sodomy upon 

him, but the accused did not leave the room with the group and had no further participation in 

the venture. “The failure of the accused to accompany the group when they left the barracks is 

indicative of an affirmative act on his part to effect a withdrawal and constitutes conduct wholly 

inconsistent with the theory of continuing adherence.” 

c) Mere inactivity does not constitute withdrawal. United States v. Rhodes, 28 C.M.R. 427 

(A.B.R. 1959), aff’d 29 C.M.R. 551 (C.M.A. 1960). From 1951 to 1953, the accused, while 

stationed at the United States embassy in Moscow, agreed to supply information to Soviet 

agents. In 1953, he returned to the United States and did not again actively participate in the 

conspiracy. In 1957, a co-conspirator committed an overt act. Accused was guilty of 

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conspiracy. “[I]t is no defense to the charge of conspiracy that appellant was inactive [in the 

conspiracy] subsequent to June 1953. 

3. A conspiracy is presumed to continue, until the contrary is shown. United States v. Graalum, 

19 C.M.R. 667 (A.F.B.R. 1955) (affirming conviction for conspiracy to commit bribery, where 

accused did not effectively withdraw prior to the performance of the overt act by the 

co-conspirator). 

H. Vicarious Liability. 

1. A co-conspirator may be convicted for substantive offenses committed by another 

co-conspirator, provided such offenses were committed while the agreement continued to exist 

and were in furtherance of the agreement. MCM, pt. IV, ¶ 5c(5); Pinkerton v. United States, 328 

U.S. 640 (1946); United States v. Browning, 54 M.J. 1 (C.A.A.F. 2000); United States v. Gaeta, 

14 M.J. 383 (C.M.A. 1983) (members were properly instructed on liability for co-conspirator’s 

drug distribution); United States v. Figueroa, 28 M.J. 570 (N.M.C.M.R. 1989) (guilty plea to drug 

distribution by co-conspirator was provident). 

2. United States v. Billings, 58 M.J. 861 (A.C.C.A. 2003) (accused’s silent consent as approval 

authority for all gang activity supported conviction for robbery even though other gang members 

carried out the crime) aff’d, 61 M.J. 163 (2005). 

3. United States v. Finlayson, 58 M.J. 824 (A.C.C.A. 2003) (dicta) (accused could be criminally 

liable for the actions of other conspirators before he joined the conspiracy). 

4. Article 77 is broad enough to encompass vicarious liability of co-conspirators. United States 

v. Browning, 54 M.J. 1, 7 (C.A.A.F. 2000) (holding that prosecution could prove larceny and 

fraudulent claim charges on theory that accused was perpetrator, aider and abettor, or coconspirator, even though conspiracy was not on the charge sheet). 

5. A co-conspirator’s statement may be admissible under MRE 801(d)(2)(E) even though 

conspiracy is not a charged offense. United States v. Knudson, 14 M.J. 13 (C.M.A. 1982). 

I. Punishment. 

1. Conspiracy to commit an offense is distinct and separate from the offense that is the object of 

the conspiracy. The accused can be convicted and punished separately for both the conspiracy 

and the underlying offense. Also, commission of the intended offense may constitute the overt 

act required for conspiracy. MCM, pt. IV, ¶ 5c(8); Pinkerton v. United States, 328 U.S. 640 

(1946); United States v. Dunbar, 12 M.J. 218 (C.M.A. 1982); United States v. Washington, 1 M.J. 

473 (C.M.A. 1976); United States v. Nagle, 30 M.J. 1229 (A.C.M.R. 1990). 

2. Conspiracy to commit a crime and solicitation to commit the same crime are separate offenses. 

See United States v. Ramsey, 52 M.J. 322 (C.A.A.F. 2000); United States v. Carroll, 43 M.J. 487 

(C.A.A.F. 1996). 

3. Conspiracy to commit a crime and attempted commission of the same crime are separate 

offenses, because each offense requires proof of a separate element. United States v. Stottlemire, 28 

M.J. 477 (C.M.A. 1989). 

4. Where the theft of two separate items was contemplated by the conspiracy, the value of the 

items can be aggregated to calculate the maximum punishment available for the conspiracy. 

United States v. Crawford, 31 M.J. 736 (A.F.C.M.R. 1990). 

VI. SOLICITATION. UCMJ ART. 82 AND ART. 134. 

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A. Introduction. Solicitation may be charged under either Article 82 or Article 134, depending on 

the crime solicited. 

1. Article 82 covers solicitation to commit the offenses of desertion (Article 85), mutiny (Article 

94), misbehavior before the enemy (Article 99), or sedition (Article 94). 

2. Article 134 covers solicitation to commit offenses other than these four named offenses. 

B. Discussion. 

1. Instantaneous offense. The offense is complete when a solicitation is made or advice given 

with the specific wrongful intent to influence another or others to commit an offense. It is not 

necessary that the person or persons solicited or advised agree to or act upon the solicitation or 

advice. MCM, pt. IV, ¶ 6c(1). 

2. Form of solicitation. Solicitation may be by means other than word of mouth or writing. Any 

act or conduct that reasonably may be construed as a serious request or advice to commit an offense 

can be considered solicitation. It is not necessary that the accused act alone; the accused may act 

through other persons in committing this offense. MCM, pt. IV, ¶ 6c(2). 

3. The prosecution must prove the accused had the specific intent that the offense actually be 

committed. United States v. Taylor, 23 M.J. 314 (C.M.A. 1987); United States v. Benton, 7 M.J. 

606 (N.C.M.R. 1979). 

4. An express or implicit invitation to join in a criminal plan is a solicitation. The context in 

which an alleged statement was made can be considered to determine its criminal nature as a 

solicitation. United States v. Williams, 52 M.J. 218 (C.A.A.F. 2000) (where accused and other 

person had used drugs together and the other person was informed of the accused’s international 

drug smuggling operation, including the employment of a third party for drug buying trips to 

Turkey, the accused’s statement, “Are you ready to go; you got your passport?” to which the other 

person promptly answered, “I’m not going to go,” could reasonably be construed as an invitation to 

join the criminal enterprise). 

5. The person solicited must know that an offense is contemplated. United States v. Higgins, 40 

M.J. 67 (C.M.A. 1994) (guilty plea to solicitation improvident where accused asked soldier to 

withdraw money from ATM machine but did not tell him that the ATM card did not belong to 

accused); United States v. Davis, 39 M.J. 1110 (A.F.C.M.R. 1994) (plea to solicitation improvident 

where accused asked person to cash “girlfriend’s check,” and solicitee believed the act was properly 

authorized and thus legal). 

6. The person solicited cannot be the victim of the offense. United States v. Sutton, 68 M.J. 455 

(C.A.A.F. 2010). OVERRULED United States v. Conway, 40 M.J. 859 (A.F.C.M.R. 1994) 

(accused who requested to see his 15-year-old stepdaughter naked, when child was aware of 

improper purpose, was guilty of solicitation) and United States v. Harris, 2003 C.C.A. Lexis 269 

(N-M.C.C.A. 2003). 

7. The person solicited may be predisposed toward the crime. United States v. Hays, 62 M.J. 

158 (2005) (holding neither the MCM nor the UCMJ precludes a conviction for solicitation 

because the object is predisposed towards the crime (rejecting the requirement set forth in Dean, 

44 M.J. 683 (Army Ct. Crim. App. 1996)). 

C. Miscellaneous Issues. 

1. Accomplice liability distinguished. If the solicitee commits the intended offense, the solicitor 

may be liable for the commission of the crime as a principal under Article 77. MCM, pt. IV, ¶ 

1.b.(2)(b). 

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2. Pleading. Incorrectly charging an Article 134 solicitation under Article 82 may be amended 

as a minor change. United States v. Brewster, 32 M.J. 591 (A.C.M.R. 1991). 

3. “Solicitation” of a minor to engage in indecent conduct is not solicitation within the inchoateoffense meaning of the term. One cannot solicit another individual to be commit an offense and 

simultaneously be the victim of that offense. Such “solicitation” is merely indecent conduct, and 

if charged as Article solicitation, fails to state an offense. United States v. Sutton, 68 M.J. 455 

(C.A.A.F. 2010). 

MILITARY OFFENSES: 

PART I: ABSENCE, DISOBEDIENCE, AND RELATED OFFENSES 

VII. UNAUTHORIZED ABSENCE - GENERALLY. 

A.	 Introduction. 

1. Scope. As used in this chapter, Absence without authority refers to offenses under three 

articles of the Uniform Code of Military Justice: 

a) Article 85: Desertion and attempted desertion.
 

b) Article 86: Failure to go to appointed place of duty, leaving appointed place of duty, and 

absence without leave.
 

c)	 Article 87: Missing movement. 

B. Charges. Unauthorized absences are punishable under Articles 85, 86 and 87 and not under 

Article 134. United States v. Deller, 12 C.M.R. 165 (C.M.A. 1953) (allegation that accused absented 

himself without leave “with the wrongful intention of permanently preventing completion of basic 

training and useful service as a soldier” was not an offense in violation of Article 134; however, the 

court affirmed a conviction under Article 85). 

VIII. ABSENCE WITHOUT LEAVE. UCMJ ART. 86. 

A.	 Failure to Go to Appointed Place of Duty (Failure to Repair). UCMJ art. 86(1). 

1.	 Elements. MCM, pt. IV, ¶ 10.b.(1). 

a) A certain authority appointed a certain time and place of duty for the accused; 

b) The accused knew of that time and place; and 

c) The accused, without authority, failed to go to the appointed place of duty at the time 

prescribed. 

2. Pleadings. The “appointed place of duty” addressed in Article 86(1) refers to a specifically 

appointed place of duty rather than a general place of duty. A specification listing only the 

accused’s unit does not list a specific place of duty and is fatally defective. United States v. 

Sturkey, 50 C.M.R. 110 (A.C.M.R. 1975). See also United States v. Coleman, 34 M.J. 1020 

(ACMR 1992). The appointed place need not be alleged with as much specificity in nonjudicial 

proceedings. United States v. Atchison, 13 M.J. 798 (A.C.M.R. 1982). 

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a) The offense requires that the accused actually knew the appointed time and place. MCM, 

pt. IV, ¶ 10.c.(2). But see United States v. Adams, 63 M.J. 223 (2006) (holding the Art. 112a 

theory of “deliberate avoidance” satisfies the knowledge requirement for ALL Art. 86 

offenses). 

b) The accused need not know the identity of the person appointing the place of duty. 

United States v. Fanning, 69 M.J. 546, (A.F.Ct.Crim.App. 2010). 

c) “Appointed place of duty” includes the place(s) where a restricted soldier is required to 

sign-in. United States v. High, 39 M.J. 82 (C.M.A. 1994). 

d) Ordinarily, violation of an order to report to a particular place, though charged under 

Article 92, constitutes no more than a failure to repair. The maximum punishment is 

therefore limited to that for failure to repair. United States v. Hargrove, 51 M.J. 408 

(C.A.A.F. 1999) (accused guilty of failure to go to appointed place of duty, rather than 

disobeying a lawful order, when order was to sign-in hourly when not working); United 

States v. Henderson, 44 M.J. 232 (C.A.A.F. 1996) (accused’s failure to comply with staff 

sergeant’s order to get dressed and be at morning formation 45 minutes later constituted 

offense of failure to repair rather than willfully disobeying an NCO); United States v. 

Baldwin, 49 C.M.R. 814 (A.C.M.R. 1975); MCM, pt. IV, paragraphs 14.c.(2)(b) and 16.e.(2). 

e) On the other hand, if the order to return to duty was issued in performance of a proper 

military function and not for the purpose of increasing the punishment, the accused may be 

convicted and punished for both offenses. United States v. Pettersen, 17 M.J. 69 (C.M.A. 

1983); see generally MCM, pt. IV, paragraph 14c(2)(a)(iii) (stating that an order must have a 

proper military purpose and not be designed to increase punishment). 

3. “Without Proper Authority.” United States v. Duncan, 60 M.J. 973 (Army Ct. Crim. App. 

2005). Appellant told his squad leader that he had to take his son to the hospital, and based on 

that false information his squad leader gave him permission to miss the formation. Appellant 

claimed that this evidence was a matter inconsistent with his plea. An absence from a unit, 

organization, or place of duty is without authority if it is preceded by false statements, false 

documents, or false information provided by an accused. 

B. Leaving Place of Duty. Article 86(2). 

1. Elements. MCM, pt. IV, ¶ 10b(2). 

a) A certain authority appointed a certain time and place of duty for the accused; 

b) The accused knew of that time and place; and 

c) The accused, without authority, went from the appointed place of duty after having 

reported to that place. 

2. Pleadings. See supra ¶ A.2., this chapter. 

C. Absence Without Leave. Article 86(3). 

1. Elements. MCM, pt. IV, ¶ 10.a.(3). 

a) The accused absented himself from his unit, organization or place of duty at which he 

was required to be; 

b) The absence was without proper authority from anyone competent to give him leave; and 

c) The absence was for a certain period of time. 

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2. Several aggravated forms of AWOL permit increased punishment. MCM, pt. IV, ¶ 10.e.(3)­

(5). Note that two of these aggravated offenses contain an intent element. For the elements and a 

discussion of these aggravated forms of AWOL, see MCM, pt. IV, paragraphs 10.b.(3), (4) and 

10.c.(4). Unless otherwise indicated, the discussion of AWOL in this section refers to the 

standard, non-aggravated form of AWOL. 

3. Definition of Terms. 

a) “Unit” refers to a military element such as a company or battery. 

b) “Organization” refers to a larger command consisting of two or more units. One can be 

AWOL from an armed force as a whole. United States v. Vidal, 45 C.M.R. 540 (A.C.M.R. 

1972); see United States v. Brown, 24 C.M.R. 585 (A.F.B.R. 1957) (holding the United States 

Air Force was both an organization and a place of duty). 

c) “Place of duty at which the accused was required to be” is a generic term designed to 

broadly cover places such as a command, quarters, station, base, camp or post. United States 

v. Brown, 24 C.M.R. 585 (A.F.B.R. 1957). Note that this definition is different from “a place 

of duty” under Article 86(1) and 86(2), which refers to a specific “appointed place of duty.” 

d) An individual may be absent from more than one unit. United States v. Mitchell, 22 

C.M.R. 28 (C.M.A. 1956); United States v. Green, 14 M.J. 766 (A.C.M.R. 1982). 

4. A specification alleging the wrong unit requires dismissal. United States v. Walls, 1 M.J. 734 

(A.F.C.M.R. 1975); United States v. Riley, 1 M.J. 639 (C.G.C.M.R. 1975); United States v. 

Holmes, 43 C.M.R. 446 (A.C.M.R. 1970) (holding that dismissal for fatal variance does not 

preclude retrial for unauthorized absence from correct unit). 

5. An Article 86(3) specification must allege the accused was absent from his unit, organization, 

or other place of duty at which he was required to be. Failure to allege that the accused was 

required to be there is fatal. United States v. Kohlman, 21 C.M.R. 793 (A.F.C.M.R. 1956). 

Absence from a unit cannot be supported when the member is in fact present in the unit, albeit 

casually. United States v. Wargo, 11 M.J. 501 (N.C.M.R. 1981). But see United States v. 

Phillips, 28 M.J. 599 (N.M.C.M.R 1989) (affirming conviction of accused who remained on the 

installation but in another unit’s barracks). See also United States v. Cary, 57 M.J. 655 (N-M. Ct. 

Crim. App. 2002) (accused was allowed to leave local area and live with cousin, conditioned 

upon the requirement he call his unit daily to report status; accused’s failure was not an 

unauthorized absence, but rather a failure to perform a particular task). 

6. The specification must allege that the absence was “without authority.” Failure to do so may 

be a fatal defect. United States v. Fout, 13 C.M.R. 121 (C.M.A. 1953), overruled in part by 

United States v. Watkins, 21 M.J. 208 (C.M.A. 1986) (omission not fatal when first challenged on 

appeal, accused pled guilty, another AWOL specification to which the accused pled guilty 

contained the phrase “without authority,” and no prejudice evident). 

7. Mere failure to follow unit checkout procedure by accused who was granted leave does not 

constitute AWOL. United States v. Dukes, 30 M.J. 793 (N.M.C.M.R. 1990). 

8. A definitive inception date is indispensable to a successful prosecution for unauthorized 

absence. United States v. Hardeman, 59 M.J. 389 (C.A.A.F. 2004). 

9. Computing the Duration of the Absence. MCM, pt. IV, ¶ 10.c.(9). 

a) An unauthorized absence is complete the moment the accused leaves the unit without 

authority. It is not a continuing offense. See United States v. Jackson, 20 M.J. 83 (C.M.A. 

1985); United States v. Lynch, 47 C.M.R. 498 (C.M.A. 1973); United States v. Newton, 11 

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M.J. 580 (N.C.M.R. 1980) (accused’s plea improvident when he admitted his absence 

actually began before the date alleged in the specification which constituted an admission to 

an uncharged offense). But see United States v. Brock, 13 M.J. 766 (A.F.C.M.R. 1982) (plea 

to “13 October” absence not improvident as it was embraced by “on or about” 14 October 

specification). Leave is considered an absence from duty, and one in an AWOL status cannot 

take leave. United States v. Kimbrell, 28 M.J. 542 (A.F.C.M.R. 1989); United States v. 

Ringer, 14 M.J. 979 (N.M.C.M.R. 1982). 

b) The duration of an absence must be proved in order to determine the legal punishment for 

the offense. United States v. Lynch, 47 C.M.R. 498 (C.M.A. 1973); see also United States v. 

Simmons, 3 M.J. 398 (C.M.A. 1977). 

c) The duration of an absence alleged in a specification may be decreased but not enlarged 

by the court. United States v. Turner, 23 C.M.R. 674 (C.G.B.R. 1957), rev’d on other 

grounds, 25 C.M.R. 386 (C.M.A. 1958); United States v. Scott, 59 M.J. 718 (Army Ct. Crim. 

App. 2004) (holding plea improvident for charged period when accused signed in with CQ 

and departed the next day; citing MCM pt. IV, ¶ 10c(11), the court divided the period of 

absence into two shorter absences under the same specification and affirmed the findings and 

sentence); An accused may be found guilty of two or more separate unauthorized absences 

under one specification, but the maximum punishment may not increase. MCM, pt. IV, ¶ 

10c(11). 

d) If a member is released by the civilian authorities without trial, and was on authorized 

leave at the time of arrest or detention, the member may be found guilty of unauthorized 

absence only if it is proved that the member actually committed the offense for which 

detained, thus establishing that the absence was the result of the member’s own misconduct. 

MCM, pt. IV, ¶ 10.c.(5). But see United States v. Sprague, 25 M.J. 743 (A.C.M.R. 1987) 

(holding guilty plea provident where accused admitted his arrest on a warrant for contempt of 

court was his own fault, despite the fact that he was released without trial). 

e) If a service member is given authorization to attend civilian court proceedings, pursuant 

to UCMJ Article 14, and is put in civilian jail as a result, the ensuing absence is not 

unauthorized. United States v. Urban, 45 M.J. 528 (N-M. Ct. Crim. App. 1996). 

10. Termination of the Absence: Return to Military Control. 

a) Surrender to military authority. If an accused presents himself to military authorities and 

notifies them of his AWOL status, the surrender terminates the absence. MCM, pt. IV, ¶ 

10.c.(10)(a). 

(1) United States v. Coglin, 10 M.J. 670, 672 (A.C.M.R. 1981) lists three factors which 

must be found to constitute an effective voluntary termination: 

(a) “[T]he absentee must present himself to competent military authority with the 

intention of returning to military duty;” 

(b) “[T]he absentee must identify himself properly and must disclose his status as an 

absentee;” and 

(c) “[T]he military authority, with full knowledge of the individual’s status as an 

absentee, exercises control over him.” 

(2) Casual presence. United States v. Rogers, 59 M.J. 584 (Army Ct. Crim. App. 2003) 

(affirming conviction when accused pled guilty and said she was “sometimes” on post 

during the charged periods, but admitted she had no intent to return and did not turn 

herself in to her unit; casual presence on post for personal reasons did not voluntarily 

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terminate her absence). The opinion contains a pattern instruction for voluntary
 

termination issues.
 

(3) Intent to return to duty. The soldier must voluntarily submit or offer to submit to 

military authorities with a bona fide intention to return to duty. United States v. Self, 35 

C.M.R. 557 (A.B.R. 1965). 

b) Military Control. 

(1) Where an accused thwarted an attempt to exercise control by refusing to submit to 

lawful orders, military control was not established. United States v. Pettersen, 14 M.J. 

608 (A.F.C.M.R. 1982), aff’d 17 M.J. 69 (C.M.A. 1983). 

(2) Telephone contact alone will not effect a return to military control. United States v. 

Anderson, 1 M.J. 688 (N.C.M.R. 1975); see also United States v. Sandell, 9 M.J. 798 

(N.C.M.R. 1980) (rejecting claim of constructive termination where accused informed 

recruiter by telephone he wished to surrender, but before surrendering to a captain at the 

reserve center, accused became frightened and departed the center). 

(3) Civilian bail/bond. United States v. Dubry, 12 M.J. 36 (C.M.A. 1981) (accused’s 

surrender to military authority was not complete because the terms of his civilian bail 

made him unavailable to return to unrestricted military control). 

(4) Where the record reflects the accused 1) may have submitted himself to military 

authorities, and 2) military authorities failed to exercise control over the accused, a 

substantial basis in law and fact exists to question the providence of the accused’s plea of 

guilty to unauthorized absence (relative to the calculation of the termination date of the 

accused’s absence). United States v. Phillipe, 63 M.J. 307 (C.A.A.F. 2006); see also 

United States v. Pinero, 60 M.J. 31 (C.A.A.F. 2004) (AWOL soldier who returned to his 

unit to submit to a urinalysis that lasted five hours, and then went AWOL again, 

terminated his initial AWOL when he returned to submit to the urinalysis). 

c) Knowledge of absentee’s status. 

(1) “[K]nown presence at a military installation will not constitute termination where the 

absentee, by design and misrepresentation, conceals his identity or duty status.” United 

States v. Self, 35 C.M.R. 557 (A.B.R. 1965). 

(2) Casual presence at a military installation, unknown to proper authority and primarily 

for the absentee’s own purposes, does not end the unauthorized absence. United States v. 

Williams, 29 M.J. 504 (A.C.M.R. 1989) (if an absentee temporarily submits himself to 

military control but does not disclose his status as an absentee, the AWOL is not 

terminated); United States v. Self, 35 C.M.R. 557 (A.B.R. 1965); United States v. Murat 

Acemoglu, 45 C.M.R. 335 (C.M.A. 1972) (going to American embassy to find out 

information on how to surrender was not enough to terminate AWOL); United States v. 

Baughman, 8 M.J. 545 (C.G.C.M.R. 1979). 

(3) Constructive knowledge of absentee’s status. An unauthorized absence may be 

terminated by the exercise of control over the absentee by military authorities having a 

duty to inquire into the absentee’s status, if they could have determined such status by 

reasonable diligence. United States v. Gudatis, 18 M.J. 816 (A.F.C.M.R. 1984). But see 

United States v. Jackson, 2 C.M.R. 96 (C.M.A. 1952) (After the accused went AWOL, he 

was tried by summary court-martial for other offenses in a different area of Korea. 

During World War II and the Korean Conflict, summary courts-martial were convened in 

areas where large troop concentrations existed, and courts often did not know the accused 

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soldiers’ status. Thus, the AWOL did not terminate in this case, because the accused did 

not inform the summary court-martial of his status and went AWOL after the courtmartial.) 

d) Apprehension of a known absentee by military authorities terminates an unauthorized 

absence. 

(1) The authorities need not be of the same armed force as the accused. United States v. 

Coates, 10 C.M.R. 123 (C.M.A. 1953). 

(2) But, record of trial must evince military authority’s knowledge of status and intent to 

exercise control. United States v. Gaston, 62 M.J. 404 (2006) (action by “dorm manager” 

informing the accused that his squadron was looking for him not enough to constitute 

termination by apprehension; dorm manager did not indicate why unit was looking for 

accused and once notified, accused voluntarily surrendered by going to the front of the 

dorm). 

e) Apprehension of a known absentee by civil authorities, acting at the request and on 

behalf of military authorities, terminates an unauthorized absence. United States v. Garner, 

23 C.M.R. 42 (C.M.A. 1957); see also United States v. Hart, 47 C.M.R. 686 (A.C.M.R. 

1973). 

(1) Where a service member is apprehended by civilian authorities for a civilian offense, 

and the authorities indicate a willingness to turn the member over to military control, the 

failure or refusal of military officials to take control of the member constructively 

terminates the absence. United States v. Lanphear, 49 C.M.R. 742 (C.M.A. 1975). But 

see United States v. Bowman, 49 C.M.R. 406 (A.C.M.R. 1974) (holding that the Army 

has no affirmative duty to seek the release of a service member it knows is in civilian jail 

pending civilian charges). 

(2) Defense counsel must determine all relevant facts concerning an accused’s 

apprehension by civilian authorities and return to military control to competently advise 

an accused before entering a guilty plea to an unauthorized absence terminated by 

apprehension. United States v. Evans, 35 M.J. 754, 757 n.1 (N.M.C.M.R. 1992). 

f) Delivery to military authority. If a known absentee is delivered by anyone to military 

authority, this terminates the absence. MCM, pt. IV, ¶ 10.c.(10)(c). 

11. For a discussion of trial defense counsel’s obligations concerning disclosure of documents, 

see United States v. Province, 45 M.J. 359 (C.A.A.F. 1997) (in which defense counsel, during 

pretrial negotiations, gave prosecutors a written pass given to the accused, thus allowing the 

government to sever one long AWOL charge into two AWOL charges; the court held defense 

counsel was not unethical or ineffective because counsel used the document to secure a favorable 

deal for his client and because the government could have obtained the document elsewhere). 

D. Mens Rea Under Article 86, UCMJ. 

1. Specific intent is not an element of the Article 86 offenses, but it is necessary to plead and 

prove specific intent for certain aggravating factors (e.g., intent to avoid field maneuvers or field 

exercises). MCM, pt. IV, ¶¶ 10c(3) and (4). 

2. Unauthorized absence requires is a general intent crime, whereas desertion under Article 85 

requires specific intent. United States v. Holder, 22 C.M.R. 3 (C.M.A. 1956). 

E. Attempts. Attempted AWOL may be a lesser included offense of desertion and attempted 

desertion. United States v. Evans, 28 M.J. 753 (A.F.C.M.R. 1989), aff’d, 29 M.J. 331 (C.M.A. 1989). 

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F. Multiplicity/Unreasonable Multiplication of Charges. 

1. Multiplicity: AWOL & breaking restriction covering same time period. United States v. 

Hudson, 58 M.J. 357 (C.A.A.F. 2004). 

2. Unreasonable multiplication of charges: multiple failures to repair & dereliction of duty. 

United States v. Taylor, 26 M.J. 7 (C.M.A. 1988). 

G. Lesser included Offenses. 

1. Article 86(1) is not a lesser included offense of Article 86(3). United States v. Reese, 7 

C.M.R. 292 (A.B.R. 1953). 

2. Article 86(3) is not a lesser included offense of Article 86(1) or (2). United States v. Sturkey, 

50 C.M.R. 110 (A.C.M.R. 1975). 

IX. MISSING MOVEMENT. UCMJ ART. 87. 

A. Background. The offense of missing movement is a relative newcomer to military criminal law, 

arising from problems encountered in World War II when members of units or crews failed to show 

up when their units or ships departed. Article 87 was designed to cover offenses more serious than 

simple AWOL but less severe than desertion. United States v. Smith, 2 M.J. 566 (A.C.M.R. 1976), 

aff’d, 4 M.J. 210 (C.M.A. 1978) (not discussing the missing movement offense). 

B. Elements. MCM, pt. IV, ¶ 11.b. 

1. That the accused was required in the course of duty to move with a ship, aircraft or unit; 

2. That he knew of the prospective movement of the ship, aircraft, or unit; 

3. That the accused missed the movement; and 

4. That the missed movement was either through design or neglect. 

C. Two Forms of Missing Movement. 

1. Through design. 

a) “Design” refers to doing an act intentionally or on purpose. It requires specific intent to 

miss the movement. MCM, pt. IV, ¶ 11.c.(3). 

b) Missing movement through design, the more serious offense, has a maximum punishment 

of dishonorable discharge, total forfeitures, and confinement for two years. MCM, pt. IV, ¶ 

11.e.(1). 

2. Through neglect. 

a) “Neglect” means the omission to take such measures as are appropriate under the 

circumstances to assure presence with a ship, aircraft, or unit at the time of a scheduled 

movement, or doing some act without giving attention to its probable consequences in 

connection with the prospective movement, such as a departure from the vicinity of the 

prospective movement to such a distance as would make it likely that one could not return in 

time for the movement. MCM, pt. IV, ¶ 11.c.(4). 

b) The maximum punishment for missing movement through neglect is a bad conduct 

discharge, total forfeitures, and confinement for one year. MCM, pt. IV, ¶ 11.e.(2). 

D. General Requirements. 

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1. “Movement” includes neither practice marches of short duration with a return to the point of 

departure nor minor changes in location of a unit such as from one side of a post to another. 

MCM, pt. IV, ¶ 11c(1). Movement missed must be substantial in terms of duration, distance and 

mission. Thus, missing a port call for MAC flight constituted missing movement of an aircraft 

within meaning of Article 87. United States v. Graham, 16 M.J. 460 (C.M.A. 1983); United 

States v. Blair, 24 M.J. 879 (A.C.M.R. 1987) aff’d, 27 M.J. 438 (C.M.A. 1988). But see United 

States v. Gibson, 17 M.J. 143 (C.M.A. 1984) (failure to report for an ordinary commercial flight 

does not constitute missing movement as it is not the type of movement contemplated by Article 

87). 

2. In a case involving missing movement involving a civilian aircraft, the government must 

show that the accused was required to travel on that aircraft. United States v. Kapple, 40 M.J. 

472 (C.M.A. 1994). 

3. The accused must have actual knowledge of the prospective movement. Knowledge of the 

exact hour or even of the exact date of the movement is not required. MCM, pt. IV, ¶ 11c(5). 

4. The accused’s knowledge may be shown by circumstantial evidence. United States v. 

Chandler, 48 C.M.R. 945 (C.M.A. 1974) (reversing conviction because the evidence was legally 

insufficient to prove actual knowledge). 

5. Some authority supports the proposition that UCMJ Article 87 does not reach every instance 

in which a service member misses a movement but is applicable only when the accused has an 

essential mission related to the movement, e.g., is an integral member of the unit or crew whose 

absence would potentially disrupt the mission. Compare United States v. Gillchrest, 50 C.M.R. 

832 (A.F.C.M.R. 1975) (finding that service member missing a commercial aircraft to Turkey as 

part of PCS did not meet Congressional intent behind the missing movement offense) and United 

States v. Smith, 2 M.J. 566 (A.C.M.R. 1976) aff’d, 4 M.J. 210 (C.M.A. 1978) (holding that 

missing movement to site of two-day bivouac 12 miles downrange did not constitute missing 

movement; “[h]ard and fast rules relating to the duration, distance and mission of the ‘movement’ 

are not appropriate, but rather those factors plus other concomitant circumstances must be 

considered collectively, in order to evaluate the potential disruption of the unit caused by a 

soldier’s absence”), with United States v. Lemley, 2 M.J. 1196 (N.C.M.R. 1976) (holding that 

accused, who was being escort from brig and missed specific Pan Am flight listed on orders, did 

miss “movement”) and United States v. St. Ann, 6 M.J. 563 (N.C.M.R. 1978)(holding that 

missing a commercial flight while on orders constitutes missing movement even when the 

accused is not a member of the crew or traveling with his unit). 

6. Going AWOL and proceeding to a place more than 1200 miles away was a failure to exercise 

due care contemplated in missing movement through neglect. United States v. Mitchell, 3 M.J. 

641 (A.C.M.R. 1977). 

7. Missing a two-week winter exercise that took place on the same installation as the unit’s 

location in Alaska supported missing a movement by design. United States v. Jones, 37 M.J. 571 

(A.C.M.R. 1993). 

8. An eight-hour “dependent’s cruise” by aircraft carrier is not a “minor” change in the location 

of the ship. The focus of the statutory prohibition is upon the movement itself, and not its 

purpose. United States v. Quezada, 40 M.J. 109 (C.M.A. 1994). 

9. An essential element of missing movement is that the movement actually occurred. This 

element may be inferred if the accused holds a ticket for a regularly scheduled commercial flight. 

United States v. Kapple, 36 M.J. 1119 (A.F.C.M. R. 1993), rev’d on other grounds, 40 M.J. 472 

(C.M.A. 1994). 

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10. Missing the move, rather than a particular mode of travel, is the gravamen of missing 

movement. United States v. Smith, 26 M.J. 276 (C.M.A. 1988). The description of the 

movement is important; where the movement was charged as missing a specific flight number, 

the government failed to present evidence of the flight number that the accused missed, and the 

military judge found the accused guilty by exceptions and substitutions of missing his unit’s 

flight, the military judge created a material variance. The variance was nonprejudicial, and 

therefore nonfatal, because it did not affect the defense’s presentation of their case. United States 

v. Treat, 73 M.J. 331 (C.A.A.F. 2014). 

11. Military judge erred by using the accused’s plea of guilty to AWOL as evidence to establish 

an essential element of a separate charge of missing movement to which a plea of not guilty had 

been entered. United States v. Wahnon, 1 M.J. 144 (C.M.A. 1975). 

E. Multiplicity and Lesser included Offenses. 

1. An accused cannot be punished for both AWOL of minimal duration and missing movement 

through neglect or through design when the same absence forms the basis for both charges. 

United States v. Baba, 21 M.J. 76 (C.M.A. 1985); United States v. Posnick, 24 C.M.R. 11 

(C.M.A. 1957); United States v. Bridges, 25 C.M.R. 383 (C.M.A. 1958). See also United States 

v. Traxler, 39 M.J. 476 (C.M.A. 1994) (finding that missing movement of aircraft and 

disobedience of an officer’s order to board the aircraft were not multiplicious). 

2. An AWOL of extended duration is not multiplicious with missing movement. United States 

v. Olinger, 47 M.J. 545 (N-M. Ct. Crim. App. 1997), aff’d, 50 M.J. 365 (C.A.A.F. 1999). 

3. Failure to repair is a lesser included offense of missing movement. United States v. Smith, 2 

M.J. 566 (A.C.M.R. 1976), aff’d, 4 M.J. 210 (C.M.A. 1978). 

X. DESERTION. UCMJ ART. 85. 

A. Types of Desertion. Desertion exists when any member of the armed forces: 

1. Without authority, goes or remains absent from his or her unit, organization, or place of duty, 

with intent to remain away permanently. United States v. Horner, 32 M.J. 576 (C.G.C.M.R. 

1991); or 

2. Quits his or her unit, organization or place of duty with intent to avoid hazardous duty or to 

shirk important service. United States v. Hocker, 32 M.J. 594 (A.C.M.R. 1991); or 

3. Without being separated from one of the armed forces, enlists or accepts an appointment in 

another of the armed forces without fully disclosing the fact that he has not been regularly 

separated, or enters any foreign armed service except when authorized by the United States. 

4. Additionally, a commissioned officer is in desertion if, after tender of a resignation and 

before its acceptance, he quits his post or proper duties without leave and with intent to remain 

away permanently. 

B. Elements of Desertion with Intent to Remain Away Permanently. (The most common form of 

desertion). MCM, pt. IV, ¶ 9.b.(1). 

1. The accused absented himself from his unit, organization, or place of duty; 

2. That the absence was without authority; 

3. That the accused, at the time the absence began or at some time during the absence, intended 

to remain away from his unit, organization, or place of duty permanently; and 

4. The accused remained absent until the date alleged. 

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5. If the absence was terminated by apprehension, that element is added. 

C. Less Common Forms of Desertion. 

1. Desertion with intent to avoid hazardous duty or to shirk important service. MCM, pt. IV, ¶ 

9b(2). 

a) Prospective duty as a medic at Fort Sam Houston during Persian Gulf War qualified as 

important service. United States v. Swanholm, 36 M.J. 743 (A.C.M.R. 1992). 

b) Thirty-day sentence to brig not important service for purposes of desertion. United States 

v. Wolff, 25 M.J. 752 (N.M.C.M.R. 1987). 

c) Being an accused at a special court-martial is not important service. United States v. 

Walker, 26 M.J. 886 (A.F.C.M.R. 1988) (accused still found guilty, however, because he had 

an intent to remain away permanently). See TJAGSA Practice Note, Being an Accused: 

“Service,” But Not “Important Service,” Army Law., Apr. 1989, at 55 (discussing Walker). 

2. Desertion before notice of acceptance of resignation. MCM, pt. IV, ¶ 9.b.(3). 

D. Desertion Terminated by Apprehension. 

1. In addition to the four elements of desertion listed above, if the accused’s absence was 

terminated by apprehension, the Government may allege termination by apprehension as an 

aggravating factor. 

2. If alleged in the specification and proved beyond a reasonable doubt, termination by 

apprehension increases the maximum confinement from two years to three years. MCM, pt. IV, ¶ 

9.e.(2)(a) and (b). 

3. Termination by apprehension may apply to all forms of desertion except absence with intent 

to avoid hazardous duty or to shirk important service, as the maximum punishment for this latter 

most serious form of desertion is already a DD and five years. MCM, pt. IV, ¶ 9.e.(1). 

4. An accused may be convicted of desertion terminated by apprehension even though he was 

apprehended by civilian authorities for a civilian offense and thereafter notified the civilian 

authorities of his AWOL status. United States v. Fields, 32 C.M.R. 193 (C.M.A. 1962); United 

States v. Babb, 19 C.M.R. 317 (C.M.A. 1955); United States v. Northern, 42 M.J. 638 (N-M. Ct. 

Crim. App. 1995). Apprehension by civilian authorities and the subsequent return to military 

authorities for an offense unrelated to one’s military status does not in and of itself prove that the 

return was involuntary. United States v. Washington, 24 M.J. 527 (A.F.C.M.R. 1987). 

E. Termination Generally. Desertion did not terminate when military authorities requested civilian 

authorities deny a deserter bail until resolution of civilian charges. United States v. Asbury, 28 M.J. 

595 (N.M.C.M.R. 1989). 

F. Attempted Desertion. Attempted desertion should be charged under Article 85 rather than under 

Article 80. MCM, pt. IV, ¶ 4c(6)(a). 

G. Mens Rea for Desertion. The offenses of desertion and absence without leave are similar in most 

respects, except for the intent element involved in desertion. See United States v. Horner, 32 M.J. 

576 (C.G.C.M.R. 1991). The remaining elements of desertion are the same as those for AWOL and 

are discussed supra, ¶ VIII, this chapter. 

1. Desertion is a specific intent crime. United States v. Holder, 22 C.M.R. 3 (C.M.A. 1956). 

2. Evidence of intent may be based upon all the facts and circumstances of the case. Length of 

absence, actions and statements of the accused, and the method of termination of the absence 

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(apprehension or voluntary surrender) are some factors to be considered. MCM, pt. IV, ¶ 

9c(1)(c)(iii). Many of the circumstantial factors listed in the MCM can cut both ways, and may 

be argued by either side; therefore, in order to sustain a desertion conviction, the Government 

ought to provide additional context favoring conviction rather than simply raising the 

circumstances at trial. Ultimately, a conviction for desertion is legally sufficient where, given the 

circumstances of the particular case, a reasonable factfinder could draw an inference of intent 

beyond a reasonable doubt. United States v. Oliver, 70 M.J. 64 (C.A.A.F. 2011). 

3. The determination of whether an accused intended to avoid hazardous duty or shirk important 

service is subjective, and whether the service is “important” is an objective question dependent 

upon the totality of circumstances. United States v. Gonzalez, 42 M.J. 469 (1995). 

4. The length of the absence alone is insufficient to establish an intent to desert; however, in 

combination with other circumstantial evidence, it may be sufficient. United States v. Care, 40 

C.M.R. 247 (C.M.A. 1969). 

5. The totality of circumstances surrounding the offense can negate specific intent to absent 

oneself permanently. United States v. Logan, 18 M.J. 606 (A.F.C.M.R. 1984). 

6. Having an understandable or laudable motive to desert is not a defense if the evidence 

sufficiently establishes the elements. United States v. Gonzalez, 39 M.J. 742 (N.M.C.M.R. 1994), 

aff’d 42 M.J. 469 (1995). 

7. Evidence of an accused’s motive to quit her unit as gesture of protest because of moral or 

ethical reservations that the unit might commit war crimes is irrelevant to a charge of desertion 

with intent to avoid hazardous duty or shirk important service. United States v. Huet-Vaughn 43 

M.J. 105 (C.A.A.F. 1995). 

8. Evidence of a 26-month absence while accused was on orders for a war zone and where he 

was apprehended a long distance from his unit was sufficient to establish intent to desert. United 

States v. Mackey, 46 C.M.R. 754 (N.C.M.R. 1972). 

9. Evidence of a two-year absence in vicinity of assigned unit, termination by apprehension, and 

a previous absence, despite retention of an identification card, was sufficient to show an intent to 

desert. United States v. Balagtas, 48 C.M.R. 339 (N.C.M.R. 1972). 

10. The intent to remain away permanently need not coincide with the accused’s departure. A 

person must have had, either at the inception of the absence or at some time during the absence, 

the intent to remain away permanently. MCM, pt. IV, ¶ 9.c.(1)(c)(i). 

11. In a case where desertion with intent to shirk important service was charged, infantry service 

in Vietnam was held to be “important service.” United States v. Moss, 44 C.M.R. 298 (A.C.M.R. 

1971). See also United States v. Hocker, 32 M.J. 594 (A.C.M.R. 1991) (accused’s plea provident 

to desertion with intent to avoid hazardous duty where service was duty in Persian Gulf). 

H. Pleading. 

1. In view of the three types of intent encompassed in Article 85 (i.e., intent to remain away 

permanently, intent to avoid hazardous duty, intent to shirk important service), the crime of 

desertion is not alleged unless the specific form of intent is stated in the specification. United 

States v. Morgan, 44 C.M.R. 898 (A.C.M.R. 1971) (the court found the accused guilty of the 

lesser included offense of AWOL). 

2. “Desert” and “desertion” are terms of art which necessarily and implicitly include the 

requirement that the absence was without authority. United States v. Lee, 19 M.J. 587 

(N.M.C.M.R. 1984) (specification that alleges that the service member “did desert” is the 

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equivalent of alleging that the members did without authority and with the intent to remain away 

permanently absent himself from his unit). 

3. AWOL under Article 86 is a lesser included offense of most forms of desertion. MCM, pt. 

IV, ¶ 9.d. 

XI. DEFENSES TO UNAUTHORIZED ABSENCE. 

A. Introduction. This section treats defenses as they relate to unauthorized absence only. For a 

complete treatment of defenses to court-martial charges, see Chapter 5 (Defenses) in this deskbook. 

B. Statute of Limitations. 

1. In time of war, there is no statute of limitations for AWOL and desertion. Article 43(a). For 

example: 

a) After the armistice on 27 July 1953, hostilities in Korea were no longer “in time of war.” 

United States v. Shell, 23 C.M.R. 110 (C.M.A. 1957) (holding that unauthorized absence that 

began on 4 August 1953 was subject to statute of limitations). 

b) After 10 August 1964, hostilities in Vietnam constituted “in time of war” for suspension 

of the statute of limitations. United States v. Anderson, 38 C.M.R. 386 (C.M.A. 1968). 

“Time of war” ended 27 January 1973. United States v. Reyes, 48 C.M.R. 832 (A.C.M.R. 

1974); see United States v. Robertson, 1 M.J. 934 (N.C.M.R. 1976). 

2. If the unauthorized absence begins in time of peace, the statute of limitations, if raised, will 

bar prosecution if the offense was committed more than 5 years before receipt of sworn charges 

by the summary court-martial convening authority. UCMJ art. 43(b). The statute of limitations is 

tolled while the accused is AWOL, beyond the authority of the United States to apprehend him, in 

custody of civil authorities, or in the hands of the enemy. However, AWOL is not a continuing 

offense, so the statute of limitations begins to run as soon as the service member is reported as 

AWOL. United States v. Miller, 38 M.J. 121 (C.M.A. 1993). [Note: Prior to 24 November 

1986, the statute of limitations was two years for AWOL and three years for desertion. See 

Miller, 38 M.J. at 122.] 

3. Swearing of charges and receipt of the charges by the officer exercising summary courtmartial jurisdiction over the unit tolls the statute of limitations for the offenses charged. UCMJ 

art. 43(b)(1). The critical question is whether the “sworn charges and specifications” are timely 

received, not whether the same charge sheet received by the summary court-martial convening 

authority is used at the court-martial. United States v. Miller, 38 M.J. 121, 124 (C.M.A. 1993); 

United States v. Johnson, 3 M.J. 623 (N.C.M.R. 1977). 

4. Where charges have been preferred and received by the summary court-martial convening 

authority and the statute of limitations has thus been tolled, minor amendments to the 

specifications do not void the tolling of the statute. United States v. Arbic, 36 C.M.R. 448 

(C.M.A. 1966). 

5. It is permissible to prefer charges against an accused with an open-ended termination date 

and forward them to the summary court-martial convening authority (to stop the running of the 

statute of limitations), and then add a termination date when it is known. United States v. Reeves, 

49 C.M.R. 841 (A.C.M.R. 1975). 

6. Dismissal of charges that are barred by the statute of limitations does not preclude a later trial 

on a charge sheet that was properly received by the summary court-martial convening authority 

within the period provided by the statute of limitations. United States v. Jackson, 20 M.J. 83 

(C.M.A. 1985). 

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7. Even if the charged offense is not barred by the statute of limitations, the accused cannot be 

convicted of a lesser included offense that is barred by the statute of limitations, unless there is an 

affirmative waiver. United States v. Busbin, 23 C.M.R. 125 (C.M.A. 1957). 

8. If a lesser included offense is barred by the statute of limitations, the military judge must 

inform the accused and allow the accused to choose between protection under the statute of 

limitations or the instruction on the lesser included offense. R.C.M. 907(b)(2)(B); United States 

v. Cooper, 37 C.M.R. 10 (C.M.A. 1966); United States v. Wiedemann, 36 C.M.R. 521 (C.M.A. 

1966). 

9. The military judge has a duty to advise the accused of his right to assert the statute of 

limitations when it appears that the period of time has elapsed. United States v. Rodgers, 24 

C.M.R. 36 (C.M.A. 1957); overruled on other grounds by United States v. Miller, 38 M.J. 121 

(C.M.A. 1993); United States v. Brown, 1 M.J. 1151 (N.C.M.R. 1977) (no duty to advise the 

accused where referred charges mirrored the original charges that were timely received by the 

summary court-martial convening authority within the period provided by the statute of 

limitations and the original charge sheet was attached to the referred charge sheet). 

10. The rights accorded an accused under the statute of limitations may be waived when the 

accused, with full knowledge of the privilege, fails to plead the statute in bar of the prosecution or 

sentence. United States v. Troxell, 30 C.M.R. 6 (C.M.A. 1960) (permitting an accused, charged 

with desertion, to plead guilty to AWOL and not assert the statute of limitations, IAW pretrial 

agreement). 

11. When the statutory period has apparently elapsed, the burden of proof of showing timely 

charges is on the government. United States v. Morris, 28 C.M.R. 240 (C.M.A. 1959) (statute of 

limitations did not toll, because accused was not in territory in which the US had authority to 

apprehend him). 

12. Computation of time. A year is 365 days during regular years and 366 days in leap year. The 

date of the offense counts as the first day of the running of the statute and the count proceeds 

forward to the day before receipt by the summary court-martial convening authority. United 

States v. Tunnel, 19 M.J. 819 (N.M.C.M.R. 1984), aff’d 23 M.J. 110 (C.M.A. 1986). Contra 

United States v. Reed, 19 M.J. 702 (N.M.C.M.R. 1984) (begins day after offense and concludes 

on day necessary action is accomplished to toll statute). 

C. Former Jeopardy (Article 44, UCMJ). 

1. No person may, without his consent, be tried a second time for the same offense. Article 

44(a). 

2. When jeopardy attaches. 

a) A proceeding which, after introduction of evidence but before a finding, is dismissed or 

terminated by the convening authority or on motion of the prosecution for failure of available 

evidence or witnesses without any fault of the accused, is a trial. Article 44(c). 

b) Withdrawal of charges after arraignment but before presentation of evidence does not 

constitute former jeopardy, and denial of a motion to dismiss charges at a subsequent trial is 

proper. United States v. Wells, 26 C.M.R. 289 (C.M.A. 1958). 

c) Once tried for a lesser offense, accused cannot be tried for a major offense that differs 

from the lesser offense in degree only. Trial for AWOL bars subsequent trial for desertion. 

United States v. Hayes, 14 C.M.R. 445 (N.B.R. 1953). 

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d) “The protection against double jeopardy does not rest upon a surface comparison of the 

allegations of the charges; it also involves consideration of whether there is a substantial 

relationship between the wrongdoing asserted in the one charge and the misconduct alleged in 

the other.” United States v. Lynch, 47 C.M.R. 498, 500 (C.M.A. 1973) (doctrine of former 

jeopardy precluded another trial for unauthorized absence from different unit and shorter time 

period). But see United States v. Robinson, 21 C.M.R. 380 (A.B.R. 1956) (permitting, after 

conviction for an AWOL and after disapproval of findings and sentence by the convening 

authority, trial for AWOL for the same period but from a different unit than was previously 

charged); United States v. Hutzler, 5 C.M.R. 661, 664 n.3 (A.B.R. 1951). 

e) Double jeopardy does not attach when charges are dismissed for violating the statute of 

limitations. Thus, the government is not barred from prosecuting the accused on a charge 

sheet that had properly been received by the summary court-martial convening authority 

within the period of the statute, following dismissal of charges for the same offense (but on a 

different charge sheet) that was not received within the period of the statute. However, if 

evidence was introduced in the first proceeding, the first is considered a trial and jeopardy 

attaches. United States v. Jackson, 20 M.J. 83 (C.M.A. 1985). 

f) Nonjudicial punishment previously imposed under Article 15 for a minor offense and 

punishment imposed under Article 13 for a minor disciplinary infraction may be interposed as 

a bar to trial for the same minor offense or infraction. R.C.M. 907(b)(2)(D)(iv). 

(1) “Minor” normally does not include offenses for which the maximum punishment at a 

general court-martial could be dishonorable discharge or confinement for more than one 

year. MCM, pt. V, ¶ 1.e. 

(2) If an accused has previously received punishment under Article 15 for other than a 

minor offense, the service member may be tried subsequently by court-martial; however, 

the prior punishment under Article 15 must be considered in determining the amount of 

punishment to be adjudged at trial if the accused is found guilty at the court-martial. 

United States v. Jackson, 20 M.J. 83 (C.M.A. 1985); see UCMJ art. 15(f); R.C.M. 

1001(c)(1)(B); United States v. Pierce, 27 M.J. 367 (C.M.A. 1989) (accused must be 

given complete credit for any and all nonjudicial punishment suffered—day-for-day, 

dollar-for-dollar, and stripe-for-stripe). 

(3) An AWOL of 5 days, which was accused’s first offense, was a “minor offense” that 

should have been dismissed upon motion, after accused had previously been punished for 

the same offense under Article 15. United States v. Yray, 10 C.M.R. 618 (A.B.R. 1953). 

D. Jurisdiction. 

1. For jurisdiction generally, see DA Pam 27-173, pt. II. 

2. The mere fact of expiration of enlistment during a status of unauthorized absence did not 

terminate jurisdiction or the AWOL. United States v. Klunk, 11 C.M.R. 92 (C.M.A. 1953). 

3. When unauthorized absence has been alleged, an accused’s status as a member of the armed 

forces must be proved beyond a reasonable doubt. United States v. Marsh, 15 M.J. 252 (C.M.A. 

1983). 

E. Impossibility: The Inability to Return to Military Control. 

1. When a service member is, due to unforeseen circumstances, unable to return at the end of 

authorized leave through no fault of his own, he has not committed the offense of AWOL as the 

absence is excused. MCM, pt. IV, ¶ 10c(6); see also United States v. Lee, 16 M.J. 278 (C.M.A. 

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1983) (mechanical problems with automobile); United States v. Calpito, 40 C.M.R. 162 (C.M.A. 

1969). 

2. When a service member, already in an AWOL status, is unable to return because of sickness, 

lack of transportation or other disability, he remains in an AWOL status; however, the disability 

for part of the AWOL should be considered as an extenuating circumstance. MCM, pt. IV, ¶ 

10c(6). 

3. Types of impossibility in AWOL situations. 

a) Impossibility due to physical disability. 

(1) Where accused was ill at the end of his authorized leave and where, on medical 

advice, he remained in bed for several days before turning himself in to military 

authorities, the military judge should have given instructions on the defense of physical 

incapacity. United States v. Amie, 22 C.M.R. 304 (C.M.A. 1957); see also United States 

v. Irving, 2 M.J. 967 (A.C.M.R. 1976) (“[s]ickness which amounts to physical incapacity 

to report or otherwise comply with orders, and which is not self-induced, is a legal 

excuse”); United States v. Edwards, 18 C.M.R. 830 (A.F.B.R. 1955) (exceeding 

territorial limits of pass is not per se unauthorized absence). 

(2) Evidence of accused’s dental problems which went untreated because of a difference 

of professional opinion did not raise the defense of physical incapacity after the accused 

went AWOL to receive civilian dental treatment. United States v. Watson, 50 C.M.R. 

814 (N.C.M.R. 1975). 

(3) Evidence raised defense of physical inability where accused, returning to his ship, 

was robbed and knocked unconscious and, upon regaining consciousness the next day, 

immediately attempted to return to his ship. United States v. Mills, 17 C.M.R. 480 

(N.C.M.R. 1954). 

(4) The accused was robbed the night before he was due to return to his unit and made no 

effort to return other than to attempt to borrow money (refusing one offer), although he 

was aware of his duty to return and was physically able to do so. No defense of 

impossibility was found. In a footnote, the court wrote that the accused was derelict in 

his responsibilities, because he did not contact military authorities or seek the aid of any 

responsible civilian agency. United States v. Bermudez, 47 C.M.R. 68 (A.C.M.R. 1973). 

b) Impossibility due to transportation misfortune. 

(1) Where second lieutenant’s car broke down while he was returning from a weekend 

pass and he elected to remain with his car until it was repaired, the Manual provision 

concerning “through no fault of his own” does not apply as his decision was for his own 

convenience. United States v. Kessinger, C.M.R. 261 (A.B.R. 1952). 

(2) Where a second lieutenant postponed his return from leave to assist a friend in filing 

an accident report, the absence was not excusable as involuntary as no inability to return 

existed. United States v. Scott, 9 C.M.R. 241 (A.B.R. 1952). 

(3) Where a second lieutenant mistakenly took a “hop” to Washington, D.C. rather than 

to Atlanta, and thereafter had difficulty obtaining transportation back to his unit, no valid 

defense was found. Rather, the evidence could be considered in extenuation and 

mitigation. United States v. Mann, 12 C.M.R. 367 (A.B.R. 1953). 

c) Impossibility due to acts of God (sudden and unexpected floods; snow; storms; 

hurricanes; earthquakes; or any unexpected, sudden, violent, natural occurrence) can be a 

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defense. If the particular act of nature may be expected to occur, it is not a defense because it 

is foreseeable (e.g., a snowstorm after repeated snowstorm warnings in Minnesota in 

January). 

d) Impossibility due to wrongful acts of third parties includes train wrecks, plane crashes, 

and explosions that are not caused by the accused. These situations present a legitimate 

defense of impossibility. 

e) Impossibility due to civilian confinement. 

(1) The inability to return to military control depends on the accused’s status at time of 

confinement and on the results of the civilian trial. The table below summarizes the rule. 

See generally MCM, pt. IV, ¶ 10c(5). 

Status of Service Member at Time 

of Confinement 

Result of Civilian Trial Prosecution 

Acquittal Conviction for AWOL? 

(a) Delivery of soldier to civilian 

authorities under Article 14 

X X No 

(b) AWOL X X Yes 

(c) Absent with leave X No 

(d) Absent with leave X Yes* 

*AWOL begins at expiration of leave 

(2) Adjudication as a youthful offender is tantamount to a conviction within the meaning 

of MCM, pt. IV, ¶ 10.c.(5). United States v. Myhre, 25 C.M.R. 294 (C.M.A. 1958). 

(3) A soldier who voluntarily commits an offense while on authorized leave and is 

apprehended and detained by civilian authorities may be charged with AWOL for the 

period after his leave expired until his return to military control. United States v. Myhre, 

25 C.M.R. 294 (C.M.A. 1958). 

(4) Where a service member, while AWOL, is apprehended, detained and acquitted by 

civilian authorities, absent evidence of an attempt to return to military control, the entire 

period of time is chargeable as AWOL. United States v. Grover, 27 C.M.R. 165 (C.M.A. 

1958); United States v. Bowman, 49 C.M.R. 406 (A.C.M.R. 1974) (while AWOL, 

accused was arrested and convicted for a civilian offense; civilian authorities did not 

make the accused available to return to military control; the AWOL continued through 

the entire time period he was in civilian control). 

(5) Where accused was granted “special leave” to answer civilian charges, he could not 

later be convicted of AWOL for the time spent in civilian jail if convicted by civilian 

authorities. United States v. Northrup, 31 C.M.R. 73 (C.M.A. 1961); United States v. 

Williams, 49 C.M.R. 12 (C.M.A. 1974). 

(6) Absent an arrest on behalf of the military, an offer to turn the service member over to 

military authorities, or a notification that the civilian authorities are not going to 

prosecute, the Army does not have an affirmative duty to seek the release to military 

authorities of an absent soldier held in a civilian jail on civilian charges. United States v. 

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Bowman, 49 C.M.R. 406 (A.C.M.R. 1974) (distinguishing United States v. Keaton, 40 

C.M.R. 212 (C.M.A. 1969)). 

F. Mistake of Fact. 

1. General intent crime: mistake of fact must be both honest and reasonable to constitute a 

defense. United States v. Holder, 22 C.M.R. 3 (C.M.A. 1956); United States v. Scheunemann, 34 

C.M.R. 259 (C.M.A. 1964). 

2. In specific intent crimes, such as desertion, however, the mistake of fact need only be honest. 

United States v. Guest, 46 M.J. 778 (Army Ct. Crim. App. 1997); R.C.M. 916(j). 

3. When the evidence raises the defense of mistake, the government must disprove the defense 

beyond a reasonable doubt. United States v. Thompson, 39 C.M.R. 537 (A.B.R. 1968) (reversing 

conviction for desertion because the military judge failed to instruct on burden of proof for 

mistake of fact). 

4. Mere speculation by the factfinder as to when an honest and reasonable mistake of fact ended 

and the unauthorized absence commenced is neither sufficient to sustain a conviction for AWOL 

nor the basis for a criminal conviction. United States v. Morsfield, 3 M.J. 691 (N.C.M.R. 1977). 

5. A service member who was ordered to go home to await orders for Vietnam and who waited 

for 2-1/2 years for the orders that never arrived was not guilty of AWOL. United States v. Davis, 

46 C.M.R. 241 (C.M.A. 1973); see also United States v. Hale, 42 C.M.R. 342 (C.M.A. 1970). 

G. Duress. 

1. Duress or coercion is a reasonably grounded fear on the part of an actor that he or another 

innocent person would be immediately killed or would immediately suffer serious bodily injury if 

he did not commit the act. Duress is a defense to all offenses except where the accused kills an 

innocent person. R.C.M. 916(h). United States v. Hullum, 15 M.J. 261 (C.M.A. 1983) (accused’s 

absence may be excused, if he left because his life was endangered). 

2. The defense of duress is not limited to those circumstances where the accused feels that he 

personally is going to immediately be killed or suffer serious bodily injury. United States v. 

Jemmings, 1 M.J. 414 (C.M.A. 1976) (accused pled guilty to housebreaking and, in the 

providence inquiry, he testified that he committed the act because he was scared that something 

would happen to his family if he did not); see also United States v. Palus, 13 M.J. 179 (C.M.A. 

1982) (reversing conviction, where accused wrote bad checks to cover debts because he feared 

for his wife’s safety, because evidence raised the duress defense). 

3. The need of a service member to absent himself from a perilous situation at his duty station in 

order to find a safer place from threatened injury is not normally a good defense to AWOL. See 

United States v. Wilson, 30 C.M.R. 630 (N.B.R. 1960) (accused went AWOL because another 

service member threatened his life; but Board of Review affirmed the conviction because he did 

not eliminate the threat by going AWOL). But see United States v. Hullum, 15 M.J. 261 (C.M.A. 

1983) (accused’s absence may be excused, if he left because his life was endangered); United 

States v. Roberts, 15 M.J. 106 (C.M.A. 1983) (summary disposition) (finding that sexual 

harassment and immediate threat to the physical safety of the accused’s wife raised the defense of 

duress to an unauthorized absence). 

4. Although sexual harassment may, in certain circumstances, be a defense to an unauthorized 

absence, it did not constitute duress when the second lieutenant conceded during the providence 

inquiry that she did not reasonably fear imminent death or serious bodily injury of her children 

when she went AWOL. United States v. Biscoe, 47 M.J. 398 (C.A.A.F. 1998). 

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5. An accused’s fear that work to which he was assigned in the mess hall would aggravate his 

eye injury and commander’s causing accused to be evicted forcibly from his off-post residence 

did not constitute the affirmative defense of duress in an AWOL case, because accused could not 

reasonably fear death or serious bodily injury. United States v. Guzman, 3 M.J. 740 (N.C.M.R.), 

rev’d on other grounds, 4 M.J. 115 (C.M.A. 1977). 

6. The accused must reasonably apprehend immediate threat of death or serious bodily harm, 

and there must not be alternatives. United States v. Olinger, 50 M.J. 365 (C.A.A.F. 1999) (finding 

no “substantial basis” in law to reject the guilty plea, where accused went AWOL and missed a 

movement because he felt his wife’s depression might kill her; during the providence inquiry, the 

accused failed to provide enough details of immediate threat of death or serious bodily harm and 

that there were no alternative sources of assistance for his wife other than going AWOL and 

missing movement). 

7. Accused was not entitled to duress defense because he had a reasonable opportunity to avoid 

going AWOL. United States v. Riofredo, 30 M.J. 1251 (N.M.C.M.R. 1990) (finding that accused 

should have sought the assistance of the command to stop assaults by noncommissioned officer); 

R.C.M. 916(h); see generally TJAGSA Practice Note, Duress and Absence Without Authority, 

Army Law., Dec. 1990, at 34 (discussing Riofredo). 

8. United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) aff’d, 58 M.J. 129 (C.A.A.F. 

2003). Accused who was ordered and who refused to receive his sixth and final anthrax 

vaccination could not raise defense of duress. The defense requires an unlawful threat from a 

human being. Defense of duress is not raised by a reasonable belief that compliance with a 

lawful order will result in death or serious bodily injury. 

XII. PROTECTED STATUS OF CERTAIN MILITARY VICTIMS. 

A. General. Articles 89, 90, and 91 cover offenses against superior commissioned officers and 

noncommissioned and warrant officers in the execution of office. Two conditions—superior status 

and the performance of the duties of office—provide increased protection to victims and increased 

punishment to violators of these Articles 

B. “Superior Commissioned Officer” Defined. The victim’s status as the superior commissioned 

officer of the accused is an element of crimes involving disrespect (Article 89), disobedience (Article 

90(2)), and assault (Article 90(1)) in which the victim’s status as a superior officer enhances the 

penalty. The following rules are applicable to each of the above offenses. 

1. Accused & Victim in Same Armed Service. MCM pt. IV, ¶ 13(c)(1)(a). 

a) The victim is the accused’s “superior commissioned officer” if the victim is a 

commissioned officer superior in rank to the accused (not date of rank in the same grade). 

b) The victim is the accused’s “superior commissioned officer” if the victim is superior in 

command to the accused, even if the victim is inferior in grade to the accused. 

c) The victim is not the accused’s “superior commissioned officer” if the victim is superior 

in grade but inferior in command. 

2. Accused & Victim in Diff. Armed Services. MCM pt. IV, ¶ 13(c)(1)(b). 

a) The victim is the accused’s “superior commissioned officer” if the victim is a 

commissioned officer and superior in the chain of command over the accused. 

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b) The victim is the accused’s “superior commissioned officer” if the victim, not a medical 

officer nor a chaplain, is senior in grade to the accused and both are detained by a hostile 

entity so that recourse to the normal chain of command is prevented. 

c) The victim is not the accused’s “superior commissioned officer” merely because the 

victim is superior in grade to the accused. In United States v. Peoples, 6 M.J. 904, 905 

(A.C.M.R. 1979), however, the court cited with approval an Article 15 given under the theory 

of Article 92(2) (failure to obey) for violating the order of an officer of another armed force 

who was not in the accused’s chain of command. 

d) In United States v. Merriweather, 13 M.J. 605 (A.F.C.M.R. 1982), the court disapproved 

the conviction of an airman of disrespect to two Navy medical officers. There was no 

command relationship where the accused merely spent two hours in a Navy emergency room. 

The court affirmed a conviction for the lesser included offense of disorderly conduct. 

3. Commissioned Warrant Officers. 

a) Both trial and defense counsel should be alert as to whether a warrant officer in a 

particular case is commissioned. Warrant officers are commissioned upon promotion to 

CW2. 10 U.S.C. § 582. Warrant Officer One (WO1) is not a commissioned officer. 

b) “Commissioned officer” includes a commissioned warrant officer. 10 U.S.C. § 

101(b)(2). See also R.C.M. 103 discussion. 

c) In the Navy, a Chief Warrant Officer is a commissioned officer, the disobedience of 

whose order constitutes a violation of Article 90. United States v. Kanewske, 37 C.M.R. 298, 

299 (C.M.A. 1967). 

C. “Warrant Officer” or “Noncommissioned Officer” Defined. A victim’s status as a WO or NCO is 

an element of those crimes involving insubordinate conduct toward such individuals, to include: 

disrespect (Article 91(3)), disobedience (Article 91(2)), and assault (Article 91(1)). Warrant or 

noncommissioned officer victims must be acting in execution of office. 

1. Warrant Officers. Those individuals appointed as warrant officers to meet Army 

requirements for officers possessing particular skills and specialized knowledge. Although 

warrant officers usually perform specialized duties within the Army, they may under appropriate 

circumstances serve in command positions. See ¶ VI.B.3 above regarding “commissioned 

warrant officers.” 

2. Noncommissioned Officers. 

a) Those in the rank of corporal (E-4) and above. 

b) Not including a specialist (E-4). 

c) Not including a victim of the rank of specialist (E-4) or below who is an “acting” NCO. 

United States v. Lumbus & Sutton, 49 C.M.R. 248 (C.M.A. 1974); United States v. Evans, 50 

C.M.R. 198 (A.C.M.R. 1975). See also MCM, pt. IV, ¶ 15.c.(1). 

D. “Superior” WO/NCO. 

1. Article 91 protects warrant officers and noncommissioned officers from disrespect, assault, 

and disobedience when they are in execution of their office. The statute does not require a 

superior-subordinate relationship. See United States v. Diggs, 52 M.J. 251 (2000) (staff sergeant 

(E-6) that pushed sergeant (E-5) guilty of assaulting an NCO under Article 91). 

2. If pleaded and proven, the fact the victim was superior to the accused and that the accused 

had knowledge of the victim’s superior status is an aggravating factor that exposes the accused a 

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greater maximum punishment. See MCM, pt. IV, ¶ 15c analysis. See also United States v. White, 

39 M.J. 796 (N.M.C.M.R. 1994) (holding that Navy service member’s plea of guilty to disrespect 

toward superior noncommissioned officer, where accused directed obscenities towards Air Force 

security police NCO apprehending him on an Air Force base, was provident). 

E. Divestiture. Misconduct on the part of a superior in dealing with a subordinate may divest the 

former of his authority and thus destroy his protected status if it was substantial departure from the 

required standards of conduct. See MCM, pt IV, ¶ 13.c.(5). 

1. Conduct amounting to divestiture. United States v. Diggs, 52 M.J. 251 (C.A.A.F. 2000) 

(striking accused); United States v. Richardson, 7 M.J. 320 (C.M.A. 1979) (racial slurs; calling 

accused “boy”); United States v. Rozier, 1 M.J. 469 (C.M.A. 1976) (unlawful apprehension 

coupled with unwarranted physical abuse); United States v. Hendrix, 45 C.M.R. 186 (C.M.A. 

1972) (officer authorized to search the accused’s quarters for narcotics exceeded the scope of his 

official authority to search and was not in the execution of his office when, over the accused’s 

protests, he proceeded to read a letter found in an envelope which he could see contained no 

contraband); United States v. Struckman, 43 C.M.R. 333 (C.M.A. 1971) (inviting accused to 

fight); United States v. Noriega, 21 C.M.R. 322 (C.M.A. 1956) (officer victim serving as 

bartender at enlisted men’s party); United States v. Cheeks, 43 C.M.R. 1013 (A.F.C.M.R. 1971) 

(sustained verbal abuse of prisoner); United States v. Revels, 41 C.M.R. 475 (A.C.M.R. 1969) 

(use of brute force on accused by confinement officer). 

2. Conduct not amounting to divestiture. United States v. Pratcher, 17 M.J. 388 (C.M.A. 1984) 

(involvement in collecting debts contrary to regulation); United States v. Lewis, 12 M.J. 205 

(C.M.A. 1982) (failure to give proper Article 31(b) warnings); United States v. Lewis, 7 M.J. 348 

(C.M.A. 1979) (search that was subsequently determined to not be based on probable cause); 

United States v. Middleton, 36 M.J. 835 (A.C.M.R. 1977) (close personal friendship with 

subordinate); United States v. King, 29 M.J. 885 (A.C.M.R. 1989) (striking a prisoner who lunged 

at a guard); United States v. Collier, 27 M.J. 806 (A.C.M.R. 1988) (use of profane language) 

rev’d in part on other grounds by, 29 M.J. 365 (C.M.A. 1990); United States v. Leach, 22 M.J. 

738 (N.M.C.M.R. 1986) (general allegations of “horseplay”); United States v. Allen, 10 M.J. 576 

(A.C.M.R. 1980) (addressing accused as “boy” where accused did not regard use of term as racial 

slur and both the victim and accused were the same race); United States v. Fetherson, 8 M.J. 607, 

609 (N.M.C.M.R. 1977) (illegal apprehension); United States v. McDaniel, 7 M.J. 522 (A.C.M.R. 

1979) (sergeant who places drunken and protesting soldier in cold shower); United States v. 

Vallenthine, 2 M.J. 1170 (N.C.M.R. 1974) (escorting with one hand on shirt collar and other on 

seat of trousers); United States v. Montgomery, 11 C.M.R. 308 (A.B.R. 1953) (playing poker with 

subordinate officers). 

3. If an NCO commits misconduct that divests him of his authority as an NCO, he may regain 

his protected status by desisting in the illegal conduct and attempting to resolve the matter within 

appropriate channels. United States v. Diggs, 52 M.J. 251 (C.A.A.F. 2000). 

4. Divestiture is limited to offenses where the protected status of the victim is an element, but it 

does not necessarily extend to lesser included offenses. Although the accused may not be 

convicted of an assault upon a superior under Articles 90 or 91 when the victim’s conduct divests 

himself of his status, the accused may be found guilty of the lesser included offense of assault 

under Article 128. United States v. Richardson, 7 M.J. 320 (C.M.A. 1979); United States v. 

Johnson, 43 C.M.R. 604 (A.C.M.R. 1970). 

5. Members may find “partial” divestiture. United States v. Sanders, 41 M.J. 485 (C.A.A.F. 

1995) (members found victim not in execution of office for purposes of assault, but he had not 

divesting himself of his rank status: “He had left his post, but not his stripes”). 

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6. Divestiture does not apply to disobedience offenses. See United States v. Cheeks, 43 C.M.R. 

1013 (A.F.C.M.R. 1971). But see United States v. Collier, 27 M.J. 806 (A.C.M.R. 1988) rev’d in 

part on other grounds by, 29 M.J. 365 (C.M.A. 1990). See generally Major Eugene R. Milhizer, 

The Divestiture Defense and United States v. Collier, Army Law., Mar., 1990, at 3 

XIII. DISRESPECT. 

A. Defined. UCMJ Articles 89 & 91(3). 

1. Actions. United States v. Ferenczi, 27 C.M.R. 77 (C.M.A. 1958) (subordinate 

contemptuously turns and walks away from a superior who is talking to him); United States v. 

Van Beek, 47 C.M.R. 98 (A.C.M.R. 1973) (exploding gas grenade in absent officer’s quarters – 

“gravamen of an Article 89 offense is not merely insult, but the undermining of lawful 

authority.”). 

2. Words. United States v. Montgomery, 11 C.M.R. 308 (A.B.R. 1953) (“Keep your Goddamn 

mouth shut, you field grade son-of-a-bitch or I’ll tear you apart; I’ll beat you to death you. . . . I’ll 

bite your. . . off, you punk, you”); United States v. Dornick, 16 M.J. 642 (A.F.C.M.R. 1983) 

(“Hi, sweetheart”). 

3. Actions & words are not distinct bases—all circumstances of a case may be considered when 

determining whether disrespectful behavior in violation of Article 89 has occurred. United States 

v. Najera, 52 M.J. 247 (C.A.A.F. 2000). 

B. Knowledge. The accused must be aware of the victim’s status. United States v. Payne, 29 M.J. 

899, 900 (A.C.M.R. 1989); MCM, pt. IV, ¶ 13c(2) & 15c(2). 

C. Disrespect must be directed toward the victim. United States v. Sorrells, 49 C.M.R. 44 

(A.C.M.R. 1974) (no disrespect when loud profanity was spoken in the presence of the superior but 

directed toward others present in the room); see also United States v. Alexander, 11 M.J. 726 

(A.C.M.R. 1981) (accused’s plea of guilty to disrespect to his first sergeant was not improvident on 

ground that his outburst was not directed toward that individual, where facts showed that accused 

became angry at having to open his locker for the first sergeant to check for contraband and he took 

his clothes out of his locker and threw them on floor at feet of first sergeant). 

D. Pleading. 

1. Disrespectful behavior must be alleged. If the words or acts that constitute the disrespectful 

conduct are innocuous, the pleadings will be fatally defective unless circumstances surrounding 

the behavior are alleged to detail the nature of insubordination. United States v. Barber, 8 M.J. 

153 (C.M.A. 1979) (words, “If you have something to say about me, say it to my face,” as spoken 

by a subordinate to a superior noncommissioned officer in the execution of his office, found to be 

disrespectful on their face; court read the language to constitute a demand by the subordinate that 

the superior conform his official conduct to a standard imposed by the subordinate); United States 

v. Bartee, 50 C.M.R. 51 (N.M.C.M.R. 1974) (statement to superior commissioned officer, “Man, 

I ain’t getting no haircut,” did constitute disrespect); United States v. Sutton, 48 C.M.R. 609 

(A.C.M.R. 1974) (specification alleging accused said, “You had better get out of the man’s room” 

held insufficient); United States v. Smith, 43 C.M.R. 796 (A.C.M.R. 1971) (specification alleging 

that accused referred to a male victim as “man” held insufficient); United States v. Klein, 42 

C.M.R. 671 (A.C.M.R. 1970) (mere utterance of words, “People get hurt like that,” did not 

constitute, per se, disrespectful language). 

2. Failure to allege victim’s status as “his superior commissioned officer” may be fatal. The 

omission of the pronoun “his” has been held to destroy a specification’s legitimacy. United 

States v. Carter, 42 C.M.R. 898 (A.C.M.R. 1970); United States v. Showers, 48 C.M.R. 837 

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(A.C.M.R. 1974). Contra United States v. Ashby, 50 C.M.R. 37 (N.C.M.R. 1974) (failure to 

allege “his superior commissioned officer” was not fatal where the specification alleged the 

officer victim’s rank and service, and both the enlisted accused and the officer victim were in the 

same service). 

3. Disrespect, under Article 91, and provoking speech and gestures, under Article 117, are 

separate offenses and not multiplicious. United States v. McHerrin, 42 M.J. 672 (Army Ct. Crim. 

App. 1995). 

E. Disrespect as a Lesser included Offense to Other Crimes. 

1. Disobedience of a superior. MCM, pt. IV, ¶ 14d(3)(b); United States v. Virgilito, 47 C.M.R. 

331 (C.M.A. 1973); United States v. Croom, 1 M.J. 635 (A.C.M.R. 1975). But see United States 

v. Cooper, 14 M.J. 758 (A.C.M.R. 1982) (disrespect not lesser included offense to disobedience 

where disrespect subsequent to disobedience). 

2. Assault. United States v. Van Beek, 47 C.M.R. 98 (A.C.M.R. 1973). 

3. Not communicating a threat. United States v. Ross, 40 C.M.R. 718 (A.C.M.R. 1969) (holding 

that disrespect, under Article 89, was not a lesser included offense of communicating a threat 

under Article 134, because the element “his superior commissioned officer” was not fairly alleged 

in the threat specification). 

F. Additional Requirements for Disrespect to a Noncommissioned, Warrant, or Petty Officer. 

1. The offensive words or conduct must be within the hearing or sight of the noncommissioned, 

warrant, or petty officer victim. This is not required in the case of a commissioned officer victim. 

MCM, pt. IV, ¶ 15.c.(5); United States v. Van Beek, 47 C.M.R. 98, 99 (A.C.M.R. 1973). 

2. The noncommissioned, warrant, or petty officer victim, at the time of the offense, must be “in 

the execution of his office,” to include any act or service required or authorized to be done by him 

because of statute, regulation, order of a superior or military usage. United States v. Brooks, 44 

C.M.R. 873 (A.C.M.R. 1971) (holding off-duty NCO working at EM Club as sergeant-at-arms in 

execution of his office); United States v. Fetherson, 8 M.J. 607, 610 (N.M.C.M.R. 1977) (holding 

off-duty NCO quelling disorderly conduct or maintaining order among subordinates in execution 

of his office). 

3. An NCO of one branch of the armed forces is the “superior NCO” of an enlisted accused of 

another armed force only when the NCO is in a position of authority over the accused. United 

States v. White, 39 M.J. 796 (N.M.C.M.R. 1994). 

4. A commissioned officer is protected even if acting in a private capacity and off duty. United 

States v. Van Beek, 47 C.M.R. 98, 99-100 (A.C.M.R. 1973); United States v. Montgomery, 11 

C.M.R. 308 (A.B.R. 1953) (officer victim involved in poker game). 

XIV. DISOBEDIENCE: PERSONAL ORDER. UCMJ ART. 90(2) & 91(2) 

A. The Order. 

1. The order must be directed to the accused specifically. It does not include violations of 

regulations, standing orders, or routine duties. MCM, pt. IV, ¶ 14c(2)(b); United States v. Byers, 

40 M.J. 321 (C.M.A. 1994) (order revoking driving privileges signed by JAG was a routine 

administrative sanction for traffic offenses and was not a personal order by the post commander); 

United States v. Ranney, 67 M.J. 297 (C.A.A.F. 2009) (revocation of driving privileges issued 

automatically upon drunk driving arrest was not sufficient for purposes of Art. 90, but did support 

a conviction under Art. 92); United States v. Gussen, 33 M.J. 736 (A.C.M.R. 1991) (evidence that 

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accused disobeyed an order issued by brigade commander to entire brigade, but relayed to the 

accused through NCOs, only supports finding of violation of orders in violation of Article 92 and 

not violation of a superior’s personal order); United States v. Selman, 28 M.J. 627 (A.F.C.M.R. 

1989) (letter to all minimum security prisoners setting forth restrictions was not a personal order 

to the accused). 

2. Form of Order. As long as understandable, the form of the order and the method of 

transmittal are immaterial. MCM, pt. IV, ¶ 14.c.(2)(c); United States v. McLaughlin, 14 M.J. 908 

(N.M.C.M.R. 1982) (use of the word “please” does not negate the order). 

3. Scope of Order. In order to sustain the presumption of lawfulness of an order, the order must 

have a valid military purpose and must be a clear, narrowly drawn mandate. United States v. 

Moore, 58 M.J. 466 (2003) (rejecting a First Amendment overbroad attack and a Fifth 

Amendment vagueness attack on an article 90 violation because the order in question had a valid 

military purpose and was “sufficiently clear, specific, and narrowly drawn.”). 

a) The order must be a specific mandate to do or not to do a specific act. MCM, pt. IV, ¶ 

14.c.(2)(b); United States v. Womack, 29 M.J. 88 (C.M.A. 1989) (“safe sex” order for HIV 

positive airman was “specific, definite, and certain.”); United States v. Warren, 13 M.J. 160 

(C.M.A. 1982) (ambiguous whether statement “settle down and be quiet” was order or mere 

counseling); United States v. Mantilla, 36 M.J. 621 (A.C.M.R. 1992) (order to “double time” 

to barracks to retrieve gear was positive command rather than advice); United States v. 

Claytor, 34 M.J. 1030 (N.M.C.M.R. 1992) (order to “shut up” on the heels of disrespectful 

language about a superior commissioned officer was a specific mandate to cease speaking 

and say nothing further). 

b) But see United States v. Mitchell, 20 C.M.R. 295 (C.M.A. 1955) (“leave out the Orderly 

Room because I don’t want to have any trouble with you” lacks specificity of meaning and 

extrinsic evidence can be used to clarify language); United States v. Beattie, 17 M.J. 537 

(A.C.M.R. 1983) (where superiors of intoxicated accused did not want him at his assigned 

place of duty, which was the motor pool, unclarified order to “return to his place of duty and 

go to work” was not a clear mandate). 

4. Lawfulness of the order is a question of law that must be decided by the military judge. 

a) United States v. Diesher, 61 M.J. 313 (C.A.A.F. 2005) (holding the legality of an order is 

an issue of law that must be decided by the military judge (citing United States v. New, 55 

M.J. 95 (C.A.A.F. 2001)). 

b) In 2005, MCM, Part IV, para. 14c(2)(a) was amended to clarify that the determination of 

lawfulness resides with the military judge, rather than the trier of fact. The analysis cites 

United States v. New, 55 M.J. 95 (C.A.A.F. 2001) as the basis for this change. 

B. Knowledge. 

1. The prosecution must prove, as an element of the offense, that the accused had actual 

knowledge of the order. MCM, pt. IV, ¶ 14c(2)(e); United States v. Shelly, 19 M.J. 325 (C.M.A. 

1985); United States v. Pettigrew, 41 C.M.R. 191 (C.M.A. 1970) (although knowledge may be 

proven by circumstantial evidence, the knowledge must be actual and not constructive). 

2. The prosecution must prove that the accused had actual knowledge of the status of the victim. 

MCM, pt. IV, ¶ 14c(2)(e); United States v. Young, 40 C.M.R. 36 (C.M.A. 1060) (voluntary 

intoxication raised issue of whether accused knew he was dealing with his superior officer); 

United States v. Oisten, 33 C.M.R. 188 (C.M.A. 1963); United States v. Payne, 29 M.J. 899 

(A.C.M.R. 1989). 

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C. Willfulness of Disobedience. 

1. Disobedience must be intentional defiance of authority. Failure to comply through 

heedlessness or forgetfulness is not “willful” (but it may violate Article 92). MCM, pt. IV, ¶ 

14c(2)(f). See also •United States v. Gumataotao, No. ARMY 20150765, 2016 WL 3545492 (A. 

Ct. Crim. App. June 22, 2016) (same). 

2. Intentional noncompliance, not “flaunting of authority,” is required. United States v. 

Ferenczi, 27 C.M.R. 77 (C.M.A. 1958). 

3. Voluntary intoxication might prevent the accused from having the willful state of mind 

required by Article 91. United States v. Cameron, 37 M.J. 1042 (A.C.M.R. 1993) (where accused 

was intoxicated and did not complete the assigned task of cleaning room by proscribed deadline, 

members should have been instructed on lesser included offense of failing to obey lawful order, 

under Article 92, which does not require willfulness). 

D. Origin of the Order. 

1. The alleged victim must be personally involved in the issuance of the order. United States v. 

Ranney, 67 M.J. 297 (C.A.A.F. 2009) (revocation of driving privileges issued without the 

knowledge or involvement of the Base Traffic Officer was not sufficient for purposes of Art. 90, 

but did support a conviction under Art. 92). 

2. The order must originate from the alleged victim, and not be the order of a superior for whom 

the alleged victim is a mere conduit. United States v. Marsh, 11 C.M.R. 48 (C.M.A. 1953) 

(specification improperly alleged victim as a captain who was merely transmitting order from the 

Commanding General); United States v. Sellers, 30 C.M.R. 262 (C.M.A. 1961) (major was not a 

mere conduit, where he passed on order of colonel, threw the weight of his rank and position into 

the balance, and added additional requirement); United States v. Wartsbaugh, 45 C.M.R. 309 

(C.M.A. 1972) (setting aside Article 90 violation where the court characterized the company 

commander’s order as “predicated upon...a battalion directive”). 

E. Time for Compliance. MCM, pt. IV, ¶ 14c(2)(g). 

1. When an order requires immediate compliance, accused’s statement that he will not obey and 

failure to make any move to comply constitutes disobedience. United States v. Stout, 5 C.M.R. 

67 (C.M.A. 1952) (order to join combat patrol). Time in which compliance is required is a 

question of fact. United States v. Cooper, 14 M.J. 758 (A.C.M.R. 1982) (order to go upstairs and 

change clothes not countermanded by subsequent order to accompany victim to orderly room, 

because disobedience to first order already complete); United States v. McLaughlin, 14 M.J. 908 

(N.M.C.M.R. 1982) (order to produce ID card required immediate compliance). 

2. Immediate compliance is required by any order that does not explicitly or implicitly indicate 

that delayed compliance is authorized or directed. MCM, pt. IV, ¶ 14c(2)(g) (2008 amendment), 

United States v. Schwabauer, 34 M.J. 709 (A.C.M.R. 1992) (direct order to “stop and come back 

here” clearly and unambiguously required immediate obedience without delay), aff’d, 37 M.J. 

338 (C.M.A. 1993). However, when time for compliance is not stated explicitly or implicitly, 

then reasonable delay in compliance does not constitute disobedience. MCM, pt. IV, ¶ 14c(2)(g). 

United States v. Clowser, 16 C.M.R. 543 (A.F.B.R. 1954) (delay resulting from a sincere and 

reasonable choice of means to comply with order to “go up to the barracks and go to bed” was not 

a completed disobedience). 

3. When immediate compliance is required, disobedience is completed when the one to whom 

the order is directed first refuses and evinces an intentional defiance of authority. United States v. 

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Vansant, 11 C.M.R. 30 (C.M.A. 1953) (order to return to his platoon and be there in one and a 

half hours necessitated immediate compliance, and refusal to comply constituted disobedience). 

4. For orders that require preliminary steps before they can be executed, the recipient must 

begin the preliminary steps immediately or the disobedience is complete. United States v. 

Wilson, 17 M.J. 1032 (A.C.M.R. 1984) pet. denied, 19 M.J. 79 (C.M.A. 1984) (lieutenant’s order 

to “shotgun” a truck, which entailed preparation prior to travel, was disobeyed when accused 

verbally refused three times and walked out of lieutenant’s office). 

5. Apprehension of an accused before compliance is due is a legitimate defense to the alleged 

disobedience. See United States v. Williams, 39 C.M.R. 78 (C.M.A. 1968). 

6. If an order is to be performed in the future, the accused’s present statement of intent to 

disobey does not constitute disobedience. United States v. Squire, 47 C.M.R. 214 (N.C.M.R. 

1973). 

F. Matters in Defense. 

1. The order lacks content/specific mandate. United States v. Bratcher, 39 C.M.R. 125 (C.M.A. 

1969); United States v. Oldaker, 41 C.M.R. 497 (A.C.M.R. 1969) (order “to train” given to basic 

trainee lacked content); United States v. Couser, 3 M.J. 561 (A.C.M.R. 1977) (order to resume 

training with company was proper); United States v. Beattie, 17 M.J. 537 (A.C.M.R. 1983) (order 

to “follow the instructions of his NCO’s” lacked content). 

2. “Ultimate offense” doctrine. 

a) The order requires acts already required by law, regulation, standing orders, or routine 

(pre-existing) duty. United States v. Bratcher, 39 C.M.R. 125 (C.M.A. 1969) (order to 

“perform duties as a duty soldier, the duties to be performed and to be assigned to him by the 

First Sergeant” was not a specific mandate but rather an exhortation to do his duty as already 

required by law; order to obey the law can have no validity beyond the limit of the ultimate 

offense committed); United States v. Sidney, 48 C.M.R. 801 (A.C.M.R. 1974) (officer’s order 

to comply with local regulations on registration and safekeeping of personal weapons should 

have been charged under Article 92(2)); United States v. Wartsbaugh, 45 C.M.R. 309 

(C.M.A. 1972) (order to comply with battalion uniform directive should have been charged 

under Article 92(2)); but cf. United States v. Traxler, 39 M.J. 476 (C.M.A. 1994) 

(commander can lift otherwise routine duty “above the common ruck” to ensure compliance 

but not to merely enhance punishment); but see United States v. Phillips, 74 M.J. 20 

(C.A.A.F. 2015) (commander ordered accused who repeatedly absented himself without 

leave to avoid disciplinary proceedings to remain on post; absent evidence that commander 

issued the order to escalate the accused’s criminal liability, the government was free to 

choose between charging a violation of the order or breaking restriction). 

b) Minor offenses may not be escalated in severity by charging them as violation of orders 

or willful disobedience of superiors. United States v. Hargrove, 51 M.J. 408 (1999); United 

States v. Quarles, 1 M.J. 231 (C.M.A. 1975) (holding maximum punishment cannot be 

increased by charging disobedience rather than failure to repair); United States v. Loos, 16 

C.M.R. 52 (C.M.A. 1954) (holding “gravamen” of offense was failure to repair rather than 

failure to obey lawful order). 

c) Violation of a personal order is punishable as a separate offense if it is given for the 

purpose of having the full authority of the superior’s position and rank to ensure compliance. 

United States v. Traxler, 39 M.J. 476 (C.M.A. 1994) (willful disobedience of superior 

commissioned officer and missing movement); United States v. Landwehr, 18 M.J. 355 

(C.M.A. 1984) (willful disobedience of superior commissioned officer and failure to repair); 

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United States v. Pettersen, 17 M.J. 69 (C.M.A. 1983) (willful disobedience of superior 

noncommissioned officer and AWOL); United States v. Greene, 8 M.J. 796 (N.C.M.R. 

1980); United States v. United States v. Bethea, 2 M.J. 892 (A.C.M.R. 1976); States v. Bivins, 

34 C.M.R. 527 (A.B.R. 1964). 

3. Repeated orders. 

a) If the sole purpose of repeated personal orders is to increase the punishment for an 

offense, disobedience of the repeated order is not a crime. United States v. Tiggs, 40 C.M.R. 

352 (A.B.R. 1968). 

b) Repeated orders may constitute an unreasonable multiplication of charges. United States 

v. Graves, 12 M.J. 583 (A.F.C.M.R. 1981) (dismissing conviction for willful disobedience of 

lieutenant’s order that immediately followed and was identical to order from sergeant, which 

was the basis of a separate conviction); United States v. Greene, 8 M.J. 796 (N.C.M.R. 1980) 

(subsequent orders of superior commissioned officers merely reiterating original order of 

petty officer could not form basis for additional convictions for willful disobedience of 

superior commissioned officers); United States v. Bivins, 34 C.M.R. 527 (A.B.R. 1964). 

4. Violation of an order that is part of an apprehension constitutes resisting apprehension rather 

than disobedience of an order. United States v. Nixon, 45 C.M.R. 254 (C.M.A. 1974) (officer’s 

order “to leave the . . . room and get into a jeep” was the initial step of an apprehension, and 

disobedience should have been prosecuted under Article 95 rather than Article 90); United States 

v. Burroughs, C.M.R. 404 (A.C.M.R. 1974). But see United States v. Jessie, 2 M.J. 573 

(A.C.M.R. 1977) (when already in custody, order to remain in building to reinforce status was 

independent lawful command). 

5. The order is inconsistent with a service regulation. United States v. Roach, 29 M.J. 33 

(C.M.A. 1989) (Coast Guard regulation on drug and alcohol policy). 

6. The defense of conflicting orders. United States v. Clausen, 43 C.M.R. 128 (C.M.A. 1971); 

United States v. Patton, 41 C.M.R. 572 (A.C.M.R. 1969) (“criminal prosecution for disobedience 

of an order cannot be based upon a subordinate’s election to obey one of two conflicting orders 

when simultaneous compliance with both orders is impossible”); but cf. United States v. Hill, 26 

M.J. 876 (N.M.C.M.R. 1988) (no defense where accused obeyed neither of the conflicting orders 

but rather remained in his “rack”). 

7. Orders must not conflict with, or detract from, the scope or effectiveness of orders issued by 

higher headquarters. United States v. Clausen, 43 C.M.R. 128 (C.M.A. 1971); United States v. 

Green, 22 M.J. 711 (A.C.M.R. 1986). 

8. Conscientious objection is not a defense to disobedience of lawful orders. United States v. 

Johnson, 45 M.J. 88 (C.A.A.F. 1996); United States v. Walker, 41 M.J. 462 (1995); United States 

v. Austin, 27 M.J. 227 (C.A.A.F. 1988). 

9. State of mind defenses may apply. United States v. Young, 40 C.M.R. 36 (C.M.A. 1969). 

XV. VIOLATION OF A LAWFUL GENERAL REGULATION / ORDER. UCMJ ART. 92(1). 

A. Authority to Issue a General Order. MCM, pt. IV, ¶ 16c(1)(a). 

1. President; Secretary of Defense; Secretary of Homeland Security; and Secretaries of the 

Army, Navy, and Air Force. (NOTE: EO 13397 (14 Oct. 2005) amended the MCM to change 

authority to issue a general order from the Secretary of Transportation to the Secretary of 

Homeland Security). 

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2. A GCM convening authority. 

3. A flag or general officer in command. 

4. Superiors commanders to (2) and (3) above. 

5. To be a lawful general order, the order must be issued as the result of the personal decision of 

the person authorized to issue general orders. United States v. Townsend, 49 M.J. 175, 179-80 

(C.A.A.F. 1998) (order signed by Acting Chief, Office of Personnel and Training was issued by 

the Commandant of the Coast Guard); United States v. Bartell, 32 M.J. 295 (C.M.A. 1991) 

(general order signed “By Direction”); United States v. Breault, 30 M.J. 833 (N.M.C.M.R. 1990) 

(general order signed by chief of staff). 

B. Regulation Defects. 

1. The regulation must prohibit conduct of the nature of that attributed to the accused in the 

specification. United States v. Baker, 40 C.M.R. 216 (C.M.A. 1969); United States v. 

Sweitzer, 33 C.M.R. 251 (C.M.A. 1963). 

2. The regulation must apply to a group of persons that includes the accused. United States 

v. Jackson, 46 C.M.R. 1128 (A.C.M.R. 1973) (finding that regulation was intended to guide 

military police rather than the individual soldier). 

3. The regulation must purport to establish criminal sanctions against individuals rather than 

mere guidance. United States v. Green, Army 20010446, 2003 Lexis 137 (Army Ct. Crim. 

App. June 6, 2003)(DoD Directive intended to update policies and responsibilities on drug 

abuse and prevention held to be general guidance and not punitive in nature); United States v. 

Blanchard, 19 M.J. 196 (C.M.A. 1985) (USAFE customs regulation was directory in nature); 

United States v. Scott, 46 C.M.R. 25 (C.M.A. 1972) (regulation establishing drug suppression 

policy was not punitive order); United States v. Nardell, 45 C.M.R. 101 (C.M.A. 1972) (SOP 

for club system was predominantly instructional guidance); United States v. Benway, 41 

C.M.R. 345 (C.M.A. 10970); United States v. Hogsett, 25 C.M.R. 185 (C.M.A. 1958) 

(instruction interpreting postal laws was not general order); United States v. Hode, 44 M.J. 

816 (A.F. Ct. Crim. App. 1996) (AFI 34-119 on the Alcoholic Beverage Program was not 

punitive); United States v. Goodwin, 37 M.J. 606 (A.C.M.R. 1993) (punitive regulation can 

refer to provisions in nonpunitive regulation); United States v. Finsel, 33 M.J. 739 (A.C.M.R. 

1991) (task force commander’s “Weapons Safety” letter was punitive in nature), aff’d, 36 

M.J. 441 (C.M.A. 1993); United States v. Asfeld, 30 M.J. 917 (A.C.M.R. 1990) (AR 600-21, 

including sexual harassment policy provisions, was not a punitive regulation); United States 

v. Brunson, 30 M.J. 766 (A.C.M.R. 1990) (AR 600-15, providing guidance on handling 

complaints of indebtedness by soldiers, was not punitive); United States v. Horton, 17 M.J. 

1131 (N.M.C.M.R. 1984) (regulation governing contacts with citizens of communist 

countries was punitive); United States v. Stewart, 2 M.J. 423 (A.C.M.R. 1975) (U.S. Army 

Japan Regulation 190-6 on control of privately owned weapons was not punitive). 

4. It is not a defense that the regulation was superseded before the accused’s conduct, if a 

successor regulation contained the same criminal prohibition and it was in force at the time of 

the accused’s conduct, unless it misled the accused. United States v. Grublak, 47 C.M.R. 371 

(A.C.M.R. 1973). 

5. A regulation that is facially overbroad may be salvaged by including a scienter or mens 

rea requirement. United States v. Bradley, 15 M.J. 843 (A.F.C.M.R. 1983); United States v. 

Cannon, 13 M.J. 777 (A.C.M.R. 1982). 

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6. Local regulations must not conflict with or detract from the scope of effectiveness of a 

regulation issued by higher headquarters. United States v. Green, 22 M.J. 711 (A.C.M.R. 

1986) (Fort Stewart regulation prohibiting soldiers from “[h]aving any alcohol in their system 

. . . during duty hours” was not enforceable because it detracted from the effectiveness of 

Army Regulation 600-85); see United States v. Garcia, 21 M.J. 127 (C.M.A. 1985). 

7. United States Army, Europe, regulation that prohibited transporting persons without 

prescribed travel documents on the Helmstadt-Berlin autobahn in a vehicle with United States 

military registration was a “necessary and reasonable implementation by the United States 

military of an action required by the treaty and in furtherance of national policy.” As such, 

the regulation could be enforced by criminal sanctions. United States v. Stockman, 17 M.J. 

530 (A.C.M.R. 1983) (the accused, assigned to duty with the United States Forces in Berlin, 

violated the regulation by engaged in a conspiracy with two German Nationals to smuggle 

East German citizens into Berlin). 

C. Knowledge. 

1. Actual knowledge of the regulation or order is not an element of the crime. United States v. 

Tolkach, 14 M.J. 239 (C.M.A. 1982); United States v. Tinker, 27 C.M.R. 366 (C.M.A. 1959); 

United States v. Leverette, 9 M.J. 627 (A.C.M.R. 1980), aff’d, 9 M.J. 421 (C.M.A. 1980). 

2. For knowledge to be presumed, a regulation must be properly published. United States v. 

Tolkach, 14 M.J. 239 (C.M.A. 1982) (Eighth Air Force general regulation not properly published 

because it was never received at base master publications library). 

3. To be enforceable against service members, local regulations need not be published in the 

Federal Register. United States v. Tolkach, 14 M.J. 239 (C.M.A. 1982); United States v. 

Academia, 14 M.J. 582 (N.M.C.M.R. 1982). 

D. Mens Rea. Knowledge of the order’s existence is a different concept than the government’s 

requirement to prove mens rea. General order prohibiting the giving of alcohol to service members 

under age 21 did not explicitly establish a mens rea requirement; as such, the proper standard of mens 

rea was recklessness. Such a general order is not analogous to a public welfare offense and therefore 

required the accused to at least be reckless as to his knowledge of the age of the recipients of the 

alcohol. United States v. Gifford, 75 M.J. 140 (C.A.A.F. 2016). See also Elonis v. United States, 135 

S. Ct. 2001 (2015). 

E. Pleading. 

1. A specification is defective if it fails to allege that the order or regulation is “general.” 

United States v. Koepke, 39 C.M.R. 100 (C.M.A. 1969); United States v. Baker, 38 C.M.R. 144 

(C.M.A. 1967) (specification alleging violation of a specific Division regulation fails to state 

offense under Article 92(1)); but see United States v. Watkins, 21 M.J. 208 (C.M.A. 1986); 

United States v. Watson, 40 C.M.R. 571 (A.B.R. 1969) (specification alleging violation of a 

specific “Army” regulation was sufficient; distinguishing Koepke). 

2. The specification need not allege that an accused “wrongfully” violated a lawful general 

regulation, because the allegation of the violation itself implies the unlawful nature of the 

conduct. United States v. Torrey, 10 M.J. 508 (A.F.C.M.R. 1980). 

3. Accused, a recruiter, was charged with violation of a sub-paragraph “6(d)” of lawful general 

order by providing alcohol to a person enrolled in the Delayed Entry Program (DEP). The panel 

found him guilty of violating the superior paragraph “6” of the same general order by wrongfully 

engaging in a non-professional, personal relationship with the same DEP member. Court held 

this was a fatal variance because the substituted offense was materially different from the one 

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originally charged in the specification, and accused was prejudiced by depriving him the 

opportunity to defend against the substituted paragraph of the order. United States v. Teffeau, 58 

M.J. 62 (C.A.A.F. 2003). Additionally, the manner in which the accused violated the regulation 

must be alleged. United States v. Sweitzer, 33 C.M.R. 251 (C.M.A. 1963). 

F. Proof. At trial, the existence and content of the regulation will not be presumed; it must be 

proven with evidence or established by judicial notice. United States v. Williams, 3 M.J. 155 (C.M.A. 

1977). In judge alone trials, failure to prove existence of regulation can be cured by proceeding in 

revision or by an appellate court taking judicial notice. United States v. Mead, 16 M.J. 270 (C.M.A. 

1983). 

G. Exceptions. The prosecution must prove beyond a reasonable doubt that the accused’s conduct 

did not come within any exceptions to the regulation, once the evidence raises the issue . United 

States v. Lavine, 13 M.J. 150 (C.M.A. 1982); United States v. Cuffee, 10 M.J. 381 (C.M.A. 1981). 

H. Application. Service member need not be assigned to command of officer issuing general 

regulation in order to be subject to its proscriptions. United States v. Leverette, 9 M.J. 627 (A.C.M.R. 

1980) (soldier on leave visiting Fort Campbell convicted of violating local general regulation), aff’d, 

9 M.J. 421 (C.M.A. 1980). 

I. Misconduct Otherwise Proscribed by Punitive Articles. Neither a general regulation nor an order 

may be used to enhance punishment for misconduct already prohibited by the punitive articles. 

United States v. Curry, 28 M.J. 419 (C.M.A. 1989) (Article 93 preempted conviction under Article 92 

for disobedience of an order not to maltreat subordinates). Cf. MCM, pt. IV, ¶ 16e(1), (2) Note. 

J. Attempts. Attempt to violate a regulation under Article 80 does not require knowledge of the 

regulation; the accused need only intend to commit the proscribed act. United States v. Davis, 16 

M.J. 225 (C.M.A. 1983); United States v. Foster, 14 M.J. 246 (C.M.A. 1982). 

K. Constitutional Rights. Where a regulation is attacked as unconstitutional or violative of a statute, 

“a narrowing construction” is mandated, if possible, to avoid the problem. United States v. Williams, 

29 M.J. 112 (C.M.A. 1989) (“show and tell” regulation, narrowly construed to require service 

member to show physical possession or documentation of lawful disposition of controlled items, did 

not violate 5th amendment or Article 31). 

XVI. FAILURE TO OBEY LOCAL ORDERS. UCMJ ART. 92(2). 

A. The Order. Includes all other lawful orders issued by a member of the armed forces that the 

accused had a duty to obey. MCM, pt. IV, ¶ 16c(2)(a). 

B. Limitation on Maximum Punishment. The maximum punishments set out in MCM, pt. IV, ¶ 

16.e. include a dishonorable discharge and confinement for two years for violation of general 

regulations and a bad-conduct discharge and confinement for six months for disobedience of other 

lawful orders. A note, however, sets out certain limitations in this regard. 

1. A note located after MCM, pt. IV, ¶ 16e(1) and (2) provides that these maximum 

punishments do not apply in the following cases: 

a) If in the absence of the order or regulation which was violated or not obeyed the accused 

would on the same facts be subject to conviction for another specific offense for which a 

lesser punishment is prescribed; or 

b) If the violation or failure to obey is a breach of restraint imposed as a result of an order. 

c) In these instances, the maximum punishment is that prescribed elsewhere for that 

particular offense. 

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2. This limitation was commonly known as the “Footnote 5” limitation, because it was Footnote 

5 to the Table of Maximum Punishments in older versions of the MCM. 

3. This limitation is only operative, however, where the lesser offense is the “gravamen of the 

offense.” United States v. Timmons, 13 M.J. 431 (C.M.A. 1982) (gravamen of the offense was 

not being in the authorized uniform in violation of Article 134 rather than failing to obey order of 

petty officer); United States v. Showalter, 35 C.M.R. 382 (C.M.A. 1965) (gravamen of offense 

was not being in the authorized uniform in violation of Article 134 rather than failing to obey a 

general regulation); United States v. Yunque-Burgos, 13 C.M.R. 54 (C.M.A. 1953); United States 

v. Buckmiller, 4 C.M.R. 96 (C.M.A. 1952) (seminal case establishing gravamen test and rejecting 

a “technical and entirely literal interpretation of the footnote”). 

4. The note’s rationale has been applied to offenses other than Articles 92(1) and 92(2). See 

United States v. Battle, 27 M.J. 781 (A.F.C.M.R. 1988); United States v. Burroughs, 49 C.M.R. 

404 (A.C.M.R. 1974) (using the maximum punishment provided for resisting apprehension under 

Article 95 rather than that for willful disobedience of a superior commissioned officer under 

Article 90, of which the accused was convicted). 

C. Source of Order. The order may be given by a person not superior to the accused, but the person 

giving the order must have a special status that imposes upon the accused the duty to obey. MCM, pt. 

IV, ¶ 16c(2)(c)(i); United States v. Stovall, 44 C.M.R. 576 (A.F.C.M.R. 1971) (security policeman). 

D. Actual Knowledge. The accused must have actual knowledge of the order. MCM, pt. IV, ¶ 

16c(2)(b); United States v. Shelly, 19 M.J. 325 (C.M.A. 1985) (directive by battery commander); 

United States v. Curtin, 26 C.M.R. 207 (C.M.A. 1958) (instruction on constructive knowledge was 

erroneous); United States v. Henderson, 32 M.J. 941 (N.M.C.M.R. 1991) (district order governing use 

of government vehicles by Marine recruiters), aff’d, 34 M.J. 174 (C.M.A. 1992); United States v. 

Jack, 10 M.J. 572 (A.F.C.M.R. 1980) (conviction set aside where accused violated local regulation 

concerning visiting hours in female barracks where sign posted at building’s entrance did not 

designate issuing authority). 

E. Negligent Disobedience Sufficient for Guilt. Failure to comply through heedlessness or 

forgetfulness can be sufficient for a conviction under Article 92. MCM, pt. IV, ¶ 14c(2)(f); United 

States v. Jordan, 21 C.M.R. 627 (A.F.B.R. 1955). 

XVII. THE LAWFULNESS OF ORDERS. 

A. Presumption of Lawfulness. Orders from superiors requiring the performance of military duties 

are presumed to be lawful. MCM, pt. IV, ¶ 14c(2)(a)(i); United States v. McDaniels, 50 M.J. 407 

(C.A.A.F. 1999) (order to not drive personal vehicle after diagnosis of narcolepsy); United States v. 

Nieves, 44 M.J. 96 (C.A.A.F. 1996) (order prohibiting discussions with witnesses); United States v. 

New, 55 M.J. 95 (C.A.A.F. 2001) (order requiring soldier to wear United Nations blue beret and 

insignia). 

B. Disobedience. A superior’s order is presumed to be lawful and is disobeyed at the subordinate’s 

peril. To sustain the presumption, the order must relate to military duty, it must not conflict with the 

statutory or constitutional rights of the person receiving the order, and it must be a specific mandate 

to do or not to do a specific act. In sum, an order is presumed lawful if it has a valid military purpose 

and is a clear, specific, narrowly drawn mandate. United States v. Moore, 58 M.J. 466 (C.A.A.F. 

2003). The dictates of a person’s conscience, religion, or personal philosophy cannot excuse 

disobedience. United States v. Stockman, 17 M.J. 530 (A.C.M.R. 1973). 

C. Valid Military Purpose. The order must relate to military duty, which includes all activities 

reasonably necessary to accomplish a military mission, or safeguard or promote the morale, 

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discipline, and usefulness of members of a unit and directly with the maintenance of good order in the 

armed forces. MCM, pt. IV, ¶ 14c(2)(a)(iii). The order can affect otherwise private activity. United 

States v. McDaniels, 50 M.J. 407 (C.A.A.F. 1999) (order to not drive personal vehicle after diagnosis 

of narcolepsy); United States v. Hill, 49 M.J. 242 (C.A.A.F. 1999) (no-contact order issued by 

military police had valid military purpose of maintaining good order and discipline in the military 

community and to protect the alleged victim while during the investigation); United States v. Padgett, 

48 M.J. 273 (C.A.A.F. 1998) (order requiring 25-year-old service member to terminate his romantic 

relationship with 14-year-old girl had valid military purpose); United States v. Milldebrandt, 25 

C.M.R. 139 (C.M.A. 1958) (order to report, while on leave, financial conditions unrelated to the 

military did not have valid military purpose). 

1. An order that has for its sole object a private end is unlawful, but an order that benefits the 

command as well as serving individuals is lawful. United States v. Robinson, 20 C.M.R. 63 

(C.M.A. 1955) (use of enlisted personnel in Officers’ Open Mess at Fort McNair). 

2. Punishment. 

a) Orders extending punishments beyond those lawfully imposed are illegal. United States 

v. McCoy, 30 C.M.R. 68 (C.M.A. 1960) (order to continue extra duty after punishment 

imposed under Article 15 already completed). 

b) “Extra training” must be oriented to improving the soldier’s performance of military 

duties. Such corrective measures assume the nature of training or instruction, not 

punishment. MCM, pt. I, ¶ 1g; AR 600-20, ¶ 4-6b (11 Feb 2009); see United States v. 

Hoover, 24 M.J. 874 (A.C.M.R. 1987) (requiring accused to live in pup tent for 3 weeks 

between the hours of 2200 and 0400 was unlawful punishment). 

D. Overly Broad Limitation on Personal Right. An order that is “arbitrary and capricious, overly 

broad in scope, or to impose an unjust limitation on a personal right” is not lawful. United States v. 

Milldebrandt, 25 C.M.R. 139 (C.M.A. 1958) (order to report, while on leave, financial conditions 

unrelated to the military was not lawful); United States v. Spencer, 29 M.J. 740 (A.F.C.M.R. 1989) 

(order to turn over all civilian medical records to military clinic by specific date was unlawful, 

because it was broader and more restrictive of private rights and personal affairs than required by 

military needs and provided for by service regulation); United States v. Jeffers, 57 M.J. 13 (C.A.A.F. 

2002) (no social contact order with female in unit with whom accused had adulterous relationship not 

overbroad). 

1. Marriage. Regulations reasonably restricting marriages of foreign-based service personnel to 

local nationals are legal. United States v. Wheeler, 30 C.M.R. 387 (C.M.A. 1961) (“a military 

commander may, at least in foreign areas, impose reasonable restrictions on the right of military 

personnel of his command to marry”); United States v. Nation, 26 C.M.R. 504 (C.M.A. 1958) 

(six-month waiting period was unreasonable and arbitrary restraint on the personal right to 

marry). 

2. “Safe sex” order to servicemember infected with HIV is lawful. United States v. Dumford, 

30 M.J. 137 (C.M.A. 1990); United States v. Womack, 29 M.J. 88 (C.M.A. 1989). 

3. A service member who violates the terms of a no-contact order is subject to punishment 

under either Article 90 or Article 92, without the necessity of proof that the contact was 

undertaken for an improper purpose. Public policy supports a strict reading of a no-contact order. 

A military commander who has a legitimate interest in deterring contact between a service 

member and another person is not required to sort through every contact to determine, after the 

fact, whether there was a nefarious purpose. United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 

2003). 

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4. Personal relationships and contacts. United States v. Hill, 49 M.J. 242 (C.A.A.F. 1999) 

(order to have no contact with alleged victim lawful); United States v. Padgett, 48 M.J. 273 

(C.A.A.F. 1998) (order requiring 25-year-old service member to terminate his romantic 

relationship with 14-year-old girl lawful); United States v. Nieves, 44 M.J. 96 (C.A.A.F. 1996) 

(order prohibiting discussions with witnesses, during an investigation, was lawful); United States 

v. Aycock, 35 C.M.R. 130 (C.M.A. 1964) (order prohibiting accused from contacting witnesses 

concerning the charges was unlawful because it interfered with right to prepare a defense); United 

States v. Wysong, 26 C.M.R. 29 (C.M.A. 1958) (order “not to talk to or speak with any of the men 

in the company concerned with this investigation except in line of duty” was so broad in nature 

and all-inclusive in scope that it was illegal); United States v. Mann, 50 M.J. 689 (A.F. Ct. Crim. 

App. 1999) (order to “cease and refrain from any and all contact of any nature” with enlisted 

member with whom the accused allegedly fraternized, which indicated that accused’s counsel had 

unrestricted access, was lawful); United States v. Button, 31 M.J. 897 (A.F.C.M.R. 1990) (order 

not to go to family quarters, where alleged sexual abuse victim lived, was lawful), aff’d, 34 M.J. 

139 (C.M.A. 1992); United States v. Hawkins, 30 M.J. 682 (A.F.C.M.R. 1990) (order to have no 

contact with alleged victims and witness, unless by the area defense counsel, was lawful); United 

States v. Wine, 28 M.J. 688 (A.F.C.M.R. 1989) (order to disassociate from neighbor’s estranged 

wife lawful); United States v. Moore, 58 M.J. 466 (C.A.A.F. 2003) (order “not to converse with 

the civilian workers” in the galley was lawful and not over broad when given after the accused 

violated a policy limiting interaction between civilian employees and servicemembers). 

5. Alcohol. 

a) Regulations establishing a minimum drinking age for service personnel in a command 

abroad are legal. United States v. Manos, 37 C.M.R. 274 (C.M.A. 1967). 

b) A military member may also be lawfully ordered not to consume alcoholic beverages as a 

condition of pretrial restriction, if reasonably necessary to protect the morale, welfare, and 

safety of the unit or the accused; to protect victims or potential witnesses; or to ensure the 

accused’s presence at the court-martial or pretrial hearings in a sober condition. United 

States v. Blye, 37 M.J. 92 (C.M.A. 1993). 

c) Order not to consume alcohol must have a reasonable connection to military needs; 

United States v. Stewart, 33 M.J. 519 (A.F.C.M.R. 1991) (order not to consume alcoholic 

beverages to see if the accused was an alcoholic was invalid); United States v. Kochan, 27 

M.J. 574 (N.M.C.M.R. 1988) (order not to drink alcohol until 21-years old was illegal). 

6. Loans. Orders restricting loans between service members may be lawful, if there is a 

sufficient connection between the military’s duty to protect the morale, discipline, and usefulness 

of its members. United States v. McClain, 10 M.J. 271 (C.M.A. 1981) (upholding conviction for 

violation of a regulation prohibiting loans between permanent party personnel and trainees at Fort 

Jackson); United States v. Smith, 1 M.J. 156 (C.M.A. 1975) (regulation prohibiting all loans for 

profit or any benefit without consent of commander, without a corresponding military need, was 

invalid as too restrictive); United States v. Giordano, 35 C.M.R. 135 (C.M.A. 1964) (order fixing 

a maximum legal rate of interest on loans among military members was lawful). 

7. Writing checks. United States v. James, 52 M.J. 709 (Army Ct. Crim. App. 2000) (order “not 

to write any more checks” was lawful). Contra United States v. Alexander, 26 M.J. 796 

(A.F.C.M.R. 1988) (order “not to write any checks” was much too broad to be considered valid). 

8. Regulations may proscribe the use of customs-free privileges in Korea for personal gain or 

profit. United States v. Lehman, 5 M.J. 740 (A.F.C.M.R. 1978). 

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9. As long as not unreasonable and not unduly humiliating or degrading, an order to produce a 

urine specimen under direct observation is lawful. Unger v. Ziemniak, 27 M.J. 349 (C.M.A. 

1989). 

10. Order to cooks to shower before reporting to work in the galley was lawful. United States v. 

Horner, 32 M.J. 576 (C.G.C.M.R. 1991). 

11. Regulation prohibiting transportation of persons without prescribed travel documents on the 

Helmstadt-Berlin autobahn between former East and West Germany in a vehicle with United 

States military registration was lawful and was not a violation of human rights or the Thirteenth 

Amendment. United States v. Stockman, 17 M.J. 530 (A.C.M.R. 1983). 

12. Regulations requiring members of the service to obtain approval from their commanders 

before circulating petitions on military installations are lawful. Brown v. Glines, 444 U.S. 348 

(1979) (Air Force had substantial governmental interest unrelated to the suppression of free 

expression; while 10 U.S.C. § 1034 ensures that individual servicemen can write to members of 

Congress without sending the communication through official channels, it does not cover the 

general circulation of a petition within a military base); Secretary of the Navy v. Huff, 444 U.S. 

453 (1979) (similar Navy regulation). 

E. Litigating the Issue of Lawfulness of the Order. Lawfulness of an order, although an important 

issue, is not a discrete element of a disobedience offense. Therefore, it is a question of law to be 

determined by the military judge. MCM pt. IV, ¶ 14c(2)(a). United States v. Jeffers, 57 M.J. 13 

(C.A.A.F. 2002); United States v. New, 55 M.J. 95 (C.A.A.F. 2001); But see United States v. Mack, 

65 M.J. 108 (C.A.A.F. 2007) (while the lawfulness of an order is a question of law to be determined 

by the military judge, submitting the question of lawfulness to a panel is harmless error when the 

accused fails to rebut the presumption of lawfulness). 

XVIII. DERELICTION OF DUTY. UCMJ ART. 92(3). 

A. Duty. 

1. The duty may be imposed by treaty, statute, regulation, lawful order, SOP, or custom of the 

service. MCM, pt. IV, ¶ 16c(3)(a); United States v. Dallamn, 34 M.J. 274 (C.M.A. 1992) (no 

duty to perform medical examination prior to prescribing drugs to persons not entitled to military 

medical services), aff’d, 37 M.J. 213 (C.M.A. 1993); United States v. Dupree, 24 M.J. 319 

(C.M.A. 1987) (Air Force regulation imposed duty to report drug abuse, but dereliction could not 

be sustained where prisoner’s marijuana use was inextricably intertwined with accused guard’s 

misconduct in taking prisoners off-base); United States v. Heyward, 22 M.J. 35 (C.M.A. 1986) 

(although Air Force regulation imposed duty to report drug abuse, the privilege against selfincrimination excuses non-compliance where, at the time the duty to report arose, the accused 

was already an accessory or principal to the illegal activity); United States v. Grow, 11 C.M.R. 77 

(C.M.A. 1953) (failure of major general to secure classified information, as required by nonpunitive Army regulation, constituted dereliction of duty); United States v. Serianne, 69 M.J. 8 

(C.A.A.F. 2010) (USN duty to report DUI arrest unenforceable where superior regulation—Navy 

Articles—prohibits requirement for self-reporting imposed by lesser regulation). 

2. “Duty” does not include non-military tasks voluntarily performed after regular duty hours for 

additional pay. United States v. Garrison, 14 C.M.R. 359 (A.B.R. 1954) (secretary/treasurer of 

NCO club). 

3. The evidence must prove the existence of the duty beyond a reasonable doubt. United States 

v. Tanksley, 36 M.J. 428 (C.M.A. 1993) (evidence of duty to “acquire parts and materials 

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necessary to maintain communication equipment” did not establish that accused “had a duty to 

acquire light sticks or bayonets properly, or indeed, at all”). 

B. Knowledge. 

1. The accused must have known or should have known of the duty. MCM, pt. IV, ¶ 16b(3)(b), 

16c(3)(b) (MCM added knowledge as element for negligent dereliction in 1986); United States v. 

Pacheco, 56 M.J. 1, (C.A.A.F. 2001) (accused’s knowledge of his duty to safeguard a weapons 

cache and his willful dereliction of this duty was established by the taking of weapons as 

trophies); United States v. Pratt, 34 C.M.R. 731 (C.G.B.R. 1963) (evidence insufficient to 

establish that accused reasonably aware of facts necessitating initiation of rescue procedures). 

2. Willful dereliction, which has a greater maximum punishment, requires actual knowledge of 

the duty. United States v. Ferguson, 40 M.J. 823, 833-34 (N.M.C.M.R. 1994). 

3. There is no requirement that the accused know the source of the duty. United States v. 

Markley, 40 M.J. 581 (A.F.C.M.R. 1993). 

C. Standards for Dereliction. 

1. Willful nonperformance of duty. “Willful” means intentional. It requires doing an act 

knowingly and purposely, specifically intending the natural and probable consequences of the act. 

MCM, pt. IV, ¶ 16c(3)(c). 

2. Negligent nonperformance of duty. “Negligence” is the lack of that degree of care that a 

reasonably prudent person would have exercised under the same or similar circumstances, i.e. 

simple negligence. MCM, pt. IV, ¶ 16c(3)(c); United States v. Lawson, 36 M.J. 415 (C.M.A. 

1993) (improper posting of road guides in pairs and obtaining a roster of individuals to be 

posted); United States v. Rust, 38 M.J. 726 (A.F.C.M.R. 1993); United States v. Dellarosa, 30 

M.J. 255 (C.M.A. 1990) (weather reporting); United States v. Kelchner, 36 C.M.R. 183 (C.M.A. 

1966) (evidence insufficient to prove Navy commander negligently failed to supervise and assist 

subordinate’s work); United States v. Grow, 11 C.M.R. 77 (C.M.A. 1953) (failure of major 

general to safeguard classified information); United States v. Ferguson, 12 C.M.R. 570 (A.B.R. 

1953) (evidence insufficient to prove company commander was derelict in his instructions on 

safety measures; “in testing for negligence the law does not substitute hindsight for foresight”). 

3. Culpable inefficiency. “Culpable inefficiency” is inefficiency in the performance of a duty 

for which there is no reasonable or just excuse. MCM, pt. IV, ¶ 16c(3)(c); United States v. 

Nickels, 20 M.J. 225 (C.M.A. 1985) (not maintaining proper fiscal control over postal account); 

see United States v. Dellarosa, 30 M.J. 255, 259 (C.M.A. 1990) (finding the distinction between 

nonperformance and faulty performance no longer significant). 

D. Ineptitude as a Defense. A person who fails to perform a duty because of ineptitude rather than 

by willfulness, negligence, or culpable inefficiency is not guilty of an offense. MCM, pt. IV, ¶ 

16c(3)(c); United States v. Powell, 32 M.J. 117 (C.M.A. 1991) (“ineptitude as a defense is largely 

fact-specific, requiring consideration of the duty imposed, the abilities and training of the soldier 

upon whom the duty is imposed, and the circumstances in which he is called upon to perform his 

duty”). 

E. Dereliction of Duty as a Lesser Offense to Other Crimes. 

1. Dereliction of duty, where the duty is premised upon a regulation or custom of the service, is 

not a lesser included offense of willful disobedience of a superior officer’s order. United States v. 

Haracivet, 45 C.M.R. 674 (A.C.M.R. 1972). 

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2. Dereliction of duty can be a lesser included offense of failure to obey a general order or 

regulation or a lawful order, under Article 92. United States v. Green, Army 20010446, 2003 

Lexis 137 (Army Ct. Crim. App. June 6, 2003)(DoD Directive on possession of drug 

paraphernalia not punitive, but accused could be guilty of dereliction of duty); United States v. 

Shavrnoch, 49 M.J. 334 (1998) (Air Force regulation on underage drinking not punitive); United 

States v. Bivins, 49 M.J. 328 (1998) (Air Force regulation on underage drinking not punitive); 

United States v. Green, 47 C.M.R. 727 (A.F.C.M.R. 1973) (finding that dereliction of duty was 

lesser included offense of failure to obey a lawful order of NCO concerning submitting daily 

urine specimens at treatment center). 

F. Pleading. 

1. The specification must spell out the nature of the inadequate performance alleged. United 

States v. Kelchner, 36 C.M.R. 183 (C.M.A. 1966); United States v. Long, 46 M.J. 783 (C.M.A. 

1997) (misuse of credit card for official government travel). 

2. The specification need not set forth the particular source of the duty violated. United States v. 

Moore, 21 C.M.R. 544 (N.B.R. 1956). 

3. The specification must allege nonperformance or faulty performance of a specified duty, and 

a bare allegation that an act was “not authorized” is insufficient. United States v. Sojfer, 44 M.J. 

603 (N-M. Ct. Crim. App. 1996) (specification alleging that accused corpsman committed acts 

beyond the scope of his duties, i.e. breast and pelvic examinations, failed to state the offense of 

dereliction), aff’d, 47 M.J. 425 (C.A.A.F. 1998). 

4. Variance between the nature of the inadequate performance alleged and the nature of the 

inadequate performance proven at trial may be fatal. United States v. Smith, 40 C.M.R. 316 

(C.M.A. 1969) (accused charged with dereliction by failure to walk his post by sitting down upon 

his post, but evidence showed he left his post before being properly relieved, in violation of 

Article 113, and was found asleep in a building off his post); United States v. Swanson, 20 

C.M.R. 416 (A.B.R. 1950) (accused charged with dereliction by failure to forward funds, but 

finding was failure to properly handle funds). 

5. For the enhanced maximum punishment for willful dereliction, the specification must allege 

willfulness, including actual knowledge of the duty. United States v. Ferguson, 40 M.J. 823 

(N.M.C.M.R. 1994). 

G. Examples of Misconduct Constituting Dereliction of Duty. 

1. Poor judgment in performance of duties can constitute dereliction. United States v. Rust, 41 

M.J. 472 (C.A.A.F. 1995) (failure of on-call obstetrician to come to hospital to examine and 

admit patient showing signs of premature labor); United States v. Sievert, 29 C.M.R. 657 (N.B.R. 

1959) (navigator, transiting narrow passage at night, failed to use all radars available to him and 

failed to react when faced with substantial discrepancies in position of ship). 

2. Affirmative criminal acts can support a dereliction of duty offense where those acts fall 

within the scope of the duty. United States v. Casey, 45 M.J. 623, 629 (N-M. Ct. Crim. App. 

1996) (theft of monies collected for phone charges); United States v. Bankston, 22 M.J. 896 

(N.M.C.M.R. 1986) (stealing cash collected from video games); United States v. Taylor, 13 

C.M.R. 201 (A.B.R. 1953) (lieutenant stole from mess fund, of which he was the custodian); 

United States v. Voelker, 7 C.M.R. 102 (A.B.R. 1953) (lieutenant spent money from special 

services fund provided to cover costs of transportation, food, and lodging for enlisted men on 

athletic team). 

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3. Loss to the Government or some other victim is not required for dereliction. United States v. 

Nichels, 20 M.J. 225 (C.M.A. 1985) (dereliction even though accused repaid or arranged to repay 

the $3,000 lost due to the accused’s failure to maintain proper fiscal control over postal account). 

4. Failure to maintain alert and responsible watch supports conviction for dereliction of duty. 

United States v. Stuart, 17 C.M.R. 486 (A.B.R. 1954). 

5. Willfully failing to properly use official time and government funds during TDY can 

constitute dereliction. United States v. Mann, 50 M.J. 689 (A.F. Ct. Crim. App. 1999) (during 5 

duty days of TDY, the only legitimate business the accused Air Force major accomplished was a 

45 minute conversation that could have taken place over the telephone; the accused was derelict 

in his duty to expend official time and funds only for legitimate governmental purposes by 

remaining TDY for personal reasons). 

6. Failure to report changes in marital status affecting pay and allowances constitutes dereliction 

of duty. United States v. Markley, 40 M.J. 581 (A.F.C.M.R. 1994). 

7. Even though civilians may have a First Amendment right to blow their nose on the American 

flag, the accused doing so while on flag-raising detail constituted dereliction of duty. United 

States v. Wilson, 33 M.J. 797 (A.C.M.R. 1991). 

8.	 Failure to report or prevent crime. See generally United States v. Thompson, 22 M.J. 40 

(C.M.A. 1986); United States v. Heyward, 22 M.J. 35 (C.M.A. 1986). 

XIX. ENLISTMENT DEFINED. 

A.	 Enlistment: A Contract that Changes “Status.” 

1. Valid Enlistments. In re Grimley, 137 U.S. 147 (1890) (finding valid enlistment, for 

jurisdictional purposes, where recruit lied about not being over the statutory maximum age of 35). 

a) A valid contract creates military status, and a breach of the contract does not affect status. 

b) Incapacity to contract and contracting involuntarily may prevent the existence of status. 

2.	 Void Enlistments—No Status Due to Statutory Disqualifications. 

a) Insanity, intoxication. 10 U.S.C. § 504. 

b) Felons, deserters (secretaries may authorize exceptions). 10 U.S.C. § 504. 

c) Age (minimum age - 17). 10 U.S.C. § 505. 

d) Citizenship status. 10 U.S.C. § 3253. 

B.	 Regulatory Enlistment Criteria. Army Regulation 601-210. 

1.	 No prior service applicants - Chapter 2. 

2.	 Prior service applicants - Chapter 3. 

C.	 Regulatory Disqualifications. 

1. Old rule: Regulations on enlistment qualifications are not only for the benefit of the service 

but also for the benefit of the applicant. Where recruiter misconduct amounts to a violation of 

Article 84, the resulting enlistment is void as contrary to public policy. United States v. Russo, 1 

M.J. 134 (C.M.A. 1975) (holding enlistment void, where accused suffered from dyslexia which 

severely impaired his ability to read and recruiter gave list of answers to qualification test). 

2. Russo created a prophylactic rule that voided all enlistment contracts where recruiter 

misconduct existed. This resulted in numerous courts-martial where the accused defended by 

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alleging the government had no jurisdiction over him because of recruiter misconduct. Congress 

responded by amending Article 2 to establish “constructive enlistments,” in order to overrule 

Russo (see E. below); see United States v. Quintal, 10 M.J. 532 (A.C.M.R. 1980); United States 

v. Gibson, 43 M.J. 343, 346 n.3 (C.A.A.F. 1995). 

D.	 Involuntary Enlistment. 

1. United States v. Catlow, 48 C.M.R. 758 (C.M.A. 1974) (enlistment was involuntary and void 

at its inception, where accused entered into it after a civilian judge told him his only choice was 

between 5 years in jail or enlistment in the Army for 3 years). 

2. United States v. Lightfoot, 4 M.J. 262 (C.M.A. 1974) (enlistment was voluntary, where 

accused, on advice of counsel, proposed military service as an alternative to confinement and the 

recruiter did not know that the criminal proceedings had been dismissed against the accused 

contingent on his entrance into the military). See also, United States v. Ghiglieri, 25 M.J. 687 

(A.C.M.R. 1987). 

E.	 The Codification of In Re Grimley. 

1.	 In 1979, Article 2 was amended to read as follows: 

(b) The voluntary enlistment of any person who has the capacity to understand 

the significance of enlisting in the armed forces shall be valid for purposes of 

jurisdiction under subsection (a) and a change of status from civilian to member 

of the armed forces shall be effective upon the taking of the oath of enlistment. 

(c) Notwithstanding any other provision of law, a person serving with an armed 

force who— 

(1) submitted voluntarily to military authority; 

(2) met the mental competence and minimum age qualifications of sections 

504 and 505 of his title at the time of voluntary submission to military 

authority; 

(3) received military pay or allowances; and 

(4) performed military duties; 

is subject to this chapter until such person’s active service has been terminated 

in accordance with law or regulations promulgated by the Secretary concerned. 

2. Recruiter misconduct or intoxication at the time of the oath can be cured by “constructive 

enlistment.” United States v. Hirsch, 26 M.J. 800 (A.C.M.R. 1988). 

3. “Constructive enlistment” applies to reserve officer on active duty training (ADT). United 

States v. Ernest, 32 M.J. 135 (C.M.A. 1991). 

4. A court-martial is competent to determine whether an enlistment was voidable because of 

misrepresentation. Woodrick v. Divich, 24 M.J. 147 (C.M.A. 1987). However, since a federal 

court habeas corpus proceeding was pending, the “demands of comity” supported abating courtmartial proceedings until the proceedings in the District Court were resolved. 

XX. FRAUDULENT ENLISTMENT, APPOINTMENT, OR SEPARATION. UCMJ ART. 83. 

A. Nature of The Offense. A fraudulent enlistment, appointment, or separation is one procured by 

either a knowingly false representation as to any of the qualifications or disqualifications prescribed 

by law, regulation, or orders for the specific enlistment, appointment, or separation, or a deliberate 

concealment as to any of those disqualifications. Matters that may be material to an enlistment, 

appointment, or separation include any information used by the recruiting, appointing, or separating 

officer in reaching a decision as to enlistment, appointment, or separation in any particular case, and 

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any information that normally would have been so considered had it been provided to that officer. 

MCM, pt. IV, ¶ 7c(1). 

B. Fraudulent Enlistment or Appointment. 

1. False Representation or Concealment. 

a) Testimony of the accused’s recruiters and documentary evidence of his traffic violations 

proved that the accused willfully concealed offenses, the cumulative number of which would 

have disqualified him from enlistment, and supported a conviction for fraudulent enlistment. 

United States v. Hawkins, 37 M.J. 718 (A.F.C.M.R. 1993). 

b) The accused perpetrated a fraudulent enlistment by enlisting in the Marine Corps using 

his brother’s name. United States v. Victorian, 31 M.J. 830 (N.M.C.M.R. 1990) (holding, 

however, that the statute of limitations barred prosecution for fraudulent enlistment). 

c) Falsely misrepresenting educational qualifications and willfully concealing arrest record 

constituted fraudulent extension of enlistment, which was not preempted by Article 83. 

United States v. Weigand, 23 M.J. 644 (A.C.M.R. 1986). 

d) Accused fraudulently entered the Army on several occasions using, at varying times, 

eleven different names. United States v. Brown, 22 M.J. 597 (A.C.M.R. 1986). 

2. Receipt of Pay or Allowances. An essential element of the offense of fraudulent enlistment 

or appointment is that the accused shall have received pay or allowances thereunder. 

Accordingly, a member of the armed forces who enlists or accepts an appointment without being 

regularly separated from a prior enlistment or appointment should be charged under Article 83 

only if that member has received pay or allowances under the fraudulent enlistment or 

appointment. Also, acceptance of food, clothing, shelter, or transportation from the government 

constitutes receipt of allowances. Whatever is furnished the accused while in custody, 

confinement, or other restraint pending trial for fraudulent enlistment or appointment, however, is 

not considered an allowance. MCM, pt. IV, ¶ 7c(2). 

C. Fraudulent Separation. 

1. The accused procured a fraudulent separation from the Army by submitting, as her own, a 

urine sample obtained from a pregnant servicemember. The separation was invalid, and the 

accused remained subject to court-martial jurisdiction. Wickham v. Hall, 12 M.J. 145 (C.M.A. 

1981). The 5th Circuit Court of Appeals affirmed a District Court ruling, in summary judgment, 

that Article 3(b) was constitutional. Wickham v. Hall, 706 F.2d. 713 (5th Cir. 1983). 

2. Court-martial had jurisdiction to try and punish accused for offense of procuring his false 

separation from the Army. The accused apparently forged the signatures of several NCOs and the 

post commander in order to fraudulently obtain a DD Form 214 releasing him from active duty. 

United States v. Cole, 24 M.J. 18 (C.M.A. 1987) (upholding the constitutionality of Article 3(b)). 

3. Accused was properly convicted, under Article 80, of attempting to procure a fraudulent 

separation from the Army. United States v. Marshall, 40 C.M.R. 138 (C.M.A. 1969); see also 

United States v. Horns, 24 C.M.R. 663 (A.F.B.R. 1957) (accused convicted of attempting to 

procure a fraudulent separation from the Air Force by making a false sworn statement that he was 

a homosexual and had engaged in homosexual activities; conviction set aside because of newly 

discovered psychiatric evidence). 

D. One Offense. Procuring one’s own enlistment, appointment, or separation by several 

misrepresentations or concealments as to qualifications for the one enlistment, appointment, or 

separation is only one offense under Article 83. MCM, pt. IV, ¶ 7c(3). 

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E. Interposition of the Statute of Limitations. 

1. Plea of guilty to fraudulent enlistment was improvident, because prosecution of that offense 

was barred by the statute of limitations and the record failed to indicate that the accused was 

aware of the bar. United States v. Victorian, 31 M.J. 830 (N.M.C.M.R. 1990). 

2. Defense counsel’s failure to raise statute of limitations that barred accused’s conviction for 

fraudulent enlistment fell below minimum acceptable level of competence demanded of 

attorneys. United States v. Jackson, 18 M.J. 753 (A.C.M.R. 1984), aff’d in part, rev’d in part, 20 

M.J. 414 (C.M.A. 1985). 

F. Related Offense. Fraudulent extension of enlistment by means of a false official statement, 

charged as a violation of Article 134, was not preempted by Article 83 nor Article 107. United States 

v. Wiegand, 23 M.J. 644 (A.C.M.R. 1986). 

XXI. EFFECTING UNLAWFUL ENLISTMENT, APPOINTMENT, OR SEPARATION. 

UCMJ ART. 84. 

A. Text. “Any person subject to this chapter who effects an enlistment or appointment in or 

separation from the armed forces of any person who is known to him to be ineligible for that 

enlistment, appointment, or separation because it is prohibited by law, regulation, or order shall be 

punished as a court-martial may direct.” Article 84. 

B. Explanation. The enlistment, appointment, or separation must have been prohibited by law, 

regulation, or order, and the accused must have then known that the person enlisted, appointed, or 

separated was eligible for the enlistment, appointment, or separation. MCM, pt. IV, para 8c. 

C. Examples of Effecting an Unlawful Enlistment. 

1. Accused recruiter, who had applicants that failed entrance examinations improperly retake 

the examinations in other jurisdictions, was guilty of effecting unlawful enlistment, under Article 

84. United States v. Hightower, 5 M.J. 717 (A.C.M.R. 1978). 

2. Accused effected unlawful enlistments and conspired to do so by involvement in a scam that 

provided ineligible applicants with bogus high school diplomas. United States v. White, 36 M.J. 

284 (C.M.A. 1993). 

XXII. CRUELTY AND MALTREATMENT. UCMJ ART. 93. 

A. Introduction. 

1. Text. “Any person subject to this chapter who is guilty of cruelty toward, or oppression or 

maltreatment of, any person subject to his orders shall be punished as a court-martial may direct.” 

Article 93. 

2. Elements. 

a) That a certain person was subject to the orders of the accused; and 

b) That the accused was cruel toward, or oppressed, or maltreated that person. MCM, pt. 

IV, ¶ 17b. 

B. Nature of the Victim. The victim must be subject to the orders of the accused. This includes not 

only those under the direct or immediate supervision or command of the accused, but also any person 

(soldier or civilian) who is required by law to obey the lawful orders of the accused. United States v. 

Sojfer, 44 M.J. 603 (N-M. Ct. Crim. App. 1996) (E-3 seeking care at military medical facility could 

be “subject to the orders of” an E-6 corpsman since there was an important difference in rank which 

required the victim to obey the accused’s orders), aff’d, 47 M.J. 425 (C.A.A.F. 1998); but cf. United 

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States v. Curry, 28 M.J. 419 (C.M.A. 1989) (requiring more than seniority of rank to implicate Art. 

93). 

C. Nature of the Act. The cruelty, oppression, or maltreatment, although not necessarily physical, 

must be measured by an objective standard. Assault, improper punishment, and sexual harassment 

may constitute this offense. MCM, pt. IV, ¶ 17c(2). 

1. Nature of superior’s official position could place them in a “unique situation of dominance 

and control” and therefore bring ostensibly voluntary sexual relationship with a trainee within the 

definition of oppression and maltreatment, but not all personal relationships between superiors 

and subordinates, or between drill sergeants and their trainees, necessarily result in physical or 

mental pain or suffering; and government has the burden of proving that accused’s conduct 

resulted in such physical or mental pain and suffering by an objective standard. United States v. 

Johnson, 45 M.J. 543 (Army Ct. Crim. App. 1997); but see United States v. Fuller, 54 M.J. 107 

(C.A.A.F. 2000) (comment of sexual nature was not maltreatment by sexual harassment because 

prosecution failed to prove that it offended the alleged victim); U.S. v Goddard, 54 M.J. 763 (N­

.M Ct. Crim. App. 2000). 

2. In a prosecution for maltreatment, it is not necessary to prove physical or mental harm or 

suffering on the part of the victim. It is only necessary to show, as measured from an objective 

viewpoint in light of the totality of the circumstances, that the accused’s actions reasonably could 

have caused physical or mental harm or suffering. United States v. Carson, 57 M.J. 410 

(C.A.A.F. 2002) (MP desk sergeant’s indecent exposure of his penis to a subordinate female MP 

constituted maltreatment under Article 93). 

D. Select Cases. 

1. Silence on mens rea does not violate United States v. Elonis, 135 S. Ct. 2001 (2015) (statutes 

must include minimum mens rea to distinguish between innocent and criminal conduct). General 

intent is sufficient to separate wrongful from innocent conduct. Therefore, (1) the accused’s 

knowledge that the victim was his subordinate and (2) his knowledge that his conduct/words were 

committed toward that subordinate, coupled with an objectively cruel or oppressive act, suffice to 

separate this offense from innocent conduct. United States v. Caldwell, 75 MJ 276 (C.A.A.F. 

2016). See also United States v. Chance, No. ARMY 20140072, 2016 WL 1587194, at *1 (A. Ct. 

Crim. App. Apr. 18, 2016), review granted, decision aff'd, (C.A.A.F. June 9, 2016) (Article 93 

limits itself to punishing cruel or oppressive conduct or conduct that rises to the level of 

maltreatment by a leader who has been entrusted with the care of a subordinate.). 

2. A consensual sexual relationship between a superior and a subordinate, without more, is not 

maltreatment. United States v. Fuller, 54 M.J. 107 (C.A.A.F. 2000) (even though relationship 

may have constituted fraternization, evidence did not evince “dominance and control” by the 

superior). 

3. U.S. v Goddard, 54 M.J. 763 (N.M. Ct. Crim. App. 2000). A one time consensual sexual 

encounter with a female subordinate on the floor of the detachment’s administrative office will 

not support a conviction for cruelty and maltreatment. 

4. Cruelty, oppression, or maltreatment, although not necessarily physical, must be measured by 

an objective standard. The imposition of necessary or proper duties and the exaction of their 

performance does not constitute this offense even though the duties are arduous or hazardous or 

both. However, the accused’s intrusive body searches of female trainees, objectively viewed, 

reasonably could have caused mental harm or suffering based on testimony that a person subject 

to an EPW search could feel “violated,” and testimony by a victim that she felt humiliated by the 

search. United States v. Springer, 58 M.J. 164 (C.A.A.F. 2003). 

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XXIII. FRATERNIZATION. UCMJ ART. 134. 

A. Defining Wrongful Fraternization. 

1. Military case law. 

a) Military case law suggests that wrongful fraternization is more easily described than 

defined. Usually, some other criminal offense was involved when officers were tried for this 

offense. Whatever the nature of the relationship, each case was clearly decided on its own 

merits with a searching examination of the surrounding circumstances rather than focusing on 

the act itself. 

b) The legal test for describing or defining fraternization is found in United States v. Free, 

14 C.M.R. 466 (N.B.R. 1953): “Because of the many situations which might arise, it would 

be a practical impossibility to lay down a measuring rod of particularities to determine in 

advance what acts are prejudicial to good order and discipline and what are not. As we have 

said, the surrounding circumstances have more to do with making the act prejudicial than the 

act itself in many cases. Suffice it to say, then, that each case must be determined on its own 

merits. Where it is shown that the acts and circumstances are such as to lead a reasonably 

prudent person, experienced in the problems of military leadership, to conclude that the good 

order and discipline of the armed forces has been prejudiced by the compromising of an 

enlisted person’s respect for the integrity and gentlemanly obligations of an officer, there has 

been an offense under Article 134. 

2. The Manual for Courts-Martial specifically includes fraternization between officer and 

enlisted personnel as an offense under UCMJ art. 134. The elements of the offense are: 

a) That the accused was a commissioned or warrant officer; 

b) That the accused fraternized on terms of military equality with one or more certain 

enlisted member(s) in a certain manner; 

c) That the accused then knew the person(s) to be (an) enlisted member(s); 

d) That such fraternization violated the custom of the accused’s service that officers shall 

not fraternize with enlisted members on terms of military equality; and 

e) That, under the circumstances, the conduct of the accused was to the prejudice of good 

order and discipline in the armed forces or was of a nature to bring discredit upon the armed 

forces. MCM, pt. IV, ¶ 83b. 

3. AR 600-20, paras. 4-14 and 4-15 (11 Feb 2009), define improper superior-subordinate 

relationships, to include several specified prohibited relationships. The regulation is punitive, so 

violation may be punished under Article 92. 

4. Case law and regulatory guidance can assist in developing a template for determining 

improper superior-subordinate relationships or wrongful fraternization. Additional scrutiny 

should be given to relationships involving (1) direct command/supervisory authority, or (2) power 

to influence personnel or disciplinary actions. “[A]uthority or influence . . . is central to any 

discussion of the propriety of a particular relationship.” DA Pam 600-35 (21 Feb 2000). These 

relationships are most likely to generate adverse effects. 

B. Charging Fraternization. 

1. Enlisted fraternization may be charged as a violation of UCMJ art. 134. United States v. 

Clarke, 25 M.J. 631 (A.C.M.R. 1987), aff’d, 27 M.J. 361 (C.M.A. 1989); United States v. Carter, 

23 M.J. 683 (N.M.C.M.R. 1986); United States v. March, 32 M.J. 740 (A.C.M.R. 1991). 

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Additionally, Article 134 has been successfully used to prosecute instances of officer-officer 

fraternization, United States v. Callaway, 21 M.J. 770 (A.C.M.R. 1986). 

2. In addition to AR 600-20, many commands have published regulations and policy letters 

concerning fraternization. Violations of regulations or policy letters are punishable under Article 

92, if: 

a) The regulation or policy letter specifically regulates individual conduct without being 

vague or overbroad. See United States v. Callaway, 21 M.J. 770 (A.C.M.R. 1986); United 

States v. Adams, 19 M.J. 996 (A.C.M.R. 1985); United States v. Moorer, 15 M.J. 520 

(A.C.M.R. 1983), aff’d in part, rev’d in part, 16 M.J. 451 (C.M.A. 1983); United States v. 

Hoard, 12 M.J. 563 (A.C.M.R. 1981); 

b) The regulation or policy letter indicates that violations of the provisions are punishable 

under the UCMJ (directory language may be sufficient); and 

c) Knowledge: Service members are presumed to have knowledge of lawful general 

regulations if they are properly published. Actual knowledge of regulations or policy letters 

issued by brigade-size or smaller organizations must be proven. See generally United States 

v. Mayfield, 21 M.J. 418 (C.M.A. 1981); United States v. Tolkack, 14 M.J. 239 (C.M.A. 

1982); see also United States v. Tedder, 24 M.J. 176, 1981 (C.M.A. 1987). 

C. Options Available to Commanders. 

1. Counsel the individuals involved. 

2. Pursue other non-punitive measures (e.g., reassignment, oral or written admonitions or 

reprimands, adverse OER/EER, bar to reenlistment, relief, administrative elimination). 

3. Consider nonjudicial or punitive action. 

a) If the offense amounts to a social relationship between an officer and an enlisted person 

and violates good order and discipline, it may be charged under UCMJ art. 134. 

b) If the relationship violates other offenses such as adultery, sodomy, indecent acts, 

maltreatment, etc., the conduct should be alleged as such. 

c) Other articles may be charged depending upon the specific facts of the case. 

d) The conduct may be in violation of a regulation or order and charged under Art 92. 

D. Applications. 

1. Sexual activity. 

a) United States v. Froehlke, 390 F. Supp. 503 (D.D.C. 1975). Upheld conviction of 

warrant officer for undressing and bathing an enlisted woman (not his wife) with whom he 

had been drinking. Offense of unlawful fraternization held not unconstitutionally vague. 

b) United States v. Hoard, 12 M.J. 563 (A.C.M.R. 1981). “[W]rongfully socializing, 

drinking, and engaging in sexual intercourse with female receptees in violation of cadretrainee regulation.” 

c) United States v. Lowery, 21 M.J. 998 (A.C.M.R. 1986), aff’d, 24 M.J. 347 (C.M.A. 

1987). Conviction upheld when accused officer had sexual intercourse with enlisted female, 

formerly under his command, where the female would not have gone to the accused’s office 

to make an appointment but for the superior-subordinate relationship. 

d) United States v. Tedder, 24 M.J. 176 (C.M.A. 1987). Charges of unbecoming conduct 

based on officer having sexual relationship with enlisted woman Marine and seeking to have 

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subordinates arrange dates for him with another subordinate Marine were not impermissibly 

vague. 

e) United States v. Parrillo, 31 M.J. 886 (A.F.C.M.R. 1990), aff’d 34 M.J. 112 (C.M.A. 

1992) Sexual relations with enlisted members under the accused officer’s supervision 

violated an Air Force custom against fraternization. 

f) United States v. Sanchez, 50 M.J. 506 (A. F. Ct. Crim. App. 1998). Accused cannot be 

convicted of both conduct unbecoming (Art. 133) and fraternization (Art. 134) when the 

misconduct alleged in the specifications is identical; fraternization gets dismissed. Those 

fraternization allegations not alleged in conduct unbecoming specifications remain. Court 

cites United States v. Harwood, 46 M.J. 26, 28 (1997) in support. 

g) United States v. Rogers, 54 M.J. 244 (2000). Evidence legally sufficient to sustain Art. 

133 conviction for the offense of conduct unbecoming an officer by engaging in an 

unprofessional relationship with a subordinate officer in appellant’s chain of command. AF 

Court holds there is no need to prove breach of custom or violation of punitive regulation. 

h) United States v. Delgado, No. ARMY 20140927, 2016 WL 109792, at *1 (A. Ct. Crim. 

App. Jan. 6, 2016), review denied, (C.A.A.F. Mar. 30, 2016) (nonconsensual sexual assault 

cannot form the basis to establish an inappropriate relationship under AR 600-20). 

2. Homosexual conduct. 

a) United States v. Lovejoy, 42 C.M.R. 210 (C.M.A. 1970). Accused convicted of sodomy 

and fraternization with enlisted member of submarine crew. Sodomy occurred at accused’s 

on-shore apartment, which he had invited enlisted sailor to share. 

b) United States v. Pitasi, 44 C.M.R. 31 (C.M.A. 1971). Charges of sodomy set aside on 

appeal as unproven but conviction for fraternization based on same relationship upheld. 

c) United States v. Free, 14 C.M.R. 466 (N.B.R. 1953). Accused convicted of sharing 

liquor with enlisted sailor in his quarters; sailor testified that after accepting invitation to 

spend the night in accused’s quarters, he was awakened in night by accused getting into bed 

with him. 

3. Drugs and other illegal activities. 

a) United States v. Graham, 9 M.J. 556 (N.C.M.R. 1980). Navy lieutenant convicted under 

Article 133 for conduct unbecoming an officer for smoking marijuana on shore with members 

of his ship’s crew. 

b) United States v. Chesterfield, 31 M.J. 942 (A.C.M.R. 1990). Drinking and smoking 

hashish with subordinates constituted fraternization. 

4. Excessive socializing. 

a) United States v. Arthur, 32 M.J. 541 (A.F.C.M.R. 1990). Accused officer’s romantic 

relationship with an enlisted co-worker did not constitute fraternization. 

b) United States v. McCreight, 43 M.J. 483 (C.A.A.F. 1996). Conviction for fraternization 

sustained where 1LT showed partiality and preferential treatment to senior airman; associated 

with airman on a first name basis at work and during numerous social contacts, including 

drinking and gambling; repeatedly allowed the same airman to stay in his apartment; and on 

one occasion drank with same airman under circumstances where the accused was the 

“designated drunk” and the airman was the designated driver. No sexual aspect alleged or 

proven. Fraternization does not require sexual conduct. Accord United States v. Nunes, 39 

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M.J. 889 (A.F.C.M.R. 1994) (“That no sexual relationship was alleged is irrelevant. This 

case is a useful corrective to the common notion that fraternization perforce must include 

sexual hanky-panky.”). 

5. Proof of custom and other facts. 

a) United States v. Wales, 31 M.J. 301 (C.M.A. 1990). Accused’s conviction for 

fraternization was reversed because the judge did not instruct that the members must find that 

the accused (an Air Force officer) was the supervisor of the enlisted member at the time of 

the alleged fraternization, and because the government did not prove that the accused’s 

conduct violated a custom of the service. To prove a custom of the military service, proof 

must be offered by a knowledgeable witness--subject to cross-examination--about that 

custom. 

b) United States v. Appel, 31 M.J. 314 (C.M.A. 1990). If the government relies on a 

violation of a custom as fraternization, it must prove the custom (Air Force accused). Proof 

of a military custom may not be based on judicial notice. 

c) United States v. Thompson, 31 M.J. 781 (A.C.M.R. 1990). Military judge is entitled to 

take judicial notice of a post regulation proscribing fraternization. 

d) United States v. Johanns, 20 M.J. 155 (C.M.A. 1985), cert. denied 474 U.S. 850 (1985). 

Decision of A.F.C.M.R. that “[C]ustom in the Air Force “against fraternization has been so 

eroded as to make criminal prosecution against an officer for engaging in mutually voluntary, 

private, non-deviate sexual intercourse with an enlisted member, neither under his command 

or supervision, unavailable. 

e) United States v. Fox, 34 M.J. 99 (C.M.A. 1992). Air Force fraternization specification 

must at least imply existence of a superior-subordinate or supervisory relationship and court 

members must be instructed that to find the accused guilty they must find the existence of 

such a relationship. 

f) United States v. Blake, 35 M.J. 539 (A.C.M.R. 1992). Specification alleging 

fraternization between Army 1SG and female NCO in his company was fatally defective 

where it failed to allege a violation of Army custom, which is an essential element. 

g) United States v. Boyett, 37 M.J. 872 (A.F.C.M.R. 1993), aff’d 42 M.J. 150 (1995). 

Determination in previous case (Johanns) that custom against fraternization in the Air Force 

had been so eroded as to make criminal prosecution against officer for engaging in mutually 

voluntary, private, nondeviate sexual intercourse with enlisted member, neither under his 

command nor supervision, unavailable was limited to state of customs reflected in record in 

that case, and would not preclude every prosecution for fraternization based on such conduct. 

(Per Heimberg, J., with three Judges concurring and one Judge concurring separately). 

h) United States v. Brown, 55 M.J. 375 (C.A.A.F. 2001). The military judge did not abuse 

his discretion when he admitted the nonpunitive Air Force Pamphlet (AFP) 36-2705, 

Discrimination and Sexual Harassment (28 February 1995) over defense objection. In so 

ruling, the CAAF agreed with the military judge that the AFP was relevant to establish notice 

of the prohibited conduct and the applicable standard of conduct in the Air Force community 

to the appellant. Additionally, the CAAF stated that in cases were evidence of the custom of 

the service is needed to prove an element of an offense, it is likely that the probative value 

will outweigh the prejudicial effect. 

XXIV. IMPERSONATING AN OFFICER, WARRANT OFFICER, OR NONCOMMISSIONED 

OFFICER. UCMJ ART. 134. 

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A. General. The offense does not depend upon the accused deriving a benefit from the deception or 

upon some third party being misled, but rather upon whether the acts and conduct would adversely 

influence the good order and discipline of the armed forces. United States v. Messenger, 6 C.M.R. 21 

(C.M.A. 1952); United States v. Frisbie, 29 M.J. 974 (A.F.C.M.R. 1990); Winthrop, Military Law 

and Precedents 726 (2d ed., 1920 Reprint); MCM, pt. IV, ¶ 86c(1); TJAGSA Practice Note, 

Impersonating an Officer and the Overt Act Requirement, Army Law., Jul. 1990, at 42 (discussing 

Frisbie). 

B. Intent. Intent to defraud may be plead and proven as an aggravating factor. MCM, pt. IV, ¶ 86b. 

C. Related Offenses. Impersonating an officer, warrant officer, or noncommissioned officer differs 

from the offense of impersonating a CID agent or other agent of the federal government, in that the 

accused is not required to act out the part of the officer. Instead, merely posing as an officer is 

sufficient. United States v. Felton, 31 M.J. 526 (A.C.M.R. 1990); United States v. Wesley, 12 M.J. 

886 (A.C.M.R. 1981); United States v. Reece, 12 M.J. 770 (A.C.M.R. 1981); United States v. Adams, 

14 M.J. 647 (A.C.M.R. 1982); see also TJAGSA Practice Note, Impersonating a CID Agent and the 

Overt Act Requirement, Army Law., Mar. 1991, at 21 (discusses Felton); Cooper, Persona Est Homo 

Cum Statu Quodam Consideratus, Army Law., April 1981, at 17. 

XXV. MALINGERING. UCMJ ART. 115. 

A. General. The essence of this offense is the design to avoid performance of any work, duty, or 

service which may properly or normally be expected of one in the military service. Whether to avoid 

all duty, or only a particular job, it is the purpose to shirk which characterizes the offense. Hence, the 

nature or permanency of a self-inflicted injury is not material on the question of guilt, nor is the 

seriousness of a physical or mental disability which is a sham. Evidence of the extent of the selfinflicted injury or feigned disability may, however, be relevant as a factor indicating the presence or 

absence of the purpose. MCM, pt. IV, ¶ 40c(1). 

B. Elements. 

1. The accused was assigned to, or was aware of prospective assignment to, or availability for, 

the performance of work, duty, or service. 

a) All soldiers are inferred to be aware of their general, routine military duties. United 

States v. Mamaluy, 27 C.M.R. 176 (C.M.A. 1959). 

b) With regard to special duties or prospective assignments (e.g., emergency deployment to 

hostile regions), the government must establish that accused had actual knowledge of such 

duties. 

2. The accused feigned illness, physical disablement, mental lapse or derangement, or 

intentionally inflicted injury upon himself or herself. 

a) United States v. Pedersen, 8 C.M.R. 63 (C.M.A. 1953). Accused was charged with 

intentionally shooting himself in order to be discharged from the Army but testified at trial 

that the injury was accidentally inflicted. No one witnessed the shooting, and the government 

had no admissible evidence with which to impeach the accused. As a result, the court held 

that the prosecution had failed in its proof and dismissed the charges. 

b) United States v. Kisner, 35 C.M.R. 125 (C.M.A. 1964). Accused was charged with 

deliberately shooting himself in the foot in order to avoid transfer to Korea. After initially 

declaring that the injury was accidentally incurred, he confessed to intentionally inflicting the 

wound in order to avoid deployment to Korea. Because the record was devoid of any 

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independent evidence to corroborate the confession, the Court of Military Appeals reversed 

the conviction and dismissed the charge. 

c) United States v. Belton, 36 C.M.R. 602 (A.B.R. 1966). Accused on orders to Vietnam, 

who refused to eat food over a period of time, resulting in his debility, intentionally inflicted 

self-injury for purposes of Article 115. 

3. The accused’s purpose or intent in doing so was to avoid the work, duty or service. 

a) The words “work,” “duty,” and “service” are not restricted to one context or sense. The 

breadth of these terms would seem to cover all aspects of a serviceperson’s official existence. 

Unquestionably, what the law intended to proscribe was a self-inflicted injury, which would 

prevent the injured party from being available for the performance of all military tasks. See 

United States v. Mamaluy, 27 C.M.R. 176 (C.M.A. 1959) (Cutting his wrist to escape 

confinement was sufficient to allege a purpose to avoid either work, duty, or service.); United 

States v. Guy, 38 C.M.R. 694 (N.B.R. 1967) (Intentional self-injury for the purpose of 

avoiding disciplinary action was sufficient to avoid either work, duty, or service); United 

States v. Johnson, 28 C.M.R. 629 (N.B.R. 1959) (a sailor who persuaded a friend to cut off 

his thumb was convicted of conspiracy to maim himself and malingering when the act was 

done as a means of avoiding further military duty). 

b) Intent or purpose may be established by circumstantial evidence, and it may be inferred 

that a person intended the natural and probable consequences of an act intentionally 

performed by him. United States v. Houghton, 32 C.M.R. 3 (C.M.A. 1962); but see United 

States v. Lawrence, 10 M.J. 752 (A.C.M.R. 1981) (court held that evidence which established 

only that the accused injured himself in order to halt an investigation into a false report he 

had filed was insufficient to support a conviction for malingering). 

c) Unsuccessfully attempting to commit suicide to avoid prosecution constitutes 

malingering. United States v. Johnson, 26 M.J. 415 (C.M.A. 1988). 

d) Evidence of prior misconduct may be admissible against the accused for the limited 

purpose of establishing his wrongful intent. See United States v. Brown, 38 C.M.R. 445 

(A.B.R. 1967) (where the accused was charged with malingering by intentionally shooting 

himself in the foot while on a combat mission in Vietnam, evidence that he had quit as a point 

man for a patrol the day before the shooting and had skulked in bringing up the rear and 

wanted to be evacuated and complained of headaches was relevant on the issue of intent). 

C. Defense of Accident. United States v. Harrison, 41 C.M.R. 179 (C.M.A. 1970). Where an 

accused charged with malingering by intentionally shooting himself in the foot for the purpose of 

avoiding duty in the field testified he had a faulty weapon which discharged accidentally while he 

was dozing, the instructions on the elements of the offense and the defense of accident were 

prejudicially inconsistent where the court was advised it must find the accused intentionally inflicted 

injury upon himself by shooting himself in the foot, but the instructions on accident included the 

statement that even though the act is unintentional, it is not excusable where it was a result of or 

incidental to an unlawful act. 

D. To Avoid Assigned Duty. See United States v. Yarborough, 5 C.M.R. 106 (C.M.A. 1952) 

(malingering to avoid assigned duty while before the enemy constitutes misbehavior punishable under 

UCMJ art. 99). See also, United States v. Glover, 33 M.J. 640 (N.M.C.M.R. 1991) (testimony 

required from people who knew what restrictions had been placed on accused’s activity to show he 

was attempting to avoid assigned duties.) 

E. Without Intent to Avoid Military Duty. See United States v. Taylor, 38 C.M.R. 393 (C.M.A. 

1968). In Taylor, the evidence pertaining to a charge of malingering in violation of UCMJ art. 115 

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showed that the accused superficially slashed his arms with a razor blade in the presence of two cell 

mates in the brig, representing at the time that he wanted to outdo the performance of another inmate 

who had done the same thing earlier. The law officer instructed that intentional injury without a 

purpose to avoid service but under circumstances to the prejudice of good order and discipline was a 

lesser included offense, and the court could validly find the accused not guilty of the portion of the 

specification alleging the purpose of the injury to have been avoiding service and the accused guilty 

of being disorderly to the prejudice of good order and discipline in the armed forces in violation of 

Article 134, UCMJ. Held: Article 115 does not pre-empt the spectrum of self-inflicted injuries. See 

also United States v. Ramsey, 40 M.J. 71 (C.M.A. 1994). 

F. Unreasonable Multiplication of Charges. False Official Statement and Malingering can both be 

charged, as each offense is aimed at a separate act. False Official Statement involves intentional 

deception whereas Malingering involves feigning to receive favor. Additionally, multiple 

malingering charges may be sustained where events are separated by time and location. United States 

v. Tankersley, No. ARMY 20140074, 2016 WL 4434330, at *2 (A. Ct. Crim. App. Aug. 15, 2016). 

XXVI. LOSS, DAMAGE, DESTRUCTION, OR WRONGFUL DISPOSITION OF MILITARY 

PROPERTY. UCMJ ART. 108. 

A. “Military Property” Defined. 

1. “Military property is all property, real or personal, owned, held, or used by one of the armed 

forces of the United States. It is immaterial whether the property sold, disposed, destroyed, lost, 

or damaged had been issued to the accused, to someone else, or even issued at all. If it is proved 

by either direct or circumstantial evidence that items of individual issue were issued to the 

accused, it may be inferred, depending on all the evidence, that the damage, destruction, or loss 

proved was due to the neglect of the accused. Retail merchandise of service exchange stores is 

not military property under this article.” MCM, ¶ 32c(1). 

2. For purposes of both Article 108 and Article 121, all appropriated funds belonging to the 

United States are within the meaning of the term “military property of the United States.” United 

States v. Hemingway, 36 M.J. 349 (C.M.A. 1993). See generally TJAGSA Practice Note, 

Defining Military Property, Army Law., Oct. 1990, at 44. 

3. Myriad items can constitute military property, including: Watches, United States v. Ford, 30 

C.M.R. 3 (C.M.A. 1960); Examinations, United States v. Reid, 31 C.M.R. 83 (C.M.A. 1961); 

Electric Drill, United States v. Foust, 20 C.M.R. 907 (A.B.R. 1955); A gate, United States v. 

Meirthew, 11 C.M.R. 450 (A.B.R. 1953); Sheets, mattress, and mattress cover, United States v. 

Burrell, 12 C.M.R. 943 (A.F.B.R. 1953); Sinks, pipes, and window casements, United States v. 

Tomasulo, 12 C.M.R. 531 (A.B.R. 1953); Camera in ship’s store, United States v. Simonds, 20 

M.J. 279 (C.M.A. 1985); Blankets, United States v. Blevins, 34 C.M.R. 967 (A.F.B.R. 1964). 

4. Military property does not include: 

a) Postal funds. United States v. Spradlin, 33 M.J. 870 (N.M.C.M.R. 1991). 

b) Nonappropriated fund organization property, which is not furnished to a military service 

for use by the military service. United States v. Geisler, 37 C.M.R. 530 (A.C.M.R. 1965) 

(property of officer’s club); see United States v. Ford, 30 M.J. 871 (A.F.C.M.R. 1990) (en 

banc); United States v. Thompson, 30 M.J. 905 (A.C.M.R. 1990); see generally TJAGSA 

Practice Note, Appropriated Funds as Military Property, Army Law., Jan. 1991, at 44. 

c) Army and Air Force Exchange Service (AAFES) property. United States v. Underwood, 

41 C.M.R. 410 (A.C.M.R. 1969); United States v. Schelin, 12 M.J. 575 (A.C.M.R. 1981), 

aff’d, 15 M.J. 218 (C.M.A. 1983). Navy courts have held, however, that property of the Navy 

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Exchange is military property. United States v. Mullins, 34 C.M.R. 694 (N.C.M.R. 1964); 

United States v. Harvey, 6 M.J. 545 (N.C.M.R. 1978). 

B. Property Need Not Have Been Personally Issued. The purpose of Article 108 is to ensure that all 

military property, however obtained and wherever located, is protected from loss, damage, or 

destruction. As such, all persons subject to the UCMJ have an affirmative duty to preserve the 

integrity of military property. United States v. O’Hara, 34 C.M.R 721 (N.B.R. 1964). 

C. Pleading. The specification must as a whole or directly state that the property was military 

property of the United States. United States v. Rockey, 022 C.M.R. 372 (A.B.R. 1956); United States 

v. Schiavo, 14 M.J. 649 (A.C.M.R. 1982). 

D. Multiplicity. Larceny and wrongful disposition of the same property are separately punishable. 

United States v. West, 17 M.J. 145 (C.M.A. 1984); see also United States v. Harder, 17 M.J. 1058 

(A.F.C.M.R. 1983) (larceny and wrongful sale are separately punishable). But see United States v. 

Teters, 37 M.J. 370 (C.M.A. 1993) (holding that the test to be applied to determine whether there are 

two offenses or only one is whether each provision requires proof of an additional fact which the 

other does not (“elements test”)). 

E. Unlawful Sale of Military Property. 

1. “Sale” defined. The term “sale” means an actual or constructive delivery of possession in 

return for a “valuable consideration,” and the passing of such title as the seller may possess, 

whatever that title may be. United States v. Blevins, 34 C.M.R. 967 (A.F.B.R. 1964). 

2. “Sale” distinguished from larceny. 

a) The sale of property implies the transfer of at least ostensible title to a purchaser in return 

for consideration. When the evidence merely shows that the accused, according to prior 

arrangements, stole property and delivered it to one or more of his fellow principals in the 

theft, receiving payment for his services, no sale is made. United States v. Walter, 36 C.M.R. 

186 (C.M.A. 1966). 

b) Under proper circumstances, one transaction can constitute both a larceny and wrongful 

sale of the same property. United States v. Lucas, 33 C.M.R. 511 (A.C.M.R. 1962) (Accused, 

without authority and with intent to steal, took automotive parts out of a government salvage 

yard and later sold them at a civilian junk yard. The larceny was complete when the 

automotive parts were taken from the salvage yard; and the act of selling such parts did not 

constitute the final element of the larceny offense.) 

c) Lack of knowledge as defense. Because the offense of wrongful sale of government 

property involves a general criminal intent, lack of knowledge as to ownership of the property 

constitutes an affirmative defense provided the accused’s actions are based on an honest and 

reasonable mistake. United States v. Germak, 31 C.M.R. 708 (A.F.B.R. 1961); United States 

v. Pearson, 15 M.J. 888 (A.C.M.R. 1983). 

d) Multiplicity. An accused can be separately found guilty of wrongful sale under Article 

108 and concealment under Article 134 of the same military property. United States v. Wolfe, 

19 M.J. 174 (C.M.A. 1985). But see United States v. Teters, 37 M.J. 370 (C.M.A. 1993) 

(holding that the test to be applied to determine whether there are two offenses or only one is 

whether each provision requires proof of an additional fact which the other does not 

(“elements test”)). 

F. Wrongful Disposition of Military Property. Disposing of military property by any means other 

than sale is an offense under Article 108 if such disposition is made without proper authority. For 

example, giving military property away without proper authorization constitutes an offense under this 

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article. It makes no difference if the surrender of the property is temporary or permanent. United 

States v. Banks, 15 M.J. 723 (A.C.M.R. 1983), aff’d, 20 M.J. 166 (C.M.A. 1985); See also United 

States v. Reap, 43 M.J. 61 (1995) (accused who gave another marine a starlight scope and tool boxes 

outside of regular supply channels and without receipts was guilty of violating Article 108 when he 

had no color of authority to distribute the supplies). 

G. Damaging, Destroying, or Losing Military Property. 

1. Loss, damage, or destruction of military property under this provision may be the result of 

intentional misconduct or neglect. 

2. Damage. Removing the screws that secure the nose landing gear inspection window of a 

military aircraft was legally sufficient to support the damage element required under Article 108. 

The word “damage” must be reasonably construed to mean any change in the condition of the 

property that impairs its operational readiness. The government was not required to prove that 

the accused had a motive to wrongfully damage military property in order to secure a conviction 

for the offense. United States v. Daniels, 56 M.J. 365 (C.A.A.F. 2002). 

3. Willfulness. Willful damage, destruction, or loss is one that is intentionally occasioned. It 

refers to the doing of an act knowingly and purposely, specifically intending the natural and 

probable consequences thereof. United States v. Boswell, 32 C.M.R. 726 (C.G.B.R. 1962). 

Willful damage is a lesser included offense of sabotage under 18 U.S.C. § 2155. United States v. 

Johnson, 15 M.J. 676 (A.F.C.M.R. 1983); see United States v. Washington, 29 M.J. 536 

(A.F.C.M.R. 1989); TJAGSA Practice Note, Damaging Property and Mens Rea, Army Law., 

Feb. 1990, at 66. 

a) United States v. George, 35 C.M.R. 801 (A.F.B.R. 1965). Evidence that the accused 

removed perishable medical serums from a refrigerator in a medical warehouse in the tropics 

and left them at room temperature was sufficient to establish a willful destruction of 

government property although the purpose in removing the serums was to steal the 

refrigerator. The evidence established that the removal was intentional, and showing that the 

accused had a fully conscious awareness of the probable ultimate consequences of his 

purposeful act was unnecessary. 

b) United States v. Creek, 39 C.M.R. 666 (A.C.M.R. 1967). The evidence was insufficient 

to sustain a conviction of willfully and wrongfully destroying an M26 fragmentation hand 

grenade, military property of the United States, where evidence existed that some sort of 

explosive device was detonated and some witnesses expressed the opinion it was a grenade 

because of the sound and damage done, when they all admitted it could have been anything 

else and another witness said it sounded like recoilless rifle fire while others declined to 

express an opinion. 

c) United States v. Barnhardt, 45 C.M.R. 624 (C.G.C.M.R. 1971). Where the accused 

placed six metal objects in the starboard reduction gear of the cutter on which he was 

assigned and later, at the suggestion of a petty officer in whom he had confided, removed 

only the four objects he could see without reporting the remaining two, which he stated he 

thought might have fallen into the slump, the accused’s plea of guilty to willfully damaging 

military property was provident; the intentional quality of the accused’s conduct had not 

changed to negligence by his removal of some but not all of the foreign, metal objects from 

the gear. 

d) United States v. Hendley, 17 C.M.R. 761 (A.F.B.R. 1954). The accused, who had been 

drinking, took a military police sedan without authority and was chased at high speed. In 

trying to evade his pursuers, he weaved in and out of traffic; narrowly missed one oncoming 

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vehicle; subsequently sideswiped another; and finally went out of control, left the road, and 

smashed into several trees. The Board of Review only approved negligent damage to military 

property. 

e) United States v. Peacock, 24 M.J. 410 (C.M.A. 1987). Placing rivets and nuts in an 

auxiliary fuel tank, thus temporarily impairing the aircraft’s operational readiness, constitutes 

willful damage to military property. 

f) United States v. Marsh, ARMY 20120572 (Army Ct. Crim. App. May 31, 2016) Accused 

can only be charged with military property he willfully damaged. Where accused 

intentionally set fire to a table, he could not be found guilty of damage to the doors 

occasioned when the fire department responded to the fire, as he did not willfully cause that. 

4. Negligence. Loss, destruction, or damage is occasioned through neglect when it is the result 

of a want of such attention of the foreseeable consequences of an act or omission as was 

appropriate under the circumstances. 

a) United States v. Ryan, 14 C.M.R. 153 (C.M.A. 1954). The doctrine of res ipsa loquitur is 

not applicable to a prosecution for damaging a military vehicle through neglect, and the mere 

happening of a collision with resulting damage is not in itself sufficient to support a 

conviction for violation of Article 108. Negligence must be affirmatively established by the 

prosecution evidence. Here, the accused was found guilty of damaging a government vehicle 

through neglect. No evidence indicated that the accused was driving at an excessive speed or 

in any sort of reckless manner, or that he was under the influence of alcohol, or that at the 

time of the accident he was engaged in the violation of traffic or other safety regulations of 

any nature. HELD: The evidence was wholly insufficient to support findings of guilt. 

b) United States v. Foster, 48 C.M.R. 414 (N.C.M.R. 1973). Conviction based on accused’s 

guilty plea set aside and dismissed where providence inquiry established that accused, while 

on guard, operated a government forklift without permission and that while he was doing so 

the hydraulic brake line malfunctioned. No evidence of accused’s actual negligence was 

established by the government. 

c) United States v. Stuck, 31 C.M.R. 148 (C.M.A. 1961). Although evidence was presented 

that a Navy vehicle turned over to the accused in good condition was damaged, and witnesses 

testified they saw the vehicle bump and heard a noise as the accused drove it through a gate, 

and evidence of paint scratches on the vehicle and the gate post indicated he must have struck 

the gate post, the evidence was insufficient to establish beyond a reasonable doubt that the 

vehicle was damaged through the accused’s negligence. This is because the accused testified 

he had driven over a rock, evidence indicated that the road approaching the gate was bumpy 

and full of holes, and the gate was held open by a rock which could have been moved onto 

the road. 

d) United States v. Lane, 34 C.M.R. 744 (C.G.B.R. 1963). The evidence was legally and 

factually sufficient to sustain findings of guilty of damaging and suffering damage to a Coast 

Guard vessel through neglect where the accused voluntarily and intentionally turned two 

wheels controlling flood valves on a floating drydock in which the vessel was berthed, 

thereby consciously setting in motion a sequence of events which a reasonably prudent man 

would expect to end in some kind of harm; and if, as the court found, the precise form and 

shape of the injury to the vessel was not specifically intended, then it was the result of a lack 

of due solicitude on the part of the accused made punishable under Article 108. 

e) United States v. Traweek, 35 C.M.R. 629 (A.B.R. 1965). Evidence that a government 

helicopter in operating condition was parked, tied down, and covered and that it was 

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subsequently found untied, uncovered and turned over on its side and wrecked and that the 

accused, who was on guard at the helicopter site, was lying unconscious a short distance from 

it was sufficient to corroborate accused’s confession that he entered the helicopter to warm 

himself and caused the damage when he started the motor to generate heat. 

f) United States v. Miller, 12 M.J. 559 (A.F.C.M.R. 1981). Article 108 offense made out 

where accused who had control of a military truck permitted an unlicensed 16-year-old 

military dependent to operate truck resulting in accident and damage to vehicle. 

H. Suffering the Loss, Damage, Destruction, Sale or Wrongful Disposition of Military Property. 

1. The word “suffer,” as used in the UCMJ, does not have a meaning other than that accorded to 

it in the ordinary and general usage, i.e., is to allow, to permit, and not to forbid or hinder; also, to 

tolerate and to put up with. United States v. Johnpier, 30 C.M.R. 90 (C.M.A. 1961). 

2. In charging an accused with the loss of military property, the word “suffer” may properly be 

used in alleging willful or intentional misconduct by the accused, as well as negligent dereliction 

on his part. United States v. O’Hara, 34 C.M.R. 721 (N.B.R. 1964); see also MCM, pt. IV, ¶ 

32c(2). 

3. Where a member of the naval service intentionally loses military property by willfully 

pushing it over the side of his ship, he may be charged under Article 108 of willfully suffering the 

loss or wrongfully disposing of military property. United States v O’Hara, 34 C.M.R. 721 

(N.B.R. 1964). 

I. Value. 

1. Under all theories of prosecution under Article 108, UCMJ, the government must establish as 

an element of proof the value of the property destroyed, lost, or sold, or the amount of damage to 

that property. MCM, pt. IV, para 32b. 

2. “In the case of loss, destruction, sale, or wrongful disposition, the value of the property 

controls the maximum punishment which may be adjudged. In the case of damage, the amount of 

damage controls. As a general rule, the amount of damage is the estimated or actual cost of repair 

by the government agency normally employed in such work, or the cost of replacement, as shown 

by government price lists or otherwise, whichever is less.” MCM, pt. IV, ¶ 32c(3). 

3. In the case of the wrongful sale of stolen military property, it is the time of taking at which 

value is to be determined and the burden is on the prosecution to establish the property condition 

as of that time. United States v. Steward, 20 C.M.R. 247 (C.M.A. 1955). 

4. Documents such as accounts receivable are not writings representing value. While they may 

record or even reflect value, they do not represent value as do negotiable instruments or other 

documents used to acquire goods or services. United States v. Payne, 9 M.J. 681 (A.F.C.M.R. 

1980) (Accused who destroyed telephone toll records representing money owed to the 

Government by telephone users could not be convicted of destroying $4,000 in government 

property represented by the toll tickets. Instead, only a conviction for destruction of property of 

“some value” could stand). 

5. Various documents have been held to have the value they represent, including checks made 

out to other payees, United States v. Windham, 36 C.M.R. 21 (C.M.A. 1965); money orders, 

United States v. Sowards, 5 M.J. 864 (A.F.C.M.R. 1978); airline tickets, United States v. Stewart, 

1 M.J. 750 (A.F.C.M.R. 1975); and gasoline coupons, United States v. Cook, 15 C.M.R. 622 

(A.F.B.R. 1954). 

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6. A government price list is competent evidence of value, and may be the best method of 

proving the market value of government property; however, it is an administrative determination 

of value, not binding on a court-martial, but entitled to its consideration. Value also may be 

inferred from the nature of property. A court may properly consider other evidence of value; for 

example, the property’s serviceability. United States v. Thompson, 27 C.M.R. 119 (C.M.R. 

1958); United States v. Downs, 46 C.M.R. 1227 (N.C.M.R. 1973). 

7. For purposes of the firearm or explosives sentence aggravator, ammunition is an explosive. 

United States v. Murphy, 74 M.J. 302 (C.A.A.F. 2015). 

PART II: THE GENERAL ARTICLES 

XXVII.CONDUCT UNBECOMING AN OFFICER. UCMJ ART. 133. 

A. Conduct “must offend so seriously against law, justice, morality or decorum as to expose to 

disgrace, socially or as a man, the offender, and at the same time must be of such a nature or 

committed under such circumstances as to bring dishonor or disrepute upon the military profession 

which he represents.” William Winthrop, Military Law and Precedents 711-12 (2d ed.1920)). 

B. All that is required is for the offender's conduct to fall below the level of conduct expected of 

officers and to seriously expose him to public opprobrium. United States v. Rogers, 54 M.J. 244, 256 

(C.A.A.F. 2000). 

C. Private conduct may constitute an offense under Article 133, UCMJ, and there is no requirement 

that the conduct be otherwise criminal. United States v. Moore, 38 M.J. 490 (C.M.A. 1994); United 

States v. Norvell, 26 M.J. 477, 481 (C.M.A.1988). Conduct constitute an offense elsewhere under the 

UCMJ. United States v. Taylor, 23 M.J. 314, 318 (C.M.A.1987). 

D. Applies to female officers. United States v. Norvell, 26 M.J. 477 (C.M.A.1988). 

E. Acts Covered. Includes acts punishable under other articles of the UCMJ and offenses not so 

listed, except for minor derelictions that do not satisfy the requirements of Article 133. United States 

v. Taylor, 23 M.J. 314 (C.M.A. 1987) (UCMJ art. 133 conviction affirmed even where misconduct 

does not violate a punitive article); United States v. Wolfson, 36 C.M.R. 722 (A.B.R. 1965) (not every 

deviation in conduct constitutes unbecoming conduct; to be actionable conduct must be morally 

unbefitting and unworthy). Examples include: 

1. Child Pornography. United States v. Forney, 67 M.J. 271 (C.A.A.F. 2009). Conduct 

involving child pornography, including receipt and possession, can constitute conduct 

unbecoming an officer. This can include both actual and virtual child pornography. But see 

United States v. Amazaki, 67 M.J. 666 (A. Ct. Crim. App. 2009) (holding that, under the facts, as 

a matter of due process, the accused was not “on fair notice that his unwitting possession of child 

pornography . . . was negligent or that his conduct in failing to discover, delete, or secure these 

images amounted to conduct unbecoming an officer and gentleman.”). See also section XXVIII, 

Para. G and H. 

2. Drugs. United States v. Graham, 9 M.J. 556 (N.C.M.R. 1980); United States v. Maderia, 38 

M.J. 494 (C.M.A. 1994) (publicly associating with person known by the accused to be a drug 

smuggler and discussing drug use and possibility of assistance in drug smuggling operations). 

3. Sex. United States v. Coronado, 11 M.J. 522 (A.F.C.M.R. 1981) (even though the offense 

occurred off the military installation, jurisdiction was properly exercised by general court-martial 

which convicted accused of conduct unbecoming an officer and gentleman by performing acts of 

sodomy on an enlisted man); United States v. Jefferson, 21 M.J. 203 (C.M.A. 1986) (adultery and 

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fraternization); United States v. Shobar, 26 M.J. 501 (A.F.C.M.R. 1988) (sexual exploitation of 

civilian waitress under the accused’s supervision); United States v. Frazier, 34 M.J. 194 (C.M.A. 

1992) (officer’s engaging in open and intimate relationship with wife of enlisted soldier 

constituted conduct unbecoming an officer). 

4. Sexual Harassment. United States v. Lofton, 69 M.J. 386 (C.A.A.F. 2011) (a senior male 

officer made repeated, unwanted comments in attempts to establish a personal and unprofessional 

relationship with a senior female noncommissioned officer, who was not his immediate 

subordinate). 

5. Indecent language and conduct. United States v. Parini, 12 M.J. 679 (A.C.M.R. 1981) 

(colonel attempted to extract sexual favors from subordinates in return for favorable treatment); 

United States v. Hartwig, 35 M.J. 682 (A.C.M.R. 1992) (officer was properly convicted of 

conduct unbecoming based on his letter containing sexually suggestive comments to 14 year-old 

girl in response to her letter of support for Operation Desert Storm), aff’d, 39 M.J. 125 (C.M.A. 

1994); United States v. Moore, 38 M.J. 490 (C.M.A. 1994) (private remarks to sex partner in 

adulterous relationship regarding oral and anal sex were indecent and degrading and not protected 

by First Amendment); see also United States v. Mazer, 58 M.J. 691 (N-M. Ct. Crim. App. 2003) 

(making suggestive, explicit and indecent statements on an internet chat room to someone the 

accused believed to be a 14-year old girl), set aside on other grounds, remanded by, 60 M.J. 344 

(C.A.A.F. 2004). 

6. Homosexual conduct. 

a) United States v. Harvey, 67 M.J. 758 (A.F. Ct. Crim. App. 2009). Conduct that falls 

within a recognized liberty interest under Lawrence, as applied to the military through 

Marcum, may nonetheless be punished under Article 133. Under the circumstances of this 

case, fellatio between consenting adults “evince[d] . . . a degree of indecorum that disgraced 

and dishonored the appellant and seriously compromised his standing as an officer.” 

b) United States v. Modesto, 39 M.J. 1055 (A.C.M.R. 1994) (off-post, off-duty, crossdressing at gay club was conduct unbecoming); see generally TJAGSA Practice Note, CrossDressing as an Offense, Army Law., Mar. 1991, at 42. 

7. Lying and breaches of trust. United States v. Lindsay, 11 M.J. 550 (A.C.M.R. 1981) (lying to 

a criminal investigator about a subject of official investigation is conduct unbecoming an officer 

and gentleman. Even though making a false statement to a CID agent was, at the time, generally 

not an offense absent an independent duty to account the special status of an officer and the 

position of trust he occupies makes the intentional deceit a crime under Article 133); United 

States v. Timberlake, 18 M.J. 371 (C.M.A. 1984) (forging false PCS orders); United States v. 

Gunnels, 21 C.M.R. 925 (A.B.R. 1956) (taking money to procure a discharge); United States v. 

Rushatz, 30 M.J. 525 (A.C.M.R. 1990) (advising junior officers how to overstate rent for off-post 

housing using backdated receipts), aff’d, 31 M.J. 450 (C.M.A. 1990). 

8. Financial impropriety. United States v. Brunson, 30 M.J. 766 (A.C.M.R. 1990) (failing to 

pay a just debt); United States v. Jenkins, 39 M.J. 843 (A.C.M.R. 1994) (negligently writing 76 

dishonored checks and six false letters purportedly from bank officials). 

9. Physical contact. United States v. Isaac, 59 M.J. 537 (C.G. Ct. Crim. App. 2003) (officer 

pled guilty to three specifications of Art. 133 for “forcefully” picking up and carrying three 

different female enlisted personnel on three separate occasions). 

10. Obstruction of Justice. Can include obstruction of foreign criminal investigations or 

proceedings. United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009); United States v. Schweitzer, 

68 M.J. 133 (C.A.A.F. 2009). 

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11. Miscellaneous conduct. United States v. Schumacher, 11 M.J. 612 (A.C.M.R. 1981) 

(officer’s public intoxication); United States v. Bonar, 40 C.M.R. 482 (A.B.R. 1969) (affirming 

conviction for driving in violation of a state justice of the peace’s court order); United States v. 

Norvell, 26 M.J. 477 (C.M.A. 1988) (dishonorable catheterization to avoid giving a valid urine 

sample, and then informing an enlisted person of this); see TJAGSA Practice Note, Drugs, Sex 

and Commissioned Officers: Recent Developments Pertaining to Article 133, UCMJ, Army 

Law., Feb. 1989, at 62 (discusses Norvell); United States v. Lewis, 28 M.J. 179 (C.M.A. 1989) 

(charging a fellow officer for tutoring in leadership); see TJAGSA Practice Note, Charging 

“Tuition” Can Constitute Conduct Unbecoming an Officer and a Gentleman, Army Law., Aug. 

1989, at 36 (discusses Lewis); United States v. Bilby, 39 M.J. 467 (C.M.A. 1994) (soliciting 

someone to violate a federal statute); United States v. Miller, 37 M.J. 133 (C.M.A. 1993) (failing 

to report child abuse by spouse and failing to obtain necessary medical care for abused child). 

12. Conviction reversed for visiting legal brothel with enlisted members where the accused did 

not seek or engage in sex, United States v. Guaglione, 27 M.J. 268 (C.M.A. 1988); see generally 

TJAGSA Practice Note, Drugs, Sex, and Commissioned Officers: Recent Developments 

Pertaining to Article 133, UCMJ, Army Law., Feb. 1989, at 62 (discusses Guaglione), and for 

merely loaning money to a subordinate. United States v. Smith, 16 M.J. 694 (A.F.C.M.R. 1983). 

F. Article 133 is not unconstitutionally void for vagueness. Parker v. Levy, 417 U.S. 733 (1974). 

G. Pleadings. 

1. Referencing an unconstitutional statutory definition of child pornography in the pleadings and 

instructing the members using the unconstitutional statutory definition created instructional error 

in an Article 133 child pornography case. United States v. Forney, 67 M.J. 271 (C.A.A.F. 2009) 

(Effron, C.J., concurring in the result) (Erdmann, J., dissenting). 

2. Failing to allege the act was dishonorable or conduct unbecoming an officer is not necessarily 

fatal. United States v. Wolfson, 36 C.M.R. 722 (A.B.R. 1966); United States v. Wilson, 14 M.J. 

680 (A.F.C.M.R. 1982). 

3. Allegations of “undue familiarity” and “excessive social contacts” with married female 

service members were legally insufficient. United States v. Kroop, 38 M.J. 470 (C.M.A. 1993). 

But cf. United States v. Boyett, 42 M.J. 150 (C.A.A.F. 1995) (affirming conviction for 

unprofessional close personal relationship, including sexual intercourse, with enlisted person not 

under accused’s supervision); United States v. Rogers, 54 M.J. 244 (C.A.A.F. 2000) 

(specification that LTC had “unprofessional relationship of undue familiarity” with LT in his 

command did state an offense). 

4. LIOs. 

a) Where the underlying acts of misconduct are the same, a service disorder or discredit 

under Article 134 is a lesser included offense of conduct unbecoming an officer under Article 

133. United States v. Cherukuri, 53 M.J. 68 (C.A.A.F. 2000), aff’d by 54 M.J. 448 (C.A.A.F. 

2001); see also United States v. Conliffe, 67 M.J. 127 (C.A.A.F. 2009); United States v. 

Harwood, 46 M.J. 26 (C.A.A.F. 1997); United States v. Rodriguez, 18 M.J. 363, 368-369 n. 4 

(C.M.A. 1984). 

b) Where the underlying act of misconduct is the same, larceny under Article 121 is a lesser 

included offense of conduct unbecoming an officer under Article 133. United States v. 

Frelix-Vann, 55 M.J. 329 (C.A.A.F. 2001) (Army captain pled guilty to one specification of 

conduct unbecoming and one specification of larceny for same underlying misconduct), aff’d 

by 56 M.J. 458 (C.A.A.F. 2002). See also United States v. Timberlake, 18 M.J. 371 (C.M.A. 

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1984) (violation of punitive article, such as art. 123, forgery, is lesser included offense of 

conduct unbecoming when same underlying misconduct at issue). 

5. Multiplicity. While any misconduct may be charged as an article 133 offense—even when 

chargeable as a violation of one of the other punitive articles—findings for both an article 133 

offense and the same underlying offense may not stand. United States v. Timberlake, 18 M.J. 371 

(C.M.A. 1984); United States v. Frelix-Vann, 55 M.J. 329 (C.A.A.F. 2001); United States v. 

Cherukuri, 53 M.J. 68 (C.A.A.F. 2000); United States v. Mathis, No. ARMY 20140473, 2016 

WL 1553126 (A. Ct. Crim. App. Apr. 13, 2016), review denied, (C.A.A.F. June 27, 2016). 

Where service court found conduct unbecoming charge and obstructing justice charge 

multiplicious, no error in allowing the government to elect which finding to retain. United States 

v. Palagar, 56 M.J. 294 (C.A.A.F. 2002). 

6. Unreasonable Multiplication of Charges (UMC). Four specifications of communicating 

sexually suggestive and sexually explicit language to a minor via e-mail, in violation of Art. 133, 

did not represent UMC, because they did not reflect the same act or transaction. Each 

specification identified a discrete and unique communication. United States v. Mazer, 58 M.J. 

691 (N-M. Ct. Crim. App. 2003), set aside on other grounds, remanded by 60 M.J. 344 (C.A.A.F. 

2004). 

H. Punishment. 

1. Maximum punishment is a dismissal, forfeiture of all pay and allowances, and confinement 

for a period not in excess of that authorized for the most analogous offense for which a 

punishment is prescribed by the MCM, or, if none is prescribed, for one year. MCM, pt. IV, ¶ 

59e. 

2. The maximum sentence that may be adjudged for a dupliciously pled specification under 

Article 133 will be that imposable for “the most analogous offense” with the greatest maximum 

punishment. United States v. Hart, 32 M.J. 101 (C.M.A. 1991). 

XXVIII. THE GENERAL ARTICLE. UCMJ ART. 134. 

A. Three Bases of Criminal Liability. 

1. Conduct Prejudicial to Good Order and Discipline. 

2. Conduct of a Nature to Bring Discredit upon the Armed Forces. 

3. Conduct Constituting a Non-capital Crime. 

B. Offenses Listed in MCM, pt. IV, ¶¶ 61-113. 

1. Require proof of prejudice to good order and discipline or tendency to bring discredit upon 

the armed forces. 

2. This list is nonexhaustive. Other novel offenses may be charged, provided the alleged 

misconduct satisfies the standard in one of the three clauses of Article 134 and the misconduct 

cannot be prosecuted under another article of the UCMJ. 

C. Conduct Prejudicial to Good Order and Discipline (Clause 1). 

1. Not every irregular, mischievous or improper act is a court-martial offense. MCM, pt. IV, ¶ 

60c(2)(a). United States v. Sadinsky, 34 C.M.R. 343 (C.M.A. 1964); United States v. Rowe, No. 

32852, 1999 CCA LEXIS 125 (A.F. Ct. Crim. App. Apr. 7, 1999)(unpublished) (allegation of 

knowing and willful harassment by repeated contact causing substantial emotional stress and 

reasonable fear of bodily harm was legally sufficient). 

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2. Conduct must be directly and palpably prejudicial to good order and discipline. United States 

v. Sadinsky, 34 C.M.R. 343 (C.M.A. 1964); see United States v. Davis, 26 M.J. 445 (C.M.A. 

1988) (cross dressing); United States v. Woods, 28 M.J. 318 (C.M.A. 1989) (unprotected sexual 

intercourse where the accused has the HIV virus). 

3. A breach of custom may result in a violation of clause one of Article 134. MCM, pt. IV, ¶ 

60c(2)(b). United States v. Smart, 12 C.M.R. 826 (A.F.B.R. 1953). It must satisfy the following 

requirements: (1) long established practice; (2) common usage attaining the force of law; (3) not 

contrary to military law; and (4) ceases when observance has been abandoned. 

4. Conduct of soliciting a prostitute was not shown to be prejudicial to good order and 

discipline, but the offense could be affirmed as it was service discrediting. United States v. 

Mullings, No. ARMY 20140079, 2016 WL 234634 (A. Ct. Crim. App. Jan. 14, 2016), review 

denied, (C.A.A.F. Apr. 19, 2016). 

D. Conduct of a Nature to Bring Discredit upon the Armed Forces (Clause 2). 

1. Conduct must have the tendency to bring the service into disrepute or tend to lower it in 

public esteem. MCM, pt. IV, ¶ 60c(3); United States v. Sullivan, 42 M.J. 360 (C.A.A.F. 1995) 

(any reasonable officer would have known that asking strangers of the opposite sex intimate 

questions about their sexual activities, while using a false name and a fictional publishing 

company as a cover, was service discrediting conduct); United States v. Sanchez, 29 C.M.R. 32 

(C.M.A. 1960) (sex act with chicken; “[W]hen an accused performs detestable and degenerate 

acts which clearly evince a wanton disregard for the moral standards generally and properly 

accepted by society, he heaps discredit on the . . . Government he represents.”). 

2. Considering “open and notorious” conduct. The time and place of conduct is considered by 

the finder of fact in weighing whether it is service-discrediting. For cases of this type, it is not 

necessary to prove that a third person actually observed the act, but only that it was reasonably 

likely that a third person would observe it. United States v. Izquierdo, 51 M.J. 421 (C.A.A.F. 

1999) (sexual intercourse in barracks room while two roommates also in room, even though 

accused hung sheet that substantially blocked roommates’ side of room); United States v. Sims, 

57 M.J. 419 (2002) (not open and notorious when appellant was in his unlocked private dorm 

room, with a greater expectation of privacy than a shared room, and neither party had disrobed); 

United States v. Carr, 28 M.J. 661 (N.M.C.M.R. 1989) (intercourse on a public beach at night not 

likely to be seen). 

3. Public knowledge not necessary. United States v. Phillips, 70 M.J. 161 (C.A.A.F. 

2011)(“The statute, which requires proof of the ‘nature’ of the conduct, does not require the 

government to introduce testimony regarding views of ‘the public’ or any segment thereof.”) 

Overruling sub-silentio United States v. Green, 39 M.J. 606 (A.C.M.R. 1994)(holding that 

conduct will be service discrediting where civilians are aware of both the military status and the 

discrediting behavior; see also United States v. Kirksey, 20 C.M.R. 272 (C.M.A. 1955). 

4. Violations of state or foreign law is not per se service discrediting. United States v. Sadler, 

29 M.J. 370 (C.M.A. 1990). 

5. Proof of the underlying criminal conduct may be sufficient to establish its servicediscrediting nature. United States v. Norman, 74 M.J. 144 (C.A.A.F. 2015) (while the only 

testimony on the terminal element was erroneously admitted – because it simply restated the 

element without providing any reasoning supporting the conclusion that the accused’s conduct 

satisfied that element – the accused’s actions of leaving his ten-month-old son unattended in a 

bathtub with running hot water was sufficient to meet the government’s burden of proof on that 

element). 

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E. Conduct Punishable Under First Two Theories. Prosecutors often charge and courts often affirm 

various offenses invoking both the language of Clause 1 and of Clause 2. When using the list below, 

be sure to distinguish whether the specific court treated the conduct as both PGO&D and SD, or 

exclusively as one or the other. 

1. Historically, other offenses have also been prosecuted. United States v. Light, 36 C.M.R. 579 

(A.B.R. 1965) (borrowing money from subordinates); United States v. Baur, 10 M.J. 789 

(A.F.C.M.R. 1981) (obstruction of justice); United States v. Pechefsky, 13 M.J. 814 (A.F.C.M.R. 

1982) (forging credit recommendations). 

2. These listings are not exhaustive and other novel offenses may be charged under the first two 

theories of the article, providing the offenses are not prosecutable elsewhere in the UCMJ. 

United States v. Wright, 5 M.J. 106 (C.M.A. 1978). 

a) United States v. Erickson, 61 M.J. 230 (C.A.A.F. 2005) (inhalation “huffing” nitrous 

oxide); United States v. Glover, 50 M.J. 476 (C.A.A.F. 1999) (inhaling Dust-Off, a cleaning 

product). 

b) United States v. Choate, 32 M.J. 423 (C.M.A. 1991) (“mooning,” under some 

circumstances, can be PGO&D). 

c) United States v. Johnson, 4 M.J. 770 (A.C.M.R. 1978) (peeping tom). 

d) United States v. Kopp, 9 M.J. 564 (A.F.C.M.R. 1980) (wrongfully setting off a false 

alarm in a residential building at Air Force base). 

e) United States v. Woods, 28 M.J. 318 (C.M.A. 1989) (unprotected sexual intercourse 

where the accused has the AIDS virus); see also United States v. Morris, 30 M.J. 1221 

(A.C.M.R. 1990). 

f) United States v. Davis, 26 M.J. 445 (C.M.A. 1988) (on-post cross-dressing); United 

States v. Guerrero, 33 M.J. 295 (C.M.A. 1991), cert. denied, 502 U.S. 1096 (1992) (off-post 

cross-dressing). 

g) United States v. King, 34 M.J. 95 (C.M.A. 1992); United States v. Perez, 33 M.J. 1050 

(A.C.M.R. 1991) (adultery). 

h) United States v. Sullivan, 42 M.J. 360 (C.A.A.F. 1995) (non-consensual, obscene phone 

calls). 

i) United States v. Warnock, 34 M.J. 567 (A.C.M.R. 1991) (photographing nude female 

officer with her consent and showing negatives to enlisted paramour NOT prejudicial to good 

order and discipline under the circumstances). 

j) United States v. Henderson, 32 M.J. 941 (N.M.C.M.R. 1991), aff’d, 34 M.J. 174 (C.M.A. 

1992) (sexually exploiting recruits). 

k) United States v. Stone, 40 M.J. 420 (C.M.A. 1994) (falsely claiming during a speech to 

high school students to have been a special forces leader in Iraq). 

l) United States v. Vaughan, 58 M.J. 29 (C.A.A.F. 2003) (child neglect where soldier-mom 

left infant at home, unattended for several hours). 

m) United States v. Saunders, 59 M.J. 1 (C.A.A.F. 2003) (harassment/stalking). Be 

cognizant of preemption concerns (Art. 120a, Stalking). 

n) United States v. Farence, 57 M.J. 674 (C.G. Ct. Crim. App. 2002), pet. denied, 58 M.J. 

203 (2003) (displaying images depicting bestiality to subordinates while on duty). 

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o) Child Pornography. See section XXVIII, Para. G and H. 

(1) United States v. Irvin, 60 M.J. 23 (C.A.A.F. 2004) (child pornography). 

(2) United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004) (virtual, as well as actual, child 

pornography). 

(3) United States v. Brisbane, 63 M.J. 106 (C.A.A.F. 2006) (knowing possession of 

images depicting sexually explicit conduct by minors, whether actual or virtual). 

3. Speech Offenses. 

a) Parker v. Levy, 417 U.S. 733 (1974) (upholding application of Article 134 to “a 

commissioned officer publicly urging enlisted personnel to refuse to obey orders which might 

send them into combat,” and finding that such conduct “was unprotected under the most 

expansive notions of the First Amendment.”) 

(1) “While the members of the military are not excluded from the protection granted by 

the First Amendment, the different character of the military community and of the 

military mission requires a different application of those protections.” Id. at 758. 

(2) “The fundamental necessity for obedience, and the consequent necessity for 

imposition of discipline, may render permissible within the military that which would be 

constitutionally impermissible outside it.” Id. at 758. 

b) United States v. Priest, 45 C.M.R. 338 (C.M.A. 1972) (upholding the accused’s 

conviction under Article 134 for making disloyal statements, including statements protesting 

U.S. involvement in Vietnam, in a publications where copies were made available to 

servicemembers at the Navy Exchange, the Washington Navy Yard, and at a Pentagon 

newsstand). 

(1) “[T]he right of free speech in the armed services is not unlimited and must be brought 

into balance with the paramount consideration of providing an effective fighting force for 

the defense of our Country.” Id. at 344. 

(2) “Our inquiry, therefore, is whether the gravity of the effect of accused's publications 

on good order and discipline in the armed forces, discounted by the improbability of their 

effectiveness on the audience he sought to reach, justifies his conviction.” Id. at 344–45. 

c) United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008). In determining whether speech 

can be punished under Article 134 as prejudicial to good order and discipline, or servicediscrediting, a balance must be struck “between the essential needs of the armed forces and 

the right to speak out as a free American.” Before reaching this balancing test, though, there 

are two threshold determinations: (1) whether the speech is otherwise protected under the 

First Amendment, and (2) whether the government proved the elements of the Article 134 

offense. In addressing the first prong, certain types of speech lack protection under the First 

Amendment. They include fighting words, dangerous speech, and obscenity. In the military, 

dangerous speech is that which “interferes with or prevents the orderly accomplishment of the 

mission or presents a clear danger to loyalty, discipline, mission, or morale of the troops.” 

See United States v. Brown, 45 M.J. 389, 395 (C.A.A.F. 1996). In addressing the second 

prong, the CAAF stated that in order to prove the element of an Article 134 offense involving 

speech where the question is whether the conduct is prejudicial to good order and discipline, 

the government must prove that there is a “direct and palpable connection between speech 

and the military mission.” See Priest, supra, at 343. In order to prove that the conduct is 

service-discrediting, there must be “a direct and palpable connection between [the] speech 

and the military mission or military environment.” In Wilcox, the court held that the 

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accused’s statements on the Internet were not unprotected speech. The postings were not 

dangerous speech because the language did not “interfere[ ] with or prevent[ ] the orderly 

accomplishment of the mission or present[ ] a clear danger to loyalty, discipline, mission, or 

morale of the troops.” Furthermore, the court concluded that the language did not constitute 

fighting words and was not obscene. As the language was protected speech, the court next 

addressed the connection between the speech and the military. The court found that the 

connection between the accused’s statements and the military was so “tenuous and 

speculative as to be legally insufficient to support the conclusion” that his conduct was either 

prejudicial to good order and discipline or service discrediting. Concluding that the speech is 

protected and that the government did not prove the elements of an Article 134 charge, the 

court did not conduct the balancing test between the First Amendment protections and the 

needs of the military. 

d) United States v. Blair, 67 M.J. 566 (C.G. Ct. Crim. App. 2009). Accused, while in 

civilian clothes, posted Ku Klux Klan recruiting flyers in an airport bathroom. Plea to 

“wrongfully recruit[ing] for, solicit[ing] membership in, and promot[ing] the activities of the 

Ku Klux Klan,” “while publicly displaying an affiliation with the Armed Services,” which 

conduct was of a nature to bring discredit to the Armed Forces, was provident. The court 

concluded that “publicly displaying an affiliation with the Armed Services” includes conduct 

that takes place in an area available to the public, whether or not another person is actually 

present. In this case, there was a sufficient factual basis for his plea because there was the 

possibility that a member of the public who knew him to be in the Coast Guard could have 

readily seen him posting the flyers. Next, the court applied the United States v. Wilcox, 66 

M.J. 442 (C.A.A.F. 2008), and found that the conviction was warranted despite First 

Amendment concerns. Considering matters presented at sentencing, including the airport 

director’s testimony that it “made [him] sick” when he found out that the source of the flyers 

was an active duty Coast Guardsman, the CGCCA found that “the potential effects, both 

stated and inherent, of [the accused’s] conduct on the Coast Guard’s reputation outweigh 

[his] interest in his right to speak out while on government business at the airport.” 

F. Crimes and Offenses Not Capital (Clause Three). 

1. Specific Federal Statute. 

a) Example: Threat Against the President Under 18 U.S.C. § 871. United States v. Ogren, 

54 M.J. 481 (C.A.A.F. 2001) (threat made while in pretrial confinement for unrelated 

charges: “ . . . I’m going to find Clinton and blow his f______ brains out”). 

b) The offense must occur in a place where the law in question applies. MCM, pt. IV, ¶ 

60c(4)(c)(i); see United States v. Williams, 17 M.J. 207 (C.M.A. 1984); United States v. 

Clark, 41 C.M.R. 82 (C.M.A. 1969); United States v. Kolly, 48 M.J. 795 (N-M. Ct. Crim. 

App. 1998) (federal child porn statute applied extraterritorially to offenses servicemember 

committed in Japan). 

c) Elements of the federal statute are controlling. United States v. Ridgeway, 13 M.J. 742 

(A.C.M.R. 1982). 

d) A servicemember can be convicted of an attempt to commit a federal offense under 

clause three, even if the underlying federal statute has no attempt provision. United States v. 

Craig, 19 M.J. 166 (C.M.A. 1985). 

e) A specification containing allegations of fact insufficient to establish a violation of a 

designated federal statute may nonetheless be sufficient to constitute a violation of either 

clause one or two, Article 134. United States v. Mayo, 12 M.J. 286 (C.M.A. 1982); United 

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States v. Wagner, 52 M.J. 634 (N-M. Ct. Crim. App. 1999); see also United States v. 

Robbins, 48 M.J. 745 (A.F. Ct. Crim. App. 1998), modified in part, 52 M.J. 159 

(1999)(Sullivan, J. dissenting); United States v. Gould, 13 M.J. 734 (A.C.M.R. 1982).
 

f) Examples. 

(1) Soliciting a minor (or not). United States v. Brooks, 60 M.J. 495 (C.A.A.F. 2005). 

Appellant was convicted of violating 18 U.S.C. § 2422(b) under Article 134, Clause 3, 

for attempting to commit the offense of carnal knowledge with a victim under the age of 

twelve, and wrongfully soliciting an individual under the age of eighteen to engage in a 

criminal sexual act. Appellant never communicated directly with a minor or a person he 

believed was a minor. A conviction under Sec. 2422(b) does not require direct 

inducement of a minor, nor does it require an actual minor. The relevant intent is the 

intent to persuade or to attempt to persuade, not the intent to commit the actual sexual act. 

In this case appellant acted with the intent to induce a minor to engage in unlawful sexual 

activity, and then completed the attempt with actions that strongly corroborated the 

required culpability. See also United States v. Amador, 61 M.J. 619 (A.F. Ct. Crim. App. 

2005). 

(2) Storing stolen explosives. United States v. Disney, 62 M.J. 46 (C.A.A.F. 2005). 

Appellant stole ordnance from several military training events. Appellant was convicted 

of one specification of larceny of military property under Article 121 and one 

specification of storing stolen explosives in violation of 18 U.S.C. § 842 (h) under clause 

3 of Article 134. 

(3) Transporting a minor in interstate commerce. United States v. Kearns, 73 M.J. 177 

(C.A.A.F. 2014). Appellant was convicted of transporting a minor in interstate 

commerce when he paid a friend to drive a minor with whom he had had sexual relations 

from Pennsylvania to Texas, where he was stationed. Appellant contended the evidence 

was insufficient to establish he possessed the required level of intent because the minor 

had told him that she had been sexually abused by a family member and he was trying to 

help her escape a dangerous situation. Appellant relied on several decisions from the 

circuit courts of appeals that required a showing that the “dominant,” “predominant,” 

“significant,” or “efficient and compelling” intent was to have sexual relations with the 

minor. The CAAF rejected the reasoning of these decisions and held, consistent with 

decisions from other courts of appeals, that sexual activity needed to be only a purpose 

for transporting the minor across state lines. 

2. State Law: Federal Assimilative Crimes Act (FACA). 18 U.S.C. §13. 

a) Adopts un-preempted state offenses as the local federal law of application. 

b) The purpose of FACA is to fill the gaps left by the patchwork of federal statutes. United 

States v. Robbins, 52 M.J. 159 (C.A.A.F. 1999); United States v. Picotte, 30 C.M.R. 196 

(C.M.A. 1961). 

c) “Offenses” may include any non-regulatory statutory prohibition that provides for some 

form of punishment if violated. United States v. White, 39 M.J. 796 (N.M.C.M.R. 1994) 

(assimilating provisions of state motor vehicle code denominated as “violations” rather than 

“crimes”, but which provide for penal sanctions). But cf. United States v. Clinkenbeard, 44 

M.J. 577 (A.F. Ct. Crim. App. 1996) (reaching contrary result). 

d) Applies state law whether enacted before or after passage of FACA. United States v. 

Rowe, 32 C.M.R. 302 (C.M.A. 1962). 

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e) State law may not be assimilated if the act or omission is punishable by any enactment of 

Congress. Lewis v. United States, 523 U.S. 155, 118 S.Ct. 1135 (1998). Lewis establishes a 

two-part test (This test should be applied in conjunction with the related, but similar Article 

134 preemption analysis discussed below): 

(1) Is the accused’s “act or omission...made punishable by any enactment of Congress?” 

If not, then assimilate. If so, ask: 

(2) Do the relevant federal statutes preclude application of the state law? Specifically, 

would the application of the state law interfere with the achievement of a federal policy, 

effectively rewrite an offense definition that Congress carefully considered, or run 

counter to Congressional intent to occupy the entire field under consideration? 

f) The FACA may not be used to extend or narrow the scope of existing federal criminal 

law. Lewis v. United States, 523 U.S. 155, 118 S.Ct. 1135 (1998); United States v. Perkins, 6 

M.J. 602 (A.C.M.R. 1978); see also United States v. Robbins, 52 M.J. 159 (1999). 

g) Jurisdiction. 

(1) The government must establish exclusive or concurrent federal jurisdiction before 

FACA is applicable. See United States v. Dallman, 34 M.J. 274 (C.M.A. 1992), aff’d, 37 

M.J. 213 (C.M.A. 1993). 

(2) A guilty plea may be sufficient to establish jurisdiction required by the Act. United 

States v. Kline, 21 M.J. 366 (C.M.A. 1986); United States v. Jones, 34 M.J. 270 (C.M.A. 

1992). 

h) Refer to state case law for interpretation of the offense 

(1) Defendant provided alcohol to someone under age 21and was charged under FACA 

with the violation of the South Carolina code. He stated during the providence inquiry he 

did not know at the time he provided the alcohol, but found out “later” the person was 

under age 21. ACCA looked to South Carolina Code to determine the offense was not a 

strict liability offense and then dismissed the specification. United States v. Narewski, 

No. ARMY 20140080, 2016 WL 4446559, at *1 (A. Ct. Crim. App. Aug. 22, 2016) 

G. Limitations on the Use of Article 134, UCMJ. 

1. The Preemption Doctrine. MCM, pt. IV, ¶ 60c(5)(a). (See also the discussion of FACA 

preemption above). 

a) Article 134 cannot be used to prohibit conduct already prohibited by Congress in UCMJ 

arts. 78 & 80-132. 

b) Under the test provided in United States v. Wright, 5 M.J. 106 (C.M.A. 1978), conduct is 

already prohibited if: 

(1) Congress intended to limit prosecutions for certain conduct to offenses defined in 

specific articles of the UCMJ, and 

(2) The offense sought to be charged is composed of a residuum of elements of an 

enumerated offense under the UCMJ. 

c) Applications. 

(1) Prosecution under Article 134, Clause 1 for inhalation (“huffing”) nitrous 

oxide is not preempted by Article 112a. United States v. Erickson, 61 M.J. 230 

(C.A.A.F. 2005). 

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(2) Federal Statutes: Prosecution for attempting to engage a minor in illegal 

sexual activity (sodomy and carnal knowledge) in violation of 18 U.S.C. § 2422(b) is 

not preempted by Articles 80, 120, or 125. United States v. Kowalski, 69 M.J. 705 

(C.G. Ct. Crim. App. 2010). Prosecution of bank fraud under 18 U.S.C. § 1344 is not 

be preempted by Article 132. United States v. Tenney, 60 M.J. 838 (N-M. Ct. Crim. 

App. 2005); Prosecution under 18 U.S.C. § 842 (h) for possession of stolen 

explosives is not preempted. United States v. Canatelli, 5 M.J. 838 (A.C.M.R. 1978). 

(3) State Statutes: State statute prohibiting wrongfully eluding a police 

officer is not preempted. United States v. Kline, 21 M..J. 366 (C.M.A. 1986); State 

auto burglary statute is not preempted. United States v. Sellars, 5 M.J. 814 

(A.C.M.R. 1978); State statute prohibiting hunting at night is not preempted. United 

States v. Fishel, 12 M.J. 602 (A.C.M.R. 1981); State statute prohibiting the unlawful 

termination of another’s pregnancy is not preempted by Articles 118 and 119. United 

States v. Robbins, 52 M.J. 159 (C.A.A.F. 1999); State child abuse statute is not 

preempted per se; however, evidence establishes no more than assault under article 

128. United States v. Irvin, 21 M.J. 184 (C.M.A. 1985), cert. denied, 479 U.S. 852 

(1986); see also United States v. Wallace, 49 M.J. 292 (C.A.A.F. 1998). 

(4) Preempted Statutes: State statute prohibiting false reports of crimes 

is preempted. United States v. Jones, 5 M.J. 579 (A.C.M.R. 1978); Prosecution of 

cable television fraud using Hawaii statute is preempted by an applicable federal 

statute on cable television fraud, 47 U.S.C. § 553 (a) & (b). United States v. Mitchell, 

36 M.J. 882 (N.M.C.M.R. 1993), aff’d, 40 M.J. 270 (C.M.A. 1994), cert. denied 513 

U.S. 1041 (1994). 

2. The Capital Crime Exception. MCM, pt. IV, ¶ 60c(5)(b). 

a) Capital crimes are those crimes made punishable by death under the common law or by 

statute of the United States. 

b) Capital crimes may not be tried under Article 134. Only non-capital offenses may be 

prosecuted under article 134. United States v. French, 27 C.M.R. 245 (C.M.A. 1959). 

3. Crimes Punishable under Article 92. MCM, pt. IV, ¶ 60c(2)(b). 

a) Violations of “customs of the service” that are now contained in regulations should be 

charged as violations of Article 92, if the regulation is punitive. 

b) United States v. Caballero, 49 C.M.R. 594 (C.M.A. 1975) (setting aside a conviction 

under Art. 134 for possession of drug paraphernalia, holding that possession of drug 

paraphernalia is properly prosecuted under Art. 92, where an order or regulation proscribing 

such possession exists). 

c) United States v. Borunda, 67 M.J. 607 (A.F. Ct. Crim. App. 2009). The AFCCA 

interpreted Caballero “to mean that when a lawful general order or regulation proscribing the 

possession of drug paraphernalia exists, an order which by definition is punitive,” the offense 

must be charged under Art. 92(1), UCMJ, and not Art. 134. In the absence of a lawful 

general order or regulation, the Government is at liberty to charge the conduct under another 

theory of Article 92 or Article 134. 

H. Pleading Considerations. 

1. Pleading the Terminal Element in Clause 1 and 2 Offenses. 

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a) Historically, enumerated Article 134 offenses did not require the explicit pleading of the 

terminal element within the specification. However, United States v. Fosler, 70 M.J. 225 

(C.A.A.F. 2011) marks a dramatic shift in charging Article 134 offenses. Article 134
 

offenses charged under Clause 1 or 2 should explicitly allege the terminal element,
 

notwithstanding the language of the MCM and prior case law holding otherwise. 

Specifications that fail to explicitly allege the terminal element will receive increased scrutiny
 

to determine if the terminal element is necessarily implied.
 

b) Explicit Pleading. The Fosler court reaffirms that a specification provides sufficient 

notice when it alleges every element of the charged offense either expressly or by necessary 

implication as reflected in R.C.M. 307(c)(3). In the context of Article 134, the court states 

“[a]n accused must be given notice as to which clause or clauses [of Article 134] he must 

defend against.” When the terminal element is not expressly alleged, the court analyzes 

whether the element is necessarily implied. 

c) Necessary Implication. With respect to whether the terminal element is necessarily 

implied, the court looks at historical precedent and stare decisis, including the MCM and 

Parker v. Levy, 417 U.S. 733 (1974). CAAF notes that increased emphasis on constitutional 

notice requirements in recent cases has changed both U.S. Supreme Court and CAAF LIO 

jurisprudence and “circumsrib[ed] the extent to which Article 134 – and particularly its 

terminal element – can be implied.” The court states that the historical practice of implying 

the terminal element and stare decisis supporting this practice “has been substantially 

eroded.” Merely alleging that a crime is an Article 134 offense does not imply the terminal 

element and, therefore, the specification does not provide adequate notice – even when 

coupled with words of criminality (i.e., “wrongfully”) in the specification. 

d) Notice is the legal issue; plain error is the test. 

(1) Contested trials: Failing to allege the terminal element is error because the accused 

does not know against which theory of criminality he must defend. If the specification is 

challenged for a failure to state an offense at a contested trial, the remedy is dismissal. 

See Fosler, 70 M.J. at 226. 

(2) Guilty pleas: Despite error failing to allege the terminal element, “in the context of a 

guilty plea, where the error is alleged for the first time on appeal, whether there is a 

remedy for the error will depend on whether the error has prejudiced the substantial rights 

of the accused. A court will not “find prejudice and disturb the providence of a plea 

where the providence inquiry clearly delineates each element of the offense and shows 

that the [accused] understood ‘to what offense and under what legal theory [he was] 

pleading guilty.’” United States v. Ballard, ___ M.J. ___ (C.A.A.F 2012). See also 

United States v. Watson, ___M.J.___(C.A.A.F. 2012); United States v. Nealy, 

___M.J.___(C.A.A.F. 2012). 

2. Clause Three. 

a) Each element of the federal or assimilated statute must be alleged expressly or by 

necessary implication. MCM, pt. IV, ¶ 60c(6)(b). 

b) The federal or assimilated state statute should be identified. MCM, pt. IV, ¶ 60c(6)(b). 

c) Clause 1 and 2 offenses are not per se LIOs of Clause 3. Consequently, in light of United 

States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) and United States v. Medina, 66 M.J. 21 

(C.A.A.F. 2008), it is prudent to add language to the Clause 3 specification alleging that the 

conduct was prejudicial to good order and discipline and/or service discrediting. 

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d) Sample specifications. See Chapter 7, Appendix B. 

3. Article 134 offenses are not per se LIOs of offenses arising under other articles of the 

UCMJ. Consequently, applying United States v. Foster, 40 M.J. 140 (C.M.A. 1994), United 

States v. Medina, 66 M.J. 21 (C.A.A.F. 2008), and United States v. Miller, 67 M.J. 385 (C.A.A.F. 

2009), practitioners should use extreme care when the MCM suggests that offenses under Article 

134 are lesser included offenses of offenses arising under the enumerated articles of the UCMJ. 

I. Punishment. 

1. For the offenses listed in MCM, pt. IV, paras. 61-113, the specified punishments control. 

R.C.M. 1003(c)(1)(A). 

2. For other offenses, the following rules apply: 

a) If the offense is either included in, or closely related to, an offense listed in paras. 61-113, 

then the penalty provided in the MCM for the listed offense applies. United States v. Sellars, 

5 M.J. 814 (A.C.M.R. 1978) (state auto burglary statute was closely related to Article 130 

housebreaking and should therefore be punished consistent with article 130 punishments); 

R.C.M. 1003(c)(1)(B)(i). 

b) If an unlisted offense is included in a listed crime and is closely related to another, or is 

equally related to two or more listed offenses, the lesser punishment of the related crimes 

shall apply. R.C.M. 1003(c)(1)(B)(i). This is the opposite rule from that of Article 133, 

where the greater punishment applies. See supra section XXVII.H.2., this chapter. 

c) If the punishment for an unlisted offense cannot be determined by applying the above 

tests (a & b), which is usually the case, then the punishment is that provided by the civilian 

statute or authorized by the custom of the service. R.C.M. 1003(c)(1)(B)(ii). 

(1) The accused was charged with and knowingly receiving visual depictions of minors 

engaging in sexually explicit conduct under Clauses 1 and 2 of Article 134. The military 

judge did not err in referencing the analogous federal statute, 18 USC § 2252(a)(2) to 

determine the maximum punishment, “when every element of the federal crime, except 

the jurisdictional element, was included in the specification.” United States v. Leonard, 

64 M.J. 381 (C.A.A.F. 2007). 

(2) Prosecution under 18 U.S.C. § 842 (h), for possession of stolen explosives, is 

punished under penalties provided in the federal statute. United States v. Canatelli, 5 

M.J. 838 (A.C.M.R. 1978). 

(3) Prosecution under 4 U.S.C. § 3, for wrongfully and dishonorably defiling the 

American flag, is punished under the penalties provided in the statute. United States v. 

Cramer, 24 C.M.R. 31 (C.M.A. 1957). 

PART III: WARTIME-RELATED OFFENSES AND ESPIONAGE 

XXIX. WARTIME-RELATED OFFENSES. 

A. Offenses Available. 

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1. Desertion. UCMJ art. 85. 

2. Assaulting or Willfully Disobeying Superior Commissioned Officer. UCMJ art. 90. 

3. Misbehavior Before the Enemy. UCMJ art. 99. 

4. Subordinate Compelling Surrender. UCMJ art. 100. 

5. Improper Use of a Countersign. UCMJ art. 101. 

6. Forcing A Safeguard. UCMJ art. 102. 

7. Captured or Abandoned Property. UCMJ art. 103. 

8. Aiding the Enemy. UCMJ art. 104. 

9. Misconduct as a Prisoner. UCMJ art. 105. 

10. Spies. UCMJ art. 106. 

11. Espionage. UCMJ art. 106a. 

12. Misbehavior of a Sentinel or Lookout. UCMJ art. 113. 

13. Malingering. UCMJ art. 115. 

14. Straggling. UCMJ art. 134. 

15. Offenses by a Sentinel. UCMJ art. 134. 

16. Other Offenses.
 

a) Failure to Obey Lawful General Regulation. UCMJ art. 92.
 

b) Dereliction of Duty. UCMJ art. 92.
 

c) Violation of Federal Statutes. UCMJ art. 134.
 

B. The “Triggers”. Typically the offenses listed above can occur or become aggravated only when 

one of the two triggers below exist. 

1. Time of War. 

2. Before the Enemy. 

C. Time Of War. 

1. Definition. “Time of war” means a period of war declared by Congress or the factual 

determination by the President that the existence of hostilities warrants a finding that time of war 

exists. R.C.M. 103(19). 

a) Definition applies only to R.C.M. 1004(c)(6) and to Parts IV and V of the Manual. 

b) The UCMJ does not define “time of war.” R.C.M. 103(19), analysis. 

c) The Court of Military Appeals (now Court of Appeals for the Armed Forces) has held 

that “time of war,” as used in the UCMJ, does not necessarily mean declared war. Whether a 

time of war exists depends on the purpose of the specific article in which the phrase appears. 

d) For purposes of Art. 2a(10), “time of war” means a war formally declared by Congress. 

United States v. Avarette, 41 C.M.R. 363 (C.M.A. 1970). 

e) Vietnam conflict was time of war for purposes of suspension of the statute of limitations 

under Article 43. United States v. Anderson, 38 C.M.R. 386 (C.M.A. 1968). 

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f) Conflicts in Iraq and Afghanistan in 2007 was a time of war for the suspension of the 

statute of limitations under Article 43. United States v. Rivaschivas, 74 M.J. 758 (A. Ct. 

Crim. App. 2015) (desertion). 

2. The court has examined the following circumstances to determine if time of war exists: 

a) The nature of the conflict, i.e. there must exist armed hostilities against an organized 

enemy. United States v. Shell, 23 C.M.R. 110, 114 (C.M.A. 1957);
 

b) The movement and numbers of United States forces in the combat area;
 

c) The casualties involved;
 

d) Legislation, executive orders or proclamations concerning the hostilities. United States v.
 

Bancroft, 11 C.M.R. 3 (C.M.A. 1953). 

3.	 Geographical limitation of time of war. 

a) Not limited with respect to Article 43, UCMJ. United States v. Anderson, 38 C.M.R. 386 

(C.M.A. 1968). 

b) May be limited for other purposes. See United States v. Taylor, 15 C.M.R. 232 (C.M.A. 

1954); United States v. Ayers, 15 C.M.R. 220 (C.M.A. 1954). 

4. For a more broad discussion of the impact of “time of war” on offenses for purposes of 

Article 43, see Chapter 5 (Defenses) in this deskbook. 

D.	 Applications. 

1.	 Offenses which can occur only in time of war.
 

a) Improper use of a countersign. UCMJ art. 101.
 

b) Misconduct as a prisoner. UCMJ art. 105.
 

c) Spies. UCMJ art. 106.
 

2.	 Offenses which are capital offenses in time of war. 

a) Desertion. UCMJ art. 85. 

b) Willful Disobedience of a Superior Commissioned Officer’s Order. UCMJ art. 90. 

c) Misbehavior As A Sentinel. UCMJ art. 113. 

d) Rape/Homicide. See R.C.M. 1004(c)(6). 

3.	 Offenses where time of war is an aggravating factor.
 

a) Drug offenses. UCMJ art. 112a.
 

b) Malingering. UCMJ art. 115. 

c) Offenses by a Sentinel. UCMJ art. 134.
 

XXX. MISBEHAVIOR BEFORE THE ENEMY. UCMJ ART. 99.
 

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A. Enemy Defined. Organized forces in time of war or any hostile body, including civilians, that 

may oppose U.S. forces. United States v. Monday, 36 C.M.R. 711 (A.B.R. 1966), pet. denied, 37 

C.M.R. 471 (C.M.A. 1969). 

B. Before The Enemy. 

1. A question of tactical relation not of distance. A reasonable possibility of being called into 

action is sufficient. United States v. Sperland, 5 C.M.R. 89 (C.M.A. 1952). 

2. Subsequent enemy contact may not be used to establish misconduct before the enemy. 

United States v. Terry, 36 C.M.R. 756 (N.B.R. 1965), aff’d, 36 C.M.R. 348 (C.M.A. 1966). 

C. Nine Forms of the Offense. 

1. Running away. 

2. Shamefully abandoning, surrendering, or delivering up command, unit, place, ship or military 

property. 

3. Endangering safety. 

4. Casting away arms or ammunition. 

5. Cowardly conduct. 

6. Quitting place of duty to plunder or pillage. 

7. Causing false alarms. 

8. Willfully failing to do utmost to encounter the enemy. 

9. Failure to afford relief and assistance. 

D. Elements. Each form has its own set of elements. An example, Article 99(5), is below: 

1. That the accused committed an act of cowardice; 

2. That this conduct occurred while the accused was before the enemy; and 

3. That this conduct was the result of fear. 

E. Applications. 

1. Cowardice is misbehavior motivated by fear. Fear is the natural feeling of apprehension 

when going into battle. United States v. Smith, 7 C.M.R. 73 (C.M.A. 1953). 

2. The mere display of apprehension does not constitute the offense. United States v. Barnett, 3 

C.M.R. 248 (A.B.R. 1951). 

3. An intent to avoid combat does not in itself justify an inference of fear. United States v. 

Yarborough, 5 C.M.R. 106 (C.M.A. 1952). 

4. Refusal to proceed against the enemy because of illness is not cowardice unless motivated by 

fear. United States v. Presley, 40 C.M.R. 186 (C.M.A. 1969). 

5. Article 99 covers the area of misbehavior before the enemy offenses. Art. 134 is not a catchall. United States v. Hamilton, 15 C.M.R. 383 (C.M.A. 1954). 

XXXI. WAR TROPHIES. 

A. Captured Or Abandoned Property. UCMJ art. 103. 

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1. Soldiers must give notice and turn over to the proper authorities without delay all captured or 

abandoned enemy property. 

2.	 Soldiers can be punished for: 

a) Failing to carry out duties described in ¶ 1 above. 

b) Buying, selling, trading or in any way disposing of captured or abandoned public or 

private property.
 

c) Engaging in looting or pillaging.
 

B. Unlawful Importation, Transfer, and Sale of a Dangerous Firearm. 26 U.S.C. §§ 5844, 5861. 

XXXII. STRAGGLING. UCMJ ART. 134. 

A.	 Elements. 

1. That the accused, while accompanying the accused’s organization on a march, maneuvers, or 

similar exercise, straggled. 

2.	 That the straggling was wrongful, and 

3. That under the circumstances, the conduct of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. 

B.	 Explanation. 

1. “Straggle” means to wander away, to stray, to become separated from, or to lag or linger 

behind. 

2.	 Must plead specific mission or maneuver. See MCM, pt. IV, ¶ 107(c). 

XXXIII. ESPIONAGE. UCMJ ART. 106A. 

A. Nature of the Offense. Article 106a establishes a peace time espionage offense which is different 

from spying, another wartime offense, under Article 106, UCMJ. 

B.	 Three Theories for Espionage Cases. 

1.	 Violation of general regulations; 

2.	 Assimilation of federal statutes under Article 134, clause 3; 

3.	 Violation of Article 106 or 106a. See United States v. Baba, 21 M.J. 76 (C.M.A. 1985). 

C.	 Elements of Art 106a. 

1. The accused communicated, delivered, or transmitted information relating to the national 

defense; 

2.	 Information was communicated and delivered to a foreign government; 

3. That the accused did so with the intent or reason to believe that such matter would be used to 

the injury of the United States or to the advantage of a foreign nation. MCM, pt. IV, ¶ 30b(1). 

D. Attempted Espionage. Unlike most UCMJ offenses, Article 106a covers both espionage and any 

attempted espionage. 

1. Accused’s actions in enlisting aid of fellow sailor en route to delivering material to foreign 

embassy, removing classified documents from ship’s storage facility and converting them to his 

own personal possession, and traveling halfway to embassy to deliver went beyond “mere 

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preparation” and guilty plea to charge of attempted espionage was provident. United States v. 

Schoof, 37 M.J. 96 (C.M.A. 1993). 

2. Where accused took several classified radio messages to Tokyo in order to deliver them to a 

Soviet agent named “Alex,” his conduct was more than mere preparation and constituted 

attempted espionage in violation of article 106a, UCMJ. United States v. Wilmouth, 34 M.J. 739 

(N.M.C.M.R. 1991). 

E. Espionage as a Capital Offense. 

1. Accused must commit offense of espionage or attempted espionage; and 

2. The offense must concern: 

a) Nuclear weaponry, military spacecraft or satellites, early warning systems, or other 

means of defense retaliation against large scale attack; 

b) War plans; 

c) Communications intelligence or cryptographic information; or 

d) Major weapons system or major elements of defense strategy. MCM, pt. IV, ¶ 30b(3). 

F. Applications. 

1. United States v. Richardson, 33 M.J. 127 (C.M.A. 1991) (case reversed because MJ erred in 

instructing panel that intent requirement for offense of attempted espionage would be satisfied if 

accused acted in bad faith “or otherwise without authority” in disseminating information). 

2. United States v. Peri, 33 M.J. 927 (A.C.M.R. 1993) (accused’s conscious, voluntary act of 

conveying defense information across the East German border and then intentionally delivering 

himself and the information into custody and control of East German authorities constituted 

“delivery,” as required to prove espionage). 

3. United States v. Wilmoth, 34 M.J. 739 (N.M.C.M.R. 1991) (Art. 106a includes both 

espionage and attempted espionage and an essential element of attempted espionage is an act that 

amounts to more than mere preparation). 

4. United States v. Schoof, 37 M.J. 96 (C.M.A. 1993) (accused’s actions in enlisting aid of 

fellow sailor en route to delivering material to foreign embassy, removing classified documents 

from ship’s storage facility and converting them to his own personal possession, and traveling 

halfway to embassy to deliver went beyond “mere preparation” and guilty plea to charge of 

attempted espionage was provident). 

5. United States v. Sombolay, 37 M.J. 647 (A.C.M.R. 1993) (to be convicted of espionage, 

information or documents passed by accused need not be of the type requiring a security 

classification, but gravamen of offense is the mens rea with which accused has acted, not impact 

or effect of act itself, i.e., did accused intend to harm the United States or have reason to believe 

that his conduct would harm the United States). 

XXXIV. OFFENSES AGAINST THE PERSON. UCMJ ARTS. 128, 120A, 134 

A. Simple Assault / Battery. MCM, pt. IV, ¶ 54; UCMJ art. 128. 

Under the UCMJ, assault is defined as an attempt or offer with unlawful force or violence 

to do bodily harm to another, whether or not the attempt or offer is consummated. An 

assault can therefore be committed in one of three separate ways: by offer, by attempt, 

or by battery. UCMJ art. 128. 

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1. Assault by Offer. 

a) An act or omission that foreseeably puts another in reasonable apprehension that force 

will immediately be applied to his person is an assault by offer provided the act or omission 

involved is either intentional or culpably negligent. The gravamen of this offense is the 

placing of the victim in reasonable apprehension of an immediate unlawful touching of his 

person. The fact that the offered touching cannot actually be accomplished is no defense 

provided the victim is placed in reasonable apprehension. MCM, pt. IV, ¶ 54d. 

b) Victim’s apprehension of harm. 

(1) The ability to inflict injury need not be real but only reasonably apparent to the 

victim. For example, pointing an unloaded pistol at another in jest constitutes an assault 

by intentional offer if the victim is aware of the attack and is placed in reasonable 

apprehension of bodily injury. United States v. Bush, 47 C.M.R. 532 (N.C.M.R. 1973). 

(2) The victim’s belief that the accused does not intend to inflict injury vitiates the 

offense under the theory of offer. United States v. Norton, 4 C.M.R. 3 (C.M.A. 1952). 

(3) The victim’s apprehension of impending harm must be reasonable. See United States 

v. Hernandez, 44 C.M.R. 500 (A.C.M.R. 1971). 

c) Mere words or threats of future violence are insufficient to constitute an offer-type 

assault. United States v. Hines, 21 C.M.R. 201 (C.M.A. 1956) (working the bolt of a loaded 

weapon so that it was ready for instant firing, coupled with a statement indicating a present 

intent to use the weapon, was more than mere preparation and constituted an act of assault); 

see also United States v. Milton, 46 M.J. 317 (C.A.A.F. 1997) (holding that words alone are 

generally not sufficient to constitute an assault by offer, but assault may occur where 

circumstances surrounding threat may constitute assault if victim feels “reasonable 

apprehension”). 

d) An accused who tries but fails to offer violence to frighten a victim may be guilty of an 

attempt to commit an assault by offer under UCMJ art. 80. United States v. Locke, 16 M.J. 

763 (A.C.M.R. 1983). Whether an “attempted offer to batter” is an offense under the UCMJ 

remains an open question. See United States v. Anzalone, 41 M.J. 142 (C.M.A. 1994). Cf. 

United States v. Williamson, 42 M.J. 613 (N-M. Ct. Crim. App. 1995). 

e) The culpably negligent offer. Culpable negligence is defined in MCM, pt. IV, ¶ 

44c(2)(a)(i) as a degree of carelessness greater than simple negligence. It is a negligent act or 

omission accompanied by a culpable disregard for the foreseeable consequences to others of 

that act or omission. United States v. Pittman, 42 C.M.R. 720 (A.C.M.R. 1970); United 

States v. Gibson, 39 M.J. 1043 (A.C.M.R. 1994), aff’d, 43 M.J. 343 (1995). "The actor need 

not actually intend or foresee those consequences: it is only necessary that a reasonable 

person in such circumstances would have realized the substantial and unjustified danger 

created by his act." United States v. Baker, 24 M.J. 354, 356 (C.M.A. 1987). The absence of 

intent to do bodily harm is not a defense. United States v. Redding, 34 C.M.R. 22 (C.M.A. 

1963). An example of such an assault would be a situation wherein the accused knowingly 

conducts rifle target practice in a built up area and thus frightens innocent bystanders into a 

reasonable belief of imminent injury. 

2. Assault by Attempt. 

a) An overt act that amounts to more than mere preparation and is done with apparent 

present ability and with the specific intent to do bodily harm constitutes an assault by attempt. 

MCM, pt. IV, ¶ 54c. 

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b) More than mere preparation to inflict harm is required. United States v. Crocker, 35 

C.M.R. 725 (A.F.B.R. 1965) (where the accused with open knife advances towards his victim 

at the time when an affray is impending or is in progress and comes within striking distance, 

this amounts to more than mere preparation and is sufficient to complete the offense). 

(1) Words alone, or threats of future harm, are insufficient. United States v. Hines, 21 

C.M.R. 201 (C.M.A. 1956). 

(2) An apparent ability to inflict bodily harm must exist. United States v. Hernandez, 44 

C.M.R. 500 (A.C.M.R. 1971) (no offense where Government failed to prove that 

instrument used under the circumstances was likely to result in harm); United States v. 

Smith, 15 C.M.R. 41 (C.M.A. 1954) (accused need not be within actual striking distance 

of victim to constitute apparent ability to inflict harm). 

c) Mens Rea. Attempt-type assault requires a specific intent to inflict bodily harm upon the 

victim. MCM, pt. IV, ¶ 54c. 

(1) Victim’s apprehension of impending harm is unnecessary. MCM, pt. IV, ¶ 

54c(1)(b)(i). See United States v. Anzalone, 41 M.J. 142 (C.M.A. 1994); United States v. 

Van Beek, 47 C.M.R. 99 (A.C.M.R. 1973). 

(2) United States v. Davis, 49 C.M.R. 463 (A.C.M.R. 1974). Firing pistol over the heads 

of victims, without the intent to injure them, is insufficient for assault by attempt. 

3. Battery. 

a) An intentional or culpably negligent application of force or violence to the person of 

another by a material agency constitutes a battery. See generally United States v. Schoolfield, 

40 M.J. 132 (C.M.A. 1994) (discussing alternative theories of battery in the context of an 

HIV case). 

b) Any offensive touching will suffice. See United States v. Sever, 39 M.J. 1 (C.M.A. 1994) 

(nonconsensual kiss); United States v. Bonano-Torres, 29 M.J. 845 (A.C.M.R. 1989), aff’d, 

31 M.J. 175 (C.M.A. 1990) (nonconsensual kiss and touching buttons on blouse); United 

States v. Madigar, 46 M.J. 802 (C.G. Ct. Crim. App. 1997) (unnecessary exposure to X-ray 

radiation was sufficient physical touching); United States v. Banks, 39 M.J. 571 (N.M.C.M.R. 

1993), aff’d, 40 M.J. 320 (C.M.A. 1994) (smoke inhalation). 

c) The unit of prosecution for an ongoing assault under Article 128 – as opposed to Articles 

120 or 134 – with multiple blows united in time, circumstance, and impulse, is the number of 

beatings the victim endured, not the number of blows inflicted. United States v. Clarke, 74 

M.J. 627 (A. Ct. Crim. App. 2015). 

d) Mens Rea. 

(1) Unlawful touching must be the result of an intentional or culpably negligent act. A 

culpably negligent act requires a negligent act/omission coupled with a culpable 

disregard for the foreseeable consequences to others. See United States v. Turner, 11 

M.J. 784 (A.C.M.R. 1981) (contrasting an intentional battery with a culpably negligent 

battery; the court agreed that the accused who threw a rake at an MP, hitting him on the 

arm, had in fact committed a battery, but it split on whether the violent act was 

intentional or culpably negligent). 

(2) United States v. Gibson, 43 M.J. 343 (C.A.A.F. 1995) (playing with and dropping a 

40mm grenade round was a culpably negligent act sufficient to support a charge of 

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aggravated assault (by battery); a reasonable soldier should have known what the object 

was and that dropping it would create a substantial and unjustified danger to bystanders). 

(3) United States v. Banks, 39 M.J. 571 (N.M.C.M.R. 1993) (finding the accused was 

culpably negligent when he consumed alcohol while cooking and passed out, thereby 

causing stove to catch fire and causing smoke inhalation injury to his infant son), aff’d, 

40 M.J. 320 (C.M.A. 1994). 

(4) United States v. Mayo, 50 M.J. 473 (C.A.A.F. 1999) (intentionally throwing a 19­

month-old child, while playing, with sufficient force and from sufficient height to 

fracture the child’s femur may be a culpably negligent act). 

e) Consent is not always a defense. United States v. Arab, 55 M.J. 508 (A. Ct. Crim. App. 

2001) (consent not a defense to assault consummated by battery arising from sadomasochistic 

activities involving an accused’s wife, where the nature of injuries and means used suggested 

the wife was subjected to extreme pain); United States v. Dumford, 28 M.J. 836 (A.F.C.M.R. 

1989), aff’d, 30 M.J. 137 (C.M.A. 1990), cert. denied, 498 U.S. 854 (1990) (consent not a 

defense to assault for sexual activity where the accused has the AIDS virus); United States v. 

Bygrave, 46 M.J. 491 (1997) (victim’s informed consent is no defense to a charge of 

aggravated assault for unprotected intercourse by HIV-infected accused); United States v. 

Brantner, 28 M.J. 941 (N.M.C.M.R. 1989) (consent not a defense to assault by using 

unsterilized needles); United States v. O’Neal, 36 C.M.R. 189 (C.M.A. 1966) (both parties to 

a mutual affray are guilty of assault); United States v. Holmes, 24 C.M.R. 762 (A.F.B.R.) 

(consent not a defense if the injury more than trifling or there is a breach of public order); cf. 

United States v. Rath, 27 M.J. 600 (A.C.M.R. 1988) (child may consent to some types of 

assault); United States v. Serrano, 51 M.J. 622 (N.-M. Ct. Crim. App. 1999) (act likely to 

produce grievous bodily harm or death); United States v. Booker, 25 M.J. 114 (C.M.A. 1987) 

& United States v. Outhier, 45 M.J. 326 (C.A.A.F. 1996) (consent invalid where obtained by 

fraud). 

f) Notice of Lack of Consent. United States v. Johnson, 54 M.J. 67 (2000) (where there 

was a friendly relationship involving touchings that were not offensive and the victim never 

protested against backrubs, the government had to prove that the accused was on notice of 

lack of consent), aff’d by 55 M.J. 243 (C.A.A.F. 2001). 

g) Justification. See also Chapter 5, Defenses. 

(1) Certain persons may be justified in touching others even without their permission. 

See, e.g., United States v. McDaniel, 7 M.J. 522 (A.C.M.R. 1979) (no assault for NCO to 

place drunk and protesting soldier in a cold shower to sober him up). See R.C.M. 916(c). 

(2) Parental discipline defense. See generally United States v. Rivera, 54 M.J. 489 

(2001); United States v. Robertson, 36 M.J. 190 (C.M.A. 1991); United States v. Brown, 

26 M.J. 148 (C.M.A. 1988). Requirements: 

(a) Proper parental purpose. Force used for safeguarding or promoting the welfare 

of the minor, including prevention or punishment of misconduct. 

(b) Reasonable force. Force must not be intended, or known to create a substantial 

risk of, serious bodily injury, disfigurement, extreme pain or mental distress, or gross 

degradation. 

B. Aggravated Assault With a Dangerous Means, Weapon or Force. UCMJ art. 128(b)(1). 

1. Aggravated assault with a dangerous weapon, means, or force includes the assault theories of 

offer, attempt, and battery. MCM, pt. IV, ¶ 54b(4)(a). 

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2. Dangerous. A means/force/weapon is dangerous when used in a manner likely to produce 

grievous bodily harm. United States v. Hernandez, 44 C.M.R. 500 (C.M.A. 1971) (claymore 

mine, under the circumstances, not used as a dangerous weapon). The offense is not established 

by the subjective state of mind of the victim but by an objective test as to whether the instrument 

is used as a dangerous weapon. United States v. Cato, 17 M.J. 1108 (A.C.M.R. 1984). The mere 

use of a weapon in the course of an assault is sufficient whether or not the accused actually 

intended to employ the weapon to accomplish the assault. United States v. Griffin, 50 M.J. 480 

(C.A.A.F. 1999). 

a) Government must prove natural and probable consequence of means or force used would 

be death or grievous bodily harm. United States v. Outhier, 45 M.J. 326 (C.A.A.F. 1996). 

United States v. Gutierrez, 74 M.J. 61, 66 (C.A.A.F. 2015) overruled the previous standard 

that the risk of death or grievous bodily harm must be “more than merely a fanciful, 

speculative, or remote possibility.” The Court held the correct standard is, “whether—in 

plain English—the charged conduct was ‘likely’ to bring about grievous bodily harm.” See 

also United States v. Tauala, 75 M.J. 752 (A. Ct. Crim. App. 2016) (jury instruction which 

reflected the language Gutierrez disapproved of was given in error, and the error was not 

harmless beyond a reasonable doubt, because it lessened the standard and undercut the 

defense’s argument regarding the likelihood of death or grievous harm). Gutierrez overruled 

the previous factors for determining “means likely” delineated in United States v. 

Weatherspoon, 49 M.J. 209 (C.A.A.F. 1998). 

b) Firearms. An unloaded firearm is not a dangerous weapon within the meaning of Article 

128 in an offer-type assault, even if the victim reasonably believed the weapon was capable 

of inflicting imminent death or grievous bodily harm. United States v. Davis, 47 M.J. 484 

(C.A.A.F. 1998). Cf. United States v. Smith, 2 C.M.R. 256 (A.B.R. 1951) (pistol as bludgeon 

is a dangerous weapon); United States v. Lamp, 44 C.M.R. 504 (A.C.M.R. 1971) (functional 

carbine with rounds in magazine but not chambered is a dangerous weapon); United States v. 

Bean, 62 M.J. 264 (C.A.A.F. 2006) (engaging the safety of a loaded, operable firearm does 

not remove its character as a dangerous weapon). United States v. Cato, 17 M.J. 1108 

(A.C.M.R. 1984) (jammed rifle a dangerous weapon). [Note: Under UCMJ art. 134, a person 

can be convicted for carrying a concealed weapon provided it is shown that the weapon was 

“dangerous.” United States v. Thompson, 14 C.M.R. 38 (C.M.A. 1954). The term 

“dangerous weapon” has a different meaning in connection with the art. 134 offense than it 

does in connection with the offense of aggravated assault. Under UCMJ art. 134, the term 

“dangerous weapon” includes an unloaded pistol. United States v. Ramsey, 18 C.M.R. 588 

(A.F.B.R. 1954); United States v. Brungs, 14 C.M.R. 851 (A.F.B.R. 1954).] 

c) Fists. United States v. Kenne, 50 C.M.R. 217 (A.C.M.R. 1975); United States v. 

Saunders, 25 C.M.R. 89 (C.M.R. 1958); United States v. Vigil, 13 C.M.R. 30 (C.M.A. 1953); 

United States v. Whitfield, 35 M.J. 535 (A.C.M.R. 1992); United States v. Debaugh, 35 M.J. 

548 (A.C.M.R. 1992). 

d) Belt buckle. United States v. Patterson, 21 C.M.R. 135 (C.M.A. 1956). 

e) Beer bottle. United States v. Straub, 30 C.M.R. 156 (C.M.A. 1961). 

f) Butter knife. United States v. Lewis, 34 C.M.R. 980 (A.B.R. 1964). 

g) Stick. United States v. Ealy, 39 C.M.R. 313 (A.B.R. 1967). 

h) CS/riot grenade. United States v. Aubert, 46 C.M.R. 848 (A.C.M.R. 1972); United States 

v. Schroder, 47 C.M.R. 430 (A.C.M.R. 1973). 

i) AIDS (HIV) virus. 

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(1) United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015). To support a conviction for 

aggravated assault with means likely to cause grievous bodily harm, the means must meet 

the common definition of “likely.” The evidence at trial showed that the likelihood of 

transmittal of the HIV virus was extremely low, which made the evidence legally 

insufficient to support a conviction of aggravated assault with a means likely to cause 

grievous bodily harm. In reaching its conclusion, the CAAF overruled its decision in 

United States v. Joseph, 37 M.J. 392 (C.M.A. 1993), where the Court of Military Appeals 

held that where the magnitude of the harm was great, the risk of harm could be 

statistically low and support a conviction for aggravated assault with a means likely to 

cause grievous bodily harm. The Court found two flaws in Joseph’s reasoning: its 

interpretation of “likely” was inconsistent with the statute, and its standard appeared to be 

a sui generis approach to HIV cases only. 

(2) Because, in Gutierrez, CAAF expressly rejected that “the risk must be more than 

‘fanciful, speculative, or remote.’” and found “[t]he ultimate standard, however, remains 

whether ... the charged conduct was ‘likely’ to bring about grievous bodily harm,” Guilty 

plea in HIV aggravated assault case where the “fanciful” language was instructed upon 

could not stand, but a lesser included of assault consummated by battery may be 

affirmed. • United States v. Williams, on reconsideration, No. ARMY 20140691, (A. Ct. 

Crim. App. Mar. 17, 2016); 

(3) Other Case: United States v. Perez, 33 M.J. 1050 (A.C.M.R. 1991) (unprotected 

sexual intercourse by HIV infected soldier did not constitute an assault by battery where 

the evidence indicated that the accused’s vasectomy prevented transfer of the virus). 

j) Other sexually transmitted diseases. United States v. Reister, 40 M.J. 666 (N.M.C.M.R. 

1994) (genital herpes). 

k) Tent pole. United States v. Winston, 27 M.J. 618 (A.C.M.R. 1988). 

l) Bed extender. United States v. Wilson, 26 M.J. 10 (C.M.A. 1988). 

m) Unsterilized needle. United States v. Brantner, 28 M.J. 941 (N.M.C.M.R. 1989). 

3. Grievous bodily harm is defined as serious bodily injury such as broken bones and deep cuts. 

MCM, pt. IV, ¶ 54c. 

4. An assault and threat, which occur at the same time, are multiplicious. United States v. 

Morris, 41 C.M.R. 731 (A.C.M.R. 1970); United States v. Metcalf, 41 C.M.R. 574 (A.C.M.R. 

1969); United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012). 

5. LIOs: Assault with a dangerous weapon. Where the evidence shows that an 

intoxicated accused pointed a loaded firearm at others, having first threatened them 

verbally and with a knife, and assuming a firing position, the lesser included offense of 

simple assault is not reasonably raised, whether the safety is engaged or not. United States 

v. Bean, 62 M.J. 264 (C.A.A.F. 2005). 

C. Aggravated Assault By Intentionally Inflicting Grievous Bodily Harm. UCMJ art. 128(b)(2). 

1. Requires non-negligent battery resulting in grievous bodily harm. 

2. Specific intent to inflict grievous bodily harm is necessary. United States v. Groves, 10 

C.M.R. 39 (C.M.A. 1953) (error not to instruct on defense of intoxication). 

3. Aggravated assault by intentionally inflicting grievous bodily harm is multiplicious with 

maiming under Article 124 when the same actions give rise to both convictions. United States v. 

Allen, NMCM 9800849, 2003 Lexis 169 (N-M. Ct. Crim. App. July 30, 2003). 

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D. Assault and Communication of Threat Distinguished. An assault (UCMJ art. 128) is an attempt 

or offer to do bodily harm with unlawful force or violence. Communication of a threat (UCMJ 

art. 134) embraces a declaration or intent to do bodily harm. Both offenses therefore relate to 

infliction of physical injury. When committed simultaneously upon the same victim, they are 

properly a single offense for punishment purposes. United States v. Lockett, 7 M.J. 753 (A.C.M.R. 

1979); United States v. Morris, 41 C.M.R. 731 (A.C.M.R. 1970); United States v. Conway, 33 C.M.R. 

903 (A.F.C.M.R. 1963). 

E. Stalking, UCMJ art. 120a. 

1. Implementing Executive Order signed 18 April 2007 (E.O. 13430). ISSUES: 

a) The criminal act is a “course of conduct,” defined by the statute as: 

(1) A repeated maintenance of visual or physical proximity to a specific person, or 

(2) A repeated conveyance of verbal threat, written threats, or threats implied by 

conduct, or a combination of such threats, directed at or towards a specific person. 

b) “Repeated,” in the definition of “course of conduct,” means two or more occasions. 

c) Be alert to the implications of these statutory definitions for conduct occurring in 

barracks, or on a ship, or in a deployed environment where soldiers are compelled to be in 

close visual or physical proximity to one another. 

2. Threats communicated via computer and text message may be considered “written” for 

purposes of the statute, at least when combined with other threats. See generally United States v. 

Gutierrez, 73 M.J. 172 (C.A.A.F. 2014). 

3. Though acquitted of a concomitant rape, evidence of that alleged rape may properly be 

considered in assessing whether the evidence of stalking was factually sufficient. See id. 

F. Child Endangerment. MCM, pt. IV, ¶ 68a, UCMJ art. 134. 

1. This is a new offense as of October 2007. See Executive Order 13447, dated 28 September 

2007. 

2. The Analysis states, child neglect was recognized in United States v. Vaughn, 58 M.J. 29 

(2003) (in light of service custom, norms of states, and service-discrediting nature of offense, 

child neglect is punishable under Article 134, even if no harm results to the child). The CAAF 

addressed the article in United States v. Plant, 74 M.J. 297 (C.A.A.F. 2015). 

3. Elements: 

a) That the accused had a duty of care of a certain child; 

b) That the child was under the age of 16 years; 

c) That the accused endangered the child’s mental or physical health, safety, or welfare 

through design or culpable negligence; and 

d) That, under the circumstances, the conduct of the accused was to the prejudice of good 

order and discipline in the armed forces or was of a nature to bring discredit upon the armed 

forces. 

4. Issues. 

a) Culpable negligence is more than simple negligence and is a negligent act accompanied 

by a culpable disregard for the forseeable consequences to others of that act or omission. 

MCM, pt. IV, ¶ 68a(c)(3). 

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b) As in Vaughn, supra, there is no requirement of actual physical or mental harm to the 

child. MCM, pt. IV, ¶ 68a(c)(4). 

c) Age of the victim is a factor in determining the quantum of negligence. The explanation 

provides several examples of acts to assist in determining whether an act is negligent, and if 

so, whether the negligence rises to the level of culpable negligence. See MCM, pt. IV, ¶ 

68a(c)(6). 

d) In Plant, the CAAF held that “endanger” requires proof that the accused’s conduct 

resulted in a reasonable probability that the child would be harmed. The Court found legally 

insufficient a conviction for child endangerment based on the accused’s being intoxicated 

while responsible for the care of a healthy thirteen-month-old boy because the government 

established no more than a possibility of harm from the accused’s irresponsible behavior. 

G. Reckless Endangerment, MCM, pt. IV, ¶ 100a, UCMJ art. 134 

1. Elements: 

a) That the accused did engage in conduct 

b) That the conduct was wrongful and reckless or wanton; 

c) That the conduct was likely to produce death or grievous bodily harm to another person; 

and 

d) That under the circumstances, the conduct of the accused was to the prejudice of good 

order and discipline in the armed forces or was of nature to bring discredit upon the armed 

forces. 

2. Definitions: Likely to produce death or grievous bodily harm,” as required for the offense of 

reckless endangerment, Article 134. does not differ from “likely to produce death or grievous 

bodily harm” for aggravated assault, Article 128. 

a) In United States v. Herrmann, 75 M.J. 672 (A. Ct. Crim. App. 2016), Herrmann failed to 

inspect parachutes so he could go home early; ACCA held this satisfied the requisite 

likelihood of harm. ACCA held for offenses like reckless endangerment, where the harm 

need not be actually inflicted, the “likelihood” of harm focuses on: (1) on the danger the 

conduct posed (if the magnitude of the harm is great, evidence is sufficient though the risk is 

statistically low); (2) the relative needlessness of one's actions (not checking parachutes in 

order to go home early is reckless; not checking them because of a need for rapid response 

may not be). Likelihood does not turn on mathematical principles like greater than 50%. 

“’Ultimately, the likelihood determination must clear a reasonable threshold of probability’” 

b) In United States v. Gutierrez, 74 M.J. 61, 66 (C.A.A.F. 2015), an aggravated assault 

Article 128 case, CAAF overruled the previous standard that the risk of death or grievous 

bodily harm must be “more than merely a fanciful, speculative, or remote possibility.” The 

Court held the correct standard is, “whether—in plain English—the charged conduct was 

‘likely’ to bring about grievous bodily harm.” In United States v. Odie, No. ARMY 

20130122, 2016 WL 3008136, at *4 (A. Ct. Crim. App. May 13, 2016), review granted, 

decision aff'd as modified, (C.A.A.F. July 20, 2016), ACCA applied the newly announced 

standard to reckless endangerment. ACCA ultimately held, even though the military judge 

gave Odie the wrong standard during his guilty plea, the plea could be affirmed applying the 

new standard to facts admitted by Odie which included that he placed a loaded weapon under 

a fence near a playground, with a round chambered and the safety on “fire.” 

XXXV. HOMICIDES. UCMJ ARTS. 118, 119, & 134. 

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A. Common Law Classifications. 

1. At common law, homicides are classified as justifiable, excusable, or criminal. Justifiable 

homicides are those commanded or authorized by law; they are not punishable. Excusable 

homicides are those in which the killer is to some extent at fault but where circumstances do not 

justify infliction of full punishment for criminal homicide; i.e., the killing remains criminal but 

the penalty is reduced. Any killing that is not justifiable or excusable is criminal homicide -­

either murder, manslaughter, or negligent homicide. 

2. “Born Alive” Rule. United States v. Nelson, 53 M.J. 319 (C.A.A.F. 2000). The UCMJ does 

not define “human being” for the purposes of Articles 118 and 119, but Congress intended those 

articles to be construed with reference to the common law. A child is “born alive” if it: (1) was 

wholly expelled from its mother’s body, and (2) possessed or was capable of an existence by 

means of a circulation independent of that of the mother. Even if the child never took a breath of 

air from its own lungs, the child’s capability to do so is sufficient. But see UCMJ, Article 119a, 

Death or Injury to an Unborn Child. 

B. Causation. 

1. Generally. See also Chapter 5, Defenses. 

2. Death From Multiple Causes. 

a) United States v. Gomez, 15 M.J. 954 (A.C.M.R. 1982) (adopts two-part time of death 

standard: either irreversible cessation of circulatory and respiratory functions, or irreversible 

cessation of total brain functions). 

b) United States v. Schreiber, 18 C.M.R. 226 (C.M.A. 1955) (accused held responsible for 

death even if his gunshot wound, following a severe beating of the victim by another, only 

contributed to the death by causing shock). 

c) United States v. Houghton, 32 C.M.R. 3 (C.M.A. 1962) (in child abuse death, 

contributing to or accelerating the death of the victim sufficient to establish responsibility). 

3. The Fragile Victim. If the wound, though not ordinarily fatal, causes the death of the victim, 

the accused is responsible. United States v. Eddy, 26 C.M.R. 718 (A.B.R. 1958). 

4. Negligent or improper medical treatment of the victim will not excuse the accused unless it 

constitutes gross negligence or intentional malpractice. United States v. Baguex, 2 C.M.R. 424 

(A.B.R. 1952) (death by asphyxiation from aspiration into lungs of blood from facial injuries); 

United States v. Eddy, 26 C.M.R. 718 (A.B.R. 1958). 

5. Accused’s act need not be the sole cause of death, or the latest/most immediate cause of 

death. United States v. Romero, 1 M.J. 227 (C.M.A. 1975) (accused guilty of negligent homicide 

in overdose death after helping victim position syringe); see also United States v. Mazur, 13 M.J. 

143 (C.M.A. 1982) (accused guilty of involuntary manslaughter by culpable negligence when 

assisted victim who could no longer inject self with heroin). 

6. Accused is responsible if his act caused the victim to kill herself unintentionally or by her 

negligence. See United States v. Schatzinger, 9 C.M.R. 586 (N.B.R. 1953). 

7. Intervening cause. 

a) An unforeseeable, independent, intervening event that causes the victim’s death may 

negate causation by the accused. See United States v. Riley, 58 M.J. 305 (2003) (holding 

doctors’ failure to diagnose appellant’s pregnancy was not an intervening cause of the baby’s 

death sufficient to relieve appellant of criminal liability (negligent birthing of child)). 

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b) Contributory negligence by the victim must loom so large in comparison to the accused’s 

conduct as to be an intervening cause. United States v. Oxendine, 55 M.J. 323 (2001) 

(victim’s voluntary participation in a dangerous joint venture, being held outside a third-story 

window by his ankles, was not an intervening cause). 

c) When an accused’s wrongful acts set in motion an unbroken, foreseeable chain of events 

resulting in another’s death, his conduct is the proximate cause of the death. United States v. 

Stanley, 60 M.J. 622 (A.F. Ct. Crim. App. 2004) (accused violently shook a 6-week old 

infant, who was resuscitated at the emergency room but remained in a persistent vegitative 

state; infant died upon removal of life support; the decision to remove life support did not 

“loom so large” as to relieve the accused of criminal liability); see also United States v. 

Markert, 65 M.J. 677 (N-M. Ct. Crim. App. 2007) (weapon horseplay resulted in Marine 

being shot in head; removal of life support was not an intervening cause). 

C. Premeditated Murder. UCMJ art. 118(1). 

1. Intent. Requires a specific intent to kill and consideration of the act intended to bring about 

death. The intent to kill need not be entertained for any particular or considerable length of time 

and the existence of premeditation may be inferred from the circumstances surrounding the 

killing. MCM, pt. IV, ¶ 43c(2)(a). See generally United States v. Eby, 44 M.J. 425 (1996). 

a) The “premeditated design to kill” does not have to exist for any particular or measurable 

length of time. United States v. Sechler, 12 C.M.R. 119 (C.M.A. 1953). 

b) Intent only to inflict grievous bodily harm is insufficient. United States v. Mitchell, 7 

C.M.R. 77 (C.M.A. 1953). 

c) The distinction between premeditated murder and unpremeditated murder is sufficiently 

clear to withstand constitutional challenge. United States v. Curtis, 44 M.J. 106, 147 

(C.A.A.F. 1996); United States v. Loving, 41 M.J. 213 at 279-80 (C.M.A. 1994), aff’d, 517 

U.S. 748 (1996). 

d) Premeditation is not a question of time but of reflection. United States v. Cole, 54 M.J. 

572 (Army Ct. Crim. App. 2000), aff’d, 55 M.J. 466 (C.A.A.F. 2001). 

e) Instructions. Because of the potential confusion to panel members in making the 

distinction between premeditated and unpremeditated murder, counsel should consider 

requesting instructions in addition to the pattern instruction in the Military Judges 

Benchbook. See United States v. Eby, 44 M.J. 425 (C.A.A.F. 1996); United States v. Hoskins, 

36 M.J. 343 (C.M.A. 1993), cert. denied, 513 U.S. 809 (1994). 

2. Proof of Premeditation. 

a) The existence of premeditation may be inferred from the circumstances. MCM, pt. IV, ¶ 

43c(2)(a). 

b) Inferred from the viciousness of the assault. United States v. Ayers, 34 C.M.R. 116 

(C.M.A. 1964). 

c) Inferred from the number of blows and the nature and location of injuries. United States 

v. Teeter, 12 M.J. 716 (A.C.M.R. 1981), aff’d in part, 16 M.J. 68 (C.M.A. 1983); United 

States v. Williams, 39 M.J. 758 (A.C.M.R. 1994). 

d) Inferred from prior anger and threats against the victim. United States v. Bullock, 10 M.J. 

674 (A.C.M.R. 1981), aff’d, 13 M.J. 490 (C.M.A. 1982). 

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e) Inferred from the fact that the weapon was procured before killing. United States v. 

Mitchell, 2 M.J. 1020 (A.C.M.R. 1976). 

f) Inferred from accused’s elaborate preparations preceding the murder, elaborate 

precautions to avoid detection, and brutal nature of the attack on the victim. United States v. 

Matthews, 13 M.J. 501 (A.C.M.R. 1982), rev’d as to sentence, 16 M.J. 354 (C.M.A. 1983). 

g) Inferred from lack of provocation; disadvantage of victim; and nature, extent and 

duration of attack. United States v. Viola, 26 M.J. 822 (A.C.M.R. 1988), cert. denied, 490 

U.S. 1020 (1989). 

h) Other circumstances. United States v. Curtis, 44 M.J. 106 (C.A.A.F. 1996) (after clearly 

premeditated murder of first victim accused stabbed victim’s wife who came to his aid and 

then indecently assaulted her); United States v. Curry, 31 M.J. 359 (C.M.A. 1990) (violent 

shaking of child victim, coupled with the accused’s demeanor at hospital, prior abuse of 

child, and incredible explanation of injuries); United States v. Levell, 43 M.J. 847 (N-M. Ct. 

Crim. App. 1996) (opening gun case, walking to victim laying on the ground, saying “what 

do you think of this,” then firing fatal shots showed accused reflected with a cool mind on 

killing victim); United States v. Shanks, 13 M.J. 783 (A.C.M.R. 1982) (homicidal act part of 

conspiracy); see also United States v. Cooper, 28 M.J. 810 (A.C.M.R. 1989), aff’d, 30 M.J. 

201 (C.M.A. 1990); United States v. Nelson, 28 M.J. 553 (A.C.M.R. 1989). 

3. Transferred Intent. See MCM, pt. IV, ¶ 43c(2)(b). 

a) United States v. Black, 11 C.M.R. 57 (C.M.A. 1953) (where the accused shot first victim 

with intent to murder and the bullet passed through his body striking a second, unintended 

victim, the accused was properly convicted of murder as to both victims). 

b) United States v. Willis, 46 M.J. 258 (C.A.A.F. 1997) (accused’s act of pulling trigger 

three times at nearly point blank range, moving the pistol between each shot with the evident 

intent of covering small area occupied by intended victim and her husband was sufficient to 

infer accused’s intent to kill intended victim’s husband under doctrine of transferred intent). 

4. State of Mind Defenses. All state of mind defenses apply to reduce premeditated murder to 

unpremeditated murder; however, 

a) Voluntary intoxication may reduce premeditated murder to unpremeditated murder or 

murder by murder by inherently dangerous act, but it may not reduce premeditated or 

unpremeditated murder to manslaughter or any other lesser offense. United States v. Morgan, 

37 M.J. 407 (C.M.A. 1993); M.C.M. pt. IV, ¶ 43c(2)(c). Accused can still be convicted of 

premeditated murder even though accused drank alcohol if his behavior clearly established 

that he fully appreciated what he was doing before, during, and after the murder. United 

States v. Glover, No. 9901132 (Army Ct. Crim. App. Nov. 7, 2002) (unpublished). 

b) Rage or personality disorder do not necessarily reduce to unpremeditated murder. United 

States v. Roukis, 60 M.J. 925 (Army Ct. Crim. App. 2005) aff’d, 62 M.J. 212 (2005) (“The 

fact that appellant may have been enraged at the time of the killing, whether as a result of his 

particular personality disorder or the circumstances of his marriage, ‘does not necessarily 

mean that he was deprived of the ability to premeditate or that he did not premeditate.’”). 

5. Punishment. 

a) Maximum: Death. Capital case procedures are set forth in R.C.M. 1004. The M.C.M. 

capital procedures were held to be constitutional in Loving v. United States, 517 U.S. 748 

(1996). 

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b) Mandatory Minimum: Imprisonment for life with eligibility for parole. M.C.M., pt. IV, ¶ 

43d(2)(e). 

D. Unpremeditated Murder. UCMJ art. 118(2). 

1. Nature of Act. The offense can be based on an act or omission to act where there is a duty to 

act; United States v. Valdez, 35 M.J. 555 (A.C.M.R. 1992) (parent’s deliberate failure to provide 

medical and other care to his child which resulted in child’s death supported charge of murder), 

aff’d, 40 M.J. 491 (C.M.A. 1994). See also United States v. Nelson, 53 M.J. 319 (C.A.A.F. 

2000)(holding that a mother who chose to give birth without medical assistance and failed to 

check on the health of her newborn for over an hour, resulting in the child’s death, could be guilty 

of involuntary manslaughter based on culpable negligence in her duty to care for the child); but 

see United States v. Riley, 47 M.J. 603 (A.F. Ct. Crim. App. 1997) (murder conviction set aside 

and finding of involuntary manslaughter of an accused who sought no medical attention during 

pregnancy or delivery), modified and aff’d, 58 M.J. 305 (C.A.A.F. 2003) (involuntary 

manslaughter conviction set aside in favor of negligent homicide conviction because accused’s 

failure to seek medical care was not culpably negligent). 

2. Intent. Accused must have either a specific intent to kill or inflict great bodily harm. 

a) The inference of intent. A permissive inference is recognized that a person intends the 

natural and probable consequences of an act purposely done by him. United States v. Owens, 

21 M.J. 117 (C.M.A. 1985); United States v. Varraso, 21 M.J. 129 (C.M.A. 1985); see United 

States v. Wilson, 26 M.J. 10 (C.M.A. 1988). 

b) Great bodily harm. A serious injury not including minor injuries such as a black eye or 

bloody nose, but includes fractured or dislocated bones, deep cuts, torn members of the body, 

serious damage to internal organs, and other serious bodily injury. MCM, pt. IV, ¶ 43c(3)(b). 

c) All state of mind defenses apply except voluntary intoxication. MCM, pt. IV, ¶ 

43c(2)(c). Voluntary intoxication cannot defeat capacity of accused to entertain intent to kill 

or inflict great bodily harm required for unpremeditated murder; one who voluntarily 

intoxicates himself or herself cannot be heard to complain of being incapable, by virtue of 

that intoxication, of intentionally committing acts leading to death of another person. United 

States v. Morgan, 37 M.J. 407 (C.M.A. 1993). 

3. Heat of passion defense reduces unpremeditated murder to voluntary manslaughter. See 

paragraph H, below. 

a) Heat of passion must be caused by adequate provocation. The provocation must be 

adequate to excite uncontrollable passion in a reasonable person. MCM, pt. IV, ¶44c(1)(b). 

4. Transferred intent also applies to unpremeditated murder. MCM. pt. IV, ¶ 43c(3)(a) (“The 

intent need not be directed toward the person killed”). See United States v. Willis, 43 M.J. 889 

(A.F. Ct. Crim. App. 1996), aff’d, 46 M.J. 258 (C.A.A.F. 1997). 

5. Maximum Punishment: Life imprisonment, with or without eligibility for parole. MCM, pt. 

IV, ¶ 43e(2). RCM 1003(b)(7). 

E. Murder While Doing An Inherently Dangerous Act. UCMJ art. 118(3). 

1. In General. Alternative theory to unpremeditated murder. 

2. Intent. 

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a) Specific intent not required. United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993) 

(firing a weapon indiscriminately in an inhabited area during a sham firefight in Panama 

during Operation JUST CAUSE). 

b) Knowledge. Accused must have known that the probable consequence of his act would 

be death or great bodily harm. United States v. Berg, 30 M.J. 195 (C.M.A. 1990), aff’d on 

reconsideration, 31 M.J. 38 (C.M.A. 1990). MCM, pt. IV, ¶ 43c(4)(b). 

c) Death-causing act must be intentional. United States v. Hartley, 36 C.M.R. 405 (C.M.A. 

1966). 

d) The act must evidence wanton heedlessness of death or great bodily harm. MCM, pt. IV, 

¶ 43c(4)(a). 

3. Nature of Act. The conduct of the accused must be inherently dangerous to “another”, i.e., at 

least one other person. This is a change Congress made in the law pursuant to the National 

Defense Authorization Act for Fiscal Year 1993 in response to United States v. Berg, 31 M.J. 38 

(C.M.A. 1990), in which the Court of Military Appeals required the accused’s conduct to 

endanger more than one other person.
 

4. Malice Requirement. For a discussion of the malice required, see United States v. 

Vandenack, 15 M.J. 230 (C.M.A. 1983) (no defense that accused did not intend to cause death or 

great bodily injury, provided the act showed wanton disregard of human life). 

5. Voluntary intoxication not a defense. MCM, pt. IV, ¶ 43c(3)(c). 

6. Examples of Inherently Dangerous Conduct. 

a) United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993) (firing a weapon indiscriminately 

in an inhabited area during a sham firefight in Panama during Operation JUST CAUSE). 

b) United States v. Hartley, 36 C.M.R. 405 (C.M.A. 1966) (shooting into a crowded room). 

c) United States v. Judd, 27 C.M.R. 187 (C.M.A. 1959) (shooting into a house trailer with 

two others present). 

d) United States v. Vandenack, 15 M.J. 230 (C.M.A. 1983) (speeding and intentionally 

running red light after a prior accident). 

F. Felony Murder. UCMJ art. 118(4). 

1. Statutory Penalty: death or life imprisonment. 

2. In General. Homicide must be committed during the perpetration or attempted perpetration 

of burglary, sodomy, rape, robbery, or aggravated arson. United States v. Jefferson, 22 M.J. 315 

(C.M.A. 1986). 

3. Intent. No specific intent required, except that of underlying felony. United States v. Hamer, 

12 M.J. 898 (A.C.M.R. 1982). 

4. Causation. Causal relationship between felony and death must be established. United States 

v. Borner, 12 C.M.R. 62 (C.M.A. 1953). 

5. Multiplicity. Felony murder is multiplicious with premeditated murder, United States v. 

Teeter, 16 M.J. 68 (C.M.A. 1983), and with unpremeditated murder. United States v. Hubbard, 

28 M.J. 27 (C.M.A. 1989). 

6. Capital Punishment. 

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a) In Enmund v. Florida, 458 U.S. 782 (1982), the Supreme Court held that to impose the 

death penalty for felony murder the accused must have killed or have had the intent to kill. 

b) Tison v. Arizona, 481 U.S. 137 (1987) (expands Enmund, holding that the Eighth 

Amendment does not prohibit the death penalty where the accused is a major participant in a 

felony that results in murder and “the mental state is one of reckless indifference”). 

c) R.C.M. 1004(c)(8) allows the death penalty only if the accused was the actual perpetrator 

of the killing. CAAF has held that this factor requires proof of an intent to kill or reckless 

indifference to human life. Loving v. Hart, 47 M.J. 438 (C.A.A.F. 1998). 

d) Accused’s pleas of guilty to unpremeditated murder and robbery by means of force and 

violence were, in context, pleas to the capital offense of felony murder. United States v. 

Dock, 28 M.J. 117 (C.M.A. 1989). 

7. Instructions. Where members could have reasonably found that accused formed the intent to 

steal from victim either prior to the infliction of the death blows or after rendering him helpless, 

he was not entitled to an instruction that, to be convicted of felony-murder he had to have the 

intent to commit the felony at the time of the actions which caused the killing. United States v. 

Fell, 33 M.J. 628 (A.C.M.R. 1991). 

G. Attempted Murder. UCMJ art. 80. Attempted murder requires a specific intent to kill. 

1. Although a service member may be convicted of murder if he commits homicide without an 

intent to kill, but with an intent to inflict great bodily harm (UCMJ art. 118(2)) or while engaged 

in an act which is inherently dangerous to others and evinces a wanton disregard of human life 

(UCMJ art. 118(3)), those states of mind will not suffice to establish attempted murder. United 

States v. Roa, 12 M.J. 210 (C.M.A. 1982). 

2. Beyond mere preparation. Where the purported co-conspirator was acting as a government 

agent at all relevant times, the court would consider only the acts of the accused in determining 

whether the planned murder-for-hire went beyond mere preparation, so as to constitute attempted 

murder. United States v. Owen, 47 M.J. 501 (Army Ct. Crim. App. 1997). 

H. Voluntary Manslaughter. UCMJ art. 119(a). 

1. Defined. An unlawful killing done with an intent to kill or inflict great bodily harm but done 

in the heat of sudden passion caused by adequate provocation. 

a) Article 119(a) as a lesser-included offense. When the evidence places heat of passion 

and adequate provocation at issue in the trial, the military judge must instruct the members, 

sua sponte, on the lesser included offense of voluntary manslaughter. United States v. Wells, 

52 M.J. 126 (C.A.A.F. 1999). 

b) Objective requirements. 

(1) Adequate provocation so as to excite uncontrollable passion in a reasonable man. 

Adequate provocation is an objective concept. United States v. Stark, 17 M.J. 519 

(A.C.M.R. 1984) (insulting, teasing, and taunting remarks are inadequate provocation). 

But cf. United States v. Saulsberry, 43 M.J. 649 (Army Ct. Crim. App. 1995) (finding 

adequate provocation after sustained taunting and simple assault), aff’d, 47 M.J. 493 

(C.A.A.F. 1998). 

(2) Provocation not sought or induced. 

(3) Unspent at moment killing occurs. United States v. Bellamy, 36 C.M.R. 115 (C.M.A. 

1966) (whether a particular provocation has spent its force & what constitutes a 

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reasonable time for cooling off are questions of fact for the panel/fact-finder). The rage 

must continue throughout the attack. United States v. Seeloff, 15 M.J. 978 (A.C.M.R. 

1983). 

c) Subjective requirements. The accused must in fact have been acting under such a heat of 

passion, fear, or rage. See United States v. Staten, 6 M.J. 275 (C.M.A. 1979); United States v. 

Jackson, 6 M.J. 261 (C.M.A. 1979). 

d) Sufficiency of proof. Despite defense claim that accused acted in sudden heat of passion, 

conviction of premeditated murder of wife’s lover was supported by sufficient evidence, 

including the obtaining of a special knife, decapitation of the victim, and comment to 

onlookers that “this is what happens when you commit adultery.” United States v. Schap, 44 

M.J. 512 (Army Ct. Crim. App. 1996), aff’d, 49 M.J. 317 (C.A.A.F. 1998) (once raised at 

trial, Gov’t must disprove its existence beyond a reasonable doubt). 

e) Marital infidelity alone is not enough to justify voluntary manslaughter, still need to 

show accused was deprived of ability to premeditate or that the accused did not premeditate. 

United States v. Roukis, 60 M.J. 925 (Army Ct. Crim. App. 2005) aff’d, 62 M.J. 212 (2005). 

2. Attempted Voluntary Manslaughter. The offenses of attempted voluntary manslaughter and 

assault with intent to commit voluntary manslaughter require a showing of accused’s specific 

intent to kill. A showing only of a specific intent to inflict great bodily harm will be insufficient 

to establish these offenses. United States v. Barnes, 15 M.J. 121 (C.M.A. 1983). 

I. Involuntary Manslaughter Resulting From A Culpably Negligent Act. UCMJ art. 119(b)(1). 

1. Intent. The standard of culpable negligence applies. MCM, pt. IV, ¶ 44c(2). 

2. Culpable negligence. “A degree of carelessness greater than simple negligence. It is a 

negligent act or omission accompanied by a culpable disregard for the foreseeable consequences 

to others.” MCM, pt. IV, ¶ 44c(2)(a)(i). 

a) Consequences are “foreseeable” when a reasonable person, in view of all the 

circumstances, would have realized the substantial and unjustifiable danger created by his 

acts. United States v. Oxendine, 55 M.J. 323 (2001) (holding a drunk victim by his ankles out 

of a third-story window without safety devices as part of a game of trust). 

b) Applications: 

(1) Horseplay with Weapon. United States v. Markert, 65 M.J. 677 (N-M. Ct. Crim. 

App. 2007). 

(2) Drug overdose death of another. United States v. Henderson, 23 M.J. 77 (C.M.A. 

1986) (providing drug, encouraging use, providing private room, presence); United States 

v. Mazur, 13 M.J. 143 (C.M.A. 1982) (assisting fellow soldier to inject heroin into his 

vein); see generally Milhizer, Involuntary Manslaughter and Drug Overdose Death: A 

Proposed Methodology, Army Law., Mar. 1989, at 10. 

(3) Child Abuse. United States v. Stanley, 60 M.J. 622 (A.F. Ct. Crim. App. 2004) 

(accused violently shook a 6-week old infant, who was resuscitated at the emergency 

room but remained in a persistent vegitative state; infant died upon removal of life 

support; the decision to remove life support did not “loom so large” as to relieve the 

accused of criminal liability); United States v. Brown, 26 M.J. 148 (C.M.A. 1988) 

(violently shaking a child); United States v. Baker, 24 M.J. 354 (C.M.A. 1987) (violently 

throwing child to an unpadded floor); United States v. Mitchell, 12 M.J. 1015 (A.C.M.R. 

1982) (beating a child who would not stop crying). 

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(4) Participating in a dangerous joint venture. United States v. Oxendine, 55 M.J. 323 

(C.A.A.F. 2001) (accused helped hang drunk Marine out of a third story window during 

thrill-seeking game with other Marines; drunk Marine fell to his death). 

(5) Giving car keys to a drunk. United States v. Brown, 22 M.J. 448 (C.M.A. 1986). 

(6) Failing to follow safety rules and driving after brakes failed. United States v. Cherry, 

22 M.J. 284 (C.M.A. 1986). 

(7) Culpably negligent surgical procedures. United States v. Ansari, 15 M.J. 812 

(N.M.C.M.R. 1983); but see United States v. Billig, 26 M.J. 744 (N.M.C.M.R. 1988). 

(8) Failure of parent to seek medical care for child. United States v. Martinez, 48 M.J. 

689 (Army Ct. Crim. App. 1998), aff’d, 52 M.J. 22 (1999); United States v. Nelson, 53 

M.J. 319 (C.A.A.F. 2000); but see United States v. Riley, 58 M.J. 305 (2003) 

(intentionally unassisted delivery of a baby where medical care was readily available was 

not culpably negligent so as to support a finding of involuntary manslaughter; found 

negligent homicide). 

3. Proximate Causation. 

a) "To be proximate, an act need not be the sole cause of death, nor must it be the 

immediate cause--the latest in time and space preceding the death. But a contributing cause is 

deemed proximate only if it plays a material role in the victim's [death]." United States v. 

Cooke, 18 M.J. 152, 154 (C.M.A. 1984) (quoting United States v. Romero, 24 C.M.A. 39, 1 

M.J. 227, 230, 51 C.M.R. 133 (C.M.A. 1975)). 

b) United States v. Stanley, 60 M.J. 622 (A.F. Ct. Crim. App. 2004) (accused violently 

shook a 6-week old infant, who was resuscitated at the emergency room but remained in a 

persistent vegitative state; infant died upon removal of life support; the decision to remove 

life support did not “loom so large” as to relieve the accused of criminal liability). 

4. Effect of Contributory Negligence. The deceased’s or a third party’s contributory negligence 

may exonerate the accused if it “looms so large” in comparison with the accused’s negligence 

that the accused’s negligence is no longer a substantial factor in the final result. United States v. 

Cooke, 18 M.J. 152 (C.M.A. 1984). 

5. Charge of involuntary manslaughter based upon culpably negligent failure to act requires, as 

a threshold matter, proof of a legal duty to act. United States v. Cowan, 42 M.J. 475 (C.A.A.F. 

1995). 

6. Involuntary manslaughter by culpable negligence not raised when death is the result of an 

intentional assault. United States v. Wilson, 26 M.J. 10 (C.M.A. 1988). 

7. Pleading. When charged under a culpable negligence theory, an involuntary manslaughter 

specification must allege that death was a reasonably foreseeable consequence of the accused’s 

misconduct. United States v. McGhee, 29 M.J. 840 (A.C.M.R. 1989); see generally TJAGSA 

Practice Note, The Scope of Assault, Army Law., Apr. 1990, Oct. 67, 68-70 (discusses McGhee). 

After United States v. Jones ( 

J. Involuntary Manslaughter While Perpetrating An Offense Directly Affecting The Person Of 

Another. UCMJ art. 119(b)(2). 

1. Requires an act affecting some particular person as distinguished from an offense affecting 

society in general. MCM, pt. IV, ¶ 44c(2)(b). 

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2. Applications. 

a) Assault. United States v. Jones, 30 M.J. 127 (C.M.A. 1990); United States v. Wilson, 26 

M.J. 10 (C.M.A. 1988); United States v. Madison, 34 C.M.R. 435 (C.M.A. 1964); see 

generally TJAGSA Practice Note, Involuntary Manslaughter Based Upon an Assault, Army 

Law., Aug. 1990, at 32 (discusses Jones); but see United States v. Richards, 56 M.J. 282 

(2002) (insufficient evidence to necessitate involuntary manslaughter instruction). 

b) Drug Overdose Death of Another. United States v. Sargent, 18 M.J. 331 (C.M.A. 1984) 

(mere sale of drugs is not an offense “directly affecting the person of another”); see also 

United States v. Dillon, 18 M.J. 340 (C.M.A. 1984); see generally Milhizer, Involuntary 

Manslaughter and Drug-Overdose Deaths: A Proposed Methodology, Army Law., Mar. 

1989, at 10. 

K. Death or Injury to an Unborn Child. UCMJ Article 119a. 

1. Implementing Executive Order signed 18 April 2007. ISSUES: 

a) Article 119a exempts the following individuals from prosecution: 

(1) Any person authorized by state or federal law to perform abortions for conduct 

relating to an abortion for which the consent of the pregnant woman, or a person 

authorized by law to act on her behalf, has been obtained or for which such consent is 

implied by law; 

(2) Any person for any medical treatment of the pregnant woman or her unborn child; or 

(3) Any woman with respect to her unborn child. 

b) Intentional Killing of an Unborn Child or Attempts. UCMJ art. 119a specifically states 

that an individual who intentionally kills an unborn child or attempts to kill an unborn child 

will be punished under Articles 80, 118, or 119. Nonetheless, Part IV, ¶ 44a.b.(3) & (4) 

provide elements for an offense involving the intentional killing of an unborn child as well as 

elements for an offense involving attempts to do so. These elements require the specific 

intent to kill the unborn child. 

c) Scienter. For injuring or killing an unborn child, the government need not prove: 1) that 

the accused knew the victim was pregnant, nor 2) that the accused should have known that 

the victim was pregnant. Additionally, for these two offenses, the government need not prove 

that the accused specifically intended to cause the death of, or bodily injury to, the unborn 

child. 

d) Punishment. Such punishment, other than death, as a court-martial may direct, but shall 

be consistent with the offense had it occurred to the unborn child’s mother. 

2. No reported cases on this offense. But see United States v. Robbins, 52 M.J. 159 (1999) 

(prosecuting accused for involuntary manslaughter by terminating the pregnancy of his wife, in 

violation of § 2903.04 of the Ohio Revised Code, as assimilated by the Assimilative Crimes Act 

(ACA)). 

L. Negligent Homicide. UCMJ art. 134. 

1. Intent. The standard is simple negligence—the absence of due care. An intent to kill or 

injure is not required. MCM, pt. IV, ¶ 85c(1). 

2. Simple Negligence Standard. 

a) See generally United States v. Gargus, 22 M.J. 861 (A.C.M.R. 1986). 

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b) United States v. Riley, 58 M.J. 305 (C.A.A.F. 2003) (giving birth in hospital bathroom in 

a manner creating an unreasonable risk of injury, resulting in the death of the newborn). The 

Riley case demonstrates the comparison between involuntary manslaughter (culpable 

negligence) and negligent homicide (simple negligence). An inexperienced, immature lay 

person, giving birth for the first time, could not foresee the potential for explosive and 

unexpected birth and the likelihood of the baby’s resultant death. Nevertheless, the 

appellant’s simple negligence was the proximate cause of the baby’s death and was sufficient 

to sustain a conviction for negligent homicide because some injury was foreseeable. 

3. Relationship with Other Homicide Offenses. 

a) Negligent homicide is not an LIO of premeditated murder. United States v. Girouard, 

70 M.J. 5 (C.A.A.F. 2011). 

b) Negligent homicide is not an LIO of involuntary manslaughter. United States v. 

McMurrin, 70 M.J. 15 (C.A.A.F. 2011). 

4. Applications. 

a) United States v. McDuffie, 65 M.J. 631 (A.F. Ct. Crim. App. 2007) (accused diagnosed 

with sleep apnea, drove vehicle, fell asleep, and drifted into oncoming traffic; involuntary 

manslaughter conviction set aside and affirmed as negligent homicide). 

b) United States v. Martinez, 42 M.J. 327 (C.A.A.F. 1995) (allowing fellow soldier to drive 

accused’s vehicle while under the influence of alcohol). 

c) United States v. Robertson, 37 M.J. 432 (C.M.A. 1993) (failure to obtain medical 

treatment for child). 

d) United States v. Spicer, 20 M.J. 188 (C.M.A. 1985) and United States v. Romero, 1 M.J. 

227 (C.M.A. 1975) (conviction affirmed where accused helped another “shoot up” with 

heroin, resulting in that person’s death by overdose). 

e) United States v. Greenfeather, 32 C.M.R. 151 (C.M.A. 1962) (vehicle homicide). 

f) United States v. Cuthbertson, 46 C.M.R. 977 (A.C.M.R. 1972) (aircraft homicide). 

g) United States v. Zukrigl, 15 M.J. 798 (A.C.M.R. 1983) (failure to check on safety 

measures for a water crossing exercise). 

h) United States v. Perez, 15 M.J. 585 (A.C.M.R. 1985) (negligently entrusting child to a 

babysitter who had a history of assaulting the child). 

i) United States v. Gordon, 31 M.J. 30 (C.M.A. 1990) (horseplay on a rowboat with a 

nonswimmer); see generally TJAGSA Practice Note, Negligent Homicide and a Military 

Nexus, Army Law., Mar. 1991, at 28 (discusses Gordon). 

j) United States v. Billig, 26 M.J. 744 (N.M.C.M.R. 1988) (offense may not be available for 

negligent surgical procedures). 

k) United States v. Kick, 7 M.J. 82 (C.M.A. 1979) (offense of negligent homicide is a proper 

basis for criminal liability. Furthermore, it has not been preempted by other specified 

punitive articles, i.e., UCMJ arts. 118 and 119). 

5. Military courts have so far refused to use res ipsa loquitur to prove negligence in criminal 

cases. United States v. Ryan, 14 C.M.R. 153 (C.M.A. 1954); United States v. Bryan, 41 C.M.R. 

184 (C.M.A. 1970); United States v. Thomas, 11 M.J. 315, 317 n. 2 (C.M.A. 1982). 

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6. Proximate Cause. The negligence must be the proximate cause of the death. Although 

proximate cause does not mean sole cause, it does mean a material and foreseeable cause. United 

States v. Perez, 15 M.J. 585 (A.C.M.R. 1983) (death of child foreseeable where mother left child 

with boyfriend who had twice previously seriously injured child). 

XXXVI. KIDNAPPING. UCMJ ART. 134. 

A. Elements. 

1. That the accused seized, confined, inveigled, decoyed, or carried away a certain person; 

2. That the accused then held such person against that person’s will; 

3. That the accused did so willfully and wrongfully; and 

4. That, under the circumstances, the conduct of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. 

B. Theories of Prosecution. 

1. If the misconduct occurred in an area over which the United States exercises exclusive or 

concurrent jurisdiction, the accused may be charged with violating state penal law as assimilated 

into federal law by the Assimilative Crimes Act, 18 U.S.C. § 13, which, in turn, is incorporated 

into military law under the Clause 3 of Article 134. 

2. If it meets the jurisdictional requirements of the Federal Kidnapping Act, 18 U.S.C. § 1201, 

which is also assimilated into military law by Clause 3 of Article 134, the crime may be 

prosecuted under that statute. 

3. Kidnapping may be charged as conduct which is service-discrediting or prejudicial to good 

order and discipline, in violation of Article 134. United States v. Jeffress, 28 M.J. 409 (C.M.A. 

1989). 

C. Nature of Detention. In order to convict accused of kidnapping, there must be more than 

“incidental” detention. 

1. Factors to consider in determining whether the detention was incidental include: 

a) Whether there was confinement or carrying away and holding for a period of time; 

b) The duration of detention; 

c) Whether the detention occurred during the commission of a separate offense; 

d) The character of any separate offense; 

e) Whether the detention or asportation exceeded that which was inherent in any separate 

offense and, in the circumstances, showed a voluntary and distinct intention to move/detain 

the victim beyond that necessary to commit the separate offense at the place where the victim 

was first encountered; and 

f) Whether there was any additional risk to victim beyond that inherent in commission of 

any separate offense. United States v. Barnes, 38 M.J. 72 (C.M.A. 1993) (evidence that 

victim was locked in room and detained for over two hours against her will during the 

commission of multiple assaults was more than incidental detention). 

2. United States v. Seay, 60 M.J. 73 (C.A.A.F. 2004). Accused and accomplice removed victim 

from his home, strangled, and pinned victim to ground before stabbing victim to death. These 

acts of restraint and asportation (removing the victim from his home) occurred prior the actual 

murder and exceeded the acts inherent to the commission of the murder. 

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3. United States v. Newbold, 45 M.J. 109 (C.A.A.F. 1996) (victim was moved no more than 12 

feet and was detained only long enough to complete the multiple indecent and aggravated 

assaults; however, movement of the victim limited the possibility of escape, and once the 

detention began, the subsequent offenses necessarily were “fed” by the increasingly more heinous 

actions of the assailants; thus, asportation was not merely incidental to other charged offenses, 

and evidence was sufficient to sustain guilty plea). 

4. United States v. Jeffress, 28 M.J. 409 (C.M.A. 1989) (detention of victim consisted of moving 

her some 15 feet; she was moved from traveled area into greater darkness; there was increased 

risk of harm to the victim; dragging victim away from beaten path was not inherent in offense of 

forcible sodomy; factually sufficient to sustain a guilty plea to kidnapping). 

5. United States v. Broussard, 35 M.J. 665 (A.C.M.R. 1992) (accused grabbed his wife from 

behind, dragged her into the bedroom, bound her arms and legs to furniture, and held her for a 

sufficient period of time). 

6. United States v. Caruthers, 37 M.J. 1006 (A.C.M.R. 1993) (accused’s asportation and 

holding of his wife were more than incidental; accused conceded his wife was seized or held 

when she was grabbed from behind, gagged, tied and dragged short distance away where she was 

held for two to three-hour period during commission of sexual assaults). 

7. United States v. Sneed, 74 M.J. 612 (A. Ct. Crim. App. 2015) (accused’s locking his pregnant 

girlfriend in a closet for approximately ten minutes was not incidental and supported a conviction 

for kidnapping; kidnapping was not inherently necessary for the attempted robbery of her debit 

card that the accused also committed). 

D. Inveigling. “Inveigle” means to lure, lead astray, or entice by false representations or other 

deceitful means. MCM, pt. IV, ¶ 92.c.(1). 

1. United States v. Blocker, 32 M.J. 281 (C.M.A. 1991) (kidnapping conviction affirmed where 

accused inveigled 17-year-old victim to remain in car when he drove off highway and down dirt 

hiking path before raping her). 

2. United States v. Mathai, 34 M.J. 33 (C.M.A. 1992) (NCO accused inveigled victim into his 

office by stating, “Follow me, Private,” after which he prevented her from leaving the room 

several times and held her against her will). 

E. The involuntariness of the seizure and detention is the essence of the offense of kidnapping. 

Once the offense is complete, the duration of the restraint is not germane, except for sentencing 

purposes. United States v. Bailey, 52 M.J. 786 (A.F. Ct. Crim. App. 1999) (victim did not tell the 

accused she wanted to go home, and after initially getting out of the accused’s truck and being carried 

back, she did not try to get out of the truck again; however, a victim is not required to voice lack of 

consent under the law; once the accused carried the unwilling victim back to his truck, the offense of 

kidnapping was complete), aff’d, 55 M.J. 38 (C.A.A.F. 2001). 

F. Lesser Included Offenses. Reckless endangerment is not a lesser included offense of kidnapping. 

United States v. Thompson, 67 M.J. 106 (C.A.A.F. 2009). 

XXXVII. MAIMING. UCMJ ART. 124. 

A. Elements. 

1. That the accused inflicted a certain injury upon a certain person; 

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2. That this injury seriously disfigured the person’s body, destroyed or disabled an organ or 

member, or seriously diminished the person’s physical vigor by the injury to an organ or member; 

and 

3. That the accused inflicted this injury with an intent to cause some injury to a person. 

B. Nature of Offense. The disfigurement, diminishment of vigor, or destruction or disablement of 

any member or organ must be a serious injury of a substantially permanent nature. However, the 

offense is complete if such an injury is inflicted even though there is a possibility that the victim may 

eventually recover the use of the member or organ, or that the disfigurement may be cured by surgery. 

MCM, pt. IV, ¶ 50.c.(1). 

C. Intent. Maiming is a specific intent crime. The government must prove a specific intent to injure 

a person; not the specific intent to maim or inflict grievous bodily harm. 

1. The 1969 Manual described maiming as a general intent crime. MCM, 1969, ¶ 203. This 

interpretation was based on United States v. Hicks, 20 C.M.R. 337 (C.M.A. 1956). See also 

United States v. Tua, 4 M.J. 761 (A.C.M.R. 1977). 

2. The 1984 Manual, however, also relying on Hicks, describes maiming as requiring a specific 

intent to injure generally, not a specific intent to maim. MCM, pt. IV, ¶ 50c, analysis. See 

United States v. Berri, 33 M.J. 337 (C.M.A. 1991). 

3. When grievous bodily harm has been inflicted by means of intentionally using force in a 

manner likely to achieve that result, it may be inferred that grievous bodily harm was intended. 

MCM, pt. IV, ¶ 54.c.(4)(b)(ii); United States v. Allen, 59 M.J. 515 (N-M. Ct. Crim. App. 2003) 

(circumstantial evidence of injury to infant victim sufficient to support inference of accused’s 

intent to injure; affirmed conviction for maiming), aff’d, 59 M.J. 478 (C.A.A.F. 2004). [NOTE: 

Intent to inflict grievous bodily harm is not required for maiming, but the facts of this case 

supported that finding]. 

4. Aggravated assault with intent to inflict grievous bodily harm is not a lesser included offense 

of maiming because of the different mens rea for each offense. United States v. Hanks, 74 M.J. 

556 (A. Ct. Crim. App. 2014). Charging both was not an unreasonable multiplication of charges 

because of the different mens reas. 

5. Unreasonable multiplication of charges to charge both maiming and attempted murder if both 

are aimed at the same criminal act. United States v. Sanks, No. ARMY 20130085, 2016 WL 

1179191, at *4 (A. Ct. Crim. App. Mar. 23, 2016), review denied, (C.A.A.F. July 11, 2016) 

D. Injury. 

1. Must be a serious injury of a substantially permanent nature. 

2. Maiming may exist even if the injury can be cured by surgery, or if the disfigurement would 

not be visible under everyday circumstances. United States v. Spenhoff, 41 M.J. 772 (A.F. Ct. 

Crim. App. 1995) (scar on victim’s buttocks). But see United States v. McGhee, 29 M.J. 840 

(A.C.M.R. 1989) (where the scars to the victim’s face and body, predominately on the buttocks, 

were not easily detectable to the casual observer, the injury was insufficient to support a maiming 

charge), rev’d in part on other grounds, 32 M.J. 322 (C.M.A. 1991). 

3. Disfigurement need not mutilate an entire body part, but it must cause visible bodily damage 

and significantly detract from the victim’s physical appearance. United States v. Outin, 42 M.J. 

603 (N-M. Ct. Crim. App. 1995) (scars sustained by child victim who was immersed in scalding 

water were clearly visible at trial and substantially permanent in nature supported conviction for 

maiming, even though doctor testified that scars would become less visible with passage of time); 

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United States v. Morgan, 47 M.J. 644 (Army Ct. Crim. App. 1997) (permanent scarring and depigmentation of the infant victim’s groin and buttocks, caused by the accused’s immersing him 

in scalding water, was “perceptible and material” disfigurement within the meaning of Article 

124, even though the injury would normally be covered from public view by clothing and 

affected a relatively small area of the child’s skin). 

E. Unreasonable Multiplication/Lesser Included 

XXXVIII. OFFENSES AGAINST PROPERTY. 

A. Larceny and Wrongful Appropriation. MCM, pt. IV, ¶ 46; UCMJ art. 121. 

1. Elements. 

a) Larceny. 

(1) That the accused wrongfully took, obtained, or withheld certain property from the 

possession of the owner or of any other person; 

(2) That the property belonged to a certain person; 

(3) That the property was of a certain value, or of some value; and 

(4) That the taking, obtaining, or withholding by the accused was with the intent 

permanently to deprive or defraud another person of the use and benefit of the property or 

permanently to appropriate the property for the use of the accused or for any person other 

than the owner. 

(5) [If the property is alleged to be military property, add the following element:] That 

the property was military property. 

b) Wrongful appropriation. 

(1) That the accused wrongfully took, obtained, or withheld certain property from the 

possession of the owner or of any other person; 

(2) That the property belonged to a certain person; 

(3) That the property was of a certain value, or of some value; and 

(4) That the taking, obtaining, or withholding by the accused was with the intent 

temporarily to deprive or defraud another person of the use and benefit of the property or 

temporarily to appropriate the property for the use of the accused or for any person other 

than the owner. 

2. Types of Property Covered. 

a) Must be tangible personal property. Article 121 lists the objects which can be the subject 

of larceny as “any money, personal property, or article of value of any kind.” 

(1) Gift cards have tangible value. United States v Manriquez, ARMY 20140893 (A. Ct. 

Crim. App. May 20, 2016) (unauthorized use of a credit or debit card requires the user 

falsely represent he has the authority to use the card, so it is usually charged as an 

“obtaining” type larceny by “false pretenses,” but giftcards, have value in themselves 

without any representation). 

b) Intangible or incorporeal items cannot be the subject of an Article 121 violation. United 

States v. Stevens 75 M.J. 548 (N-M.Ct.Crim.App. 2015)(online “currency” for use in a video 

game); United States v. Mervine, 26 M.J. 482 (C.M.A. 1988) (debt); United States v. Dunn, 

27 M.J. 624 (A.F.C.M.R. 1988) (administrative costs). 

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c) Article 121 does not cover theft of services. Theft of taxicab services, phone services, 

use and occupancy of government quarters, and use of a rental car cannot be the subject of 

larceny under Article 121. United States v. Abeyta, 12 M.J. 507 (A.C.M.R. 1981); United 

States v. Case, 37 C.M.R. 606 (A.B.R. 1966); United States v. Jones, 23 C.M.R. 818 

(A.F.B.R. 1956); United States v. McCracker, 19 C.M.R. 876 (A.F.B.R. 1955). 

d) Theft of services may be prosecuted in any of the following ways: (1) under Article 134, 

UCMJ, as obtaining services under false pretenses or as dishonorably failing to pay just 

debts; (2) under 18 U.S.C. § 641 as assimilated into military law by Article. 134(3), UCMJ, if 

the services taken are property of the United States; (3) as a violation of a state statute 

assimilated through 18 U.S.C. § 13. See United States v. Wright, 5 M.J. 106 (C.M.A. 1978), 

and United States v. Herndon, 36 C.M.R. 8 (C.M.A. 1965); see also United States v. Hitz, 12 

M.J. 695 (N.M.C.M.R. 1981) (accused was properly charged with and convicted of 

unlawfully obtaining telephone services of the U.S. Navy in violation of UCMJ art. 134); 

United States v. Roane, 43 M.J. 93 (C.A.A.F. 1995); United States v. Green, 44 M.J. 631 

(C.G. Ct. Crim. App. 1996) (obtaining services by false pretenses). 

e) Larceny can be used to cover credit card misuse. See generally United States v. Christy, 

18 M.J. 688 (N.M.C.M.R. 1984). The victim in such transactions is the entity suffering the 

financial loss. See also United States v. Williams, MJ (C.A.A.F. 2016)(cautioning the 

government that in the usual case it should follow the dictates of the explanation contained 

within MCM pt. IV, para. 46.c.(1)(i)(vi)). In some instances, multiple entities may have 

suffered the same financial loss. United States v. Cimball Sharpton, 73 M.J. 299 (C.A.A.F. 

2014). 

3. Element 1: That the accused wrongfully took, obtained, or withheld property (not services) 

from another. The drafters intended to codify only common law larceny, larceny by false 

pretenses, and larceny by conversion. United States v. Mervine, 26 M.J. 482 (C.M.A. 1988); 

United States v. Tenney, 15 M.J. 779 (A.C.M.R. 1983); United States v. Herndon, 36 C.M.R. 8 

(C.M.A. 1965); United States v. Dean, 33 M.J. 505 (A.F.C.M.R. 1991). 

a) Wrongful taking. Requires dominion, control, and asportation. See generally United 

States v. Carter, 24 M.J. 280 (C.M.A. 1987); United States v. Smith, 33 M.J. 527 

(A.F.C.M.R. 1991), aff’d, 35 M.J. 138 (C.M.A. 1992); United States v. Pacheco, 56 M.J. 1 

(C.A.A.F. 2001) (stealing war trophies). The taking, obtaining or withholding is wrongful if 

done without the knowing consent of the owner or other lawful authority. MCM, pt. IV, ¶ 

46c(1)(d). 

(1) United States v. Sneed, 38 C.M.R. 249 (C.M.A. 1968). Where accused’s accomplices 

were government agents, larceny of government property could not stand as no taking 

ever occurred, i.e., articles were never out of government control. See United States v. 

Cosby, 14 M.J. 3 (C.M.A. 1982) (accused can be guilty of wrongful taking even though 

property was released to him by competent authority); see also United States v. Cassey, 

34 C.M.R. 338 (C.M.A. 1964) (OSI authorized accomplices to proceed with delivery of 

government property and then apprehended accused after delivery as he attempted to 

leave base). 

(2) Asportation. 

(a) Larceny by taking continues as long as asportation of the property continues. 

The original asportation continues as long as the perpetrator is not satisfied with the 

location of the goods and causes the flow of their movement to continue relatively 

uninterrupted. An accused’s actions in joining an ongoing conspiracy to steal a 

duffel bag before two co-conspirators completed asportation of the property was 

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legally sufficient to sustain convictions of conspiracy to commit larceny and larceny. 

United States v. Whitten, 56 M.J. 234 (C.A.A.F. 2002). 

(b) Larceny continues as long as the asportation continues. United States v. Escobar, 

7 M.J. 197 (C.M.A. 1979) (considering duration of larceny/asportation in context of 

establishing court-martial jurisdiction; accused stole jacket off post and carried it 

onto post, thus providing court-martial jurisdiction over the offense); see also United 

States v. Henry, 18 M.J. 773 (N.M.C.M.R. 1984) (accused’s mistaken claim-of-right 

defense negated during asportation phase) aff’d in part, rev’d in part on multiplicity 

grounds, 21 M.J. 172 (C.M.A. 1985). 

(c) Because the crime of larceny continues through the asportation phase, anyone 

who knowingly assists in the actual movement of the stolen property is a principal in 

the larceny. No distinction is made whether the continuation of the asportation by 

one other than the actual taker was prearranged or the result of decisions made on the 

spur of the moment. United States v. Escobar, 7 M.J. 197 (C.M.A. 1979). 

(d) Person who participates in on-going larceny may simply be an accessory after the 

fact, not a principal, depending upon the purpose of his participation. If participant’s 

motive is to secure the fruits of the crime, the aider becomes a participant in the 

larceny and is chargeable with larceny; but if his motive is to assist the perpetrator to 

escape detection and punishment, he is properly charged as an accessory after the 

fact. United States v. Manuel, 8 M.J. 823 (A.F.C.M.R. 1979). 

(e) Larceny complete when soldier having custody over items moved them to 

another part of central issue facility with felonious intent. As such, when accused 

received the property it was already stolen and his actions did not make him a 

principal to larceny but rather only a receiver of stolen property under Article 134. 

United States v. Henderson, 9 M.J. 845 (A.C.M.R. 1980). 

(f) The assistance need not be prearranged. United States v. Cannon, 29 M.J. 549 

(A.C.M.R. 1989). See generally TJAGSA Practice Note, Larceny and Proving 

Asportation, Army Law., Feb. 1990, at 67 (discusses Cannon). 

(g) Asportation was ongoing when the accused helped the perpetrator of a larceny; 

therefore, the accused is guilty of larceny as an aider or abettor. United States v. 

Keen, 31 M.J. 1108 (N.M.C.M.R. 1989). See generally TJAGSA Practice Note, 

Aiding and Abetting Larceny, Army Law., Nov. 1990, at 40 (discussing Keen). 

(3) Lost property. Taking an unexpired credit card found on a public sidewalk was 

larceny of lost property by wrongful taking since the card contained a clue as to the 

identity of the owner. United States v. Wiederkehr, 33 M.J. 539 (A.F.C.M.R. 1991); but 

see United States v. Meeks, 32 M.J. 1033 (A.F.C.M.R. 1991) (keeping a t-shirt found 

mixed in with accused’s laundry where there was no clue as to the owner was not a 

larceny). 

(4) Electronic transfers as a “taking.” 

(a) United States v. Meng, 43 M.J. 801 (A.F. Ct. Crim. App. 1995), rev. denied, 44 

M.J. 47 (C.A.A.F. 1996) (data entries made by accused in his computerized finance 

records to pay himself more BAS than he was eligible for was larceny). 

(b) Where accused never took, obtained, withheld, or possessed the fees, guilty pleas 

to so much of larceny specifications as pertained to credit card and automatic teller 

machine (ATM) processing fees were legally improvident. United States v. Sanchez, 

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54 M.J. 874 (A. Ct. Crim. App. 2001) (court notes in dicta that the appellant would 

have been provident to obtaining services under false pretenses as to the bank 

processing fees). 

b) Obtaining by false pretenses. A false pretense is a false representation of past or existing 

fact, which may include a person’s power, authority or intention. Although the pretense need 

not be the sole cause inducing the owner to part with the property, it must be an effective and 

intentional cause of the obtaining. MCM, pt. IV, ¶ 46c(1)(e). 

(1) Debit Card and ATM Transactions. United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 

2010) (accused obtained access to account by false pretenses, representing that he would 

use the funds only for the purposes victim authorized; evidence was legally sufficient to 

support a larceny). 

(2) In loan application, false promises to repay may support larceny by false pretenses. 

United States v. Cummins, 26 C.M.R. 449 (C.M.A. 1958). 

(3) Knowledge of fraud not imputed between government agents. United States v. 

Williams, 3 M.J. 555 (A.C.M.R. 1977), rev’d on other grounds, 4 M.J. 336 (1978). 

(4) Insurance fraud larceny not complete until accused cashed settlement check. United 

States v. Seivers, 8 M.J. 63 (C.M.A. 1979), aff’d, 9 M.J. 397 (C.M.A. 1980). 

(5) Sham marriage to obtain monetary benefits may support larceny by false pretenses. 

United States v. Bolden, 28 M.J. 127 (C.M.A. 1989). 

(6) Obtaining services by false pretenses (long-distance telephone services) is charged 

under Article 134. United States v. Flowerday, 28 M.J. 705 (A.F.C.M.R. 1989); United 

States v. Perkins, 56 M.J. 825 (A. Ct. Crim. App. 2001). 

(7) False pretenses and unauthorized pay/allowances. 

(a) When Congress authorized basic allowance for housing for service members with 

“dependents,” it did not intend to include a person linked to a service member only 

by a sham marriage. A marriage, as intended by Congress, is an undertaking by two 

parties to establish a life together and assume certain duties and obligations. A 

marriage entered into solely for the purpose of obtaining government benefits is a 

sham marriage and not entitled to BAH. United States v. Phillips, 52 M.J. 268 

(C.A.A.F. 2000). 

(b) A false pretense may exist by one’s silence or by a failure to correct a known 

misrepresentation. The accused obtained use of government quarters at Fort Stewart, 

Georgia between 4 November 1994 and 14 January 1998 by misrepresenting that he 

was married, when in fact he was divorced. Even though he made no affirmative 

misrepresentation, his silence when his divorce became final and subsequent failure 

to correct a known misrepresentation constituted false representation sufficient to 

establish that he wrongfully obtained services under false pretenses, an Article 134 

offense. The court specifically analogized obtaining services by false pretenses 

(Article 134) with larceny by false pretenses (Article 121). United States v. Perkins, 

56 M.J. 825 (A. Ct. Crim. App. 2001) (ACCA formally adopted the position already 

taken by NMCCA and AFCCA). 

(c) Procuring casual pay by misrepresentation or failing to inquire into legitimacy of 

casual pay does not amount to larceny by false pretenses. United States v. Johnson, 

30 M.J. 930 (A.C.M.R. 1990). 

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(d) United States v. Johnson, 39 M.J. 707 (N.M.C.M.R. 1993), aff’d, 40 M.J. 318 

(C.M.A. 1993) (larceny of BAQ and VHA by false pretenses when accused divorced 

his wife, knew that he was under a duty to report his change in marital status, but 

remained silent and exploited government reliance on his previous statement of 

marital status in order to continue receiving pay). 

(e) United States v. Bulger, 41 M.J. 194 (C.M.A. 1994) (evidence that accused 

falsely declared his wife as a dependent and entered a false address for her in order to 

obtain increased BAQ and VHA allowances and had not paid support to her since 

their separation several years earlier, sufficiently established that accused 

misrepresented existing intention in applying for benefits to support larceny 

conviction of obtaining by false pretenses). 

(8) Defrauding insurance company by killing insured or intentionally destroying property 

in order to collect insurance proceeds is larceny by false pretenses. United States v. 

Garner, 43 M.J. 435 (C.A.A.F. 1996). 

(9) United States v. Fenner, 53 M.J. 666 (A.F. Ct. Crim. App. 2000) (sole lessee 

collected $225 from his 3 roommates for rent and utilities. After his roommates paid him 

one month, he told them that someone had stolen all the money, which was a lie. Each of 

the roommates agreed to pay an extra $75 per month for the next three months to replace 

the stolen money. The court affirmed the part of a specification that alleged larceny of 

$75 that one of the roommates paid the accused toward the supposedly stolen rent as the 

roommate paid the accused $75 under the false pretense that the money had been stolen). 

c) Withholding. A “withholding” may arise as a result of a failure to return, account for, or 

deliver property to its owner when a return, accounting, or delivery is due, even if the owner 

has made no demand for the property; or it may arise as a result of devoting property to a use 

not authorized by its owner. Generally this is so whether the person withholding the property 

acquired it lawfully or unlawfully. MCM, pt. IV, ¶ 46c(1)(b). This theory encompasses the 

common law offenses of embezzlement and conversion. 

(1) United States v. Moreno, 23 M.J. 622 (A.F.C.M.R.), pet. denied, 24 M.J. 348 

(C.M.A. 1986) (accused wrote checks against money erroneously deposited in his 

account; intent to steal (withholding) may be formed after the property is obtained). 

(2) Embezzlement requires a fiduciary relationship and a lawful holding. United States v. 

Castillo, 18 M.J. 590 (N.M.C.M.R. 1984); see also United States v. McFarland, 23 

C.M.R. 266 (C.M.A. 1957). 

(3) Intent to permanently deprive must be concurrent with the taking/withholding. United 

States v. Sicley, 20 C.M.R. 118 (C.M.A. 1955). 

(4) Wrongful conversion requires an accounting to the owner. United States v. Paulk, 32 

C.M.R. 456 (C.M.A. 1963). 

(5) United States v. Head, 6 M.J. 840 (N.C.M.R. 1979) (larceny by withholding when a 

victim mistook accused to be a robber and handed his wallet to the accused who, at that 

time, formed the intent and took money from the wallet. Though he abandoned the 

wallet, the accused was responsible for larceny of the sum he took). 

(6) Neither a receiver of stolen property nor an accessory after the fact can be convicted 

of larceny on the theory that, with knowledge of the identity of the owner, he withheld 

the stolen property from the owner. United States v. Sanderson, CM 438057 (A.C.M.R. 

29 Jun. 79) (unpub.); see also United States v. Jones, 33 C.M.R. 167 (C.M.A. 1963). 

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(7) United States v. Bilbo, 9 M.J. 800 (N.C.M.R. 1980). Accused who lawfully obtained 

loans from fellow Marines but then failed to repay those loans was found guilty of 

wrongful appropriation, not larceny. N.C.M.R. further held that the Article 134 offense 

of dishonorable failure to pay just debts was supported by the evidence. 

(8) United States v. Hale, 28 M.J. 310 (C.M.A. 1989). Retention of rental car beyond 

period contemplated by rental contract constitutes wrongful appropriation (unless intent 

to permanently deprive the owner of the property can be proven). 

(9) Withholding of unauthorized pay or allowances. These cases differ from the cases 

annotated above in which unauthorized pay and allowances are obtained by false 

pretenses. The withholding cases discussed here involve either government error or a 

change in the serviceman’s status, which effects his continued entitlement to the pay or 

allowance. The property is obtained lawfully. 

(a) In the absence of a fiduciary duty to account, a withholding of funds otherwise 

lawfully obtained is not larcenous. United States v. Watkins, 32 M.J. 327 (A.C.M.R. 

1990); United States v. Johnson, 39 M.J. 707 (N.M.C.M.R. 1993); but see United 

States v. Thomas, 36 M.J. 617 (A.C.M.R. 1992)(accused had a duty to inform 

government of change in circumstances, failing to do so he is guilty of larceny of 

funds); cf. United States v. Markley, 40 M.J. 581 (A.F.C.M.R. 1994) (failure of duty 

to report change in marital status effecting entitlement to allowances may support 

conviction for dereliction of duty); United States v. Antonelli, 43 M.J. 183 (C.A.A.F. 

1995) (allowances, including BAQ and VHA, remain the property of the United 

States unless they are used for their statutory or regulatory purposes), aff’d, 45 M.J. 

12 (C.A.A.F. 1996). 

(b) Once service member realizes that he or she is erroneously receiving pay or 

allowances and forms the intent to steal that property, the service member has 

committed larceny even without an affirmative act of deception or a duty to account 

for the funds. United States v. Helms, 47 M.J. 1 (C.A.A.F. 1997) (unanimously 

resolving issue left open in United States v. Antonelli, 43 M.J. 183 (C.A.A.F. 1995), 

aff’d, 45 M.J. 12 (C.A.A.F. 1996)); United States v. Perkins, 56 M.J. 825 (Army Ct. 

Crim. App. 2001). 

(c) United States v. Gray, 44 M.J. 585 (N-M. Ct. Crim. App. 1996) (accused’s 

silence after he discovered error of housing office and finance to continue his BAQ 

and VHA payments after government quarters were assigned was insufficient to 

support conviction for larceny by wrongful withholding absent any affirmative steps 

by accused to ensure that he would continue to be overpaid. Further, the accused 

fully expected the Navy to recoup overpayments eventually, without disciplinary 

action, as it had done in the past). 

(d) United States v. Stadler, 44 M.J. 566 (A.F. Ct. Crim. App. 1996) (larceny of 

OHA and COLA allowances where accused continued to collect these allowances 

after his family returned to CONUS and he moved into government quarters), aff’d, 

47 M.J. 206 (C.A.A.F. 1997). 

(e) Evidence insufficient to establish that accused’s spouse had possessory or 

ownership rights to BAQ at w/dep rate and thus failed to establish that accused had 

stolen BAQ from his wife. United States v. Evans, 37 M.J. 468 (C.M.A. 1993). 

(f) Excess BAQ was “military property of the United States.” United States v. 

Dailey, 37 M.J. 463 (C.M.A. 1993). 

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(10) Conversion. An unauthorized assumption and exercise of the right of ownership 

over goods or personal chattels belonging to another, to the alteration of their condition 

or the exclusion of the owner’s rights. Black’s Law Dictionary (5th Ed. 1979). 

(a) United States v. Cahn, 31 M.J. 729 (A.F.C.M.R. 1990). Accused was guilty of 

larceny by conversion when he retained an ATM card lended to him for withdrawing 

$20 as a loan, used the card to withdraw $500, and then destroyed it. 

(b) United States v. Antonelli, 35 M.J. 122 (C.M.A. 1992). Conversion theory of 

larceny may apply to accused who receives BAQ and VHA allowances to support his 

dependents, but who does not actually provide support. 

4. Element 2: That the property described belonged to a person other than the accused. 

a) The “owner” is the person or entity with the superior right to possession. MCM, pt. IV, ¶ 

46c. See United States v. Evans, 37 M.J. 468 (C.M.A. 1993) (evidence insufficient to 

establish that accused’s spouse had possessory or other ownership right to BAQ and, thus, 

failed to establish that accused stole BAQ from his spouse); United States v. Cohen, 12 M.J. 

573 (A.F.C.M.R. 1981) (even though the checks were intended for various banks and credit 

unions, the United States had possession of the checks while they were in the mail; thus the 

charge of larceny from the United States was proper); United States v. Jett, 14 M.J. 941 

(A.C.M.R. 1982) (victim is anyone with a superior right of possession to the accused, 

regardless of who has title); United States v. Meadows, 14 M.J. 1002 (A.C.M.R. 1982) (can 

commit larceny or wrongful appropriation by taking military equipment from one unit to 

another); United States v. Leslie, 13 M.J. 170 (C.M.A. 1982) (United States had a possessory 

interest in C.O.D. funds that postal clerk stole instead of forwarding to senders of C.O.D. 

parcels; therefore, charge of larceny from the United States was proper); United States v. 

Lewis, 19 M.J. 623 (A.C.M.R. 1984) (government retains ownership in TDY advance). 

b) Debts or the administrative costs associated with a larceny are not the proper subjects of a 

larceny. United States v. Mervine, 26 M.J. 482 (C.M.A. 1988); United States v. Dunn, 27 

M.J. 624 (A.F.C.M.R. 1988); TJAGSA Practice Note, Larceny of a Debt: United States v. 

Mervine Revisited, Army Law., Dec. 1988, at 29; TJAGSA Practice Note, Larceny of 

Administrative Costs: United States v. Dunn, Army Law., Mar. 1989, at 32. 

c) Erroneous allegation of ownership not a fatal defect. United States v. Craig, 24 C.M.R. 

28 (C.M.A. 1957). 

d) To be guilty of larceny, accused must take property from one having a superior 

possessory interest. United States v. Faircloth, 45 M.J.172 (C.A.A.F. 1996) (accused forged 

endorsement in financing company’s behalf on insurance check issued to accused and 

financing company as co payees to auto damage; during providency, accused admitted 

financing company had superior possessory interest). 

5. Element 3: That the property in question was of a value alleged, or of some value. 

a) Legitimate (retail) market value at time and place of theft must be established. United 

States v. Lewis, 13 M.J. 561 (A.F.C.M.R. 1982) (accused properly convicted of full value of 

item where he switched price tags and paid the lower price). 

b) Government item. Government price lists can be used to establish value. See M.R.E 

803(17). 

c) Non-government item. Average retail selling price established by recent purchase price 

of like item, testimony of market expert, testimony of owner’s opinion as to value, etc. 

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d) Value tokens. Writings representing value may be considered to have the value which 

they represent, even though contingently, at the time of the theft. MCM, pt. IV, ¶ 

46c(1)(g)(iii). See United States v. Windham, 36 C.M.R. 21 (C.M.A. 1965); United States v. 

Riverasoto, 29 M.J. 594 (A.C.M.R. 1989) (drafted check—face value);United States v. Cook, 

15 C.M.R. 622 (A.F.B.R. 1954) (gasoline coupons—face value); United States v. Frost, 46 

C.M.R. 233 (C.M.A. 1973) (blank check—nominal value); see also United States v. Falcon, 

16 M.J. 528 (A.C.M.R. 1983); United States v. Stewart, 1 M.J. 750 (A.C.M.R. 1973) (airline 

ticket—face value); United States v. Tucker, 29 C.M.R. 790 (A.B.R. 1960) (credit card— 

nominal value); United States v. Payne, 9 M.J. 681 (A.F.C.M.R. 1980) (accounts 

receivable—nominal value); United States v. Sowards, 5 M.J. 864 (A.F.C.M.R. 1978) 

(money orders—face value); but see United States v. McCollum, 13 M.J. 127 (C.M.A. 1982) 

(value can include what items might bring in illegal channels—“thieves value”). 

e) Value of property must reasonably approximate the loss. United States v. Eggleton, 47 

C.M.R. 920 (C.M.A. 1973). 

f) Operating a scheme that results in the taking or diversion of money on a recurring basis 

(i.e. housing allowance fraud) results in one crime and the value of the taken money can be 

aggregated. United States v. Hines, 73 M.J. 119 (C.A.A.F. 2014). 

g) For larceny and sale of military property under Article 108, the same aggregation 

principles apply as for standard larceny: values can be aggregated for items stolen or sold at 

the same time and place. United States v. Fiame, 74 M.J. 585 (A. Ct. Crim. App. 2015). 

h) In United States v. Batiste, 11 M.J. 791 (A.F.C.M.R. 981), the court held that urine, 

which was to be sent to the laboratory for testing, was an article of value for purposes of 

larceny prosecution and the immediate substitution by accused of a like quantity of urine did 

not diminish the offense of wrongful appropriation. 

6. Element 4: That the taking, obtaining, or withholding by the accused was with the intent 

[permanently/temporarily] to deprive or defraud another person of the use and benefit of the 

property or [permanently/temporarily] to appropriate the property for the use of the accused or for 

any other person other than the owner. 

a) Concurrence of intent and wrongful act. The wrongful taking, obtaining or withholding 

must be accompanied by the intent to steal or wrongfully appropriate the property. Although 

a person gets property by a taking or obtaining which was not wrongful or which was without 

a concurrent intent to steal, a larceny is nevertheless committed if an intent to steal is formed 

after the taking or obtaining and the property is wrongfully withheld with that intent. MCM, 

pt. IV, ¶ 46c(1)(f)(i). 

b) Intent may be proved by circumstantial evidence. United States v. Zaiss, 42 M.J. 586 

(Army Ct. Crim. App. 1995) (intent to steal may be inferred when accused secretly takes 

property, hides it, and denies knowing anything about it). 

c) Wrongful appropriation of government property requires a specific intent to deprive the 

government or a unit thereof of more than mere possession of its property. United States v. 

McGowan, 41 M.J. 406 (C.A.A.F. 1995). Taking military equipment for maintenance does 

not constitute wrongful appropriation. United States v. Taylor, 44 C.M.R. 274 (C.M.A. 

1972). Similarly, the incidental use of a government vehicle for private purposes does not 

constitute misappropriation, provided the vehicle is also used for authorized purposes without 

diversion or deviation. United States v. Lutgert, 40 C.M.R. 94 (C.M.A. 1969). 

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d) Mere borrowing without consent is not always an offense. United States v. Harville, 14 

M.J. 270 (C.M.A. 1982); United States v. Thomas, 34 C.M.R. 3 (C.M.A. 1963) (borrowing 

clothes from barracks occupant can be defense to wrongful appropriation). 

e) There may be a limited right of self-help to seize another’s property in order to satisfy a 

debt or acquire security for it, if there is a prior agreement between the parties providing for 

such recourse, or if the soldier takes property honestly believing he has a superior claim of 

right to that specific property. United States v. Jackson, 50 M.J. 868 (Army Ct. Crim. App. 

1999), aff’d, 53 M.J. 220 (C.A.A.F. 2000); United States v. Gunter, 42 M.J. 292 (C.A.A.F. 

1995); United States v. Smith, 14 M.J. 68 (C.M.A. 1982). 

(1) Self-help is not justified where the debt is uncertain; and the value of the property 

taken must reasonably approximate the loss. United States v. Cunningham, 14 M.J. 539 

(A.C.M.R. 1982), rev’d and remanded on other grounds, 15 M.J. 282 (C.M.A. 1983); 

United States v. Kelley, 39 M.J. 1011 (A.C.M.R. 1994); see also United States v. 

Eggleton, 47 C.M.R. 920 (C.M.A. 1973). 

(2) Honest mistake of fact by accused that he was entitled to receive property may be a 

defense to larceny. United States v. Turner, 27 M.J. 217 (C.M.A. 1988). 

(3) “Claim of Right.” A defense exists for a soldier who takes property from another 

honestly believing that he has a superior claim of right to that specific property. United 

States v. Gunter, 42 M.J. 292 (1995); United States v. Jackson, 50 M.J. 868 (Army Ct. 

Crim. App. 1999) (engagement ring and exercise bike given to fiancé). 

(4) No right of retrieval is recognized for contraband. United States v. Petrie, 1 M.J. 333 

(C.M.A. 1976). 

(5) No right of accused to unilaterally elevate himself to position of secured creditor by 

grabbing at will chattels belonging to service member. United States v. Martin, 37 M.J. 

546 (N.M.C.M.R. 1993)(taking of ring from service member who owed money as 

security for debt was wrongful taking). 

f) Motive does not negate intent. For example, if the accused took an item as a joke or to 

teach the owner a lesson about security, the taking is nonetheless wrongful if, viewed 

objectively, harm was caused (i.e., the owner is permanently or temporarily deprived of the 

use or benefit of the property). MCM, pt. IV, ¶ 46c(1)(f)(iii); United States v. Kastner, 17 

M.J. 11 (C.M.A. 1983); United States v. Johnson, 17 M.J. 140 (C.M.A. 1984). 

g) An accused that believes property to be abandoned lacks the mens rea required for 

larceny. United States v. Malone, 14 M.J. 563 (N.M.C.M.R. 1982); see also MCM, pt. IV, ¶ 

46c(1)(h)(i); see also United States v. Turner, 27 M.J. 217 (C.M.A. 1988); United States v. 

Jones, 26 M.J. 1009 (A.C.M.R. 1988). 

h) Intent to pay for, replace, or return property is not a defense. MCM, pt. IV, ¶ 

46c(1)(f)(iii)A)(B); see United States v. Brown, 30 M.J. 693 (A.C.M.R. 1990); United States 

v. Woodson, 52 M.J. 688 (C.G. Ct. Crim. App. 2000). But see United States v. Boddie, 49 

M.J. 310 (C.A.A.F. 1998) (in dicta, the CAAF states that an intent to pay for property may be 

a defense if there is “a substantial ability to do so”). 

i) Intent to pay for, replace, or return money or a negotiable instrument having no special 

value above its face value, with the intent to return an equivalent amount, is a defense to 

larceny. United States v. Hegel, 52 M.J. 778 (C.G. Ct. Crim. App. 2000) (accused stole 

CityBank Visa card and used it, but because the accused claimed he intended to pay the bill 

in full when due, the plea of guilty to larceny of funds from CityBank was improvident). 

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j) Overdraft protection may negate intent to steal in cases of larceny by false pretenses 

involving bad checks. United States v. McCanless, 29 M.J. 985 (A.F.C.M.R. 1990); see 

United States v. McNeil, 30 M.J. 648 (N.M.C.M.R. 1990); see generally TJAGSA Practice 

Note, Overdraft Protection and Economic Crimes, Army Law., Jul. 1990, at 45. 

k) Where transfer of possession occurred prior to act of accused, no wrongful taking or 

withholding has occurred. United States v. Hughes, 45 M.J. 137 (C.A.A.F. 1996)(accused 

merely placed lock on his assigned wall locker which contained property belonging to 

another soldier that was stored there without the permission of the accused). 

7. Multiplicity. 

a) When a larceny of several articles is committed at substantially the same time and place, 

it is a single larceny, even though the articles belong to different persons. MCM, pt. IV, ¶ 

46c(1)(h)(ii); United States v. Warner, 33 M.J. 522 (A.F.C.M.R. 1991); United States v. Ruiz, 

30 M.J. 867 (N.M.C.M.R. 1990); United States v. Huggins, 12 M.J. 657 (A.C.M.R. 1981), 

aff’d in part, rev’d in part on multiplicity grounds, 17 M.J. 345 (C.M.A. 1984); United States 

v. Gutierrez, 42 C.M.R. 521 (A.C.M.R. 1970); United States v. Miller, 2000 C.A.A.F. LEXIS 

207 (Feb. 24, 2000) (contemporaneous theft of two different victims’ checks, which the 

accused found in one victim’s drawer, constituted a single larceny); United States v. LePresti, 

52 M.J. 644 (N-M. Ct. Crim. App. 1999). 

b) United States v. Florence, 5 C.M.R. 48 (C.M.A. 1952). Without evidence to justify 

joining larcenies into one specification and thereby increasing the penalty, the Government 

should have charged separately. 

c) United States v. Gillingham, 1 M.J. 1193 (N.C.M.R. 1976). Theft of calculator from one 

office was not multiplicious with theft of second calculator, moments later, from adjoining 

office. 

d) United States v. Alvarez, 5 M.J. 762 (A.C.M.R. 1978). Housebreaking and larceny in the 

same transaction were not multiplicious. 

e) United States v. Burney, 44 C.M.R. 125 (C.M.A. 1971). Larceny and wrongful
 

appropriation of a truck to transport stolen goods were not multiplicious.
 

f) United States v. Harrison, 4 M.J. 332 (C.M.A. 1978). Six larcenies and six facilitating 

false official statements were not multiplicious for sentencing purposes. 

8. Divisible Property. United States v. Pardue, 35 C.M.R. 455 (C.M.A. 1965). Where the 

accused is charged only with larceny of an automobile, he may not be found not guilty of 

wrongful appropriation of the automobile but guilty of larceny of an essential part (i.e., the tires). 

See also United States v. Jones, 13 M.J. 761 (A.F.C.M.R. 1982). 

9. Permissive Inferences. 

a) Inference of wrongfulness arising out of possession of recently stolen property. If the 

facts establish that property was wrongfully taken from the possession of the owner and that 

shortly thereafter the property was discovered in the knowing, conscious, exclusive, and 

unexplained possession of the accused, the fact-finder at trial may infer that the accused took 

the property. United States v. Pasha, 24 M.J. 87 (C.M.A. 1987); United States v. Hairston, 

26 C.M.R. 334 (C.M.A. 1958); United States v. Morton, 15 M.J. 850 (A.F.C.M.R. 1983). 

b) Passing cash register without offering to pay for an item concealed in the accused’s 

pocket creates a permissive inference of intent to steal. United States v. Wynn, 23 M.J. 726 

(A.F.C.M.R. 1986), sentence vacated and remanded by, 26 M.J. 232 (C.M.A. 1988). 

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c) A power of attorney is not a license to embezzle. United States v. Willard, 48 M.J. 147 

(1998). 

10. Variance. 

a) Because the identity of the victim is not an essential element of either larceny or 

wrongful appropriation, a variance in establishing ownership of the item taken will not 

always be fatal to the government’s case. United States v. Craig, 24 C.M.R. 28 (C.M.A. 

1957) (variance regarding victim in larceny case not prejudicial error); United States v. Davis, 

31 C.M.R. 486 (C.G.B.R. 1962) (identity of victim of wrongful appropriation not an essential 

element); United States v. Roberto, 31 C.M.R. 349 (A.B.R. 1961) (variance as to ownership 

of funds in larceny case not fatal). 

b) Variance in the date of the larceny may be fatal when the theory of larceny also changes. 

United States v. Wray, 17 M.J. 735 (C.M.A. 1984) (change of dates and theory from taking to 

taking and withholding was fatal variance). 

11. Larceny of Mail Matter. Theft of misaddressed mail is included within the offenses of 

stealing mail under Article 134. MCM, pt. IV, ¶ 93; UCMJ art. 134; United States v. Fox, 50 

M.J. 444 (C.A.A.F. 1999). 

12. Credit Card/Automatic Teller Machine Offenses. 

a) “Wrongfully engaging in a credit, debit, or electronic transaction to obtain goods or 

money is an obtaining-type larceny by false pretense. Such use to obtain goods is usually a 

larceny of those goods from the merchant offering them.” See 2008 MCM, pt. IV, ¶ 

46.c(1)(h)(vi). 

b) United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010). The accused, under the guise of 

assisting the elderly victim with her finances, used her credit cards, ATM cards, and debit 

cards, for his own benefit. 

(1) Credit card transactions. Under the facts of the case, the unauthorized use of credit 

cards to obtain cash advances and unspecified goods of a certain value, was not a larceny 

from the cardholder herself. In using the credit cards in this case, the accused did not 

obtain anything from the cardholder, but instead obtained items of value from other 

entities. As such, the court concluded that the proper subject of the credit-cardtransaction larcenies in this case was not the cardholder. 

(2) Debit/ATM Transactions. The accused obtained access to the victim’s account by 

false pretenses, representing that he would use the funds only for the purposes she 

authorized. Any authority he had to access the victim’s funds was limited by his 

“beneficiary status and [the accused’s] fiduciary role.” Although he had access to the 

account, his authority to use funds from the account was limited to purchasing items for 

the cardholder’s benefit. Therefore, the evidence was legally sufficient to show that the 

accused wrongfully obtained money from her with the intent to permanently deprive her 

of it. 

c) Any theory under Article 134 or Article 121 can support a conviction for credit card 

offenses. United States v. Christy, 18 M.J. 688 (N.M.C.M.R. 1984). 

d) Larceny of another soldier’s ATM card and the use of the card to make withdrawals are 

separate crimes and are separately punishable. United States v. Garner, 28 M.J. 634 

(A.F.C.M.R. 1989); United States v. Abendschein, 19 M.J. 619 (A.C.M.R. 1984); United 

States v. Jobes, 20 M.J. 506 (A.F.C.M.R. 1985). 

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e) Withdrawals from several different accounts using one banking machine are separate 

crimes. United States v. Aquino, 20 M.J. 712 (A.C.M.R. 1985). 

f) Defense contention that bank consented to withdrawals by not programming ATM to 

prevent withdrawals from accounts having insufficient funds was rejected. United States v. 

Buswell, 22 M.J. 617 (A.C.M.R. 1986). 

g) Misuse of Gov’t travel card. 

(1) Dereliction of duty. Article 92(3). United States v. Long, 46 M.J. 783 (Army Ct. 

Crim. App. 1997). 

(2) Violation of general regulation. Article 92(1). United States v. Hughey, 46 M.J. 152 

(1997) (Air Force base regulation restricting use of government charge cards and 

establishing payment requirements was lawful general regulation). 

13. Military Property As An Aggravating Factor For Larceny. See supra ¶ XXVI for a 

discussion of military property under Article 108. 

14. See Captain David O. Anglin, Service Discrediting: Misuse, Abuse, and Fraud in the 

Government Purchase Card Program, Army Law., August 2004, at 1. 

B. Receiving Stolen Property. MCM, pt. IV, ¶ 106; UCMJ art. 134. 

1. Charged as a violation of Article 134. United States v. Wolfe, 19 M.J. 174 (C.M.A. 1985). 

2. The actual thief cannot be a receiver of the goods he has stolen. MCM, pt. IV, ¶ 106(c)(1); 

United States v. Ford, 30 C.M.R. 3 (C.M.A. 1960); United States v. Henderson, 9 M.J. 845 

(A.C.M.R. 1980). Thus, the original asportation (carrying away) of the property must be 

completed by the thief before another can be found guilty of receiving stolen property. United 

States v. Graves, 20 M.J. 344 (C.M.A. 1985). 

3. The soldier who receives stolen property innocently and later discovers that it is stolen cannot 

be guilty of receiving stolen property. United States v. Rokoski, 30 C.M.R. 433 (A.B.R. 1960). 

“Receive” means to accept custody of; one cannot “receive” that which is already in his 

possession. United States v. Lowery, 19 M.J. 754 (A.C.M.R. 1984). 

4. Although a principal who is not the actual thief may be liable as a principal or receiver of 

stolen property, he may not be found guilty of both. United States v. Cartwright, 13 M.J. 174 

(C.M.A. 1982); MCM, pt. IV, ¶ 106(c)(1). 

5. A conspirator to the larceny may not be found guilty of being an accessory after the fact or a 

receiver of the stolen property. United States v. Lampani, 14 M.J. 22 (C.M.A. 1982). 

C. Robbery. MCM, pt. IV, ¶ 47; UCMJ art. 122. 

1. Elements. 

a) That the accused wrongfully took certain property from the person or from the possession 

and in the presence of a person named or described; 

b) That the taking was against the will of that person; 

c) That the taking was by means of force, violence, or force and violence, or putting the 

person in fear of immediate or future injury to that person, a relative, a member of the 

person’s family, anyone accompanying the person at the time of the robbery, the person’s 

property, or the property of a relative, family member, or anyone accompanying the person at 

the time of the robbery. 

d) That the property belonged to a person named or described; 

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e) That the property was of a certain or of some value; and 

f) That the taking of the property by the accused was with the intent permanently to deprive 

the person robbed of the use and benefit of the property; 

g) [If the robbery was committed with a firearm, add the following element:] That the 

means of force or violence or of putting the person in fear was a firearm. 

2. Pleading. 

a) Failure to allege ownership of the property. United States v. Smith, 40 C.M.R. 432 

(A.B.R. 1968) (no error); United States v. Goudeau, 44 C.M.R. 438 (A.C.M.R. 1971) 

(implied from allegation that item was taken from the purse of a named victim). 

b) Failure to allege a taking from the person or in the presence of the victim is fatal, but the 

specification may be sufficient to allege larceny. United States v. Rios, 15 C.M.R. 203 

(C.M.A. 954); United States v. Dozier, 38 C.M.R. 507 (A.B.R. 1967). 

c) Failure to allege a taking “against his or her will.” United States v. Smith, 40 C.M.R. 432 

(A.B.R. 1968) (no defect; implied from allegation that taking was by means of force and 

violence). 

3. Robbery has two theories: taking by force and/or violence, or taking by putting in fear. The 

alleged theory must be proved; evidence of the non-alleged theory will not suffice. See United 

States v. Hamlin, 33 C.M.R. 707 (A.F.B.R. 1963). Consequently, most prosecutors allege both 

theories. 

a) Theory 1: Taking by force and/or violence. 

(1) Victim’s fear unnecessary. 

(2) Amount of force required: 

(a) Overcomes actual resistance, or 

(b) Puts victim in a position not to resist, or 

(c) Overcomes the restraint of a fastening (e.g., in snatching purse the thief breaks 

strap of purse). 

(3) The sequence and relationship of application of force and the intent to steal. Force 

and intent must be contemporaneous, but need not be simultaneous. If the accused’s 

force and violence place the victim in vulnerable circumstances, this is sufficient for 

robbery if thereafter, while the victim is still vulnerable, the accused formulates the intent 

and takes the property. United States v. Chambers, 12 M.J. 443 (C.M.A. 1982); United 

States v. Washington, 12 M.J. 1036 (A.C.M.R. 1982). 

(4) Picking a victim’s pocket by stealth is not sufficient force for robbery; however, 

jostling a victim in conjunction with picking his pocket is sufficient force for robbery. 

United States v. Reynolds, 20 M.J. 118 (C.M.A. 1985). 

b) Theory 2: Taking by putting in fear. 

(1) Demonstration of force or menaces. 

(2) Victim placed in fear of death or bodily injury in the present or future to himself, 

relative, or anyone in his company at the time. 

(a) Reasonable fear. The test for its existence is objective. United States v. Bates, 

24 C.M.R. 738 (A.F.B.R. 1957). 

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(b) Sufficient to warrant giving up property. 

(c) Sufficient to warrant making no resistance. 

(3) Taking while fear exists. 

4. Wrongful taking must be from the person or in the presence of the victim. 

a) “Presence” for purposes of robbery means that possession or control is so imminent that 

force or intimidation is required to remove the property. United States v. Cagle, 12 M.J. 736 

(A.F.C.M.R. 1982). 

b) “In the presence” is satisfied where victim held by force while his property is secured 

from another building and destroyed before him. United States v. Maldonado, 34 C.M.R. 952 

(A.B.R.), rev’d on other grounds, 35 C.M.R. 257 (C.M.A. 1964). 

c) Property taken need not be from person of victim, but may be from victim’s immediate 

control. United States v. Hamlin, 33 C.M.R. 707 (A.F.B.R. 1963). 

d) No fatal variance exists between specification and proof where the former alleges “from 

the person” but evidence shows “in the presence.” United States v. McCray, 5 M.J. 820 

(A.C.M.R. 1978). 

5. Robbery is a composite offense combining larceny with assault. United States v. Chambers, 

12 M.J. 443 (C.M.A. 1982) (force applied after taking effected sufficient for robbery); United 

States v. Brown, 33 C.M.R. 17 (C.M.A. 1963). 

6. Robbery requires a larceny by wrongful taking. The other theories of larceny, wrongful 

withholding or obtaining, will not suffice. United States v. Brazil, 5 M.J. 509 (A.C.M.R. 1978). 

7. The intent to rob need not be focused upon specific property. An intent to deprive the victim 

of whatever is in a pocket or purse is sufficient. United States v. Davis, 6 M.J. 669 (A.C.M.R. 

1978). 

8. The intent to rob need not precede or be simultaneous with the taking of the property. It must 

only be contemporaneous with such taking. United States v. Fell, 33 M.J. 628 (A.C.M.R. 1991); 

see also United States v. Washington, 12 M.J. 1036 (A.C.M.R. 1982); United States v. Henry, 18 

M.J. 773 (N.M.C.M.R. 1984) (intent to steal formulated during asportation phase) aff’d in part, 

rev’d in part on multiplicity grounds, 21 M.J. 172 (C.M.A. 1985). 

9. Forcible taking of property belonging to one entity from multiple persons constitutes one 

robbery. United States v. Szentmiklosi, 55 M.J. 487 (2001), aff’d, 57 M.J. 103 (C.A.A.F. 2002). 

10. Lesser included Offenses. Under the “elements test,” the federal offense of bank larceny was 

not a lesser included offense of the federal offense of bank robbery, so the defendant was not 

entitled to a jury instruction on it. A textual comparison of the elements of the two offenses in 18 

U.S.C. § 2113 demonstrates that bank larceny requires three elements not required for bank 

robbery: (1) intent to steal; (2) asportation; and (3) value exceeding $1,000. Carter v. United 

States, 120 S.Ct. 2159 (2000) (although larceny is a lesser included offense of robbery under the 

UCMJ, the significance of this 5-4 decision is how a majority of the Court mechanically applied 

the “elements test” by comparing the statutory text). 

D. Waste, Spoil, or Destruction of Non-Military Property. MCM, pt. IV, ¶ 33; UCMJ art. 109. 

1. Elements. 

a) Wasting or spoiling of non-military property. 

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(1) That the accused willfully or recklessly wasted or spoiled certain real property in a 

certain manner; 

(2) That the property was that of another person; 

(3) That the property was of a certain value. 

b) Destroying or damaging non-military property. 

(1) That the accused willfully and wrongfully destroyed or damaged certain personal 

property in a certain manner; 

(2) That the property was that of another person; 

(3) That the property was of a certain value or the damage was of a certain amount. 

2. Scope of UCMJ art. 109. All property, both real and personal, which is not military property 

of the United States. 

a) Avis rental car, two passenger cars, a fence owned by a German corporation, and a 

German road marker. United States v. Valadez, 10 M.J. 529 (A.C.M.R. 1980). 

b) Privately owned passenger car. United States v. Bernacki, 33 C.M.R. 175 (C.M.A. 

1963). 

c) Privately owned boat. United States v. Priest, 7 M.J. 791 (N.C.M.R. 1979). 

d) Real and personal property belonging to officers’ club. United States v. Geisler, 37 

C.M.R. 530 (A.C.M.R. 1965). 

e) Real and personal property belonging to post exchange. United States v. Underwood, 41 

C.M.R. 410 (A.C.M.R. 1969); United States v. Schelin, 12 M.J. 575 (A.C.M.R. 1981), aff’d, 

15 M.J. 210 (C.M.A. 1983); contra United States v. Mullins, 34 C.M.R. 694 (N.C.M.R. 1964) 

and United States v. Harvey, 6 M.J. 545 (N.C.M.R. 1978). 

3. Real Property. This portion of Article 109 proscribes the willful or reckless waste or 

spoliation of the real property of another. 

a) Real property is defined as land, and generally whatever is erected on or growing on or 

affixed to land. Black’s Law Dictionary 1096 (5th ed. 1979). 

b) The term “wastes” and “spoils”, as used in this article, refers to such wrongful acts of 

voluntary destruction of or permanent damage to real property as burning down buildings, 

burning piers, tearing down fences, or cutting down trees. MCM, pt. IV, ¶ 33c(1). 

c) To be punishable the destruction must be done either willfully, that is intentionally, or 

recklessly, that is through the culpable disregard of the foreseeable consequences of some 

voluntary act. For examples of both willful and reckless conduct see previous discussion of 

UCMJ art. 108. 

4. Personal Property. This portion of Article 109 proscribes the willful and wrongful injury to 

non-military personal property. 

a) Violation of this punitive article exists when personal, non-military property is either 

destroyed or damaged. To be destroyed, the property need not be completely demolished or 

annihilated, but need only be sufficiently injured to be useless for the purpose for which it 

was intended. Damage consists of any physical injury to the property. MCM, pt. IV, ¶ 

33c(2). 

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b) Mere negligent or reckless conduct does not satisfy the specific intent necessary to 

constitute this offense. 

(1) Offense of willful and wrongful damage to private property requires proof of an 

actual intent to damage, as distinguished from a reckless disregard of property. United 

States v. Bernacki, 33 C.M.R. 175 (C.M.A. 1963); see also United States v. Valadez, 10 

M.J. 529 (A.C.M.R. 1980). Regardless of the intentional nature of the cause precipitating 

damage to personal, non-military property, in the absence of evidence that the destruction 

or damage was the intended result of the accused, a conviction under this portion of 

Article 109 is not supported. United States v. Jones, 50 C.M.R. 724 (A.C.M.R. 1975). 

(2) United States v. Priest, 7 M.J. 791 (N.C.M.R. 1979)(accused’s admission that he 

acted in grossly negligent or reckless manner in operating a privately owned boat in 

shallow water was an insufficient basis for conviction of willfully damaging private 

personal property of another, in that such an offense must be committed “willfully”). 

(3) United States v. Youkum, 8 M.J. 763 (A.C.M.R. 1980) (evidence that accused got 

into his vehicle in a highly angered, vengeful state of mind, revved engine causing wheels 

to spin, reached high rate of speed in a short distance, aimed vehicle unerringly at victim 

as well as at parked vehicle from which victim had dismounted, and made no effort to 

stop until after he had damaged all three was sufficient circumstantial evidence to sustain 

conviction of willfully and wrongfully damaging vehicles). 

(4) United States v. Garcia, 29 M.J. 721 (C.G.C.M.R. 1989). The accused must intend 

to cause the destruction or damage. Unintentionally breaking a jewelry case to take the 

contents is insufficient for guilt. See TJAGSA Practice Note, Damaging Property and 

Mens Rea, Army Law., Feb. 1990, at 66 (discusses Garcia). 

(5) United States v. White, 61 M.J. 521 (N-M. Ct. Crim. App. 2005) (insufficient proof 

of mens rea in a willful damage to nonmilitary property case where accused threw 

himself in front of a vehicle driven by a Japanese national; he denied any intention of 

damaging the property, but rather claimed his purpose in jumping in front of the vehicle 

was to injure himself). 

5. Pleading the offense. When charged with damage or destruction of non-military personal 

property, the government should allege that the accused acted in a “willful” manner. But see 

United States v. Valadez, 10 M.J. 529 (A.C.M.R. 1980) (inartfully drawn specification alleging 

the willful and wrongful damage of a private automobile by operating it in a reckless manner was 

not fatal). 

6. Value. In the case of destruction, the value of the property destroyed controls the limit of 

punishment that may be adjudged, but in the case of damage, the amount thereof instead of the 

value of the property damaged is controlling. As a general rule, the amount of damage is the 

estimated or actual cost of repair by artisans employed in this work who are available to the 

community wherein the owner resides, or the replacement cost, whichever is less. See also the 

discussion of value pertaining to Article 108, UCMJ. 

E. Crimes Violating Protected Places: Burglary, Housebreaking, and Unlawful Entry. 

1. Elements. 

a) Burglary. MCM, pt. IV, ¶ 55; UCMJ art. 129. 

(1) That the accused unlawfully broke and entered the dwelling house of another; 

(2) That both the breaking and entering were done in the nighttime; and 

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(3) That the breaking and entering were done with the intent to commit an offense 

punishable under Article 118 through Article 128, except Article 123a. 

b) Housebreaking. MCM, pt. IV, ¶ 56; UCMJ art. 130. 

(1) That the accused unlawfully entered a certain building or structure of a certain other 

person; and 

(2) That the unlawful entry was made with the intent to commit a criminal offense 

therein. 

c) Unlawful entry. MCM, pt. IV, ¶ 111; UCMJ art. 134. 

(1) That the accused entered the real property of another or certain personal property of 

another which amounts to a structure usually used for habitation or storage; 

(2) That such entry was unlawful; and 

(3) That, under the circumstances, the conduct of the accused was to the prejudice of 

good order and discipline in the armed forces or was of a nature to bring discredit upon 

the armed forces. 

2. Protected Places. 

a) Burglary. 

(1) “Occupied” dwelling includes houses, apartments, hotel rooms, barracks rooms, but 

not tents. MCM, pt. IV, ¶ 55c(5). 

(2) United States v. Bailey, 23 C.M.R. 862 (A.F.B.R. 1957) (affirming burglary 

conviction for breaking into barracks building to victimize occupant where the victim’s 

room was not broken into). 

(3) United States v. Norman, 16 M.J. 937 (A.C.M.R. 1983) (hotel room was dwelling 

place; specification was sufficient despite failing to allege occupancy of room by the 

victim). 

(4) See also United States v. Slovacek, 24 M.J. 140 (C.M.A. 1984); United States v. 

Fagan, 24 M.J. 865 (N.M.C.M.R. 1987), aff’d, 28 M.J. 64 (C.M.A. 1989); United States 

v. Thompson, 32 M.J. 65 (C.M.A. 1991). 

b) Housebreaking. 

(1) Room, shop, store, office, apartment, stateroom, ship’s hold, compartment of a 

vessel, inhabitable trailer, enclosed goods truck or freight car, tent, houseboat. MCM, pt. 

IV, ¶ 56c(4); see generally TJAGSA Practice Note, Housebreaking Includes More Than 

Breaking Into a House, Army Law., Apr. 1989, at 56. 

(2) Authority to access. United States v. Davis, 56 M.J. 299 (C.A.A.F. 2002)(although 

the accused had authorized access to the key to a government warehouse where his unit’s 

equipment was stored, his entry into the warehouse to steal items belonging to another 

unit, without any official or authorized purpose, was legally sufficient to prove the 

“unlawful entry” element of housebreaking. Factors to consider in determining whether 

or not the entry was with proper authority include: (1) the nature and function of the 

building involved; (2) the character, status, and duties of the entrant, and even at times his 

identity; (3) the conditions of the entry, including time, method, ostensible purpose; (4) 

the presence or absence of a directive; (5) the presence or absence of an explicit 

invitation to the visitor; (6) the invitational authority of any purported host; and (7) the 

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presence or absence of a prior course of dealing, if any, by the entrant with the structure, 

and its nature.) 

(3) Other Applications: United States v. Sutton, 45 C.M.R. 118 (C.M.A. 

1972)(inapplicable to track vehicle); United States v. Hall, 30 C.M.R. 374 (C.M.A. 

1961)(protects railroad freight car used to store goods); United States v. Scimeca, 12 M.J. 

937 (N.M.C.M.R. 1982)(protects walk-in freezer); United States v. Cahill, 23 M.J. 544 

(A.C.M.R. 1986) (protects AAFES delivery van used for storage); United States v. 

Demmer, 24 M.J. 731 (A.C.M.R. 1987) (protects AAFES snack truck used for storage); 

c) Unlawful entry. 

(1) Dwelling house, garage, warehouse, tent, vegetable garden, orchard, stateroom. 

(2) United States v. Breen, 36 C.M.R. 156 (C.M.A. 1966) (does not protect service 

member’s barracks locker). 

(3) United States v. Gillin, 25 C.M.R. 173 (C.M.A. 1958) (inapplicable to an 

automobile); see also United States v. Reese, 12 M.J. 770 (A.C.M.R. 1981). 

(4) United States v. Taylor, 30 C.M.R. 44 (C.M.A. 1960) (inapplicable to troop aircraft 

used as a conveyance). 

(5) United States v. Love, 15 C.M.R. 260 (C.M.A. 1954) (protects troop billeting tent). 

(6) United States v. Wickersham, 14 M.J. 404 (C.M.A. 1983) (protects fenced storage 

area). 

(7) United States v. Fayne, 26 M.J. 528 (A.F.C.M.R. 1988) (showing that accused’s 

estranged wife granted him permission to take water bed precluded conviction for 

unlawful entry of wife’s residence). 

(8) United States v. Jordan, 57 M.J. 236 (2002). The accused’s guilty plea to unlawful 

entry was improvident because it did not establish a basis for concluding that the 

accused’s conduct was prejudicial to good order and discipline or was of a nature to bring 

discredit upon the armed forces. Boarding a sailboat without the permission of the owner 

could constitute the offense of unlawful entry under Article 134. However, the factual 

circumstances revealed in the providence inquiry did not objectively support the third 

element of the offense. 

(9) United States v. Schwin, 73 M.J. 711 (A. Ct. Crim. App. 2014). The accused’s plea 

to housebreaking relating to his entering the Fort Rucker Skeet and Trap Club – where he 

was a member, had a key, and was authorized to enter the club 24 hours a day – to steal 

from the club was improvident because his entry was not unlawful. Evidence that the 

accused entered the club late, when no shooting was taking place, addressed his intent to 

steal, but did not address the unlawfulness of his entry. 

3. The government must allege that the place violated was owned by one other than the accused. 

See generally United States v. Norman, 16 M.J. 937 (A.C.M.R. 1983). 

4. “Breaking” requirement applies only to burglary. 

a) Burglary requires that a “breaking” occur. This element demands a substantial and 

forcible act. More than the passing of an imaginary line is required. A breaking, removing, 

or putting aside of something material constituting a part of a dwelling house and relied on as 

a security against invasion is required. United States v. Hart, 49 C.M.R. 693 (A.C.M.R. 

1975). A breaking may be either actual or constructive. A constructive breaking occurs 

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when the entry is gained by trick, false pretense, or by intimidating the occupants through 

violence or threats. MCM, pt. IV, ¶ 55c(2). 

b) Pushing aside closed Venetian blinds and entering through an otherwise open window 

constitutes a breaking. United States v. Thompson, 29 M.J. 609 (A.C.M.R. 1989), aff’d, 32 

M.J. 65 (C.M.A. 1991); see generally TJAGSA Practice Note, Burglary and the Requirement 

for a Breaking, Army Law., Jan. 1990, at 32 (discussing the A.C.M.R. opinion in 

Thompson). 

c) Specification failing to allege “break and” prior to “enter” was fatally defective. United 

States v. Hoskins, 17 M.J. 134 (C.M.A. 1984). 

d) No such breaking is required for either housebreaking or unlawful entry. An 

unauthorized entry of the protected area is sufficient. 

5. Intent requirements. 

a) None for unlawful entry. United States v. Gillin, 25 C.M.R. 173 (C.M.A. 1958). 

b) Housebreaking. 

(1) This offense requires a specific intent “to commit a criminal offense within.” 

“Criminal offense” defined by MCM: “Any act or omission whichis punishable by 

courts-martial, except an act or omission constituting a purely military offense, is a 

‘criminal offense.’” MCM, pt. IV, ¶ 56c(3). 

(2) United States v. Walsh, 5 C.M.R. 793 (A.F.B.R. 1952) (intoxication a defense to 

housebreaking). Intent to commit a criminal offense, which was element of 

housebreaking, had to refer to intent to commit the crime stated in the specification, not 

merely intent to commit “some crime.” United States v. Webb, 38 M.J. 62 (C.M.A. 1993). 

(3) The offense cannot be a purely military offense. See MCM, pt. IV, ¶ 56c(3). 

“Purely military offenses” are those that “by [their] express terms . . . appl[y] only to a 

‘member of the armed forces.’” See United States v. Marsh, 15 M.J. 252, 254 (C.M.A. 

1983). Conduct unbecoming of an officer and a gentleman is a purely military offense 

for purposes of Article 130. See United States v. Conliffe, 67 M.J. 127 (C.A.A.F. 2009). 

See United States v. Contreras, 69 M.J. 120 (C.A.A.F. 2010)(indecent acts charged under 

Article 134 is not a “purely military offense.”) 

c) Burglary requires that at the time of the breaking the accused possess the specific intent 

to commit an offense described in Articles 118-128. An intent to commit a different offense 

will sustain a guilty finding of housebreaking only. United States v. Kluttz, 25 C.M.R. 282 

(C.M.A. 1958); see also United States v. Garcia, 15 M.J. 685 (A.F.C.M.R. 1983). 

d) Intent to commit criminal offense at time unlawful entry was made may be inferred from 

the time and manner that the entry was made and the conduct of the accused after entry. 

United States v. Carter, 39 M.J. 754 (A.F.C.M.R. 1994). 

6. Multiplicity. Housebreaking with intent to commit larceny and larceny therein are not 

multiplicious. United States v. Alvarez, 5 M.J. 726 (A.C.M.R. 1978). 

F. Arson. MCM, pt. IV, ¶ 52; UCMJ art. 126. 

1. Elements. 

a) Aggravated arson. 

(1) Inhabited dwelling. 

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(a) That the accused burned or set on fire an inhabited dwelling; 

(b) That this dwelling belonged to a certain person and was of a certain value; and 

(c) That the act was willful and malicious. 

(2) Structure. 

(a) That the accused burned or set on fire a certain structure; 

(b) That the act was willful and malicious; 

(c) That there was a human being in the structure at the time; 

(d) That the accused knew that there was a human being in the structure at the time; 

and 

(e) That this structure belonged to a certain person and was of a certain value. 

b) Simple arson. 

(1) That the accused burned or set fire to certain property of another; 

(2) That the property was of a certain value; and 

(3) That the act was willful and malicious. 

2. Mens Rea. 

a) All degrees of arson require proof of willfulness and maliciousness; that is, not merely 

negligence or accident. MCM, pt. IV, ¶ 52c. Specific intent is not an element of aggravated 

or simple arson. United States v. Acevedo-Velez, 17 M.J. 1 (C.M.A. 1983) (intent 

requirement for aggravated arson met where accused set fire to a coat where there was a great 

possibility the building would catch on fire even though accused did not intend to burn the 

building); see United States v. Marks, 29 M.J. 1 (C.M.A. 1989); United States v. Banta, 26 

M.J. 109 (C.M.A. 1988) (voluntary intoxication is not a defense); United States v. AcevedoVelez, 17 M.J. 1 (C.M.A. 1983); United States v. Caldwell, 17 M.J. 8 (C.M.A. 1983). 

b) In the offense of aggravated arson by setting fire to an inhabited dwelling, the accused’s 

knowledge of the type or purpose of structure is not required. United States v. Duke, 37 

C.M.R. 80 (C.M.A. 1966) (intoxication no defense). Accused properly convicted of 

aggravated arson for burning his own residence that he intended to abandon and from which 

his family had moved . United States v. Dasha, 23 M.J. 66 (C.M.A. 1986). 

c) Intentionally starting a fire and negligently failing to ensure it is extinguished is arson. 

United States v. Crutcher, 49 M.J. 236 (C.A.A.F. 1998) (accused made some effort to put out 

the fire he had started). 

3. Actual burning or charring of alleged property or structure is required, and mere scorching or 

discoloration is insufficient. MCM, pt. IV, ¶ 52c(2)(c); United States v. Littrell, 46 C.M.R. 628 

(A.B.R. 1972) (burning of desk within building insufficient to prove aggravated arson; affirmed 

lesser included offense of attempted aggravated arson). 

4. Disorderly conduct as lesser included offense. United States v. Evans, 10 M.J. 829 

(A.C.M.R. 1981) (accused could be convicted of disorderly conduct as a lesser included offense 

of arson where specification alleged that accused was disorderly in quarters by setting fire to 

commode seat in latrine of his billets room and proof reasonably established all elements of 

disorderly conduct). 

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5. Simple arson is a lesser included offense of attempted aggravated arson. United States v. 

Dorion, 17 M.J. 1064 (A.F.C.M.R. 1984). 

6. Burning with intent to defraud is a violation of UCMJ art. 134. See generally United States v. 

Banta, supra at H.2.a.; United States v. Fuller, 25 C.M.R. 405 (C.M.A 1958); United States v. 

Snearley, 35 C.M.R. 434 (C.M.A. 1965); United States v. Colyon, 35 C.M.R. 870 (A.F.C.M.R. 

1965). 

G.	 Bad Check Offenses. 

1.	 Introduction.
 

a) Two Offenses.
 

(1) Making, Drawing, or Uttering a check, Draft, or Order Without Sufficient Funds. 

MCM, pt. IV, ¶ 49; UCMJ art. 123a. 

(2) Making and Uttering a Worthless Check by Dishonorably Failing to Maintain Funds. 

MCM, pt. IV, ¶ 68; UCMJ art. 134. 

b) See generally Richmond, Bad Check Cases: A Primer for Trial and Defense Counsel, 

Army Law., Jan. 1990, at 3. 

2. Article 123a: Making, drawing or uttering check, draft or order with intent to defraud or 

deceive. MCM, pt. IV, ¶ 49. 

a)	 Elements: 

(1) The accused makes, draws, utters or delivers a check/draft/order for payment of 

money upon a bank/depository. 

(2) The above act is made while accused harbors either of the following specific intents: 

(a) the intent to defraud by the procurement of an article or thing of value, or 

(b) the intent to deceive for payment of any past due obligation, or for any other 

purpose. 

(3) The accused knew at the time of committing the illegal act that he did not or would 

not have sufficient funds/credit in the bank/depository for payment in full upon 

presentment. 

(4) For a good discussion and application of these elements, see United States v. Carter, 

32 M.J. 522 (A.C.M.R. 1990). 

b)	 Definitions. MCM, pt. IV, ¶ 49c. 

(1) Written instruments covered. Includes any check, draft, or order for payment or 

money drawn upon any bank or other depository. See, e.g., United States v. Palmer, 14 

M.J. 731 (A.F.C.M.R. 1982) (union share drafts). 

(2) “Bank” or “other depository”. Includes any business regularly but not exclusively 

engaged in public banking activities. 

(3) “Making” and “drawing.” Synonymous words and refer to act of writing and signing 

instrument. 

(4) “Uttering” and “delivering.” Both mean transferring instrument to another, but 

“uttering” includes offering to transfer. 

(5) “For the procurement.” Means for purpose of obtaining any article or thing of value. 

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(6) “For the payment.” Means for purpose of satisfying in whole or part any past due 

obligation. 

(7) “Sufficient funds.” Means account balance at presentation is not less than face 

amount of check. 

(8) “Upon its presentment.” The time the demand for payment is made upon 

presentation of the instrument to the depository on which it was drawn. 

c) Mens Rea. 

(1) “Intent to defraud” (UCMJ art. 123a(1)). An intent to obtain through 

misrepresentation, an article or thing of value with intent permanently or temporarily to 

apply it to one’s own use or benefit. MCM, pt. IV, ¶ 49c(14). See United States v. 

Sassaman, 32 M.J. 687 (A.F.C.M.R. 1991). 

(2) “Intent to deceive” (UCMJ art. 123a(2)). An intent to mislead, cheat, or trick another 

by means of a misrepresentation made for the purpose of gaining an advantage or of 

bringing about a disadvantage to another. MCM, pt. IV, ¶ 14c(15). 

(3) “Intent to deceive” is not the same as “intent to defraud.” United States v. Wade, 34 

C.M.R. 287 (C.M.A. 1964) (specification fails to state offense which alleges “making a 

check with intent to deceive for the purpose of obtaining lawful currency”). 

d) Articles or thing of value. 

(1) Need not actually be obtained. United States v. Cordy, 41 C.M.R. 670 (A.C.M.R. 

1967). 

(2) Includes every right or interest in property or contract, including intangible, 

contingent, or future interests. United States v. Ward, 35 C.M.R. 834 (A.F.B.R. 1965) 

(check used to procure auto insurance). 

(3) Includes checks given as a gift. United States v. Woodcock, 39 M.J. 104 (C.M.A. 

1994) (only advantage secured by accused was temporary aggrandizement in the eyes of 

the person to whom the checks were given). 

e) “Past due obligation” or “any other purpose”. 

(1) “Past due obligation.” Obligation to pay money which has legally matured prior to 

the making or uttering. 

(2) “Any other purpose.” 

(a) Includes all purposes other than payment of past due obligation or the 

procurement of any article or thing of value, e.g., paying an obligation not yet past 

due. 

(b) Excludes checks made for the purpose of obtaining any article or thing of value 

covered by Article 123a(1), UCMJ. United States v. Wade, 34 C.M.R. 287 (C.M.A. 

1964). 

f) Knowledge. 

(1) Requires present knowledge that bank account is presently, or will be, insufficient at 

time of presentment. See United States v. Crosby, 22 M.J. 854 (A.F.C.M.R. 1986); 

United States v. Matthews, 15 M.J. 622 (N.M.C.M.R. 1982). 

(2) “Sufficient funds” relates to time of presentment. 

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(3) Neither proof of presentment nor refusal of payment is necessary, if it can otherwise 

be shown that accused had requisite intent and knowledge at time of making or uttering. 

For example: (a) drawn on nonexistent bank or (b) drawn on overdrawn or closed 

account. 

(4) Conviction does not require proof that the accused knew that the account holders 

(from whom accused had stolen and used starter checks) had insufficient funds in their 

bank account. Proof of the accused’s knowledge that he was not the owner of the 

account satisfies the knowledge requirement. United States v. Guess, 48 M.J. 69 

(C.A.A.F. 1998). 

(5) Past “floating” of checks several days before payday does not negate proof of intent. 

United States v. Smith, 49 M.J. 279 (C.A.A.F. 1998). 

g) Post-dated check. Compare United States v. Hodges, 35 C.M.R. 867 (A.F.B.R. 1965) 

(check made with requisite knowledge and intent; conviction affirmed), with United States v. 

Birdine, 31 M.J. 674 (C.G.C.M.R. 1990) (post-dated check did not support conviction, 

because no intent to deceive by accused; accused believed the checks would be covered). 

h) Statutory 5-day notice. MCM, pt. IV, ¶ 49c(17). 

(1) Failure of maker to pay holder within 5 days after notice of non-payment is prima 

facie evidence that: 

(a) Maker had intent to defraud or deceive. 

(b) Maker had knowledge of insufficiency of funds. 

(2) The above inference is only permissive and is rebuttable. 

(3) Either failure to give notice or payment by accused within 5 days precludes 

prosecution use of inference, but it does not preclude conviction if elements are otherwise 

proved. 

(4) Notice. United States v. Jarrett, 34 C.M.R. 652 (A.B.R. 1964) (reading of bad check 

charges to an account drawer by his detachment commander does not fulfill the statutory 

requirement of notice of dishonor); United States v. Cauley, 9 M.J. 791 (A.C.M.R. 1980), 

rev’d on other grounds, 12 M.J. 484 (C.M.A. 1982) (introduction at trial of letter from 

bank to accused’s CO seeking his assistance in effecting payment of accused’s 

dishonored checks did not alone constitute proper notice even though letter contained a 

notation indicating that a copy was to be forwarded to the accused). 

(5) Period of redemption. The 5-day redemption period means 5 calendar days and is not 

limited to ordinary business days, at least when the terminal date is not a Sunday or 

holiday. Days are computed by excluding the first day and including the last day. United 

States v. O’Briant, 32 C.M.R. 933 (A.F.B.R. 1963). 

i) Pleading check offenses. 

(1) Specification charging that the accused, on divers occasions, uttered worthless checks 

was legally sufficient to protect the accused from subsequent prosecutions. United States 

v. Carter, 21 M.J. 665 (A.C.M.R. 1985); see also United States v. Krauss, 20 M.J. 741 

(N.M.C.M.R. 1985). 

(2) “Mega-specs” permitted, and maximum punishment is determined by the number and 

amount of the checks as if they had been charged separately. United States v. Mincey, 42 

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M.J. 376 (C.A.A.F. 1995) (overruling United States v. Poole, 26 M.J. 272 (C.M.A. 

1988)). 

(3) Failure to object to duplicitous pleading of bad-check offenses waives any complaint 

that accused might have had about the pleadings. United States v. Mincey, 42 M.J. 376 

(C.A.A.F. 1995). 

j) Defenses. 

(1) Honest mistake of fact. United States v. Callaghan, 34 C.M.R. 11 (C.M.A. 1963) 

(belief funds credited to account a legitimate defense). 

(2) Redemption beyond 5-day period. United States v. Broy, 34 C.M.R. 199 (C.M.A. 

1964) (no defense). 

(3) “The Gambler’s Defense.” The Gambler’s Defense is no longer recognized for check 

offenses arising under UCMJ art. 123a. United States v. Falcon, 65 M.J. 386 (C.A.A.F. 

2008) (declining to apply United States v. Allbery, 44 M.J. 226 (C.A.A.F. 1996) and 

United States v. Wallace, 36 C.M.R. 148 (C.M.A. 1966) to the Article 123a line of cases 

which held 1) that transactions designed to facilitate gambling are against public policy 

and 2) that courts will not enforce obligations arising therefrom). 

(4) Overdraft protection, relied upon by the accused without false pretenses, constitutes a 

defense to larceny and related bad check offenses. United States v. McCanless, 29 M.J. 

985 (A.F.C.M.R. 1990); see United States v. Crosby, 41 C.M.R. 927 (A.F.C.M.R. 

1969). Unilateral action by a bank in honoring checks, unknown to the accused, does not 

constitute a defense. United States v. McNeil, 30 M.J. 648 (N.M.C.M.R. 1990); see 

generally TJAGSA Practice Note, Overdraft Protection and Economic Crimes, Army 

Law., Jul. 1990, at 45. 

(5) Reasonable expectation of payment. United States v. Webb, 46 C.M.R. 1083 

(A.C.M.R. 1972) (accused who writes overdrafts but reasonably expects to have funds to 

deposit before presentment has a legitimate defense). 

(6) Compulsive gambling not a defense where accused hoped to win large sums to 

redeem worthless checks. United States v. Zojak, 15 M.J. 845 (A.F.C.M.R. 1983). 

H. Article 134: Worthless check by dishonorably failing to maintain sufficient funds. MCM, pt. IV, 

¶ 68. 

a) Elements. 

(1) That the accused made and uttered to a certain party a check for the alleged purpose. 

(2) That the accused did thereafter fail to place or maintain sufficient funds in or credit 

with the bank for payment of such check in full upon its presentment for payment. 

(3) That such failure was dishonorable. 

(4) That such failure was prejudicial to good order and discipline or was service 

discrediting. 

b) “Dishonorable” failure to maintain sufficient funds. 

(1) Bad faith, gross indifference, fraud or deceit is necessary. United States v. Brand, 28 

C.M.R. 3 (C.M.A. 1959). 

(2) Negligent failure insufficient. United States v. Kess, 48 C.M.R. 108 (A.F.B.R. 

1973). 

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(3) Redemption negates evidence of dishonorableness. United States v. Groom, 30 

C.M.R. 11 (C.M.A. 1960). 

(4) Evidence sufficient. United States v. Silas, 31 M.J. 829 (N.M.C.M.R. 1990). 

(5) May occur after initial presentment. United States v. Call, 32 M.J. 873 (N.M.C.M.R. 

1991). 

c) Defenses. 

(1) Lack of sophistication regarding checking insufficient for guilt under either an 

Article 123a or Article 134 theory. United States v. Elizondo, 29 M.J. 798 (A.C.M.R. 

1989); see generally, TJAGSA Practice Note, Mens Rea and Bad Check Offenses, Army 

Law., Mar. 1990, at 36 (discusses Elizondo). 

(2) Honest mistake, not a result of bad faith or gross indifference, is a legitimate defense. 

United States v. Connell, 22 C.M.R. 18 (C.M.A. 1956). 

(3) Bad checks written to satisfy gambling debts not enforceable on public policy 

grounds. United States v. Allberry, 44 M.J. 226 (C.A.A.F. 1996); United States v. 

Wallace, 36 C.M.R. 148 (C.M.A. 1966). But see United States v. Green, 44 M.J. 828 

(Army Ct. Crim. App. 1996) (public policy defense applies only when there is a direct 

connection between the check cashing service and the gambling activity). 

d) A lesser included offense to Article 123a, UCMJ. United States v. Bowling, 33 C.M.R. 

378 (C.M.A. 1963). But see United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009). 

2. Larceny or wrongful appropriation by check. UCMJ art. 121. 

a) Utilizes the theory of larceny by false pretenses. United States v. Culley, 31 C.M.R. 290 

(C.M.A. 1962). 

b) Intent required. 

(1) Intent to deprive or defraud permanently or temporarily. United States v. Cummins, 

26 C.M.R. 449 (C.M.A. 1958). 

(2) Carelessness or negligence in bookkeeping insufficient. United States v. Bull, 31 

C.M.R. 100 (C.M.A. 1961). 

(3) Restitution is no defense, except as it is evidence tending to disprove the accused’s 

alleged intent. 

c) Money, personal property, a thing of value must be obtained. Payment of past due 

obligation insufficient. 

d) Defenses. 

(1) All state of mind defenses apply. United States v. Rowan, 16 C.M.R. 4 (C.M.A. 

1954) (honest mistake). 

(2) Gambling losses unenforceable. United States v. Walter, 23 C.M.R. 274 (C.M.A. 

1957). 

3. Evidentiary matters. In United States v. Dean, 13 M.J. 676 (A.F.C.M.R. 1982), the court 

held that checks and the notations thereon were admissible as business records under MRE 

803(6). The court further held, after judicially noticing U.C.C. § 3-510(b), that the checks were 

self-authenticating under M.R.E 902(b)(9). Cf. United States v. Matthews, 15 M.J. 622 

(N.M.C.M.R. 1982) (notations that checks were stolen not admissible under U.C.C. § 3-510). 

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4. Multiplicity. Uttering check with intent to defraud under Article 123a, UCMJ, and larceny of 

currency by the checks under Article 121 were multiplicious for findings. United States v. Ward, 

15 M.J. 377 (C.M.A. 1983) (summary disposition); see also United States v. Allen, 16 M.J. 395 

(C.M.A. 1983). 

I. Forgery. MCM, pt. IV, ¶ 48; UCMJ art. 123. 

1. Elements. 

a) Forgery: making or altering. 

(1) That the accused falsely made or altered a certain signature. 

(2) That the signature or writing was of a nature which would, if genuine, apparently 

impose a legal liability on another or change another’s legal rights or liabilities to that 

person’s prejudice; and 

(3) That the false making or altering was with the intent to defraud. 

b) Forgery: uttering. 

(1) That a certain signature or writing was falsely made or altered; 

(2) That the signature or writing was of a nature which would, if genuine, apparently 

impose a legal liability on another or change another’s legal rights or liabilities to that 

person’s prejudice; 

(3) That the accused uttered, offered, issued, or transferred the signature or writing; 

(4) That at such time the accused knew that the signature or writing had been falsely 

made or altered; and 

(5) That the uttering, offering, issuing or transferring was with the intent to defraud. 

2. Two distinct types: making or altering, and uttering. MCM, pt. IV, ¶ 48b. 

a) Falsely making checks is a separate offense from uttering them; these actions are not 

alternative methods of committing the forgery, but distinct types of forgery. United States v. 

Albrecht, 43 M.J. 65 (C.A.A.F. 1995). 

3. Forgery and larceny distinguished: The difference between forgery and larceny is that 

forgery requires falsity in the making. The act is false because it purports to be the act of 

someone other than the actual signer (the accused). “[T]he crux of forgery is the false making of 

the writing.” “The distinction between forgery and ‘the genuine making of a false instrument’ 

largely depends on whether the accused impersonates another person.” “Generally, signing one’s 

own name to an instrument – even with the intent to defraud – is not a forgery.” It is larceny. 

United States v. Weeks, ___M.J.___ (C.A.A.F. 2012). 

4. For either type, the document must have legal efficacy. United States v. Hopwood, 30 M.J. 

146 (C.M.A. 1990); United States v. Thomas, 25 M.J. 396 (C.M.A. 1988); MCM, pt. IV, ¶ 

48c(4); see United States v. James, 42 M.J. 270 (1995) (leave form has “legal efficacy”); United 

States v. Ivey, 32 M.J. 590 (A.C.M.R. 1991) (checking account application), aff’d, 35 M.J. 62 

(C.M.A. 1992); United States v. Victorian, 31 M.J. 830 (N.M.C.M.R. 1990); United States v. 

Johnson, 33 M.J. 1030 (N.M.C.M.R. 1991) (urinalysis report message from drug lab was not a 

“document of legal efficacy” and as such could not be subject of forgery). 

5. See generally TJAGSA Practice Note, Court Strictly Interprets Legal Efficacy, Army Law., 

Aug. 1990, at 35; TJAGSA Practice Note, Legal Efficacy as a Relative Concept, Army Law., 

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Jan. 1990, at 34; TJAGSA Practice Note, Forgery and Legal Efficacy, Army Law., Jun. 1989, at 

40. 

6. The instrument “tells a lie about itself.” United States v. Blackmon, 39 M.J. 705 

(N.M.C.M.R. 1993) (signing another’s name to “starter” checks from the accused’s checking 

account appeared to impose liability upon the third party whose name was being signed) aff’d, 41 

M.J. 67 (C.M.A. 1994). 

7. Significant injury need not result. United States v. Faircloth, 45 M.J. 172 (C.A.A.F. 1996) 

(accused forged endorsement in financing company’s behalf on insurance check, issued to 

accused and financing company as copayees to auto damage); United States v. Sherman, 52 M.J. 

856 (Army Ct. Crim. App. 2000) (where the accused and co-conspirator opened savings accounts 

by falsely and fraudulently signing signature cards, the general bookkeeping, security, and 

insurance functions inherent in agreeing to maintain a bank account imposed sufficient legal 

liability on the banks to warrant forgery convictions, even where there was no initial deposit). 

8. Maximum Punishment. In cases where multiple, discrete instances of check forgery are pled 

in one “mega-spec,” the maximum punishment is calculated as if they had been charged 

separately, extending analysis of United States v. Mincey, 42 M.J. 376 (C.A.A.F. 1995) 

(maximum punishment of a bad-check “mega-spec” is calculated by the number and amount of 

the checks as if they had been charged separately) to check forgery. United States v. Dawkins, 51 

M.J. 601 (C.A.A.F. 1999). 

9. A credit application itself is not susceptible of forgery under Article 123, because it, if 

genuine, would not create any legal right or liability on the part of the purported maker. United 

States v. Woodson, 52 M.J. 688 (C.G. Ct. Crim. App. 2000). 

10. “Double forgery.” Forgery of an endorsement is factually and legally distinct from 

forgery of the check itself, because the acts impose apparent legal liability on two separate 

victims; thus, the government may charge the “double forgery” in two separate 

specifications. United States v. Pauling, 60 M.J. 91 (C.A.A.F. 2004). 

J. Failure to Pay Just Debt. MCM, pt. IV, ¶ 71; UCMJ art. 134. 

1. Elements. 

a) That the accused was indebted to a certain person or entity in a certain sum; 

b) That this debt became due and payable on or about a certain date; 

c) That while the debt was still due and payable the accused dishonorably failed to pay this 

debt; and 

d) That, under the circumstances, the conduct of the accused was to the prejudice of good 

order and discipline in the armed forces or was of a nature to bring discredit upon the armed 

forces. 

2. Evidence was legally sufficient to support conviction for dishonorable failure to pay a just 

debt where accused failed to make an arrangement for payment, had made late payments before, 

failed to contact rental agent even after formal notice, and surreptitiously vacated the apartment 

without paying, cleaning, or repairing damage. United States v. Polk, 47 M.J. 116 (C.A.A.F. 

1997). Guilty plea to offense was improvident where the military judge failed to define 

dishonorable conduct with respect to an AAFES debt, failed to elicit a factual predicate for 

dishonorable conduct regarding the debt, and failed to resolve inconsistencies which indicated an 

inability to pay the debt and a lack of deceit or evasion. A mere failure to pay a debt does not 

establish dishonorable conduct. Even a negligent failure to pay a debt is not dishonorable. The 

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term “dishonorable” connotes a state of mind amounting to gross indifference or bad faith, and is 

characterized by deceit, evasion, false promises, denial of indebtedness, or other distinctly 

culpable circumstances. United States v. Bullman, 56 M.J. 377 (C.A.A.F. 2002), aff’d, 57 M.J. 

478 (C.A.A.F. 2002); United States v. Burris, 59 M.J. 700 (C.G. Ct. Ctim. App. 2004). 

K. Altering a Public Record. MCM, pt. IV, ¶ 99; UCMJ art. 134. Mere completion of a blank form 

indicating graduation for an Army school and presentment of that document to Army officials was not 

“wrongful alteration of public record,” absent additional evidence of intent or attempt to use the 

document to alter the integrity of official Army record. United States v. McCoy, 47 M.J. 653 (Army 

Ct. Crim. App. 1997). 

L. Frauds Against The United States. MCM, pt. IV, ¶ 58; UCMJ art. 132. Submission of a travel 

voucher for a TDY trip “concocted” to primarily conduct personal business is a false claim under 

Article 132. United States v. Mann, 50 M.J. 689 (A.F. Ct. Crim. App. 1999). 

XXXIX. OFFENSES AGAINST THE ADMINISTRATION OF JUSTICE. 

A.	 Resistance, Breach of Arrest, and Escape. MCM, pt. IV, ¶ 19; UCMJ art. 95. 

1.	 Elements.
 

a) Resisting apprehension.
 

(1) That a certain person attempted to apprehend the accused; 

(2) That said person was authorized to apprehend the accused; and 

(3) That the accused actively resisted the apprehension.
 

b) Flight from apprehension.
 

(1) That a certain person attempted to apprehend the accused; 

(2) That said person was authorized to apprehend the accused; and 

(3) That the accused fled from the apprehension.
 

c) Breaking arrest.
 

(1) That a certain person ordered the accused into arrest; 

(2) That said person was authorized to order the accused into arrest; and 

(3) That the accused went beyond the limits of arrest before being released from that 

arrest by proper authority. 

d)	 Escape from custody. 

(1) That a certain person apprehended the accused; 

(2) That said person was authorized to apprehend the accused; and 

(3) That the accused freed himself or herself from custody before being released by 

proper authority. 

e)	 Escape from confinement. 

(1) That a certain person ordered the accused into confinement; 

(2) That said person was authorized to order the accused into confinement; and 

(3) That the accused freed himself or herself from confinement before being released to 

proper authority. 

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(4) [If the escape was from post-trial confinement, add the following element:] That the 

confinement was the result of a court-martial conviction. 

2. Applications. 

a) Resisting Apprehension. 

(1) Article 95 now includes a prohibition against flight from apprehension, but prior to 

offenses occurring on 10 February 1996 (the FY 96 amendment to art. 95), subject’s 

flight from apprehension, by itself, was insufficient to constitute resisting apprehension 

under Article 95, UCMJ. United States v. Pritt, 54 M.J. 47 (C.A.A.F. 2000); United 

States v. Harris, 29 M.J. 169 (C.M.A. 1989); United States v. Burgess, 32 M.J. 446 

(C.M.A. 1991). 

(2) United States v. Malone, 34 M.J. 213 (C.M.A. 1992) (attempt to prevent 

apprehension by accelerating stolen vehicle, driving around a police barricade, swerving 

to avoid another vehicle placed in his path, and scattering sentries posted at the gate 

constituted “active resistance” sufficient to satisfy Article 95). 

(3) United States v. Webb, 37 M.J. 540 (A.C.M.R. 1993) (acts were sufficient to 

constitute the offense of resisting apprehension where he temporarily terminated his 

flight, turned, faced his pursuer, and adopted a “fighting stance,” and allowed pursuer to 

approach within five feet before resuming flight). 

(4) United States v. Rhodes, 47 M.J. 790 (Army Ct. Crim. App. 1998) (resistance of 

apprehension by civilian law enforcement officers with no military affiliation was not an 

offense under Article 95, because the apprehending officers were not within any category 

of individuals authorized to apprehend under R.C.M. 302). 

(5) The prosecution must prove that the accused had “clear notice of the apprehension.” 

United States v. Diggs, 52 M.J. 251 (C.A.A.F. 2000). 

b) Escape. 

(1) United States v. Standifer, 35 M.J. 615 (A.F.C.M.R. 1992) (unauthorized visits with 

wife did not constitute the offense of escape from confinement where the visits occurred 

with the consent of accused’s escorts and accused did not “cast off” his moral suasion), 

aff’d in part, rev’d in part on other grounds, 40 M.J. 440 (C.M.A. 1994). 

(2) United States v. Felix, 36 M.J. 903 (A.F.C.M.R. 1993) (plea of guilty to escape from 

correctional custody was provident where accused knowingly and freely admitted to 

status of physical restraint by being in correctional custody and stating that he avoided a 

monitor in order to depart) aff’d, 40 M.J. 356 (C.M.A. 1994)). 

(3) United States v. Anderson, 36 M.J. 963 (A.F.C.M.R. 1993) (conviction for escape 

was not supported by evidence that accused was allowed to go off base with escort, that 

escort left accused at accused’s apartment, intending that accused would return to base 

with his wife, and that accused then killed his wife and fled) aff’d, 39 M.J. 431 (C.M.A. 

1994). 

(4) Where soldier is placed in confinement and is then temporarily removed from 

confinement facility while remaining under guard of another soldier, prisoner remains in 

confinement status, for purposes of escape charge, regardless of whether guard is armed 

or otherwise has physical prowess to subdue prisoner. United States v. Jones, 36 M.J. 

1154 (A.C.M.R. 1993). 

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(5) Once lawfully placed into confinement, unless released by proper authorities, a 

Soldier may be convicted of escape from confinement, regardless of the nature of the 

facility in which he is held. United States v. McDaniel, 52 M.J. 618 (Army Ct. Crim. 

App. 1999) (accused was under physical restraint while outside of confinement facility, 

as required for escape under Article 95, and the escape was from confinement rather than 

custody because of the accused’s status at the time), but see Edwards, below. 

(6) Until actually placed in a confinement facility, an escaping Soldier who has been 

ordered “into confinement” but not yet processed into the facility is guilty of an escape 

from custody. United States v. Edwards, 69 M.J. 375 (C.A.A.F. 2011)(clarifying 

McDaniel; accused had been ordered into confinement by unit commander but had not 

yet left the installation, escaping from custody while meeting with his TDS cousel). 

B. False Official Statement. MCM, pt. IV, ¶ 31; UCMJ art. 107. 

1. Elements. 

a) That the accused signed a certain official document or made a certain official statement; 

b) That the document or statement was false in certain particulars; 

c) That the accused knew it to be false at the time of signing it or making it; and 

d) That the false document or statement was made with the intent to deceive. 

2. Relation to Federal Statute. Congress intended Article 107 to be construed in pari materia 

with 18 U.S.C. § 1001. United States v. Jackson, 26 M.J. 377 (C.M.A. 1988); United States v. 

Aronson, 25 C.M.R. 29 (C.M.A. 1957). The purpose of Article 107 is to protect governmental 

departments and agencies from the perversion of its official functions which might result from 

deceptive practices. United States v. Jackson, supra; United States v. Hutchins, 18 C.M.R. 46, 51 

(C.M.A. 1955); see generally, TJAGSA Practice Note, The Court of Military Appeals Expands 

False Official Statement Under Article 107, UCMJ, Army Law., Nov. 1988, at 37. However, 

Article 107 is more expansive than 8 U.S.C. § 1001 “because the primary purpose of military 

criminal law—to maintain morale, good order, and discipline—has no parallel in civilian criminal 

law.” See United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2003) United States v. Day, 66 M.J. 172 

(C.A.A.F. 2008). 

3. Relation to Perjury. The offense of false official statement differs from perjury in that a false 

official statement may be made outside a judicial proceeding and materiality is not an essential 

element. MCM, pt. IV, ¶ 3c(3). Materiality may, however, be relevant to the intent of the party 

making the statement. Id.; see also United States v. Hutchins, 18 C.M.R. 46 (C.M.A. 1955) 

(accused made a false official statement in connection with a line of duty investigation). Making 

a false official statement is not a lesser included offense of perjury. United States v. Warble, 30 

C.M.R. 839 (A.F.C.M.R. 1960). 

4. Meaning of “False.” United States v. Wright, 65 M.J. 373 (C.A.A.F. 2007). While loading 

equipment for a deployment, the accused and another soldier stole four government computers. 

An officer investigating the theft of the computers interviewed the accused, who stated: “While 

loading up the connex’s [sic], I noticed that four of the computers weren’t on top of the box 

anymore.” During the providence inquiry, the accused admitted that his statement was false 

because it meant that he did not know where the computers went. In fact, the accused knew 

exactly where the computers were located. The court found that the statement was false for 

purposes of Article 107 even though it was misleading, but true. The statement falsely implied 

that he had no explanation for the absence of the computers. The statement also falsely implied 

that the computers went missing while he was loading up the connex boxes. 

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a) If charge a statement as “totally false,” must show that all entries are false. United States 

v. Brown, ARMY 20140346 (Army Ct. Crim. App. June 28, 2016) 

5. Independent Duty to Account and the Meaning of Officiality. 

a) Formerly, a false statement to an investigator, made by a suspect who had no independent 

duty to account or answer questions, was not official within the purview of Article 107. 

United States v. Osborne, 26 C.M.R. 235 (C.M.A. 1958); United States v. Aronson, 25 

C.M.R. 29 (C.M.A. 1957); see also United States v. Davenport, 9 M.J. 364, 367-68 (C.M.A. 

1980). 

b) Later, the Court of Military Appeals determined that no independent duty to account was 

required if the accused falsely reported a crime. United States v. Collier, 48 C.M.R. 789 

(C.M.A. 1974). 

c) More recently, the court determined that officiality was not dependent upon an 

independent duty to account or initiation of a report. The focus is on the officiality of the 

statement—whether an official governmental function was perverted by a false or misleading 

statement. 

(1) United States v. Harrison, 26 M.J. 474 (C.M.A. 1988) (accused’s false statement to 

battalion finance clerk in order to obtain an appointment for payment violates Article 

107). 

(2) United States v. Jackson, 26 M.J. 377 (C.M.A. 1988) (misleading information 

provided by accused about a murder suspect’s whereabouts, voluntarily given to law 

enforcement agents, constitutes a false official statement). 

(3) United States v. Goldsmith, 29 M.J. 979 (A.F.C.M.R. 1990) (untrue responses to a 

civilian cashier constituted a false official statement). 

(4) United States v. Ellis, 31 M.J. 26 (C.M.A. 1990) (anonymous note can constitute a 

false official statement); see generally TJAGSA Practice Note, An Anonymous Note Can 

Constitute a False Official Statement, Army Law., Mar. 1991, at 24 (discusses Ellis). 

(5) United States v. Hagee, 37 M.J. 484 (C.M.A. 1993) (making and signing false 

official duty orders in order to deceive a private party who was entitled to rely on their 

integrity was a violation of Article 107). 

(6) United States v. Dorsey, 38 M.J. 244 (C.M.A. 1993) (lying to investigator about 

reason for refusing a polygraph held to be an “official” statement). 

(7) United States v. Smith, 44 M.J.369 (C.A.A.F. 1996) (falsifying an LES and ID card in 

order to obtain car loan was violation of Article 107; the official character of a false 

statement can be based upon its apparent issuing authority rather than the identity of the 

person receiving it or the purpose for which it is made). 

(8) United States v. Bailey, 52 M.J. 786 (A.F. Ct. Crim. App 1999) (when AFOSI agents 

asked the accused, whom they suspected of threatening victims with guns and whose 

apartment they intended to search, whether his firearms were in his apartment, there was 

a clear governmental function underway), aff’d, 55 M.J. 38 (C.A.A.F. 2001). 

(9) United States v. Czeschin, 56 M.J. 346 (C.A.A.F. 2002). Paragraph 31c(6)(a) of the 

Manual for Courts-Martial, which provides that a statement by an accused or suspect 

during an interrogation is not an official statement within the meaning of Article 107 if 

that person did not have an independent duty or obligation to speak, does not establish a 

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right that may be asserted by an accused who is charged with violating Article 107. 

Statements to investigators can be prosecuted as false official statements. 

(10) United States v. Melbourne, 58 M.J. 682 (N-M. Ct. Crim. App. 2003) (ruling that 

the language in the pre-2002 editions of the MCM, pt. IV, ¶ 31c(6)) is no longer an 

accurate statement of law, at least insofar as it would apply to statements made to law 

enforcement agents conducting official investigations). 

(11) United States v. McMahon, 58 M.J. 362 (C.A.A.F. 2003) (accused convicted of 

false official statement for falsifying a certificate awarding himself a Bronze Star). 

(12) United States v. Day, 66 M.J. 172 (C.A.A.F. 2008). False statements made to onbase emergency medical personnel were official for purposes of Art. 107, but false 

statements made to an off-base, civilian 911 operator were not. 

6. Statement to Civilian Law Enforcement Authorities. Official statements include those made 

“in the line of duty”. MCM, Part IV, ¶ 31c(1). An intentionally deceptive statement made by a 

service member to civilian authorities may be nonetheless “official” and within the scope of 

Article 107. 

a) Analysis for Statements to Civilian Authorities. 

(1) Duty status at the time of the statement is not determinative. False official 

statements are not limited those made in the line of duty. Statements made outside of a 

servicemember’s duties may still implicate official military functions. United States v. 

Day, 66 M.J. 172 (2008). 

(2) The critical distinction is whether the statements relate to the official duties of the 

speaker or hearer, and whether those official duties fall within the UCMJ’s reach. United 

States v. Day, 66 M.J. 172 (2008). 

(3) The courts have used the following language to link the official duties and the reach 

of the UCMJ: 

(a) Statements are official for purposes of Article 107 where there is a “clear and 

direct relationship to the official duties” at issue and where the circumstances 

surrounding the statement “reflect a substantial military interest in the investigation.” 

United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2003). 

(b) Statements may be official where there is “a predictable and necessary nexus to 

on-base persons performing official military functions on behalf of the command.” 

United States v. Day, 66 M.J. 172 (C.A.A.F. 2008). 

b) Applications of Article 107 to False Statements to Civilian Authorities. 

(1) United States v. Day, 66 M.J. 172 (C.A.A.F. 2008). False statements made to onbase emergency medical personnel were official for purposes of Art. 107, but false 

statements made to an off-base, civilian 911 operator were not. 

(2) United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2003) (accused made false statements 

to local civilian police concerning an automobile accident in which a delayed-entry 

recruit was killed; the entire incident and investigation bore a direct relationship to the 

accused’s duties and status as a recruiter; further, the subject matter of the police 

investigation was of interest to the military and within the jurisdiction of the courtsmartial system). 

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(3) United States v. Morgan, 65 M.J. 616 (N-M. Ct. Crim. App. 2007) (holding 

statements to civilian authorities were not “official” for Article 107 purposes). 

(4) United States v. Holmes, 65 M.J. 684 (N-M. Ct. Crim. App. 2007) (holding 

statements to civilian authorities were not “official” for Article 107 purposes). 

(5) United States v. Caballero, 65 M.J. 674 (C.G. Ct. Crim. App. 2007) (holding that 

false statements to civilian police detectives investigating a shooting that had occurred 

off-post were not official for Article 107 purposes). 

(6) United States v. Passut, 73 M.J. 27 (C.A.A.F. 2014) (holding statements to Army Air 

Force Exchange Service employees were “official” for Article 107 purposes) 

7. “Exculpatory No” Doctrine. A number of federal circuit courts apply this doctrine, which 

stands for the proposition that a person who merely gives a negative response to a law 

enforcement agent cannot be prosecuted for making a false statement. See generally United 

States v. Solis, 46 M.J. 31 (C.A.A.F. 1997). 

a) Statutory and constitutional concerns do not support continued application of the doctrine 

under the UCMJ. United States v. Solis, 46 M.J. 31 (1997); United States v Black, 47 M.J. 

146 (1997); United States v. Nelson, 53 M.J. 319 (C.A.A.F. 2000). 

b) The doctrine was traditionally given limited scope under military law, but recent cases 

placed severe limits on its scope. See United States v. Prater, 32 M.J. 433 (C.M.A. 1991); 

United States v. Frazier, 34 M.J. 135 (C.M.A 1992); United States v. Sanchez, 39 M.J. 518 

(A.C.M.R. 1993). 

c) The doctrine does not apply to false swearing offenses under Article 134, UCMJ. United 

States v. Gay, 24 M.J. 304 (C.M.A. 1987). 

d) The doctrine has no legitimate statutory or constitutional basis and is not a defense to 18 

U.S.C. § 1001. Brogan v. United States, 118 S.Ct. 805 (1998). 

8. Multiplicity. See United States v. McCoy, 32 M.J. 906 (A.F.C.M.R. 1991) (finding an 

accused guilty of violating Articles 107 and 131 when he lied to a trial counsel and the next day 

told the same lie in court is multiplicious for sentencing only). 

9. Unreasonable Multiplication of Charges (UMC). United States v. Esposito, 57 M.J. 608 

(C.G. Ct. Crim. App. 2002) (finding charging accused with false official statement and 

obstructing justice by making the same false statement was UMC. Also, charging accused with 

soliciting a false official statement and obstructing justice by that same solicitation was UMC). 

10. Statute of Limitations. Prosecuting an accused for making a false official statement about 

instances of deviant sexual behavior that occurred outside the five-year statute of limitations for 

such offenses did not violate his due process rights. United States v. Sills, 56 M.J. 556 (A.F. Ct. 

Crim. App. 2001), sentence set aside, rehearing granted by, 58 M.J. 23 (C.A.A.F. 2002). 

11. Statement. A physical act or nonverbal conduct intended by a soldier as an assertion is a 

“statement” that may form the basis for a charge of making “any other” false official statement 

under Article 107. United States v. Newson, 54 M.J. 823 (Army Ct. Crim App. 2001). 

C. False Swearing. MCM, pt. IV, ¶ 79; UCMJ art. 134. 

1. Elements. False swearing is the making, under a lawful oath, of any false statement which 

the declarant does not believe to be true. United States v. Davenport, 9 M.J. 364 (C.M.A. 1980). 

The offense of false swearing has seven elements: (1) that the accused took an oath or its 

equivalent; (2) that the oath or its equivalent was administered to the accused in a matter in which 

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such oath or equivalent was required or authorized by law; (3) that the oath or equivalent was 

administered by a person having authority to do so, United States v. Hill, 31 M.J. 543 

(N.M.C.M.R. 1990); (4) that upon this oath or equivalent the accused made or subscribed a 

certain statement; (5) that the statement was false; (6) that the accused did not then believe the 

statement to be true; and (7) that, under the circumstances, the conduct of the accused was to the 

prejudice of good order and discipline in the armed forces or was of a nature to bring discredit 

upon the armed forces. MCM, pt. IV, ¶ 79b. It is service discrediting whether it occurs on or off 

post. United States v. Greene, 34 M.J. 713 (A.C.M.R. 1992). 

2. Relation to Perjury. Although often used interchangeably, perjury and false swearing are 

different offenses. Perjury requires that the false statement be made in a judicial proceeding and 

be material to the issue. These requirements are not elements of false swearing, which is not a 

lesser included offense of perjury. See United States v. Smith, 26 C.M.R. 16 (C.M.A. 1958); 

United States v. Byard, 29 M.J. 803 (A.C.M.R. 1989); United States v. Claypool, 27 C.M.R. 533, 

536 (A.B.R. 1958); United States v. Kennedy, 12 M.J. 620 (N.M.C.M.R. 1981); United States v. 

Galchick, 52 M.J. 815 (A.F. Ct. Crim. App. 2000)(Article 32 investigation is judicial); MCM, pt. 

IV, ¶ 79c(1); but see MCM, pt. IV, ¶ 57c(1). The drafters make no attempt to reconcile this 

provision with the authorities cited above. See MCM, pt. IV, ¶ 57 analysis at A23-16 (2002 Ed.). 

This provision, however, may be reconciled with those authorities if read in light of United States 

v. Warble, 30 C.M.R. 839, 841 n* (A.F.B.R. 1967) (“We are not called upon to decide whether 

the Smith case (dealing with Article 131[1] perjury and false swearing, as contrasted with 

statutory perjury and false swearing) would be held to be in any wise controlling in a statutory 

perjury charge”)(emphasis in original), aff’d, 30 C.M.R. 386 (C.M.A. 1961); UCMJ art. 131(2). 

False swearing and perjury should thus be pled in alternative specifications when appropriate. 

3. A civilian police officer authorized by state statute to administer an oath may satisfy the 

element of false swearing that requires that the “oath or equivalent was administered by a person 

having authority to do so.” The element does not require that the person administering the oath 

be authorized to do so under Article 136, UCMJ. United States v. Daniels, 57 M.J. 560 (N-M. Ct. 

Crim. App. 2002). 

4. Requirement for Falsity. 

a) The primary requirement for false swearing is that the statement actually be false. MCM, 

pt. IV, ¶ 79c(1). A statement need not be false in its entirety to constitute the offense of false 

swearing. Id., Part IV, ¶ 79b. See United States v. Fisher, 58 M.J. 300 (C.A.A.F. 2003). 

b) A statement that is technically, literally, or legally true cannot form the basis of a 

conviction even if the statement succeeds in misleading the questioner. Literally true but 

unresponsive answers are properly to be remedied through precise questioning. United States 

v. Arondel De Hayes, 22 M.J. 54 (C.M.A. 1986) (accused lied when he said that the listed 

items were “missing” as he had an explanation for their absence); United States v. McCarthy, 

29 C.M.R. 574 (C.M.A. 1960) (accused’s friends stole some hubcaps which accused 

allegedly denied during a subsequent investigation). 

c) Doubts as to the meaning of an alleged false statement should be resolved in favor of 

truthfulness. United States v. Kennedy, 12 M.J. 620 (N.M.C.M.R. 1981) (only certain 

portions of accused’s statements to a NIS agent were false). 

d) The truthfulness of the statement is to be judged from the facts at the time of the 

utterance. United States v. Purgess, 33 C.M.R. 97 (C.M.A. 1963) (evidence was insufficient 

in law to establish that accused made a false statement when accused stated that the seat 

covers in his car came from a German concern where the evidence showed that they did in 

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fact come from a German concern, albeit by way of government purchase and theft from 

government stock); see United States v. Arondel De Hayes, 22 M.J. 54 (C.M.A. 1986). 

5. Two Witness Rule. The rule is applicable to false swearing. United States v. Yates, 29 M.J. 

888 (A.C.M.R. 1989), aff’d, 31 M.J. 380 (C.M.A. 1990); see TJAGSA Practice Note, Judge’s 

Incorrect Ruling Correctly Affirmed, Army Law., Apr. 1990, at 70 (discussing Yates). 

6. Use of Circumstantial Evidence. United States v. Veal, 29 M.J. 600 (A.C.M.R. 1989); see 

generally TJAGSA Practice Note, Using Circumstantial Evidence to Prove False Swearing, 

Army Law., Jan. 1990, at 36 (discusses Veal); United States v. Hogue, 42 M.J. 533 (A.F. Ct. 

Crim. App. 1995) (urinalysis result plus expert testimony satisfies direct evidence requirement), 

aff’d, 45 M.J. 300 (C.A.A.F. 1996). 

7. “Exculpatory No” Doctrine. The doctrine is not applicable to false swearing, as the primary 

concern is the sanctity of the oath. United States v. Gay, 24 M.J. 304 (C.M.A. 1987); see United 

States v. Tunstall, 24 M.J. 235 (C.M.A. 1987); United States v. Purgess, 33 C.M.R. 97 (C.M.A. 

1963); United States v. Kennedy, 12 M.J. 620 (N.M.C.M.R. 1981). 

D.	 Perjury. MCM, pt. IV, ¶ 57; UCMJ art. 131. 

1.	 Elements.
 

a) Giving false testimony.
 

(1) That the accused took an oath or affirmation in a certain judicial proceeding or course 

of justice; 

(2) That the oath or affirmation was administered to the accused in a matter in which an 

oath or affirmation was required or authorized by law; 

(3) That the oath or affirmation was administered by a person having authority to do so; 

(4) That upon the oath or affirmation that accused willfully gave certain testimony; 

(5) That the testimony was material; 

(6) That the testimony was false; and 

(7) That the accused did not then believe the testimony to be true. 

b) Subscribing false statement. 

(1) That the accused subscribed a certain statement in a judicial proceeding or course of 

justice; 

(2) That in the declaration, certification, verification, or statement under penalty of 

perjury, the accused declared, certified, verified, or stated the truth of that certain 

statement; 

(3) That the accused willfully subscribed the statement; 

(4) That the statement was material; 

(5) That the statement was false; and 

(6) That the accused did not then believe the statement to be true. 

2.	 Distinguished From False Swearing and False Official Statement. 

a) Although often used interchangeably, perjury and false swearing are different offenses. 

The primary distinctions are that perjury requires that the false statement be made in a 

judicial proceeding and be material to the issue, whereas these matters are not part of the 

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offense of false swearing. As such, false swearing is not a lesser included offense of perjury. 

United States v. Smith, 26 C.M.R. 16 (C.M.A. 1958). 

b) The offense of false official statement (UCMJ art. 107) differs from perjury in that such a 

statement can be made outside a judicial proceeding and materiality is not an essential 

element, but bears only on the issue of intent to deceive. It, too, is not a lesser included 

offense of perjury. United States v. Warble, 30 C.M.R. 839 (A.F.B.R. 1960). 

3. “Judicial proceeding” includes a trial by court-martial and “course of justice” includes an 

investigation under Article 32, UCMJ. MCM, pt. IV, ¶ 57c(1). 

4. Discussion of Elements for Subsection 1 – False Testimony. 

a) That the accused took an oath or its equivalent in a judicial proceeding or at an Article 32 

investigation. 

(1) The oath must be one required or authorized by law. MCM, pt. IV, ¶ 57c(2)(d). 

(2) Article 42(b), UCMJ, requires that each witness before a court-martial be examined 

under oath. R.C.M. 405(h)(1)(A) provides that all witnesses who testify at an Article 32 

investigation do so under oath. 

(3) R.C.M. 807 lists the various forms of oaths to be used at courts-martial and Article 

32 investigations. A literal application of such formats is not essential. The oath is 

sufficient if it conforms in substance to the prescribed form. At the request of the party 

being sworn an affirmation may be substituted for an oath. 

(4) DA Pam 27-9, Military Judges’ Benchbook, ¶ 3-149, defines an “oath” as a formal, 

external pledge, coupled with an appeal to the Supreme Being, that the truth will be 

stated. An “affirmation” is a solemn and formal, external pledge, binding upon one’s 

conscience that the truth will be stated. 

(5) The oath must be duly administered by one authorized to administer it. MCM, pt. IV, 

¶ 57c(2)(d). 

(6) Articles 41(c) and 136(a), UCMJ, along with R.C.M. 405 and R.C.M. 807, set out in 

detail those persons authorized to administer oaths at judicial proceedings and Article 32 

investigations. 

(7) The president, military judge, trial counsel and assistant trial counsel for all general 

and special courts-martial, along with all investigating officers and judge advocates, are 

included in this group. 

(8) If the accused is charged with having committed perjury before a court-martial, the 

jurisdictional basis of the prior court-martial must be proved beyond a reasonable doubt. 

(a) Ordinarily this may be shown by introducing in evidence pertinent parts of the 

record of trial of the case in which the perjury was allegedly committed or by the 

testimony of a person who was counsel, the military judge, or a member of the court 

in that case to the effect that the court was so detailed and constituted. See United 

States v. Giles, 58 M.J. 634 (N-M. Ct. Crim. App. 2003) rev’d on other grounds and 

remanded by, 59 M.J. 374 (C.A.A.F. 2004). 

(b) Where (1) the evidence at trial on charges of perjury before another court-martial 

did not identify the convening authority of that court-martial; (2) no appointing order 

was either recited or introduced; and (3) no other evidence providing a factual basis 

for concluding the prior court was properly detailed and constituted is presented, the 

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evidence was insufficient despite lack of objection by the defense at the trial level. 

United States v. McQueen, 49 C.M.R. 355 (N.C.M.R. 1974). 

b) That the accused willfully gave what he believed to be false testimony at the proceeding 

in question. 

(1) A witness may commit perjury by testifying that he knows a thing to be true when in 

fact he either knows nothing about it at all or is not sure about it, and this is so whether 

the thing is true or false in fact. MCM, pt. IV, ¶ 57c(2)(a). 

(2) A witness may also commit perjury in testifying falsely as to his belief, 

remembrance, or impression, or as to his judgment or opinion. Thus, if a witness swears 

that he does not remember certain matters when in fact he does or testifies that in his 

opinion a certain person was drunk when in fact he entertained the contrary opinion, he 

commits perjury if the other elements of the offense are present. MCM, pt. IV, ¶ 

57c(2)(a). 

(3) To undermine the willfulness and knowledge elements of this offense the following 

defenses are available: 

(a) Voluntary intoxication. Intoxication may so impair the mental processes as to 

prevent a person from entertaining a particular intent or reaching a specific state of 

mind. To successfully argue this defense in a perjury prosecution, the evidence must 

show that the accused was intoxicated at the time he testified. Evidence that he was 

intoxicated at the time of the event about which he testified is immaterial insofar as 

raising this defense is concerned. United States v. Chaney, 30 C.M.R. 378 (C.M.A. 

1961). 

(b) Mistake of fact. Evidence that an accused charged with perjury was intoxicated 

at the time of the events about which he testified raises the defense of mistake since 

such evidence relates to his ability to see and recall what transpired. United States v. 

Chaney, 30 C.M.R. 378 (C.M.A. 1961). 

(c) That the false testimony provided was in respect to a material matter. 

(4) Determination of whether the false testimony was with respect to a material matter is 

a question of fact to be determined by the fact-finder. United States v. Gaudin, 515 U.S. 

506 (1995); see Johnson v. United States, 520 U.S. 461, 463-66 (1997). 

(5) To constitute a “material matter”, the matter need not be the main issue in the case. 

The test is whether the false statement has a natural tendency to influence, or be capable 

of influencing, the decision of the tribunal in making a determination required to be 

made. United States v. McLean, 10 C.M.R. 183 (A.B.R. 1953). Materiality must be 

judged by the facts and circumstances in the particular case. The color of an accused’s 

hair may be totally immaterial in one case, but decisively material in another. 

Weinstock v. United States, 231 F.2d 699 (D.C. Cir. 1956). 

(a) False denial of prior convictions by a witness in response to cross-examination 

conducted to impeach him and attack his credibility constitutes perjury, as such false 

testimony relates to a material matter. State v. Swisher, 364 Mo. 157, 260 S.W.2d 

(1968). 

(b) United States v. Martin, 23 C.M.R. 437 (A.B.R. 1956) (accused’s testimony at a 

previous trial that he was authorized to wear certain decorations, which was not in 

fact the case, was a material matter for purposes of sustaining a charge of perjury). 

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(6) Even inadmissible evidence may be material and therefore the subject of a perjury 

charge. Where a court improperly admits evidence, such impropriety is not per se 

evidence of immateriality if the evidence goes to the jury. See United States v. Whitlock, 

456 F.2d 1230 (10th Cir. 1972); United States v. Parker, 447 F.2d 826 (7th Cir. 1971). 

5. Discussion of Elements for Subsection 2 – False Statement 

a) Article 131 reads, in pertinent part: Any person subject to this chapter who in a judicial 

proceeding or in a course of justice willfully and corruptly. . . (2) in any declaration, 

certificate, verification, or statement under penalty of perjury as permitted under section 1746 

of title 28, subscribes any false statement material to the issue or matter of inquiry; is guilty 

of perjury and shall be punished as a court-martial may direct. 

b) “As permitted under section 1746 of title 28” applies to the whole of subsection (2), not 

just the “statement” portion. United States v. Tauala, 75 M.J. 752, 756 (A. Ct. Crim. App. 

2016). Thus, to convict an accused of perjury, pursuant to subsection (2), based on false 

statements in declaration, certificate, or verification, prosecutors must prove such statements 

were submitted in a federal proceeding under penalty of perjury. 

6. Corroboration: Special Evidentiary Rules. 

a) A unique characteristic of Article 131 is that it contains a quantitative norm as to what 

evidence must be presented to establish a crucial element of falsity. A mere showing of guilt 

beyond a reasonable doubt is not enough. Specifically: 

(1) “Two witness rule.” The falsity of accused’s statement must be shown by the 

testimony of at least two witnesses or by the testimony of one witness which directly 

contradicts accused’s statement plus other corroborating evidence. See United States v. 

Olivero, 39 M.J. 246 (C.M.A. 1994) (circumstantial evidence of marijuana use 

insufficient; must have at least one corroborated witness with direct proof of such use). 

United States v. Tunstall, 24 M.J. 235 (C.M.A. 1987) (where alleged false oath relates to 

two or more facts that one witness contradicts accused as to the one fact and another 

witness as to another fact, the two witnesses corroborate each other in the fact that 

accused swore falsely, and their testimony will authorize conviction); United States v. 

Lowman, 50 C.M.R. 749 (A.C.M.R. 1975) (accused’s testimony contradicted by two 

witnesses); United States v. Jordan, 20 M.J. 977 (A.C.M.R. 1985) (two witnesses rule not 

applicable where falsity of accused’s oath is directly proved by documentary testimony). 

(2) Direct proof required. No conviction may be had for perjury, regardless of how 

many witnesses testify as to falsity and no matter how compelling their testimony may 

be, if such testimony is wholly circumstantial. See Olivero, 39 M.J. 246 (C.M.A. 1994). 

b) Documentary evidence directly disproving the truth of accused’s statement need not be 

corroborated if the document is an official record shown to have been well known to the 

accused at the time he took the oath or if the documentary evidence appears to have sprung 

from the accused himself -or had in any manner been recognized by him as containing the 

truth - before the allegedly perjured statement was made. See generally Hall, The TwoWitness Rule in Falsification Offenses, Army Law., May 1989, at 11. 

c) With the passage of Title IV of the Organized Crime Control Act of 1970 (18 U.S.C. § 

1623), Congress eliminated application of the two witnesses rule in federal court and grand 

jury proceedings. In its stead was adopted a beyond a reasonable doubt standard. This 

statute, however, has not been made applicable to the military. See United States v. Lowman, 

50 C.M.R. 749 (A.C.M.R. 1975). 

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d) Inconsistent Sworn Statements. Because of the requirements of the “two witness rule,” 

contradictory sworn statements made by a witness cannot by themselves be the basis of a 

perjury prosecution under Article 131. For example, X testifies under oath that on 15 March 

he was in a certain bar with accused from 1900-2100. At the same or subsequent trial he 

again testifies under oath, but this time states that although he was in the bar from 1900-2100, 

he never saw the accused. Under military law, insufficient evidence exists to prosecute X for 

perjury. 

7. Application of evidentiary rules. 

a) United States v. Downing, 6 C.M.R. 568 (A.F.B.R. 1952). Mere circumstantial evidence 

showing nonpresence at a hospital by nonexistence of entry in hospital records held to be 

insufficient. 

b) United States v. McLean, 10 C.M.R. 183 (A.B.R. 1953). Weighty direct and 

circumstantial evidence of drinking which accused denied found sufficient. 

c) United States v. Taylor, 19 C.M.R. 71 (C.M.A. 1955). Directly contradictory testimony 

of prosecution witness corroborated by strong circumstantial evidence held sufficient. 

d) United States v. Walker, 19 C.M.R. 284 (C.M.A. 1955). Proof by circumstantial 

evidence alone of falsity of accused’s negative assertion of what he saw - something by its 

nature not susceptible of direct proof - was held to be sufficient. This exception was 

subsequently embodied in MCM, 1969, ¶ 210 (currently in MCM, pt. IV, ¶ 57c(2)(c)). 

e) United States v. Guerra, 32 C.M.R. 463 (C.M.A. 1963). Contradictory testimony held 

not directly so, therefore insufficient. 

f) United States v. Martin, 23 C.M.R. 437 (A.B.R. 1956). Documentary evidence directly 

disproving accused’s assertion of holding various decorations insufficient where 

uncorroborated. 

g) United States v. Anders, 23 C.M.R. 448 (A.B.R. 1956). Facts similar to those in United 

States v. Martin, supra. Documentary evidence properly corroborated by testimony negating 

claim of awards. 

h) United States v. Giles, 58 M.J. 634 (N-M. Ct. Crim. App. 2003)(accused’s testimony that 

she “did not believe she was purchasing LSD” was sufficiently contradicted by her prior 

confession to CID that she knew she was buying LSD, her own handwritten note stating that 

she was got “acid” and from the observations of an informant; totality of the evidence 

supports conviction for perjury) rev’d on improper joinder grounds, remanded by, 59 M.J. 

374 (C.A.A.F. 2004). 

8. Res Judicata as a Defense. 

a) The availability of res judicata as a defense to an accused charged with perjury is 

recognized in military law. 

b) This doctrine is raised when accused testifies at his trial and is acquitted, but the 

Government wants to retry him for presenting false testimony at that trial. Under these 

circumstances res judicata will bar a conviction for perjury. United States v. Martin, 24 

C.M.R. 156 (C.M.A. 1957); United States v. Hooten, 30 C.M.R. 339 (C.M.A. 1961); see 

generally Milhizer, Effective Prosecution Following Appellate Reversal: Putting Teeth Into 

the Second Bite of the Apple, II Trial Counsel Forum No. 4 (Apr. 1982). 

c) When an accused is acquitted based on statements made at his trial and then makes 

similar statements at the trial of another person, res judicata is not available as a bar to a 

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perjury prosecution for his subsequent statements because the principle of res judicata 

applies only to issues of fact or law put in issue and finally determined between the same 

parties. The accused was not a party to the second trial. United States v. Guerra, 32 C.M.R. 

463 (C.M.A. 1963); see generally Hahn, Previous Acquittals, Res Judicata, and Other 

Crimes Evidence Under Military Rule of Evidence 404(b), Army Law., May 1983, at 1. 

E. Obstructing Justice. MCM, pt. IV, ¶ 96; UCMJ art. 134. 

1. Elements. 

a) That the accused wrongfully did a certain act; 

b) That the accused did so in the case of a certain person against whom the accused had 

reason to believe there were or would be criminal proceedings pending; 

c) That the act was done with the intent to influence, impede, or otherwise obstruct the due 

administration of justice; and 

d) That, under the circumstances, the conduct of the accused was to the prejudice of the 

good order and discipline in the armed forces or was of a nature to bring discredit upon the 

armed forces. 

2. Scope. Obstructing justice under Article 134 is much broader than under the United States 

Code. See United States v. Jones, 20 M.J. 38 (C.M.A. 1985). It proscribes efforts to interfere 

with the administration of military justice throughout the investigation of a crime, not simply at 

pending judicial proceedings. The crime can be constituted where the accused had reason to 

believe that criminal proceedings were or would be pending. United States v. Tedder, 24 M.J. 

176 (C.M.A. 1987); United States v. Bailey, 28 M.J. 1004 (A.C.M.R. 1989); United States v. 

Chodkowski, 11 M.J. 605 (A.F.C.M.R. 1981), aff’d, 14 M.J. 126 (C.M.A. 1982); but cf. United 

States v. Kellough, 19 M.J. 871 (A.F.C.M.R. 1985) (not obstruction to “plant” evidence where no 

proceeding pending; offense was a disorder under Article 134). Criminal proceedings are broadly 

defined to include nonjudicial punishment. MCM, pt. IV, ¶ 96c. An official act, inquiry, 

investigation, or other criminal proceeding with a view toward possible disposition in the military 

justice system is required. United States v. Gray, 28 M.J. 858 (A.C.M.R. 1989). MCM 1984, pt. 

IV 96F is amended by Change 5 by making wrongfulness a required element. 

3. Applications. 

a) Assault on witness who had testified at summary court-martial. United States v. Long, 6 

C.M.R. 60 (C.M.A. 1952). 

b) Intimidating witnesses who were to testify at a summary court-martial. United States v. 

Rossi, 13 C.M.R. 896(A.F.B.R. 1953). 

c) Intimidating a witness who was to appear before an Article 32 investigating officer. 

United States v. Daminger, 31 C.M.R. 521 (A.F.B.R. 1961). But see United States v. 

Chodkowski, 11 M.J. 605 (A.F.C.M.R. 1981) (arguing that Daminger no longer accurately 

represents controlling law on obstruction issue and that such a charge does not require that 

charges had been preferred in the underlying case or investigation). 

d) Attempt to influence and intimidate a witness to retract a statement made during course 

of an Article 15 hearing. United States v. Delaney, 44 C.M.R. 367 (A.C.M.R. 1971). 

e) MP tried to conceal money which came into his possession in the course of official duty 

when the money was possible evidence pertaining to an alleged criminal offense by another 

person. United States v. Favors, 48 C.M.R. 873 (A.C.M.R. 1974). 

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f) Communications among co-conspirators not embraced by the conspiracy. United States 

v. Williams, 29 M.J. 41 (C.M.A. 1989); see United States v. Dowlat, 28 M.J. 958 

(A.F.C.M.R. 1989). 

g) Endeavoring to impede trial by soliciting a murder. United States v. Thurmond, 29 M.J. 

709 (A.C.M.R. 1989). 

h) Accused’s threat to airman, which airman understood as an inducement to testify falsely 

if he were called as a witness at the accused’s trial, constituted offense even if accused was 

not on notice that airman would be a witness. United States v. Caudill, 10 M.J. 787 

(A.F.C.M.R. 1981); United States v. Rosario, 19 M.J. 698 (A.C.M.R. 1984). 

i) Attempt to have witness falsely provide an alibi. United States v. Gomez, 15 M.J. 954 

(A.C.M.R. 1983). 

j) Accused’s act of simultaneously soliciting false testimony from two potential witnesses 

constituted a single obstruction of justice. United States v. Guerro, 28 M.J. 223 (C.M.A. 

1989). 

k) Asking witnesses to withdraw statements. United States v. Latimer, 30 M.J. 554 

(A.C.M.R. 1990). 

l) Accused’s statement “don’t report me” did not constitute obstruction of justice. United 

States v. Asfeld, 30 M.J. 917 (A.C.M.R. 1990). 

m) Seeking to have minor daughter’s boyfriend influence daughter to change her testimony 

at a state court proceeding, in exchange for consenting to daughter’s marriage to boyfriend. 

United States v. Smith, 32 M.J. 567 (A.C.M.R. 1991) rev’d on other grounds 39 M.J. 448 

(C.M.A. 1994) (merely requesting a soldier to contact a witness in a state proceeding, without 

evidence that accused also asked him to convince the witness to change her testimony, is not 

sufficient to sustain conviction for obstruction of justice). 

n) No obstruction of justice where accused’s conduct consisted only of calling friends and 

begging them not to press charges. United States v. Kirks, 34 M.J. 646 (A.C.M.R. 1992). 

o) Making false and misleading statement to investigators may constitute obstruction of 

justice. United States v. Arriaga, 49 M.J. 9 (1998). 

p) A senior drill instructor’s attempt to get two trainees to change their story regarding a 

sexual assault against one of the trainees was legally sufficient to sustain convictions for two 

specifications of obstruction of justice. The accused’s statement, “I’ll do anything if you 

don’t tell,” and its converse implication of more severe treatment if the trainee did not accede 

was inconsistent with the duties of a senior drill sergeant. Additionally, the accused knew his 

offense against the trainee had been reported and that the trainee was pursuing the matter. 

United States v. Barner, 56 M.J. 131 (2001). 

q) An interested party who advises, with a corrupt motive, a witness to exercise a 

constitutional right may obstruct the administration of justice. United States v. Reeves, 61 

M.J. 108 (2005) (accused, a tech school instructor, told a trainee not to speak to investigators 

and to seek counsel once the accused came under suspicion for several offenses). 

4. Applies to state court proceedings. United States v. Smith, 32 M.J. 567 (A.C.M.R. 1991), 

rev’d on other grounds, 39 M.J. 448 (C.M.A. 1994). 

5. Requisite intent not found unless accused aware that there is or possibly could be an 

investigation. United States v. Athey, 34 M.J. 44 (C.M.A. 1992). 

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6. It is not necessary that the potential evidence be within the control of authorities or already 

seized when destroyed by the accused in order to be considered obstruction of justice. United 

States v. Lennette, 41 M.J. 488 (1995). 

7. An accused can be convicted of obstruction of justice, even if the court-martial acquits him of 

the offense for which he was under investigation. United States v. Bailey, 52 M.J. 786 (A.F. Ct. 

Crim. App. 1999), aff’d, 55 M.J. 38 (C.A.A.F. 2001). 

8. Using the U.S. Code. 

a) A more restrictive, and thus generally less desirable, way to charge this offense is under 

Article 134(3), UCMJ, as a violation of one of the below-listed sections of the U.S. Code: 

(1) 18 U.S.C. § 1503 (1982) - Obstruction of proceedings before any federal court, 

commissioner, magistrate, or grand jury. United States v. Aguilar, 115 S. Ct. 2357 

(1995) (adopting the “nexus” requirement - that the conduct in question had the natural 

and probable effect of interfering with the due administration of justice). 

(2) 18 U.S.C. § 1505 (1982) - Obstruction of proceedings before departments, agencies 

and committees. 

(3) 18 U.S.C. § 1510 (1982) - Obstruction of criminal investigations. See generally 

United States v. Casteen, 17 M.J. 580 (A.F.C.M.R. 1983) (not intended to deal with 

communications between accomplices) reconsidered on other grounds, 17 MJ 800 

(1983), rev'd. in part, 24 MJ 62 (C.M.A. 1987). But see United States v. Williams, 29 

M.J. 41 (C.M.A. 1989) (disapproving of Casteen and stating that communications to an 

accomplice will be subject to obstruction charge under either Article 134(1) or 134(2)). 

(4) 18 U.S.C. § 1511 (1982) - Obstruction of state or local law enforcement. 

b) See Annot., 18 A.L.R. Fed. 875 (1974). 

c) If the offense is charged under the U.S. Code, the military judge must instruct on the 

elements set out in the statute and the Government must prove the same. United States v. 

Canter, 42 C.M.R. 753 (A.C.M.R. 1970); see generally United States v. Ridgeway, 13 M.J. 

742 (A.C.M.R. 1982). 

d) The MCM obviates the need for proceeding under some of these statutes as Article 134 

provides the offense of “Wrongful Interference With An Adverse Administrative 

Proceeding.” See MCM, pt. IV, para 96a. 

F. Destruction, Removal, or Disposal of Property to Prevent Seizure. MCM, pt. IV, ¶ 103; UCMJ 

art. 134. 

1. Elements. 

a) That one or more persons authorized to make searches and seizures were seizing, about to 

seize, or endeavoring to seize certain property; 

b) That the accused destroyed, removed, or otherwise disposed of that property with intent 

to prevent the seizure thereof; 

c) That the accused then knew that persons(s) authorized to make searches were seizing, 

about to seize, or endeavoring to seize certain property; and 

d) That, under the circumstances, the conduct of the accused was to the prejudice of the 

good order and discipline in the armed forces or was of a nature to bring discredit upon the 

armed forces. 

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2. The offense has no requirement that criminal proceedings be pending or that the accused 

intended to impede the administration of justice. Cf. United States v. Ridgeway, 13 M.J. 742 

(A.C.M.R. 1982). The crime is constituted where the accused intended to prevent the seizure of 

certain property that the accused knew persons authorized to make seizures were endeavoring to 

seize. 

3. Not a defense that the search or seizure was technically defective. MCM, pt. IV, ¶ 103c. 

G. Misprision of a Serious Offense. MCM, pt. IV, ¶ 95; UCMJ art. 134. 

1. Elements. 

a) That a certain serious offense was committed by a certain person; 

b) That the accused knew that the said person had committed the serious offense; 

c) That, thereafter, the accused concealed the serious offense and failed to make it known to 

civilian or military authorities as soon as possible; 

d) That the concealing was wrongful; and 

e) That, under the circumstances, the conduct of the accused was to the prejudice of the 

good order and discipline in the armed forces or was of a nature to bring discredit upon the 

armed forces. 

2. Taking affirmative steps to conceal the identity of the offender constitutes misprision; 

conviction of misprision of serious offense does not violate Fifth Amendment right against selfincrimination. United States v. Sanchez, 51 M.J. 165 (C.A.A.F. 1999) (accused took affirmative 

steps to conceal the identity of the offender). 

3. See supra, ¶ XL.F, this chapter, for a discussion of differences between Misprision of a 

Serious Offense and Accessory After the Fact. 

H. Lesser Included Offenses and Multiplicity. If properly pleaded, communicating a threat may be a 

lesser included offense of obstruction of justice. United States v. Benavides, 43 M.J. 723 (Army Ct. 

Crim. App. 1995) (relying on “pleading elements” analysis of United States v. Weymouth, 43 M.J. 

329, 340 (1995)); United States v. Craft, 44 C.M.R. 664 (A.C.M.R. 1971). But see United States v. 

Oatney, 41 M.J. 619 (N-M. Ct. Crim. App. 1994) (relying on strict “statutory elements” analysis of 

United States v. Teters, 37 M.J. 370 (C.M.A. 1993), the Navy-Marine Court held that communication 

of a threat and obstruction of justice are not multiplicious, even in a particular case where the threat 

factually must be proved in order to prove the obstruction of justice), aff’d, 45 M.J. 185 (C.A.A.F. 

1996). 

XL. “EVIL WORDS” OFFENSES. 

A. Threat or Hoax Designed or Intended to Cause Panic or Public Fear. MCM, pt. IV, ¶ 109; UCMJ 

art. 134. 

1. Expansion of Offense. In 2005, this offense was expanded from “bomb” threats or hoaxes to 

include threats and hoaxes of other types, including explosives, weapons of mass destruction, 

biological agents, chemical agents, and other hazardous material. See MCM, pt. IV, ¶ 109c; 

MCM, App. 23 ¶ 109. 

2. Explanation. “Threat” and “hoax” offenses can be charged under either Article 134(1), 

UCMJ, as conduct prejudicial to good order and discipline or under Article 134(3), UCMJ, a noncapital federal crime violative of 18 U.S.C. 

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3. “Innocent Motive.” Claim of joking motive is not a defense to “bomb hoax” charge, as the 

victim’s concern, which satisfies the requirement for maliciousness, can be inferred. United 

States v. Pugh, 28 M.J. 71 (C.M.A. 1989); see TJAGSA Practice Note, “I Was Only Joking” Not 

a Defense to “Bomb Hoax” Charge, Army Law., Jul. 1989, at 39 (discusses Pugh). 

4. Similarly to Communicating a Threat, whether the communication is a threat is determined 

using an objective standard. However, for the threat to be wrongful, it must be judged from the 

subjective standard (from the accused’s perspective). See United States v. Gebert, 2016 CCA 

LEXIS 662 (N-M Ct. Crim. App. Nov. 15, 2016) (citing United States v. Rapert, 75 MJ 164 

(C.A.A.F. 2016)). 

B. Communicating A Threat. MCM, pt. IV, ¶ 110; UCMJ art. 134. 

1. Elements. 

a) That the accused communicated certain language [that a reasonable person would 

understand as] expressing a present determination or intent to wrongfully injure the person, 

property, or reputation of another person, presently or in the future; 

b) That the communication was made known to that person or to a third person; 

c) That the communication was wrongful [in that the speaker intended the statements as 

something other than a joke or idle banter, or intended the statements to serve something 

other than an innocent or legitimate purpose]; and 

d) That, under the circumstances, the conduct of the accused was to the prejudice of good 

order and discipline in the armed forces or was of a nature to bring discredit upon the armed 

forces. 

2. Explanation. This offense consists of wrongfully communicating an avowed present 

determination or intent to injure the person, property, or reputation of another presently or in the 

future. It relates to a potential violent disturbance of public peace and tranquility. United States 

v. Grembowic, 17 M.J. 720 (N.M.C.M.R. 1983). The language in brackets in ¶ 1 originates from 

a CAAF opinion which analyzed the mens rea requirement for this offense. United States v. 

Rapert, 75 MJ 164 (C.A.A.F. 2016). This language reflects the CAAF’s holding in that case that 

stated whether the communication is a threat is determined using an objective standard. 

However, for the threat to be wrongful, it must be judged from the subjective standard (from the 

accused’s perspective). 

3. Pleading. United States v. Wartsbaugh, 45 C.M.R. 309 (C.M.A. 1972) (pleading sufficient 

because evidence of surrounding circumstances may disclose the threatening nature of the 

words). 

4. Applications. 

a) Avowed present intent or determination to injure. 

(1) Accused’s statement that “I’d kill [my first sergeant] with no problem,” made to 

health care professional while seeking help for drug addiction and suicidal urges, was not 

a present determination or intent to kill the putative victim. United States v. Cotton, 40 

M.J. 93 (C.M.A. 1994); United States v. Wright, 65 M.J. 703 (N-M. Ct. Crim. App. 2007) 

(statements to health care professional not communicating a threat). 

(2) Ineffective disclaimer. United States v. Johnson, 45 C.M.R. 53 (C.M.A. 1972) (“I 

am not threatening you . . . but in two days you are going to be in a world of pain,” 

constitutes a threat when considered within the totality of the circumstances). 

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(3) Conditional threat. 

(a) The “impossible” variable. United States v. Shropshire, 43 C.M.R. 214 (C.M.A. 

1971) (physical threat to guard by restrained prisoner not actionable as no reasonable 

possibility existed that threat would be carried out); see also United States v. Gately, 

13 M.J. 757 (A.F.C.M.R. 1982) (upheld lesser included offense of provoking 

words). 

(b) The “possible” variable. United States v. Phillips, 42 M.J. 127 (C.A.A.F. 1995) 

(accused’s statement to airman to “keep her damn mouth shut and [she would] make 

it through basic training just fine” was not premised on an impossible condition, even 

if the victim was not inclined to report accused’s misconduct); United States v. 

Brown, 65 M.J. 227 (2006) (accused could control the contingency, and the 

combination of words & circumstances could make a contingent threat immediate for 

purposes of Article 134); United States v. Holiday, 16 C.M.R. 28 (C.M.A. 1954) 

(unrestrained prisoner’s threat to injure guard was actionable even though 

conditioned on guard’s not pushing prisoner; the condition was one accused had no 

right to impose); United States v. Bailey, 52 M.J. 786 (A.F. Ct. Crim. App. 1999) 

(acts and words may express what accused can and will do in the future), aff’d, 55 

M.J. 38 (C.A.A.F. 2001); see United States v. Alford, 32 M.J. 596 (A.C.M.R. 1991), 

aff’d, 34 M.J. 150 (C.M.A. 1992). 

(4) Idle jest, banter, and hyperbole are not threatening words. United States v. Gilluly, 

32 C.M.R. 458 (C.M.A. 1963). In appraising the legal sufficiency of the evidence to 

sustain a conviction of communicating a threat, the circumstances surrounding the 

uttering of the words and consideration of whether the words were stated in jest or 

seriousness are to be evaluated. See United States v. Johnson, 45 C.M.R. 53 (C.M.A. 

1972) (Considered in the light of the circumstances of the situation the following was 

held to be an illegal threat, “I am not threatening you, but I am telling you that I am not 

personally going to do anything to you, but in two days you are going to be in a world of 

pain,” adding a suggestion that the victim “damn well better sleep light”). 

(5) The words used by the accused are significant in that they may not evidence a 

technical threat but rather merely state an already completed act, e.g., “I have just planted 

a bomb in the barracks.” Such a statement may constitute a simple disorder under 

Article 134 or a false official statement under Article 107 if made to a person in an 

official capacity (e.g., Charge of Quarters). To meet potential problems of proof, trial 

counsel should plead such offenses in the alternative. See United States v. Gilluly, 32 

C.M.R. 458 (C.M.A. 1963). 

(6) Lack of intent to actually carry out the threat is not a basis for rejecting a guilty plea. 

United States v. Greig, 44 M.J. 356 (C.A.A.F. 1996) (accused admitted making threats 

and wished that the individuals who heard the threats believed them). 

(7) Consider language and surrounding circumstances to determine whether or not words 

express a present determination or intent to wrongfully injure. United States v. Hall, 52 

M.J. 809 (N-M. Ct. Crim. App 1999). 

b) Communication to the victim is unnecessary. United States v. Gilluly, 32 C.M.R. 458 

(C.M.A. 1963). 

c) No specific intent is required. The intent which establishes the offense is that expressed 

in the language of the declaration, not the intent locked in the mind of the declarant. This is 

not to say the declarant’s actual intention has no significance as to his guilt or innocence. A 

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statement may declare an intention to injure and thereby ostensibly establish this element of 

the offense, but the declarant’s true intention, the understanding of the persons to whom the 

statement is communicated, and the surrounding circumstances may so belie or contradict the 

language of the declaration as to reveal it to be a mere jest or idle banter. United States v. 

Humphrys, 22 C.M.R. 96 (C.M.A. 1956). 

d) A threat to reputation is sufficient. United States v. Frayer, 29 C.M.R. 416 (C.M.A. 

1960); see also United States v. Farkas, 21 M.J. 458 (C.M.A. 1986) (threat to sell victim’s 

diamond ring sufficient). 

e) Threats not directly prejudicial to good order and discipline nor service discrediting do 

not constitute an offense. United States v. Hill, 48 C.M.R. 6, 7 (C.M.A. 1973) (lovers’ 

quarrel). 

f) Merger with an assault crime. United States v. Metcalf, 41 C.M.R. 574 (A.C.M.R. 1969) 

(threat after assault merges with assault for punishment purposes). 

g) Threatening a potential witness is a separate offense from and may constitute obstruction 

of justice in violation of Article 134. United States v. Oatney, 41 M.J. 619 (N.M.C. Ct. 

Crim. App. 1994), aff’d, 45 M.J. 185 (C.A.A.F. 1996); United States v. Rosario, 19 M.J. 698 

(A.C.M.R. 1984); United States v. Baur, 10 M.J. 789 (A.F.C.M.R. 1981). 

C. Provoking Words or Gestures. UCMJ art. 117. 

1. Elements. 

a) That the accused wrongfully used words or gestures towards a certain person; 

b) That the words or gestures used were provoking or reproachful; and 

c) That the person toward whom the words or gestures were used was a person subject to 

the code. 

2. Mens Rea. No specific intent is required. United States v. Welsh, 15 C.M.R. 573 (N.B.R. 

1954). 

3. Applications. 

a) The provoking words must be used in the presence of the victim and must be words 

which a reasonable person would expect to induce a breach of the peace under the 

circumstances. MCM, pt. IV, ¶ 42(c). 

(1) United States v. Davis, 37 M.J. 152 (C.M.A. 1993). Accused’s statement to MP, 

“F___ you, Sergeant,” and “F___ the MPs” was expected to induce a breach of the peace, 

even though the MP was not personally provoked and was trained to deal with such 

comments. 

(2) United States v. Thompson, 46 C.M.R. 88 (C.M.A. 1972). Because of the physical 

circumstances, the offensive words were unlikely to cause a fight. 

(3) United States v. Shropshire, 34 M.J. 757 (A.F.C.M.R. 1992). Insulting comments to 

policeman by handcuffed suspect under apprehension were insufficient to constitute 

provoking words as police are trained to overlook abuse. 

(4) United States v. Meo, 57 M.J. 744 (C.A.A.F. 2002). Guilty plea improvident when 

accused told ensign “[T]his is bullshit, I’m going to explode and I don’t know when or on 

who.” Although statement was disrespectful, it did not rise to the level of “fighting 

words.” 

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(5) United States v. Ybarra, 57 M.J. 807 (N-M. Ct. Crim. App. 2002) pet. denied, 58 

M.J. 289 (C.A.A.F. 2003). Accused pled guilty to provoking speech for using racial slurs 

to an NCO who was trying to restrain him. 

b) Not necessary that the accused know that the person towards whom the words or gestures 

are directed is a person subject to the UCMJ. 

c) Merger with an assault crime. United States v. Palms, 47 C.M.R. 416 (A.C.M.R. 1973). 

d) Separate offense from disrespect. United States v. McHerrin, 42 M.J. 672 (Army Ct. 

Crim. App. 1995). 

e) Whether the speech or conduct is provoking or reproachful is judged by its impact on the 

actual parties to whom the language or behavior is directed, not the “average person.” United 

States v. Killion, 75 MJ 209 (C.A.A.F. 2016). 

D. Extortion. UCMJ art. 127. 

1. Elements. 

a) That the accused communicated a certain threat to another; and 

b) That the acused intended to unlawfully obtain something of value, or any acquittance, 

advantage, or immunity. 

2. Applications. United States v. Brown, 67 M.J. 147 (C.A.A.F. 2009). Accused threatened to 

release videotape depicting the victim’s sexual acts unless she engaged in sexual intercourse with 

him. The specification alleged that “with intent unlawfully to obtain an advantage, to wit: sexual 

relations, [the accused] communicate[d] to [PFC RA] a threat to expose to other members of the 

military their past sexual relationship and to use his rank, position, and connections to discredit 

her and ruin her military career.” The CAAF held that the specification in this case was legally 

sufficient. The specification described the “advantage” that he accused sought to receive: sexual 

relations with the victim. By seeking to have her engage in sexual relations with him, the accused 

intended to “obtain an advantage.” The specification also described the threat the accused 

communicated in an effort to obtain the stated advantage: to expose their past sexual relationship 

in a manner that would harm the victim’s military career. 

E. Indecent Language. MCM, pt. IV, ¶ 89; UCMJ art. 134. 

F. False Public Speech. Service member does not have unlimited freedom to make false official 

presentation to public forum, and giving false speech in public forum may constitute an offense under 

Article 134, Clause 2. United States v. Stone, 40 M.J. 420 (C.M.A. 1994). 

G. Offensive Language. 

1. There is no generic “offensive language” offense under the UCMJ. United States v. Herron, 

39 M.J. 860 (N.M.C.M.R. 1994) (uttering profanity in loud and angry manner in public setting 

was not “general disorder” and could not be prosecuted as such). 

2. Any reasonable officer would have known that asking strangers of the opposite sex intimate 

questions about their sexual activities while using a false name, and a fictional publishing 

company as a cover was service discrediting conduct. United States v. Sullivan, 42 M.J. 360 

(C.A.A.F. 1995). 

XLI. DRUG OFFENSES. 

A. Drug offenses fall into several categories under the UCMJ. 

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1. UCMJ art. 112a. Covers certain drugs listed in the statutory language of Art. 112a, 

substances listed under Schedules I through V of the Controlled Substances Act (21 U.S.C. § 

812), and any other drugs that the President may see fit to prohibit in the military. 

2. AR 600-85, the Army Substance Abuse Program (2 February 2009), para. 4-2m. This is a 

punitive provision that expands the list of drugs that Soldiers are prohibited from using. Offenses 

are punished under UCMJ art. 92(1). 

3. There are numerous hazardous substances that are not expressly contained in any of the two 

categories described above. Such substances may be prohibited by operation of other federal 

statutes, for example 21 U.S.C. § 813. In the absence of such a statute applicable to a particular 

hazardous substance, the use, possession, distribution, or manufacture or such substances may 

still be prohibited by other provisions of Title 21 of the U.S. Code. If this is the case, then such 

misconduct may be prosecuted under clause three of Article 134. See, e.g., United States v. 

Reichenbach, 29 M.J. 128 (C.M.A. 1989) 

4. Finally, the abuse of substances not included in the categories described above may also 

violate clauses 1 and 2 of Article 134. See generally United States v. Reichenbach, 29 M.J. 128 

(C.M.A. 1989); see, e.g., United States v. Erickson, 61 M.J. 230 (C.A.A.F. 2005) (wrongful 

inhalation of nitrous oxide that impaired thinking and could damage the brain); United States v. 

Glover, 50 M.J. 476 (C.A.A.F. 1999) (wrongful inhalation of aeresol “dust-off”). NOTE: After 2 

Feb 09, the conduct in both Erickson and Glover of these cases would be covered under AR 600­

85, para. 4-2m (4-2p after Rapid Action Revision on 2 Dec 09). 

B. UCMJ art. 112a: The Statutory Framework. 

1. Article 112a, UCMJ, provides in part: Any person subject to this chapter who wrongfully 

uses, possesses, manufactures, distributes, imports into the customs territory of the United States, 

exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used 

by or under the control of the armed forces a substance described in subsection (b) shall be 

punished as a court-martial may direct. 

2. Types of Controlled Substances Covered by Article 112a. Article 112a, UCMJ, is a statute of 

limited scope in that it only prescribes conduct relating to three specific categories of controlled 

substances; it does not purport to “ban every new drug mischief.” United States v. Tyhurst, 28 

M.J. 671, 675 (A.F.C.M.R.), rev’d in part, 29 M.J. 324 (C.M.A. 1989). Substances are
 

“controlled” for purposes of this article (MCM, pt. IV, ¶ 37(a)(b)) if:
 

a) Congress listed them in the text of Article 112a. 

b) The President listed them in the MCM for the purposes of Article 112a, UCMJ, or 

c) They are listed in schedules I through V of section 202 of the Controlled Substances Act 

(21 U.S.C. § 812). 

3. Types of Conduct Prescribed by Article 112a, UCMJ. Article 112a prohibits an expansive 

array of conduct relating to controlled substances. The following types of conduct are expressly 

prohibited: Possession; Use; Manufacture; Distribution; Import/Export; Introduction; Possession, 

introduction, or manufacture with intent to distribute. 

4. Time of war. When declared by Congress or in accordance with a factual determination by 

the President. R.C.M. 103(19); United States v. Avarette, 41 C.M.R. 363 (C.M.A. 1970); United 

States v. Anderson, 38 C.M.R. 386 (C.M.A. 1968). 

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5. Intent to distribute. 

a) Intent to distribute may be inferred from circumstantial evidence. Examples of evidence 

which may tend to support an inference of intent to distribute are: possession of a quantity of 

substance in excess of that which one would be likely to have for personal use; market value 

of the substance; the manner in which the substance is packaged; and that the accused is not a 

user of the substance. On the other hand, evidence that the accused is addicted to or is a 

heavy user of the substance may tend to negate an inference of intent to distribute. MCM, pt. 

IV, ¶ 37c(6). 

b) Possession with intent to distribute does not require ownership. United States v. Davis, 

562 F.2d 681 (D.C. Cir. 1977). 

c) To convict for possession with intent to distribute, fact finder must be willing, where no 

evidence is presented of actual distribution, to find beyond a reasonable doubt that the 

accused would not have possessed so substantial a quantity of drugs if he merely intended to 

use them himself. United States v. Morgan, 581 F.2d 933 (D.C. Cir. 1978); see also United 

States v. Turner, 24 L.Ed.2d 610 (1970) (because accused’s possession of 14.68 grams of a 

cocaine and sugar mixture of which 5% was cocaine might have been exclusively for his 

personal use, evidence was insufficient to support conviction for distribution). 

d) Evidence of resale value of drug may support inference of intent to distribute. United 

States v. Raminez-Rodriguez, 552 F.2d 883 (9th Cir. 1977). 

e) Circumstantial evidence of intent to distribute may require expert testimony as to dosage 

units, street value, and packaging. See, e.g., United States v. Blake, 484 F.2d 50 (7th Cir.), 

cert. denied, 422 U.S. 919 (1979) (expert testimony that 14.3 grams of 17.3% pure heroin 

would make 420 “dime bags” having a St. Louis street value of $4,200); United States v. 

Wilkerson, 478 F.2d 813, 815 n. 3 (8th Cir. 1973) (49 pounds of marijuana worth $58,000 

when first broken up and $71,500 if broken into joints); United States v. Echols, 477 F.2d 37 

(8th Cir.), cert. denied, 414 U.S. 825 (1973) (199.73 grams of cocaine worth $200,000); 

United States v. Hollman, 541 F.2d 196 (8th Cir. 1976) (127 foil packets of heroin worth $20 

each). See generally United States v. Gould, 13 M.J. 734 (A.C.M.R. 1982) (35 individually 

wrapped pieces of hashish). 

f) A finding of addiction may support an inference that a large quantity of drugs were kept 

for personal use. See United States v. Raminez-Rodriguez, 552 F.2d 883 (9th Cir. 1977); 

United States v. Kelly, 527 F.2d 961 (9th Cir. 1976). 

C. Use. 

1. Elements. 

a) Use of controlled substance. 

b) Knowledge that the substance was used. 

c) Knowledge of the contraband nature of the substance. 

d) Use was wrongful, i.e., without legal justification or authorization. 

2. Defined. 

a) “[T]o inject, ingest, inhale, or otherwise introduce into the human body, any controlled 

substance.” MCM, pt. IV, ¶ 37c(10). 

b) Administration or physical assimilation of a controlled substance into one’s body or 

system. United States v. Harper, 22 M.J. 157 (C.M.A. 1986). 

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3. Pleadings. 

a) Because it is often impossible to prove the exact date and location of drug use and 

because time and location are not of the essence of this offense, courts allow some latitude in 

proving and pleading offenses of this sort. United States v. Miller, 34 M.J. 598 (A.C.M.R. 

1992). 

b) However, where a specification alleges wrongful acts on “divers occasions,” the 

members of a panel must be instructed that any findings by exceptions and substitutions that 

remove the “divers occasions” language must clearly reflect the specific instance of conduct 

upon which their modified findings are based by referring to a relevant date or other facts in 

evidence that will clearly put accused and reviewing courts on notice of what conduct served 

as basis for the findings. United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003); United 

States v. Seider, 60 M.J. 36 (C.A.A.F. 2004); United States v. Augspurger, 61 M.J. 189 

(2005) (citing the analysis in Seider). 

c) The prosecution must nonetheless prove beyond a reasonable doubt that the accused used 

controlled substance during the period of time alleged in the specification. United States v. 

Williams, 37 M.J. 972 (A.C.M.R. 1993); United States v. Lopez, 37 M.J. 702 (A.C.M.R. 

1993). 

4. Inferences and Proof of Use. 

a) Placebo effect. Expert testimony concerning herbal ecstasy and the effects described by 

the recipient in this case supported the factfinder’s conclusion that this was MDMA rather 

than herbal ecstasy. In addition, a placebo effect was unlikely in this case because the 

recipient did not have any preconceived notion of what to expect. Finally, the government 

produced evidence that the participants used the term “ecstasy” rather than “herbal ecstasy” 

in referring to the drug. United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005). 

b) Permissive inference of wrongfulness drawn from the positive result on urinalysis test is 

sufficient to support a finding of wrongful use of marijuana. United States v Pabon, 42 M.J. 

404 (1995); United States v. Ford, 23 M.J. 331 (C.M.A. 1987). 

c) Laboratory results of urinalysis, coupled with expert testimony explaining the results, 

constituted sufficient evidence to establish beyond a reasonable doubt that the accused 

knowingly and wrongfully used marijuana. United States v Bond, 46 M.J. 86 (1997); United 

States v. Harper, 22 M.J. 157 (C.M.A. 1986). 

d) When the sole evidence of drug use is a positive laboratory test result, knowledge of the 

presence of the controlled substance may be inferred if the prosecution presents expert 

testimony explaining the underlying scientific methodology and the significance of the test 

result, so as to provide a rational basis for inferring that the substance was knowingly and 

wrongfully used. United States v. Campbell, 52 M.J. 386 (C.A.A.F. 2000) (clarifying, on 

reconsideration, its earlier holding that evidence, in this case, insufficient to permit inference 

of wrongfulness from concentration of LSD reported through use of GC/MS/MS test); but see 

United States v. Green, 55 M.J. 76 (C.A.A.F. 2001) (positive urinalysis properly admitted 

under standards applicable to scientific evidence, when accompanied by interpretative expert 

testimony, provides legally sufficient basis to draw permissive inference of knowing, 

wrongful use of controlled substance); but see United States v. Hunt, 33 M.J. 345 (C.M.A. 

1991) (result of urinalysis alone, with no expert testimony explaining the results, is 

insufficient to establish guilt). 

e) Results of urinalysis alone, with no expert testimony explaining the results, are 

insufficient to establish guilt. United States v. Hunt, 33 M.J. 345 (C.M.A. 1991); United 

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States v. Murphy, 23 M.J. 310 (C.M.A. 1987); United States v. Brewer, 61 M.J. 425 

(C.A.A.F. 2005) (testimony from witnesses (who knew the accused throughout the charged 

period) that they had never seen him use drugs or observed him under the influence of drugs 

goes to the issue of knowing and wrongful use, and could have bolstered an innocent 

ingestion defense). 

f) Manual provision that allows use of a permissive inference to prove wrongful use is 

constitutional. United States v. Bassano, 23 M.J. 661 (A.F.C.M.R. 1986). 

g) Conviction for drug use affirmed where government introduced lab report and stipulation 

explaining the report. United States v. Spann, 24 M.J. 508 (A.F.C.M.R. 1987). 

h) Hair analysis. Evidence was legally and factually sufficient to sustain conviction for 

unlawful use of cocaine; hair analysis revealed presence of cocaine in hair shafts, there was 

expert testimony that presence of cocaine in hair shafts was metabolically explained by 

ingestion, and that it did not occur as a natural phenomenon, accused’s own witness conceded 

that there was cocaine in the hair sample tested, and chain of custody established that the 

sample was from the accused. United States v. Bush, 44 M.J. 646 (A.F. Ct. Crim. App. 

1996), aff’d, 47 M.J. 305 (C.A.A.F. 1997). 

5. Knowledge. 

a) There is no express mention of a mens rea requirement in the text of Article 112a for the 

use, possession, or distribution of controlled substances; the article merely prohibits the 

“wrongful” use, possession, or distribution of various controlled substances. See UCMJ art. 

112a. Likewise the MCM does not identify a mens rea in its description of the elements of 

these offenses. See MCM, pt. IV, ¶ 37b(2). However, the Court of Military Appeals 

(COMA) has long held that the absence of knowledge as to the presence of the substance in 

question or its contraband nature may give rise to a mistake or ignorance of fact defense to 

charges of use or possession of controlled substance. E.g., United States v. Greenwood, 19 

C.M.R. 335 (C.M.A. 1955). Later, COMA explicitly held that court-martial panels must be 

instructed that an accused must knowingly possess or use a controlled substance to be 

criminally liable for such an act. United States v. Mance, 26 M.J. 244 (C.M.A. 1988). 

b) There are two discrete types of knowledge that are relevant to the offenses in question: 

knowledge of the very presence of the substance, and knowledge of the physical composition 

of the substance. United States v. Mance, 26 M.J. 244 (C.M.A. 1988); United States v. 

Williams, 37 M.J. 972 (A.C.M.R. 1993); United States v. Heitkamp, 65 M.J. 861 (A. Ct. 

Crim. App. 2007). 

(1) If an accused is unaware of the presence of a controlled substance in another, lawful 

substance, then the accused may have a defense of ignorance of fact. Such a 

circumstance may arise when a controlled substance is placed in a drink or other 

foodstuffs without the knowledge of the accused. The accused would lack the knowledge 

required for “use” of a controlled substance. Mance, 26 M.J. at 253-54 . However, the 

accused may not ‘deliberately avoid” knowledge of the nature of the substance. United 

States v. Brown, 50 M.J. 262 (C.A.A.F. 1999) (defendant must be aware of the high 

probability that the substance was of a contraband nature and deliberately contrive to 

avoid knowledge of the substance’s nature). 

(2) Alternatively, the accused may be aware of the presence of the substance but 

incorrectly believe that it is innocuous. This absence of knowledge as to the contraband 

nature of a substance may give rise to a mistake of fact defense. In this circumstance, the 

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accused lacks the knowledge required to establish that the use was “wrongful.” Id. at 254 

. 

(3) To be guilty of wrongful possession of a controlled substance, the accused need only 

know about the presence and the identity of the substance. United States v. Heitkamp, 65 

M.J. 861 (A. Ct. Crim. App. 2007). 

c) Intersection with mistake of law. United States v. Heitkamp, 65 M.J. 861 (A. Ct. Crim. 

App. 2007). Accused possessed methandienone, a Schedule III controlled substance, but 

thought it was legal to possess the steroid. To be guilty of wrongful possession of a 

controlled substance, the accused need only know about the presence and the identity of the 

substance. His knowledge of the unlawfulness of the contraband item is not a defense. “[I]f 

an accused knows the identity of a substance that he is possessing or using but does not know 

that such possession or use is illegal, his ignorance is immaterial . . . because ignorance of the 

law is no defense.” 

d) The presence of the controlled substance gives rise to a permissive inference that an 

accused possessed both types of knowledge required to establish wrongful possession or use. 

Mance, 26 M.J. at 254 . 

e) Merely alleging in the pleading that a substance is listed on a federal schedule will not 

sustain a conviction for those substances not listed in Article 112a. United States v. Bradley, 

68 M.J. 556 (ArmyCt.Crim.App. 2009)(setting aside conviction for possession of “3,4 

methylenedioxymethamphetamine,” commonly known as “ecstacy,” where trial counsel 

failed to put on any evidence—such as a copy of the Controlled Substantces Act—and did not 

request the military judge to take judicial notice of the matter); United States v. Paul, 73 M.J. 

274 (C.A.A.F. 2014) (government introduced only evidence that accused used “ecstasy,” and 

no evidence that “ecstasy” was 3,4-methlenedioxymethampetamine; did not ask for judicial 

notice at trial; court of criminal appeals could not take judicial notice of an element of the 

offense that the government failed to prove). 

6. Applications. 

a) Use of leftover prescription drugs for a different ailment than that for which they were 

prescribed does not necessarily constitute wrongful use as a matter of law. United States v. 

Lancaster, 36 M.J. 1115 (A.F.C.M.R. 1993). 

b) One who knowingly ingests a controlled substance that he believes to be only cocaine, 

but actually contains cocaine laced with methamphetamine, may be found guilty of wrongful 

use of both substances; an accused need not know the exact pharmacological identity of the 

substance, but merely that it is contraband. United States v. Stringfellow, 32 M.J. 335 

(C.M.A. 1991); see United States v. Miles, 31 M.J. 7 (C.M.A. 1990). United States v. 

Alexander, 32 M.J. 664 (A.C.M.R. 1991), aff’d, 34 M.J. 121 (C.M.A. 1992). In United 

States v. Dillon, 61 M.J. 221 (2005) (ecstasy and methamphetamine). 

c) Accused not guilty of wrongful use of marijuana if he is a law enforcement official 

conducting legitimate law enforcement activities. United States v. Flannigan, 31 M.J. 240 

(C.M.A. 1990); see generally TJAGSA Practice Note, Lawfully Using Marijuana to Protect 

One’s Cover, Army Law., Mar. 1991, at 47 (discusses Flannigan). This rule does not apply, 

however, to possession or use of drugs caused by addiction, incurred as a result of earlier 

drug use necessitated when supplier forced accused, a drug informant who was not acting 

with approval of law enforcement authorities, to use drugs to prove that he was not an 

informer, occurring after accused was no longer an informant and his use was not necessary 

to protect his life or his cover. United States v. Wilson, 44 M.J. 223 (C.A.A.F. 1996). 

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d) Prosecution may not argue that the defense of innocent ingestion of marijuana should be 

rejected by court members to discourage other soldiers from raising it. United States v. 

Causey, 37 M.J. 308 (C.M.A. 1993). 

D. Possession. 

1. Elements. 

a) Possession of controlled substance. 

b) Knowledge of possession. 

c) Knowledge of contraband nature of substance. 

d) Possession is wrongful, i.e., without legal justification or authorization. 

2. Possession Defined. 

a) Possession means the exercise of control over something, including the power to preclude 

control by others. United States v. Zubko, 18 M.J. 378 (C.M.A. 1984); MCM, pt. IV, ¶ 

37c(2). 

b) More than one person may possess an item simultaneously. 

c) Possession may be direct or constructive. 

3. Constructive Possession. 

a) An accused constructively possesses a contraband item when he is knowingly in a 

position or had the right to exercise dominion and control over an item, either directly or 

through others. United States v. Traveler, 20 M.J. 35 (C.M.A. 1985). 

b) Mere association with one who is known to possess illegal drugs is not sufficient to 

convict on a theory of constructive possession. United States v. Seger, 25 M.J. 420 (C.M.A. 

1988). 

c) Mere presence on the premises where a controlled substance is found or proximity to a 

proscribed drug is insufficient to convict on a theory of constructive possession. United 

States v. Wilson, 7 M.J. 290 (C.M.A. 1979); United States v. Corpening, 38 M.J. 605 

(A.C.M.R. 1993) (presence in automobile in which contraband found, without more, legally 

insufficient to sustain conviction). 

4. Innocent Possession. 

a) Accused’s possession of drugs cannot be innocent if the accused neither destroys the drug 

immediately nor delivers them to the police. United States v. Kunkle, 23 M.J. 213 (C.M.A. 

1987). 

b) Innocent or “inadvertent” possession. The “inadvertent” possession defense requires that 

the drugs were planted or left in the accused’s possession without his knowledge, coupled 

with certain subsequent actions taken with an intent to immediately destroy the contraband or 

deliver it to law enforcement agents. Returning contraband drugs to a prior possessor or 

owner will not entitle an accused to claim innocent possession unless the accused 

inadvertently comes into possession of contraband and reasonably believes that he would be 

exposing himself to immediate physical danger unless he returned it to the prior possessor. 

United States v. Angone, 57 M.J. 70 ( C.A.A.F. 2002). 

5. Deliberate Avoidance. MCM, pt. IV, ¶ 37c(11). 

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a) Deliberate avoidance may also be called “deliberate ignorance,” or “conscious 

avoidance.” This doctrine allows the fact finder to infer knowledge by the defendant of a 

particular fact if the defendant intentionally decides to avoid knowledge of that fact. See 

generally United States v. Rodriguez, 983 F.2d 455, 457 (2d Cir. 1993). 

b) The rationale for the conscious avoidance doctrine is that a defendant’s affirmative 

efforts to “‘see no evil’ and ‘hear no evil’ do not somehow magically invest him with the 

ability to ‘do no evil.’” United States v. Di Tommaso, 817 F.2d 201, 218 n.26 (2d Cir. 1987). 

c) United States v. Brown, 50 M.J. 262 (1999) (military judge erroneously gave deliberate 

avoidance (a.k.a. “ostrich”) instruction when evidence did not reach “high plateau” required 

for the instruction); see also United States v. Newman, 14 M.J. 474 (C.M.A. 1983). 

6. Attempted Possession. One who possesses a legal drug believing it to be an illegal drug is 

guilty of attempted possession. United States v. Newak, 15 M.J. 541 (A.F.C.M.R. 1982), rev’d in 

part on other grounds, 24 M.J. 238 (C.M.A. 1987). If the evidence is insufficient to identify the 

substance beyond a reasonable doubt, the accused may be guilty of attempted possession. United 

States v. LaFontant, 16 M.J. 236 (C.M.A. 1983). 

7. Awareness of the presence of a controlled substance may be inferred from circumstantial 

evidence. MCM, pt. IV, ¶ 37c(2). United States v. Mahan, 1 M.J. 303 (C.M.A. 1976); see 

generally DA Pam 27-9, ¶ 7-3; Hug, Presumptions and Inferences in Criminal Law, 56 Mil. L. 

Rev. 81 (1972). 

8. Applications. 

a) Accused properly convicted of possession with intent to distribute when accused 

purchased 4.1 grams of marijuana, distributed 2.8 grams, but did not realize that 1.3 grams 

leaked out of the bag and remained in his pocket. United States v. Gonzalez, No. 20080111 

(A. Ct. Crim. App. Jun. 26, 2009). 

b) Possession is not present where accused tells another to hold marijuana while the accused 

decides whether to accept it in payment for a car. United States v. Burns, 4 M.J. 573 

(A.C.M.R. 1978). 

c) Accused in stockade is in “possession” of package of drugs mailed by him and returned 

to the stockade for inability to deliver. United States v. Ronholt, 42 C.M.R. 933 (N.C.M.R. 

1970). 

d) Mere speculation as to the identity of a substance by one non-expert witness is not legally 

sufficient evidence to prove possession of marijuana. United States v. Nicholson, 49 M.J. 478 

(C.A.A.F. 1998). 

e) Accused who comes into possession of drugs and who intended to return them to the 

original possessor is guilty of wrongful possession unless returning the drugs to the original 

possessor was motivated by fear for personal safety or to protect the identity/ safety of an 

undercover investigator. United States v. Kunkle, 23 M.J. 213 (C.M.A. 1987); MCM, pt. IV, 

¶ 37 (analysis). 

f) Possessing drugs for the purpose of giving them over to authorities is no offense. United 

States v. Grover, 27 C.M.R. 165 (C.M.A. 1958). 

g) No “usable quantity” defense. United States v. Birbeck, 35 M.J. 519 (A.F.C.M.R. 1992) 

(small quantity of cocaine was found in bindle and entire amount consumed in testing; 

possession of a controlled substance is criminal without regard to amount possessed). 

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h) An accused who involuntarily comes into possession and intends to give it to authorities, 

but forgets to do so, has a legitimate defense. United States v. Bartee, 50 C.M.R. 51 

(N.C.M.R. 1974). 

i) An accused who acts on a commander’s suggestion to buy drugs in order to further a drug 

investigation is in innocent possession. United States v. Russell, 2 M.J. 433 (A.C.M.R. 

1955). 

j) Possession is not “wrongful” where an enlisted pharmacy specialist, pursuant to his 

understanding of local practice, maintains an average stock of narcotic drugs in order to 

supply sudden pharmacy needs or fill an inventory shortfall. This is so even though the stock 

was in his possession outside the pharmacy and its existence was prohibited by regulations. 

The latter fact might justify prosecution for violation of the regulation. United States v. West, 

34 C.M.R. 449 (C.M.A. 1964). 

k) Specification charging accused with possession of marijuana with intent to distribute was 

sufficient despite not alleging element of wrongfulness. United States v. Berner, 32 M.J. 570 

(A.C.M.R. 1991). 

l) Possession is a lesser included offense of possession with intent to distribute. United 

States v. Gould, 13 M.J. 734 (A.C.M.R. 1982); United States v. Burno, 624 F.2d 95 (10th 

Cir. 1980). 

E. Distribution. 

1. MCM, pt. IV, ¶ 37c(3) states: “Distribute” means to deliver to the possession of another. 

“Deliver” means the actual, constructive, or attempted transfer of an item, whether or not there is 

an agency relationship. 

2. Mens Rea. 

a) Distribution is a general intent crime. United States v. Brown, 19 M.J. 63 (C.M.A. 

1984). 

b) The only mens rea necessary for wrongful distribution of controlled substances is the 

intent to perform the act of distribution. Distribution can occur even if the recipient is 

unaware of the presence of drugs. United States v. Sorrell, 23 M.J. 122 (C.M.A. 1986). 

c) Knowledge of the presence and the character of the controlled substance is an essential 

requirement of wrongful distribution. United States v. Crumley, 31 M.J. 21 (C.M.A. 1990). 

d) Distribution may continue, for purposes of establishing aider and abettor liability, after 

the actual transfer if the “criminal venture” contemplates the exchange of drugs for cash. 

United States v. Speer, 40 M.J. 230 (C.M.A. 1994). 

3. Pleading. Wrongfulness is an essential element of distribution. Failure to allege 

wrongfulness may not be fatal if the specifications as a whole can be reasonably construed to 

embrace an allegation of the element of wrongfulness required for conviction. United States v. 

Brecheen, 27 M.J. 67 (C.M.A. 1988). 

4. Applications. 

a) Distribution can consist of passing drugs from one co-conspirator to another. United 

States v. Tuero, 26 M.J. 106 (C.M.A. 1988); see United States v. Figueroa, 28 M.J. 570 

(N.M.C.M.R. 1989). 

b) Distribution can consist of passing drugs back to the original supplier. United States v. 

Herring, 31 M.J. 637 (N.M.C.M.R. 1990); see generally TJAGSA Practice Note, 

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Distributing Drugs to the Drug Distributor, Army Law., Mar. 1991, at 44 (discussing 

Herring). 

c) Distribution includes the attempted transfer of drugs. United States v. Omick, 30 M.J. 

1122 (N.M.C.M.R. 1989); see generally TJAGSA Practice Note, Does Drug Distribution 

Require Physical Transfer? Army Law., Nov. 1990, at 44 (discussing Omick). 

d) The Swiderski exception. 

(1) Sharing drugs is distribution. United States v. Branch, 483 F.2d 955 (9th Cir. 1973); 

United States v. Ramirez, 608 F.2d 1261 (9th Cir. 1979). However, when two 

individuals simultaneously and jointly acquire possession of a drug for their own use, 

intending to share it together, their only crime is joint possession. United States v. 

Swiderski, 548 F.2d 445 (2d Cir. 1977). 

(2) The Swiderski exception probably does not apply to the military. See United States v. 

Manley, 52 M.J. 748 (N-M. Ct. Crim. App. 2000); United States v. Ratleff, 34 M.J. 80 

(C.M.A. 1992) (PFC Ratleff went to mess hall with PFC Jaundoo who had hidden 

hashish in a can; PFC Jaundoo carried the can back to a barracks room and then gave the 

can to PFC Ratleff who opened the can and gave the hashish back to PFC Jaundoo; PFC 

Ratleff’s distribution conviction affirmed). But see United States v. Hill, 25 M.J. 411 

(C.M.A. 1988) (dicta). 

(3) Examples of cases where evidence did not raise the Swiderski exception. United 

States v. Hill, 25 M.J. 411 (C.M.A. 1988); United States v. Viser, 27 M.J. 562 

(A.C.M.R. 1988); United States v. Allen, 22 M.J. 512 (A.C.M.R. 1986); United States v. 

Tracey, 33 M.J. 142 (C.M.A. 1991); United States v. Lippoldt, 34 M.J. 523 (A.F.C.M.R. 

1991); United States v. Espronceda, 36 M.J. 535 (A.F.C.M.R. 1992). 

e) An accused cannot aid and abet a distribution between two government agents, where 

accused’s former “agent” became a government agent and sold to a person known by the 

accused to be a government agent and the accused did not ratify the sale or accept the 

proceeds. United States v. Bretz, 19 M.J. 224 (C.M.A. 1985); United States v. Elliott, 30 

M.J. 1064 (A.C.M.R. 1990). But cf. United States v. Dayton, 29 M.J. 6 (C.M.A. 1989) 

(accused guilty of distribution from source of one government agent to another government 

agent); United States v. Lubitz, 40 M.J. 165 (C.M.A. 1994) (accused not a “mere conduit” for 

drug distribution when he acted as buyer of cocaine with money supplie by government agent 

and subsequently transferred drugs to another covert government agent). 

f) Evidence that the distribution was a sale for profit will normally be admissible on the 

merits. If not, it may be admissible for aggravation in sentencing in a guilty plea or in a 

contested case. United States v. Vickers, 13 M.J. 403 (C.M.A. 1982); see United States v. 

Stokes, 12 M.J. 229 (C.M.A. 1982). 

g) Possession and Distribution. The elements of possession with intent to distribute are 

“necessarily included” within elements of distribution of a controlled substance, so accused 

cannot be found guilty of possession of marijuana with intent to distribute and distribution of 

the same marijuana on the same day. United States v. Savage, 50 M.J. 244 (C.A.A.F. 1999); 

see also United States v. Scalarone, 52 M.J. 539 (N-M. Ct. Crim. App. 1999). 

5. Use of Firearms. Carrying a firearm during a drug trafficking crime is a violation of 18 

U.S.C. § 924(g) and may be separately punished. 

6. Use of a communication facility (e.g., telephone, fax, beeper) to facilitate a drug transaction 

is a violation of 21 U.S.C. § 843(b) and may be separately punished. 

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F. Manufacture. 

1. MCM, pt. IV, ¶ 37c(4) states: “Manufacture” means the production, preparation, 

propagation, compounding, or processing of a drug or other substance, either directly or indirectly 

or by extraction from substances of natural origin, or independently by means of chemical 

synthesis or by a combination of extraction and chemical synthesis and includes any packaging or 

repackaging of such substance or labeling or relabeling of its container. The term “production” as 

used above includes the planting, cultivating, growing, or harvesting of a drug or other substance. 

2. The definition is drawn from 21 U.S.C. § 802 (14) and (21). 

3. Psilocybin mushrooms. Appellant planted spores from “magic mushroom” kit, but they 

failed to germinate. For the offense to be complete, the controlled substance must be present in 

the cultivated planting. Here, appellant is guilty only of an attempt to produce a controlled 

substance. Appellant ordered the “magic mushroom” kit, followed the instructions, and planted 

the spores with the specific intent of growing the contraband, acts that amounted to more than 

mere preparation. United States v. Lee , 61 M.J. 627 (C.G. Ct. Crim. App. 2005). 

G. Introduction. 

1. Introduction means to bring into or onto an installation, vessel, vehicle, or aircraft used by or 

under control of the Armed Forces. Installation is broadly defined and includes posts, camps, and 

stations. See generally United States v. Jones, 6 C.M.R. 80 (C.M.A. 1952) (Augsburg Autobahn 

Snack Bar a station). 

2. An accused cannot be convicted of aiding and abetting introduction of marijuana by OSI 

agent where accused had already sold marijuana to agent off base and marijuana was agent’s sole 

property when agent brought it onto base. United States v. Mercer, 18 M.J. 644 (A.F.C.M.R. 

1984). 

3. Accused must have actual knowledge that he is entering an installation to be guilty of 

introduction. United States v. Thomas, 65 M.J. 132 (C.A.A.F. 2007). 

H. Drug Paraphernalia. 

1. Because possession of “drug paraphernalia” constitutes only a remote and indirect threat to 

good order and discipline, it cannot be charged under Article 134(1) as an offense which is 

directly and palpably prejudicial to good order and discipline. This offense therefore must be 

charged under Article 92 as the violation of a general order/regulation or under Article 134(3), 

assimilating a local state statute under 18 U.S.C. §13. United States v. Caballero, 49 C.M.R. 594 

(C.M.A. 1975)). The AFCCA has interpreted Caballero to mean that when a punitive lawful 

general order or regulation proscribing the possession of drug paraphernalia exists, the offense 

must be charged under Art. 92(1), UCMJ, and not Art. 134. See also 2008 MCM, pt IV, ¶ 

60c.(2)(b); United States v. Borunda, 67 M.J. 607 (A.F. Ct. Crim. App. 2009). In the absence of 

a lawful general order or regulation, the Government is at liberty to charge the possession of drug 

paraphernalia under either Art. 92(3) or Art. 134. Borunda, 67 M.J. at 607. 

2. Most installations have promulgated local punitive regulations dealing with drug 

paraphernalia. 

3. The DEA model statute has come under attack for being unconstitutionally vague and 

overbroad. Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916 (6th Cir. 1980), vacated 

and remanded, 451 U.S. 1013 (1981). See generally Hoffman Estates v. Flipside, Hoffman 

Estates, 455 U.S. 489 (1981) (ordinance requiring a business to obtain a license if it sells any 

items “designed or marketed for use with illegal cannabis or drugs” upheld; DEA code as adopted 

in Ohio struck down). 

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4. Military regulations have been challenged for vagueness and overbreadth. United States v. 

Sweney, 48 C.M.R. 476 (A.C.M.R. 1974) (regulation upheld as being neither vague nor 

overbroad); see also United States v. Cannon, 13 M.J. 777 (A.C.M.R. 1982) (upholding 

regulation prohibiting possession of instruments or devices that might be used to administer or 

dispense prohibited drugs). See generally United States v. Clarke, 13 M.J. 566 (A.C.M.R. 1982); 

United States v. Bradley, 15 M.J. 843 (A.F.C.M.R. 1983); United States v. Hester, 17 M.J. 1094 

(A.F.C.M.R. 1984). 

5. To show violation of a regulation by possessing drug paraphernalia, the government need 

only prove that the accused exercised dominion and control over the paraphernalia. United States 

v. McKnight, 30 M.J. 205 (C.M.A. 1990). Prosecutors must also establish a nexus between drug 

use and an article that is not intrinsically drug-related. United States v. Camacho, 58 M.J. 624 

(N-M. Ct. Crim. App. 2003) (a butane torch). 

6. Applications. 

a) Regulations will be closely scrutinized. Bindles, scales, zip-lock bags, and other 

materials associated with use or ingestion of drugs did not fall within regulatory prohibition 

of “drug abuse paraphernalia” of Navy Instruction. United States v. Painter, 39 M.J. 578 

(N.M.C.M.R. 1993) (conviction set aside). 

b) Written instructions for producing controlled substances could constitute “drug 

paraphernalia” within meaning of Air Force Regulation. United States v. McDavid, 37 M.J. 

861 (A.F.C.M.R. 1993). 

I. Multiplicity. 

1. Simultaneous possession of different drugs constitutes only one offense for sentencing. 

United States v. Hughes, 1 M.J. 346 (C.M.A. 1976); United States v. Griffen, 8 M.J. 66 (C.M.A. 

1979). Simultaneous use of two substances is not necessarily multiplicious for findings but may 

be unreasonable multiplication of charges. United States v. Ray, 51 M.J. 511 (N-M. Ct. Crim. 

App. 1999) overruled on other grounds by United States v. Quiroz, 53 M.J. 600 (N-M.C.C.A. 

2000). Not multiplicious to charge two separate specifications for the simultaneous use of 

ecstacy and methamphetamine. United States v. Dillon, 61 M.J. 221 (2005). Simultaneous 

distribution of two different substances is not multiplicious but may constitute unreasonable 

multiplication of charges. See United States v. Inthavong, 48 M.J. 628 (Army Ct. Crim. App. 

1998). 

2. No distinction between marijuana and hashish. United States v. Kelly, 527 F.2d 961 (9th Cir. 

1976); United States v. Lee, 1 M.J. 15 (C.M.A. 1975); United States v. Nelson, 47 C.M.R. 395 

(A.C.M.R. 1973). 

3. Sales at the same place between same parties but fifteen minutes apart were separately 

punishable. United States v. Hernandez, 16 M.J. 674 (A.C.M.R. 1983). 

4. Possession of drugs from one cache at another time and place constitutes a separate offense 

warranting separate punishment. United States v. Marbury, 4 M.J. 823 (A.C.M.R. 1978). 

5. Solicitation to sell and transfer of drugs are separately punishable when respective acts 

occurred at separate times (four hours apart) and at separate locations. United States v. Irving, 3 

M.J. 6 (C.M.A. 1977). 

6. Use was separately punishable from possession and sale where quantity used was not same as 

quantity possessed. United States v. Smith, 14 M.J. 430 (C.M.A. 1983); see United States v. 

Nixon, 29 M.J. 505 (A.C.M.R. 1989). But if quantity used and possessed is the same, possession 

charge is multiplicious for findings. United States v. Bullington, 18 M.J. 164 (C.M.A. 1984); see 

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United States v. Hogan, 20 M.J. 221 (C.M.A. 1985). See generally United States v. Cumber, 30 

M.J. 736 (A.F.C.M.R. 1990) (use and distribution of same drug not multiplicious for sentencing). 

7. Attempted sale of a proscribed drug and possession of the same substance were so integrated 

as to merge as a single event subject only to a single punishment. United States v. Smith, 1 M.J. 

260 (C.M.A. 1976); see also United States v. Clarke, 13 M.J. 566 (A.C.M.R. 1982). 

8. Where charges of possession and transfer of heroin were based on accused’s retention of 

some heroin after transferring a quantity of the drug to two persons who were to sell it on the 

open market as accused’s agents, the two offenses were treated as single for purposes of 

punishment. United States v. Irving, 3 M.J. 6 (C.M.A. 1977). 

9. Possession of one packet of drugs and simultaneous distribution of a separate packet of drugs 

was separately punishable. United States v. Wilson, 20 M.J. 3 (C.M.A. 1985) (summary 

disposition). Possession with intent to distribute 35 hits of LSD was separately punishable from 

the simultaneous distribution of 15 hits of LSD. United States v. Coast, 20 M.J. 3 (C.M.A. 1985) 

(possession of LSD with intent to distribute was multiplicious with distribution of LSD); see also 

United States v. Kitts, 23 M.J. 105 (C.M.A. 1986); United States v. Muller, 21 M.J. 205 (C.M.A. 

1986); United States v. Jennings, 20 M.J. 223 (C.M.A. 1985). Sale and possession of a separate, 

cross-town cache were separately punishable. United States v. Isaacs, 19 M.J. 220 (C.M.A. 

1985). Where the accused bought a large amount of marijuana to be sold in smaller quantities at 

a profit, where he made a final sale of approximately one eighth of it to a friend, and where the 

remainder was retained for future sales or other disposition, different legal and societal norms 

were violated by the sale and possession, and separate punishments were proper. United States v. 

Wessels, 8 M.J. 747 (A.F.C.M.R. 1980); accord United States v. Chisholm, 10 M.J. 795 

(A.F.C.M.R. 1981); United States v. DeSoto, 15 M.J. 645 (N.M.C.M.R. 1982); United States v. 

Anglin, 15 M.J. 1010 United States v. Ansley, 16 M.J. 584 (A.C.M.R. 1983); United States v. 

Worden, 17 M.J. 887 (A.F.C.M.R. 1984). 

10. Possession and distribution of cocaine on divers occasions may be separate offenses under 

certain facts. United States v. Bowers, 20 M.J. 1003 (A.F.C.M.R. 1985) (considering guilty plea 

and facts before the court). 

11. Distribution of a controlled substance necessarily includes possession with intent to 

distribute. United States v. Savage, 50 M.J. 244 (C.A.A.F. 1999); United States v. Scalarone, 52 

M.J. 539 (N-M. Ct. Crim. App. 1999). 

12. Introduction of drugs onto military installation and sale of portion on same day not 

multiplicious for sentencing. United States v. Beardsley, 13 M.J. 657 (N.M.C.M.R. 1982). 

Introduction and possession are, however, multiplicious. United States v. Decker, 19 M.J. 351 

(C.M.A. 1985); United States v. Roman-Luciano, 13 M.J. 490 (C.M.A. 1982) (summary 

disposition); United States v. Miles, 15 M.J. 431 (C.M.A. 1983); United States v. Hendrickson, 

16 M.J. 62 (C.M.A. 1983). But if the amount possessed is greater than the amount introduced, 

possession of the excess amount may not be multiplicious for any purpose if the excess amount is 

explained on the record. United States v. Morrison, 18 M.J. 108 (C.M.A. 1984) (summary 

disposition) (excess amount belonged to someone else); cf. United States v. Hill, 18 M.J. 459 

(possession of excess amount dismissed where not explained on the record). Finally, introduction 

and possession with intent to distribute are not multiplicious. United States v. Zupancic, 18 M.J. 

387 (C.M.A. 1984). 

13. Introduction with intent to distribute and distribution are multiplicious for findings. United 

States v. Wheatcraft, 23 M.J. 687 (A.F.C.M.R. 1986); contra United States v. Beesler, 16 M.J. 

988 (A.C.M.R. 1983). 

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14. Possession and distribution when time, place, and amount are the same are multiplicious for 

findings. United States v. Zubko, 18 M.J. 378 (C.M.A. 1984); United States v. Brown, 19 M.J. 63 

(C.M.A. 1984). 

15. Larceny of and possession of same drugs not multiplicious for sentencing. United States v. 

Logan, 13 M.J. 821 (A.C.M.R. 1982). 

16. Possession and possession with intent to distribute are multiplicious for sentencing. The 

appropriate remedy is dismissal of the possession specification. United States v. Forance, 12 

M.J. 312 (C.M.A. 1981) (summary disposition); United States v. Conley, 14 M.J. 229 (C.M.A. 

1982) (summary disposition). 

17. Possession of drugs and drug paraphernalia at the same time and place are multiplicious for 

sentencing. United States v. Bell, 16 M.J. 204 (C.M.A. 1983) (summary disposition). 

18. Possession with intent to distribute and introduction are multiplicious. United States v. 

Antonitis, 29 M.J. 217 (C.M.A. 1989), aff’d, 32 M.J. 315 (C.M.A. 1991). 

19. Distribution by injection and distribution of tablets of the same drug are multiplicious. 

United States v. Gumbee, 30 M.J. 736 (A.F.C.M.R. 1990). 

20. Use and distribution based upon accused smoking a marijuana cigarette then passing it to a 

friend were not multiplicious for sentencing purposes. United States v. Ticehurst, 33 M.J. 965 

(N.M.C.M.R. 1991). 

21. For an example of prejudicial multiplicious pleading, see generally United States v. 

Sturdivant, 13 M.J. 323 (C.M.A. 1982) (charges dismissed where accused’s phone conversation 

arguably setting up buy of his monthly marijuana ration led to 10 specifications being charged, a 

general court-martial conviction, and a sentence of dishonorable discharge, 3 years confinement 

and total forfeitures). 

22. Simultaneous distribution not multiplicious. United States v. Inthavong, 48 M.J. 628 

(C.A.A.F. 1998). 

23. The offenses of introduction of a controlled substance, with the aggravating factor of intent to 

distribute, and distribution of the same controlled substance are not multiplicious. United States v. 

Monday, 52 M.J. 625 (Army Ct. Crim. App. 1999). 

J. Special Rules of Evidence. 

1. The laboratory report qualifies as a business record or public record exception to the hearsay 

rule and can be admitted into evidence once its authenticity is established. MRE 803(6) and (8); 

United States v. Evans, 45 C.M.R. 353 (C.M.A. 1972); United States v. Miller, 49 C.M.R. 380 

(C.M.A. 1974); United States v. Strangstalien, 7 M.J. 225 (C.M.A. 1979); United States v. 

Vietor, 10 M.J. 69 (C.M.A. 1980). 

2. The admission of a laboratory report into evidence as either a business or public record does 

not give accused an automatic right to the attendance of the person who performed the test. 

Rather, the accused must make a showing as to the necessity for producing the witness. United 

States v. Vietor, 10 M.J. 69 DA Form 4137 (the chain of custody form) is admissible as either a 

business record or public record exception to the hearsay rule. MRE 803(6) and (8). Contra 

United States v. Nault, 4 M.J. 318 (C.M.A. 1978); United States v. Porter, 7 M.J. 30 (C.M.A. 

1979); United States v. Neutze, 7 M.J. 32 (C.M.A. 1979); United States v. Oates, 560 F.2d 45 

(2nd Cir. 1977); United States v. Helton, 10 M.J. 820 United States v. Scoles, 33 C.M.R. 226 

(C.M.A. 1963). 

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3. When dealing with fungible evidence such as drugs, military courts have traditionally 

required that an unbroken chain of custody be established to show that the drugs seized were in 

fact the drugs tested at the lab, and that they were not tampered with prior to testing. The Court 

of Military Appeals broadened this approach and declared that even fungible evidence may be 

introduced without showing an unbroken chain of custody so long as the government can 

establish that the substance was contained in a “readily identifiable” package and that the contents 

of that package were not altered in any significant way. United States v. Parker, 10 M.J. 415 

(C.M.A. 1981); United States v. Lewis, 11 M.J. 188 (C.M.A. 1981); United States v. Madela, 12 

M.J. 118 (C.M.A. 1981); United States v. Ettelson, 13 M.J. 348, 350-51 (C.M.A. 1982). See 

generally United States v. Morsell, 30 M.J. 808 United States v. Hudson, 20 M.J. 607 (A.C.M.R. 

1985). 

4. The chemical nature of a drug may be established without the aid of a laboratory report or 

expert witness but with the testimony of a lay witness familiar with the physical attributes of the 

drug. United States v. Tyler, 17 M.J. 381 (C.M.A. 1984) (lay witness qualified to testify what 

used was cocaine despite alcohol intoxication at time of use). Tests administered by investigators 

to determine lay witness’ ability to identify drugs were relevant to ability to identify drugs at time 

of use. Id.; United States v. Coen, 46 C.M.R. 1201 (N.C.M.R. 1972) (accused’s statement); 

United States v. Torrence, 3 M.J. 804 (C.G.C.M.R. 1977) (accomplice witness); United States v. 

Watkins, 5 M.J. 612 (A.C.M.R. 1978) (informer and CID agent); United States v. Jenkins, 5 M.J. 

905 (A.C.M.R. 1978) (accused’s admission is not enough to establish nature of drugs without 

corroborative evidence); United States v. White, 9 M.J. 168 (C.M.A. 1980) (accused’s 

corroborated extrajudicial statement); United States v. Morris, 13 M.J. 666 (A.F.C.M.R. 1982) 

(transferee and witness); United States v. Jessen, 12 M.J. 122, 126 (C.M.A. 1981) (“simulated 

smoking” by undercover agent); cf. United States v. Hickman, 15 M.J. 674 (A.F.C.M.R. 1983) 

(witness merely calling the substance “marijuana” at trial insufficient); but see United States v. 

LaFontant, 16 M.J. 236 (C.M.A. 1983) (if evidence insufficient to identify substance beyond a 

reasonable doubt, accused may be guilty of an attempt). 

5. The buyer in a drug sale case is an accomplice, and the defense is entitled to an accomplice 

instruction. United States v. Hopewell, 4 M.J. 806 (A.F.C.M.R. 1978); United States v. Helton, 

10 M.J. 820 (A.F.C.M.R. 1981); United States v. Scoles, 33 C.M.R. 226 (C.M.A. 1963). No such 

instruction is required if buyer was Government informant. United States v. Hand, 8 M.J. 701 

(A.F.C.M.R. 1980), rev’d on other grounds, 11 M.J. 321 (C.M.A. 1981); United States v. Kelker, 

50 C.M.R. 410 (A.C.M.R. 1975). 

K. Defenses. 

1. The fact that the amount of controlled substance involved in any given offense is de minimis 

is no defense except as it may bear on the issues of the accused’s knowledge. United States v. 

Alvarez, 27 C.M.R. 98 (C.M.A. 1958); United States v. Nabors, C.M.R. 101 (C.M.A. 1958); see 

MCM, pt. IV, ¶ 37c(7). 

2. Knowledge, ignorance and mistake defenses. 

a) Ignorance of the law (not knowing that the substance was illegal) is no defense. United 

States v. Mance, 26 M.J. 244 (C.M.A. 1988); United States v. Greenwood, 19 C.M.R. 335 

(C.M.A. 1955); United States v. Heitkamp, 65 M.J. 861 (A. Ct. Crim. App. 2007) (accused 

stated that he did not know it was illegal to possess methandienone, a Schedule III controlled 

substance). 

b) Ignorance of the physical presence of the substance is a legitimate defense (“I didn’t 

know there was anything in the box . . . the locker . . . my pocket . . . the pipe.”). United 

States v. Mance, 26 M.J. 244 (C.M.A. 1988). 

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(1) Ignorance need not be reasonable, only honest. United States v. Hansen, 20 C.M.R. 

298 (C.M.A. 1955). 

(2) Knowledge that a container was present, without knowledge of the presence of the 

substance within, will not defeat the defense. United States v. Avant, 42 C.M.R. 692 

(A.C.M.R. 1970). 

(3) The accused’s suspicion that a substance may be present is insufficient for guilt. 

United States v. Whitehead, 48 C.M.R. 344 (N.C.M.R. 1973); United States v. Heicksen, 

40 C.M.R. 475 (A.B.R. 1969). But see United States v. Valle-Valdez, 554 F.2d 911 (9th 

Cir. 1977). 

(4) Under some circumstances deliberate ignorance of a fact can create the same criminal 

liability as actual knowledge. United States v. Newman, 14 M.J. 474 (C.M.A. 1983). 

See supra ¶ IX.C.5., this chapter. 

c) Ignorance or mistake as to “the physical composition or character” of the substance is a 

legitimate defense. (“I thought it was powdered sugar.” “I didn’t know what it was”). United 

States v. Mance, supra; United States v. Greenwood, 19 C.M.R. 335 (C.M.A. 1955); United 

States v. Ashworth, 47 C.M.R. 702 (A.F.C.M.R. 1973). 

(1) The ignorance or mistake need not be reasonable. United States v. Fleener, 43 

C.M.R. 974 (A.F.C.M.R. 1971). 

(2) Knowledge of the name of the substance will not necessarily defeat the defense; to be 

guilty, the accused must know the “narcotic quality” of the substance. United States v. 

Crawford, 20 C.M.R. 233 (C.M.A. 1955); United States v. Baylor, 37 C.M.R. 122 

(C.M.A. 1967) (Court approves instruction that accused “must know of the presence of 

the substance and its narcotic nature”). 

(3) The mistake must be one which, if true, would exonerate the accused. United States 

v. Jefferson, 13 M.J. 779 (A.C.M.R. 1982) (mistake not exonerating where accused 

accepted heroin thinking he was getting hashish); see also United States v. Morales, 577 

F.2d 769, 776 (2nd Cir. 1978); United States v. Jewell, 532 F.2d 697, 698 (9th Cir.) (en 

banc), cert. denied, 426 U.S. 951 (1978). 

3. Defense of innocent ingestion does not require corroborative witnesses or direct evidence. 

United States v. Lewis, 51 M.J. 376 (C.A.A.F. 1999). 

4. The defense of innocent possession does not apply in those cases where an accused exercises 

control over an item for the purpose of preventing its imminent seizure by law enforcement or 

other authorities, even if he intends to thereafter expeditiously destroy the item. United States v. 

Angone, 54 M.J. 945 (A. Ct. Crim. App. 2001), aff’d, 57 M.J. 70 (C.A.A.F. 2002); see supra ¶ 

IX.C.4, this chapter. 

5. Regulatory immunity. Issue of whether accused was entitled to regulatory exemptions of 

Army Regulation 600-85 were waived if not raised at trial. United States v. Gladdis, 12 M.J. 

1005 (A.C.M.R. 1982); United States v. Mika, 17 M.J. 812 (A.C.M.R. 1984). 

L. Entrapment. See Chapter 5 (Defenses) in this deskbook. 

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CHAPTER 21
 

SEXUAL OFFENSES
 

This Chapter discusses sexual offenses that occurred from 28 June 2012 to present. See
 

Appendix for discussion of the laws relating to sexual offenses occurring before this date.
 

I. Rape and Sexual Assault Generally Article 120 (2012) 

II. Rape and Sexual Assault of a Child Article 120b (2012) 

III. Stalking Article 120a (2012) 

IV. Other Sexual Misconduct Article 120c (2012) 

V. Forcible Sodomy and Bestiality Article 125 

VI. Child Pornography 

a. After 12 January 2012 

b. Before 12 January 2012
 

App. Sexual Offenses before 28 June 2012
 

I. RAPE AND SEXUAL ASSAULT GENERALLY ARTICLE 120 (2012) 

Adult Crimes (Art. 120) 

- Rape 

- Sexual Assault 

- Aggravated Sexual Contact 

- Abusive Sexual Contact 

A. Generally. MCM, pt. IV, ¶ 45; UCMJ art. 120 (2012). 

1. The first step in determining whether an offense meets the statutory definition of a crime 

under Article 120 is determining whether a sexual act or sexual contact occurred. 

a) Sexual Act: (1) penetration of the vulva, anus or mouth by the penis, or (2) penetration 

of the vulva, anus or mouth by any other body part or object, with the intent to 

abuse/humiliate/harass/degrade or with the intent to gratify sexual desires. Note that 

penetration by the penis is therefore by definition a general intent offense. A sexual act is 

required for rape and sexual assault offenses. 

b) Sexual Contact: (1) touching or causing another to touch genitalia, anus, groin, breast, 

inner thigh or buttocks with intent to abuse, humiliate, harass, or degrade any person or 

gratify the sexual desire of any person; or (2) touching or causing another to touch any body 

part with intent to gratify the sexual desire of any person. A sexual contact is required for 

aggravated sexual contact and abusive sexual contact offenses. 

(1) Though not specifically delineated in the statute, the touching required to constitute a 

sexual contact may also be accomplished by an object. United States v. Schloff, 74 M.J. 

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B. The next step is to determine what actions the accused took, or in some instances, what status the 

victim was in at the time of the offense. This will determine which offense is at issue. 

a) Rape and aggravated sexual contact occur when the accused takes one of the following 

actions to accomplish the sexual act or sexual contact: 

(1) Using unlawful force against the victim 

(2) Using force causing or likely to cause death or grievous bodily harm to any person 

(3) Threatening death, grievous bodily harm, or kidnapping to any person 

(4) Rendering the victim unconscious 

(5) Administering intoxicant/drug by force or threat of force, or without knowledge or 

consent of the victim 

b) Sexual assault and abusive sexual contact occur when the accused takes one of the 

following actions to accomplish the sexual act or sexual contact, or when the victim is in one 

of the statuses described: 

(1) Threatening the victim or placing him/her in fear 

(2) Causing bodily harm 

(3) Making a fraudulent representation that the sexual act/contact serves a professional 

purpose 

(4) Inducing a belief that the accused is another person 

(5) When the victim is asleep, unconscious, or otherwise unaware that the sexual 

act/contact is occurring, and the accused knew or should have known of such condition 

(6) When the victim is incapable of consent due to impairment by a drug/intoxicant/other 

similar substance, or due to mental disease or defect or physical disability, and the 

accused knew or should have known of such condition 

c) Unlawful Force. Unlawful Force is defined as an “act of force done without legal 

justification or excuse.” “Force” is further defined separately in the statute. Therefore, the 

government must prove more than that the accused used merely some amount of unlawful 

force to accomplish the sexual act or sexual contact – that is, the unlawful force must also 

amount to use of a weapon, use of physical strength or violence, or physical harm, in 

accordance with the statutory definition of force. See United States v. Thomas, 74 M.J. 563 

(N-M. Ct. Crim App. 2014). 

(1) Body weight alone does not meet the statutory definition of force. See United States 

v. Thomas, 74 M.J. 563 (N-M.C.C.A. 2014); United States v. Soto, 2014 CCA LEXIS 

681 (A.F.C.C.A. Sept. 16, 2014). 

(2) Rolling an incapacitated victim over onto his back in order to place penis into the 

victim’s mouth does not meet the statutory definition of force, though it may have met 

the elements under an “incapable of consent” theory. United States v. Parker, 2016 CCA 

LEXIS 83 (N-M. Ct. Crim. App. 2016). 

d) Incapable of consenting. This term is not defined in the statute; however, the C.A.A.F. 

has approved of the following judicially-crafted definition where the government has alleged 

the victim was incapable of consenting: victims are incapable of consenting when they 

“lack[] the cognitive ability to appreciate the sexual conduct in question or lack[] the physical 

or mental ability to make or to communicate a decision about whether they agreed to the 

conduct” United States v. Pease, 75 M.J. 180 (CAAF 2016). Trial judges may, but are not 

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required to, provide this definition to members. See United States v. Lovett, 2016 CCA 

LEXIS 276 (ACCA 2016). 

(1) Article 120(b)(3) requires proof beyond a reasonable doubt that the accused had 

actual knowledge that victim could not consent or reasonably should have known that the 

victim could not consent. Thus, mistake of fact is not a “defense” to sexual assault; it is 

an attack on an element. The government is required to disprove, as a matter of course, a 

mistake of fact in every case under Article 120(b)(3). Therefore, it is not appropriate to 

instruct members on a mistake of fact defense in these cases. United States v. Teague, 75 

M.J. 636 (A. Ct. Crim. App. 2016), review denied, (C.A.A.F. June 16, 2016). 

(2) Incapable of consent raises three questions: was the victim aware of the nature of the 

sexual conduct at issue; was the victim able to communicate her unwillingness to engage 

in the conduct; and was the victim otherwise able to make competent decisions. United 

States v. Wilson, No. ARMY 20130601, 2016 WL 2726275 (A. Ct. Crim. App. May 5, 

2016), review denied, (C.A.A.F. Aug. 1, 2016) (where victim’s testimony answered all 

three questions in the affirmative, the two specifications alleging substantial incapacity 

were legally insufficient). 

(3) “Impairment” is a different concept than incapable of consent, and impairment 

matters only insofar as it renders a victim of incapable of consenting. See United 

States v. Newlan, 2016 CCA LEXIS 540 (N-M. Ct. Crim App. 2016) (suggesting a 

model instruction to define “impairment” which focuses on impairment’s impact on a 

victim’s capacity to consent). 

e) Bodily Harm. Bodily harm is defined as any offensive touching. An offensive touching 

is also further explicitly defined to include a nonconsensual sexual act or sexual contact. 

Therefore, prosecutions under a bodily harm theory may allege either (1) a battery of the 

victim’s external body, which caused the sexual act or contact to occur; or (2) the penetrative 

act itself (rape and sexual assault) or the sexually offensive act itself (sexual contact 

offenses), as long as the sexual act or sexual contact is nonconsensual. Because of this, when 

the government alleges that the bodily harm and the sexual act/contact are one in the same, 

the trial judiciary adds a third, non-statutory element when instructing members: the 

government must prove lack of consent. This extra element is not present in bodily harm 

cases where the government’s theory is that the bodily harm is a non-penetrative battery. 

(1) Because “lack of consent” is not a statutory element, it must not be pled in order 

to state an offense. United States v. Guin, 75 MJ 588 (N-M. Ct. Crim. App. 2016). 

f) Consent. 

(1) Per Executive Order 13640 of 16 Sep 2016, “lack of consent is not an element of any 

offense under [Article 120] unless expressly stated.” However, the trial judiciary still 

instructs on this element as described in ¶ A.1.e. above. Lack of consent is expressly 

stated as an element in only one offense: where the government alleges the accused 

administered a drug or intoxicant without the victim’s consent. 

(2) Evidence of Consent is potentially admissible as to any offense under Article 120. 

This is because evidence of consent “may preclude the causal link between the sexual 

conduct and the charged method.” U.S. DEP’T OF ARMY, PAM. 27-9, MILITARY JUDGES 

BENCHBOOK. For example, if members believe the alleged victim consented in an 

unlawful force case, then the government has not proven that the accused used unlawful 

force. 

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(3) Mistake of Fact as to Consent is potentially a defense as to almost all offenses under 

Article 120. This is because the accused’s honest and reasonable mistake of fact as to 

consent “may preclude the causal link between the sexual conduct and the charged 

method.” U.S. DEP’T OF ARMY, PAM. 27-9, MILITARY JUDGES BENCHBOOK. For 

example, if members believe the accused honestly and reasonably was mistaken as to 

whether the victim consented in a bodily harm case, then the government has not proven 

that the accused caused the sexual act via an offensive touching. 

(a) Because mistake of fact is “baked into the elements” in incapable of consent 

cases, it is not a required instruction even if the evidence otherwise would have raised 

mistake of fact as a defense. United States v. Teague, 75 M.J. 636 (A. Ct. Crim. App. 

2016). 

(b) While the accused need not testify in order to warrant the instruction, there must 

be some evidence introduced during the trial “to which the members could attach 

credit” to the proposition that the accused both honestly and reasonably believed the 

victim consented. See United States v. Davis, 75 MJ 537 (A.C.C.A. 2015). 

C. Lesser included offenses (LIO). The below cases are representative of LIO case law in the arena 

of Article 120. Note that whether an offense is an LIO of another, particularly in the context of 

Article 120, can be very fact specific; as such, the below cases are intended as guideposts only. 

1. Sexual Assault by Causing Bodily Harm is an LIO of Rape by Force. United States v. Alston, 

69 M.J. 214 (C.A.A.F. 2010). Note that this case is based on the 2007 statute, but the definitions 

are similar enough to use this as precedent in a post-2012 case. Also note that the analysis in this 

case would not apply in cases where the sexual act is alleged to be the bodily harm. In those 

cases, sexual assault by bodily harm would not be an LIO. 

2. Assault consummated by a battery is an LIO of Wrongful Sexual Contact. United States v. 

Bonner, 70 M.J. 1 (C.A.A.F. 2011). The same analysis would apply to the current Abusive 

Sexual Contact offense. 

3. Assault consummated by a battery is not an LIO of Sexual Assault where the bodily harm 

alleged is the penetrative act. United States v. Hackler, 75 M.J. 648 (N-M.Ct.Crim.App. 2016). 

However, Assault consummated by a battery is an LIO of Abusive Sexual Contact. Id. 

4. Assault consummated by a battery is not an LIO of Abusive Sexual Contact by Fear, where 

the fear alleged does not include fear of bodily harm. United States v. Riggins, 75 M.J. 78 

(C.A.A.F. 2016).\ 

D. Exigencies of proof/charging in the alternative. The appellate courts recognize that Article 120 

cases often lend themselves to charging in the alternative. See United States v. Elespru, 73 M.J. 326 

(C.A.A.F. 2014). Military judges should ordinarily dismiss one of the charges based on the principle 

of unreasonable multiplication of charges only after findings have been reached. Id. Practitioners are 

advised to request the military judge to conditionally dismiss until such time as appellate review has 

been completed. See, e.g., United States v. Hines, 2016 CCA LEXIS 439 (A. Ct. Crim. App. July 27, 

2016) fn 4 (MJ “should clearly state that the dismissal of the one specification is conditioned on a 

second specification surviving appellate review.”). See also United States v. Thomas, 74 M.J. 563 

(N-M. Ct. Crim App. 2014), United States v. Parker, 2016 CCA LEXIS 83 (N-M.Ct.Crim.App. Feb. 

18, 2016). Consolidation of specifications may also be appropriate as an alternative to dismissal. See 

United States v. Nelms, 2016 CCA LEXIS 227 83 (N-M.Ct.Crim.App. Apr. 14, 2016). 

E. Statute is gender neutral. 

F. Defenses. Marriage is not a defense. 

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G. Maximum punishments were prescribed via Executive Order 13643 of May 15, 2013. Mandatory 

minimum sentences of dishonorable discharge or dismissal were prescribed by statute on 24 June 

2014 for the following offenses: Rape, Sexual Assault, Rape of a Child, Sexual Assault of a Child, 

Forcible Sodomy, and attempts of these offenses. For offenses occurring between 28 June 2012 and 

14 May 2013, see United States v. Busch, 75 MJ 87 (CAAF 2016). 

II. RAPE AND SEXUAL ASSAULT OF A CHILD. ART. 120B (2012). 

Child Crimes (Art. 120b) 

- Rape of a Child 

- Sexual Assault of a Child 

- Sexual Abuse of a Child 

A. Generally. 

1. The definitions for sexual act and sexual contact found within Article 120b are identical to 

those found within Article 120. 

2. The definition of force is slightly different in that Article 120b does not require the physical 

harm to be “sufficient to coerce or compel submission;” rather, physical harm by itself may be 

enough. Note that physical harm is but one theory of force available. 

3. Rape of a Child 

a) Any sexual act with a child under 12 is Rape of a Child, and no defense of mistake of fact 

as to age exists. In addition, the government need not prove the accused knew the age of the 

child. 

b) Any sexual act with a child between 12 and 16 caused by force against any person, 

threatening or placing a child in fear, rendering a child unconscious, or administering a drug 

or intoxicant constitutes Rape of a Child. 

4. Sexual Assault of a Child 

a) Any sexual act committed on a child between 12 and 16 is sexual assault of a child. 

Mistake of fact as to age is a defense, though the defense bears the burden of proof by a 

preponderance of the evidence. In addition, the government need not prove the accused knew 

the age of the child. 

b) Offenses against children may still be prosecuted under Article 120 (for example, if the 

government believes the accused had a reasonable mistaken belief that the child was 16 or 

older, it could still charge under an Article 120 theory of liability should one exist). 

5. Sexual Abuse of a Child 

a) Sexual Abuse of a Child is defined as committing a lewd act upon a child. 

b) The term ‘lewd act’ means— 

(1) any sexual contact with a child; 

(2) intentionally exposing one’s genitalia, anus, buttocks, or female areola or nipple to a 

child by any means, including via any communication technology, with an intent to 

abuse, humiliate, or degrade any person, or to arose or gratify the sexual desire of any 

person; 

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(3) intentionally communicating indecent language to a child by any means, including 

via any communication technology, with an intent to abuse, humiliate, or degrade any 

person, or to arouse or gratify the sexual desire of any person; or 

(4) any indecent conduct, intentionally done with or in the presence of a child, including 

via any communication technology, that amounts to a form of immorality relating to 

sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, 

and tends to excite sexual desire or deprave morals with respect to sexual relations. 

B. Maximum punishments were prescribed via Executive Order 13643 of May 15, 2013. Mandatory 

minimum sentences of dishonorable discharge or dismissal were prescribed by statute on 24 June 

2014 for the following offenses: Rape, Sexual Assault, Rape of a Child, Sexual Assault of a Child, 

Forcible Sodomy, and attempts of these offenses. For offenses occurring between 28 June 2012 and 

14 May 2013, see United States v. Busch, 75 MJ 87 (CAAF 2016). 

III. STALKING ARTICLE 120A (2012). 

A. Elements. 

1. That that accused wrongfully engaged in a course of conduct directed at a specific person that 

would cause a reasonable person to fear death or bodily harm to himself or herself or a member of 

his or her immediate family; 

2. That the accused had knowledge, or should have had knowledge, that the specific person 

would be placed in reasonable fear of death or bodily harm, including sexual assault, to himself or 

herself or a member of his or her immediate family; and 

3. That the accused’s acts induced reasonable fear in the specific person of death or bodily harm 

to himself or herself or to a member of his or her immediate family. 

B. For a discussion of what actions may constitute this offense, see generally United States v. 

Gutierrez, 73 MJ 172 (C.A.A.F. 2014). 

IV. OTHER SEXUAL MISCONDUCT ARTICLE 120C (2012). 

Other Sexual Crimes (Art. 120c) 

- Indecent Viewing, Visual Recording, or Broadcasting 

- Indecent Exposure 

- Forcible Pandering 

A. Maximum punishments were prescribed via Executive Order 13643 of May 15, 2013. 

B. Indecent viewing is only criminal insofar as the viewing is done “live” and in-person; viewing a 

recording of another’s private area, even if the recording was done without consent, is not criminal. 

See United States v. Quick, 74 M.J. 517 (N-M.Ct.Crim.App. 2015), aff’d, 2015 CAAF LEXIS 703 

(C.A.A.F. Aug. 11, 2015). 

C. It is not indecent exposure to take a picture of one’s genitals and then show that picture to another 

person; the offense requires a showing of the actual body part, not just an image. United States v. 

Williams, 75 M.J. 663 (A. Ct. Crim. App. 2016). See also United States v. Uriostegui, 75 MJ 857 (N21-6 
 

 

 

 

 

 

 

 

 

 

 

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M.Ct.Crim.App. 2016)(pointing out that unlike Article 120b, Article 120c does not specifically 

mention communications technology). 

D. Whether an exposure is done in an “indecent manner” may be judged based on several factors, 

such as consent, relative ages of the parties, and whether the exposure was in public or private. United 

States v. Johnston, 75 MJ 563 (N-M.Ct.Crim.App. 2016). 

E. Indecent Conduct under Article 134. 

1. Unlike its predecessor, the current Article 120 does not include an offense of Indecent 

Conduct or the synonymous Indecent Acts. In some circumstances Indecent Acts may be charged 

for conduct occurring after 28 June, 2012, by charging the conduct under Clause 1 and/or 2 of 

Article 134. See United States v. Quick, 74 M.J. 517 (N-M.Ct.Crim.App. 2015), aff’d, 2015 

CAAF LEXIS 703 (C.A.A.F. Aug. 11, 2015). 

2. As of 16 September 2016, the President enumerated Indecent Conduct as an Article 134 

offense. The elements and definitions are identical to the previous iterations of this offense, with 

one important change: physical presence is no longer required. 

V. FORCIBLE SODOMY AND BESTIALITY ARTICLE 125 

A. The offense of Sodomy was repealed in December, 2013, and replaced with the current statute; 

therefore, consensual sodomy is no longer an offense under the UCMJ. 

B. Forcible Sodomy may be accomplished either by unlawful force or without consent. Neither term 

is defined in the statute. 

C. Sodomy is defined as unnatural carnal copulation, which is not further defined in the statute. The 

common law defines unnatural carnal copulation generally as a penetrative act by or of the genitalia 

into any body part other than the reproductive organs. Acts of unnatural carnal copulation are 

identical to acts described within the definition of sexual act under Article 120. It has been suggested 

that the courts should not recognize Forcible Sodomy as an offense because rules of statutory 

interpretation require invalidation of the less specific of two statutes which criminalize the same 

behavior. See United States v. Gross, 73 MJ 864 (A.C.C.A. 2014)(dissent). 

D. Mistake of fact as to age is not a defense under Article 125 offenses against children. See United 

States v. Gross, 73 MJ 864 (A.C.C.A. 2014); United States v. Gifford, 75 MJ 140 (C.A.A.F. 

2016)(FN 6). 

VI. CHILD PORNOGRAPHY 

A. Prior to 12 January 2012 there was no enumerated crime addressing child pornography in the 

UCMJ and the President had not listed a child pornography offense under Article 134. Crimes in the 

military that involve child pornography prior to 12 January 2012 must be charged under a general 

article (Article 133 or Article 134); see ¶ G. 

B. Article 134 specifically criminalizes four child pornography offenses: 

1. Possessing, receiving, or viewing 

2. Possession with the intent to distribute 

3. Distribution 

4. Producing 

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C. There are few reported cases on this offense. Much of the case law developed prior to 12 January 

2012 is still applicable; as such, practitioners should review ¶ G in its entirety as well. 

D. Note that child pornography as enumerated under Article 134 is defined as either (a) “an obscene 

visual depiction of a minor engaging in sexually explicit conduct” or (b) “a visual depiction of an 

actual minor engaging in sexually explicit conduct” (emphasis added). 

1. Obscenity is not defined within the text of the MCM. Practitioners should look to the myriad 

of case law defining obscenity if necessary. Note also that the C.A.A.F., in interpreting 18 U.S.C. 

§ 2256(8)(B), has determined that a “graphic” exhibition of what appear to be a minor must 

necessarily include nudity. United States v. Blouin, 24 M.J. 247 (C.A.A.F. 2015). Whether the 

C.A.A.F. would require nudity for an “obscene” depiction of what appears to be a minor remains 

to be seen. 

2. The word “obscene” is omitted from the model specification listed in the MCM; trial counsel 

should nevertheless allege obscenity when unable to definitively prove that the depictions are of 

actual minors. 

E. Sexually explicit conduct is defined in part as a “lascivious exhibition of the genitals or pubic 

area of any person.” This definition is not further defined within the MCM. Because it mirrors the 

definition found within 18 U.S.C. § 2256, military judges ordinarily read the definition found within 

subsection (8) of that statute. In turn, “[o]nce the military judge elects to use the statutory definition 

of child pornography under 18 U.S.C. § 2256(8), the Child Pornography Prevention Act (CPPA), the 

evidence must meet that definition.” United States v. Morris, 2014 CCA LEXIS 645, *4 (NM.Ct.Crim.App. Aug. 28, 2014), aff’d, 2015 CAAF LEXIS 685 (C.A.A.F. July 15, 2015). 

1. When the images depict an actual minor, the lascivious exhibition need not include nudity, 

and "the contours of the genitals or pubic area [need not] be discernible or otherwise visible 

through the child subject's clothing." United States v. Knox, 32 F.3d 733, 746 (3d Cir. 1994). See 

also United States v. Morris, 2014 CCA LEXIS 645 (N-M.Ct.Crim.App. Aug. 28, 2014) , aff’d, 

2015 CAAF LEXIS 685 (C.A.A.F. July 15, 2015). 

2. In determining whether a display is lascivious, military courts look to the non-exclusive 

factors outlined in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986). These factors are: 

a) whether the focal point of the visual depiction is on the child's genitalia or pubic area; 

b) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose 

generally associated with sexual activity; 

c) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering 

the age of the child; 

d) whether the child is fully or partially clothed, or nude; 

e) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual 

activity; 

f) whether the visual depiction is intended or designed to elicit a sexual response in the 

viewer. 

United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986). 

g) Note: The Dost factors are considerations for the Court, however, “there may be other 

factors that are equally if not more important in determining whether a photograph contains a 

lascivious exhibition” and the court reaches that conclusion “by combining a review of the 

Dost factors with an overall consideration of the totality of the circumstances.” United States 

v. Roderick, 62 M.J. 425, 429–30 (C.A.A.F. 2006). See also United States v. Watkins, No. 

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ARMY 20140275, 2016 WL 3208750, at *2 (A. Ct. Crim. App. May 26, 2016) (child’s 

testimony that she was not trying to be sexy was not dispositive; the accused’s intent also 

mattered, and he clearly solicited the picture for his sexual pleasure. The backdrop of the 

picture – a bathroom mirror – favored neither side of the equation, but overall the picture 

qualified as child pornography); United States v. Gould, No. ARMY 20120727, 2016 WL 

4177576, at *1 (A. Ct. Crim. App. Aug. 5, 2016) (images of eight year old’s crotch where she 

was wearing underwear were not child pornography, but Judge Wolffe in dissent notes he 

would have found them to be child pornography under the totality of the circumstances as 

appellant admitted attraction to the child, had the child sleep in his bed, and admitted the 

photos were part of his pornography). However, see ¶D.1 – the C.A.A.F. seemingly does 

require nudity, despite the fact that it is but one factor per Dost. 

h) Note: as discussed in ¶ D.1 above, depictions of a virtual child or a child not identifiable 

as an actual child might require nudity in order to qualify as “obscene.” In that case, the Dost 

factors would still otherwise apply, though nudity would be a required factor. Again, there is 

no “obscenity” requirement for depictions of actual minors. 

3. It is an open question whether possession of child erotica – that is, nude and sexualized 

images of children which nevertheless do not depict “sexually explicit conduct” as defined within 

the MCM – is a viable offense under clause 1 or 2 of Article 134. See United States v. Moon, 73 

M.J. 382 (C.A.A.F. 2014). Possession of non-nude images of children, even if sexualized, is not 

an offense. United States v. Warner, 73 M.J. 1 (C.A.A.F. 2013). 

F. Other cases. 

1. Even where some images are found not to meet the statutory definition of child pornography 

upon appellate review, there is no longer a requirement to set aside a guilty verdict as long as at 

least one of the images constituted non-Constitutionally protected material. United States v. 

Piolunek, 74 M.J. 107 (C.A.A.F. 2015). This case overturned United States v. Barberi, 71 M.J. 

127 (C.A.A.F. 2012). 

G. Child Pornography – Before 12 January 2012. 

1. There are two ways to charge child pornography crimes committed prior to 12 June 2012 

using Article 134: 

a) Charge the criminal conduct using Article 134, clauses 1 and 2. 

b) Charge a violation of an applicable federal statute using Article 134, clause 3. 

2. Clauses 1 and 2, Article 134. 

a) “It is a mystery to me why, after this [c]ourt’s ten-year history of invalidating convictions 

for child pornography offenses under clause 3, and of upholding convictions for such 

offenses under clause 2, we continue to see cases charged under clause 3.” United States v. 

Medina, 66 M.J. 21, 29 n.1 (C.A.A.F. 2008) (Stucky, J., dissenting). 

b) Possession of child pornography may be charged as a Clause 1 or Clause 2 offense. 

United States v. Irvin, 60 M.J. 23 (C.A.A.F. 2004). 

c) Virtual Child Pornography under Clauses 1 and 2. 

(1) United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004) (“The receipt or possession of 

“virtual” child pornography can, like “actual” child pornography, be service-discrediting 

or prejudicial to good order and discipline.”). 

(2) United States v. Brisbane, 63 M.J. 106 (C.A.A.F. 2006) (“The knowing possession of 

images depicting sexually explicit conduct by minors, whether actual or virtual, when 

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determined to be service-discrediting conduct or conduct prejudicial to good order and 

discipline, is an offense under Article 134”). 

(3) The maximum punishment for possession of virtual child pornography is 4 months. 

United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011). Cf. United States v. Finch, 73 M.J. 

144 (C.A.A.F. 2014). 

d) Referencing an unconstitutional statutory definition of child pornography in the pleadings 

and instructing the members using the unconstitutional statutory definition created 

instructional error in an Article 133 child pornography case. United States v. Forney, 67 M.J. 

271 (C.A.A.F. 2009) (Effron, C.J., concurring in the result) (Erdmann, J., dissenting). This 

analysis should also apply if the offense was charged under clauses 1 and 2 of Article 134. 

e) The nature of the images is not dispositive as to whether receiving such images is 

PGO&D or SD. United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003) (providence 

inquiry failed to establish whether accused pled guilty to possession of virtual or actual child 

pornography; no LIO of clause 1 or clause 2 because no discussion of PGO&D or SD). 

f) Although United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) provides the current state 

of the law regarding the relationship between the three clauses of Article 134, the following 

cases were affirmed under clause 2 of Article 134: 

(1) United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000) (after finding that the military 

judge failed to adequately advise the accused of the elements of federal offense of 

possession of child pornography, under 18 U.S.C. § 2252(a)(4)(A), which he was charged 

with violating under clause 3 of Article 134, the Air Force court did not err by affirming 

the lesser included offense of service-discrediting conduct, under clause 2 of Article 134. 

(2) United States v. Augustine, 53 M.J. 95 (C.A.A.F. 2000) (affirming under clause 2 

rather than clause 3 of Article 134). 

(3) United States v. Hays, 62 M.J. 158 (C.A.A.F. 2005) (holding the plea inquiry did not 

implicate the appellant’s First Amendment rights, thus placing the analysis under Sapp 

and Augustine; although the MJ did not discuss with appellant whether his conduct was 

service discrediting or prejudicial to good order and discipline, there is no doubt that 

appellant was aware of the impact of his conduct on the image of the armed forces; 

affirmed under Clause 2). 

3. Clause 3, Article 134. 

a) See generally MCM, pt. IV, ¶ 60c(4). 

b) Key federal statutes. The following federal statutes are available for charging various 

conduct involving the production, possession, transportation, and distribution of child 

pornography: 

(1) 18 U.S.C. § 2251, Sexual Exploitation of Children. Among other prohibitions, this 

provision covers the use of minors in the production of child pornography. 

(2) 18 U.S.C. § 2252, Certain Activities Relating to Material Involving the Sexual 

Exploitation of Minors. This child pornography provision was the predecessor to the 

computer-specific 18 U.S.C. § 2252A. 

(3) 18 U.S.C. § 2252A, Certain Activities Relating to Material Constituting or 

Containing Child Pornography. This is the federal provision that most comprehensively 

covers the use of computers and the Internet to possess, transport, and distribute child 

pornography. 

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(4) Statutory Definitions. 18 U.S.C. § 2256 contains the applicable definitions for child 

pornography offenses. 

c) Amendments. 

(1) The Effective Child Pornography Prosecution Act of 2007, Pub. L. No. 110-358 (Oct. 

8, 2008) (adds "using any means or facility of interstate or foreign commerce" to several 

sections in 18 USC 2251, 2251A, 2252, and 2252A). 

(2) The Enhancing the Effective Prosecution of Child Pornography Act of 2007, Pub. L. 

No. 110-358 (Oct. 8, 2008) (adds to 18 USC 2252(a)(4) and 2252A(a)(5) the following 

language after "possesses": "or knowingly accesses with intent to view"). 

(3) The Providing Resources, Officer, and Technology to Eradicate Cyber Threats to 

Our Children Act of 2008 (or The PROTECT Our Children Act of 2008), Pub. L. No. 

110-401 (Oct. 13, 2008) (Sec 301 prohibits broadcast of live images of child abuse, Sec. 

302 amends the definition of "visual image" under 18 USC 2256(5) by inserting "and 

data which is capable of conversion into a visual image that has been transmitted by any 

means, whether or not stored in a permanent format", Sec. 304 prohibits the adaptation or 

modification of an image of an identifiable minor to produce child pornography). 

d) Pleading Child Pornography Offenses Using Clause 3. 

(1) See MCM, pt. IV, ¶ 60c(6). 

e) Actual versus Virtual Children. 

(1) Using the CPPA and Clause 3, Article 134. 

(a) In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the U.S. Supreme 

Court held that specific language within the definition of child pornography in the 

1996 Child Pornography Prevention Act (CPPA) was unconstitutional. Specifically, 

the definition impermissibly prohibited “virtual” child pornography in contravention 

of the First Amendment. The “virtual image” language was contained in § 

2256(8)(B) and § 2256(8)(D). 

(b) Following Ashcroft, the CAAF made the “actual” character of visual depictions 

of child pornography a factual predicate for guilty pleas under the CPPA. United 

States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003). 

(c) Either the “appears to be” language or “conveys the impression” language found 

in the CPPA’s unconstitutional definition of child pornography can trigger the 

requirement to prove an “actual” child was used to make an image of child 

pornography. United States v. Wolford, 62 M.J. 418 (C.A.A.F. 2006). 

(2) Using Clauses 1 and 2, Article 134. Child pornography, whether virtual or actual, 

can be prejudicial to good order and discipline and service-discrediting. See United 

States v. Mason, 60 M.J. 15 (C.A.A.F. 2004); United States v. Brisbane, 63 M.J. 106 

(C.A.A.F. 2006). 

f) Issues. 

(1) Unallocated Space 

(a) Per United States v. Schempp, No. ARMY 20140313, 2016 WL 873852 (A. Ct. 

Crim. App. Feb. 26, 2016), review denied, (C.A.A.F. May 12, 2016), where all child 

pornography images were found in unallocated space, the government failed to show 

Defendant “possessed” them. Possess “means to exercise control of something. 

Possession may be direct physical custody ... or it may be constructive.... Possession 

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must be knowing and conscious.” “Here, as the appellant was unable to access any of 

the images in unallocated space, he lacked the ability to exercise “dominion or 

control” over these files.” 

(2) Constitutionality of the Federal statute. 

(a) In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the U.S. Supreme 

Court held that specific language within the definition of child pornography in the 

1996 Child Pornography Prevention Act (CPPA) was unconstitutional. Specifically, 

the definition impermissibly prohibited “virtual” child pornography in contravention 

of the First Amendment. The “virtual image” language was contained in § 

2256(8)(B) and § 2256(8)(D). 

(b) The Prosecutorial Remedies and Other Tools to end the Exploitation of Children 

Today Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (Apr. 30, 2003), which 

amended 18 U.S.C. § 2252A to include a provision that prohibits the solicitation and 

pandering of child pornography. United States v. Williams, 128 S. Ct. 1830, 170 L. 

Ed. 2d 650 (2008) (holding the Act to be neither impermissibly vague nor overbroad 

and holding that offers to provide or requests to obtain child pornography are 

categorically excluded from the First Amendment). 

(c) The Protection of Children Against Sexual Exploitation Act, 18 U.S.C. § 2252. 

Constitutional because its prohibition against knowing transport, shipment, receipt, 

distribution, or reproduction of a visual depiction of a minor engaged in sexually 

explicit conduct requires that the accused know that the performer in the depiction 

was a minor, thereby satisfying First Amendment concerns. United States v. XCitement Video, 115 S.Ct. 464 (1994); United States v. Maxwell, 42 M.J. 568 (A.F. 

Ct. Crim. App. 1995), reversed in part United States v. Maxwell, 45 M.J. 406 

(C.A.A.F. 1996) (transmission of visual images electronically through the use of an 

on-line computer service is “transport in interstate or foreign commerce’ in light of 

legislative intent to prevent the transport of obscene material in interstate commerce 

regardless of the means used to effect that end and statute is constitutional in light of 

United States v. X-Citement Video, 115 S.Ct. 464 (1994) (statute contains a scienter 

requirement because the word “knowingly” must be read as applying to the words 

“use of a minor”). 

(3) Extraterritoriality. Practitioners in overseas and deployed locations should ensure 

that the federal statute is applicable to the conduct at issue. 

(a) United States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005). Appellant pled guilty, 

in relevant part, to sending, receiving, reproducing, and possessing child pornography 

under Article 134, Clause 3, in violation of the CPPA. The conduct was charged 

using 18 U.S.C. §2252A(a)(1–3). Appellant’s misconduct took place in Germany, 

both at an off-post internet café, and in his on-post barracks room. HELD: 1) The 

CPPA is not extraterritorial as there is no evidence of specific congressional intent to 

extend its coverage; 2) domestic application is possible under a “continuing offense” 

theory for sending material that flowed through servers in the United States; 3) 

appellant’s plea to specification 1 under clause 3 of Article 134 is improvident under 

O’Connor because of the focus on the unconstitutional definition of child 

pornography and the lack of focus on “actual” vs. “virtual” images; and 4) there was 

no reference to appellant’s conduct as service discrediting or prejudicial to good 

order and discipline. Strong dissents from both C.J. Gierke and J. Crawford. 

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(b) United States v. Reeves, 62 M.J. 88 (C.A.A.F. 2005). The accused was stationed 

in Hanau, Germany and used the on-post library computer to receive and print out 

images of child pornography that had been sent over the Internet. While still in 

Germany, he also used a videocamera to record sexually explicit imagery of two 

German girls from about 200 feet away. His conduct was charged using 18 U.S.C. 

§§ 2251 and 2252A(a)(1–3). Citing Martinelli, the court held none of the following 

acts were continuing offenses with conduct that occurred in the United States, and as 

such, there could be no domestic application of the CPPA: (1) possession of child 

pornography at an on-post public library, land used by and under the control of the 

federal government; (2) receiving child pornography that had been transmitted 

through the internet; and (3) using minors to engage in sexually explicit conduct for 

the purpose of producing a visual depiction of such conduct. 

(4) Definitions. United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009). The CPPA 

does not define “distribute.” The court looked to three sources for a definition of the 

term: (1) the plain meaning, (2) the manner Article III courts have interpreted the term, 

and (3) the guidance that the UCMJ provides through parallel provisions. See also 

United States v. Craig, 67 M.J. 742 (N-M. Ct. Crim. App. 2009) (military judge read part 

of the definition of “distribute” from Article 112a, stating, “Distribute means to deliver to 

the possession of another.”) . 

(5) Method of Distribution. 

(a) Yahoo! Briefcase. United States v. Navrestad, 66 M.J. 262 (C.A.A.F. 2008). 

Sending a hyperlink to a Yahoo! Briefcase during an internet chat session, where the 

Briefcase contained images of child pornography, does not constitute either 

distribution of child pornography as defined in the CPPA or possession of child 

pornography as affirmed by the ACCA under Clauses 1 and 2, where the link itself 

only provides a roadmap to the child pornography and where the accused did not 

download or print any of the images to his own computer. The accused was initially 

charged under Clause 3 of Article 134, but Clause 1 and 2 language was added to 

both specifications prior to arraignment. Convictions for both possession under 

Clauses 1 and 2, and distribution under the CPPA were set aside. Note: Yahoo! 

discontinued its Briefcase service on 30 March 2009. 

(b) KaZaA. United States v. Ober, 66 M.J. 393 (C.A.A.F. 2008). Using KaZaA to 

search for and download child pornography from host users over the Internet 

constituted transportation of child pornography in interstate commerce for purposes 

of 18 U.S.C. § 2252A(a)(1) because “a user’s download caused an upload on the host 

user’s computer.” 

(c) Peer-to-Peer Software in General. United States v. Christy, 65 M.J. 657 (A. Ct. 

Crim. App. 2007). The accused downloaded peer-to-peer software and set up a 

“shared files” folder. As part of his licensing agreement with the software company, 

he agreed to share all files in that folder, i.e., his child pornography, with other users. 

While the term “distribution” is not defined in the statute, definitions found in federal 

case law are broad enough to cover the act of posting images in a shared file folder 

and agreeing to allow others to download from the folder. Additionally, the 

accused’s conduct was “knowing” under the CPPA, as he admitted during his 

providence inquiry that he knew 1) that he was posting his child pornography images 

in a shared file folder, and 2) that anyone with the same peer-to-peer software both 

had his permission and the general ability to download the files he posted. 

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(6) Lesser included offenses: Clause 1 and Clause 2. The use of Clause 1 and Clause 2 

as a LIO to a Clause 3 offense has recently been limited by the CAAF holding in United 

States v. Medina, 66 M.J. 21 (C.A.A.F. 2008). The court holds that in order for either 

Clause 1 or Clause 2 to be considered as a LIO to a Clause 3 offense, the Clause 3 

specification should contain Clause 1 or Clause 2 language. If Clause 1 or Clause 2 

language is absent from a Clause 3 offense, the opinion may yet allow for Clause 1 or 

Clause 2 to operate as a LIO provided the military judge clearly explains Clause 1 and 

Clause 2 and how they can operate as a LIO to the accused. Prudence, however, dictates 

that counsel plead the Clause 1 and/or Clause 2 language to avoid the issue at trial. 

(7) Evidence to determine age of models. United States v. Russell, 47 M.J. 412 

(C.A.A.F. 1998) (accused admitted that he guessed the models were “13 or older”; a 

pediatrician testified that the females shown in the exhibits were not more than 15.5 years 

old; and members were able to look at the pictures and use their common sense and 

experience to conclude that the girls were under age 18); United States v. Maxwell, 45 

M.J. 406 (C.A.A.F. 1996) (government was only required to prove that accused believed 

the images depicted minors to support conviction for knowingly transporting or receiving 

child pornography in interstate commerce (18 U.S.C. § 2252); government was not 

required to prove that accused had basis for actual knowledge of the subjects’ ages). 

United States v. Cendejas, 62 M.J. 334 (C.A.A.F. 2006) (factfinder can make the 

determination that pornographic images are actual children based upon a review of the 

images alone). 

g) Other Applications. 

(1) United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009). As the CPPA does not 

expressly define “distribute,” the court looked to three sources for a definition of the 

term: (1) the plain meaning, (2) the manner Article III courts have interpreted the term, 

and (3) the guidance that the UCMJ provides through parallel provisions. Considering 

these sources, under the CPPA, distribution of child pornography through the Internet 

consists of two acts: (1) the posting of the image, where the image left the possession of 

the original user, and (2) the delivery of the image, where another user accessed and 

viewed the image. Here, the accused posted the image to his Yahoo! profile prior to his 

entry on active duty. The court reasoned that the profile serves as a “’public bulletin 

board’ such that all Internet users can access information posted by the profile’s owner.” 

Although this was done prior to entering active duty, he accessed the account while on 

active duty and could have removed the image. The offense of distribution occurred 

while he was on active duty when the ICE agent accessed and viewed the image that he 

had posted for others to view. 

(2) United States v. Craig, 67 M.J. 742 (N-M. Ct. Crim. App. 2009). As 18 U.S.C. § 

2252A does not define “distribute,” the military judge read part of the definition of 

“distribute” from Article 112a, stating, “Distribute means to deliver to the possession of 

another.” the plain meaning of the term “distribute” includes “the transfer of an item 

from the possession of one person into the possession of another.” The military judge 

provided a correct statement of the law in defining “distribute.” 

(3) United States v. Smith, 61 M.J. 696 (N-M. Ct. Crim. App. 2005) (Appellant engaged 

in marketing adult entertainment for profit on the internet, posting hundreds of photos of 

females engaged in sexually explicit conduct, many of them minors. Among other 

offenses, appellant ultimately pled guilty to violating 18 U.S.C. § 2257, under Clause 3, 

Article 134 for managing a website containing these depictions without maintaining 

proper records of each performer as that section requires. HELD: Appellant’s failure to 

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determine the age and record the identity of the child performer bore a direct relationship 

to the Government’s interest in preventing child pornography). 

(4) “Lascivious exhibition” category of sexually explicit conduct prohibited by § 

2251(a). United States v. Roderick, 62 M.J. 425 (C.A.A.F. 2006) (applying the “Dost” 

factors to determine “lascivious exhibition”). 

(5) In prosecuting a violation of 18 U.S.C. § 2252 (a)(2) by knowingly receiving 

sexually explicit depictions of minors that have been transported in interstate commerce, 

“knowingly” applies to the sexually explicit nature of the materials and the ages of the 

subjects. The Government does not have to prove that the accused knew that the sexually 

explicit depictions passed through interstate commerce. The interstate commerce 

element is merely jurisdictional. United States v. Murray, 52 M.J. 423 (C.A.A.F. 2000). 

(6) “Viewing” child pornography was not an offense under 18 U.S.C. § 2252 until its 

2008 amendment. As such, viewing child pornography prior to the date of this 

amendment is likewise not chargeable under Article 134. United States v. Merritt, 72 MJ 

483 (C.A.A.F. 2014). 

h) Multiplicity/UMC. 

(1) United States v. Purdy, 67 M.J. 780 (N-M. Ct. Crim. App. 2009). The accused 

downloaded child pornography from the Internet onto his personal computer while 

stationed in Belgium. He then downloaded the images from the hard drive onto a 

compact disk and reformatted the hard drive, but retained the compact disk. He was 

charged with both receiving and possessing child pornography under Clause 3 of Art. 

134. He pled guilty to both offenses under Clauses 1 and 2. In this case, his act of 

saving the images to the CD-ROM “was a clear exercise of dominion . . . separate and 

apart” from his receipt of the images at an earlier point in time. The conviction for both 

offenses was proper and the military judge did not commit plain error. 

(2) United States v. Craig, 67 M.J. 742 (N-M. Ct. Crim. App. 2009). The accused used 

“LimeWire,” a peer-to-peer file-sharing software program to search for and download 

child pornography. He downloaded the child pornography into a “share” folder on his 

hard drive. He kept some of the images in the “share” folder, copied some to compact 

disks, and deleted others. He pled guilty to both receipt and possession of child 

pornography under 18 U.S.C. § 2252A using Clause 3 of Art. 134. The court held that 

these two specifications were not facially duplicative and therefore military judge did not 

commit plain error in failing to dismiss these specifications as multiplicious. The charges 

of receipt and possession “address at least two criminal actions by the [accused] each of 

which occurred at a different time within the charged time period and involved separate 

media. 

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APPENDIX: SEXUAL OFFENSES – PRE-28 JUNE 2012. 

Because different versions of Article 120 exist, different laws may apply to the same case; therefore, 

practitioners must remain cognizant of (1) the date the offense occurred and (2) the statute of limitations 

when deciding which offenses to research. 

A.	 Changes in the Law 

1 Oct 2007 28 Jun 2012 

Pre-2007 

Art. 120, Art. 134 

2007

 Art. 120 

2012 

Art. 120, 120a, 

120b, 120c 

B. Pre-2007 Sexual Offenses 

Article 120 Article 134 

Adult Crime 

- Rape (B.1) 

Child Crime 

- Carnal Knowledge (B.2) 

Child Crimes 

- Indecent Acts or Liberties with a Child (B.4) 

Other Sexual Crimes 

- Indecent Assault (B.5) 

Article 125 - Indecent Exposure (B.6) 

- Indecent Acts (B.7) - Sodomy (B.3) 

1.	 Rape (pre-1 October 2007). MCM, App. 27, ¶ 45. 

a) Elements. 

(1) That the accused committed an act of sexual intercourse; and 

(2) That the act of sexual intercourse was done by force and without consent. 

b) Article 120 has no spousal exemption and is gender-neutral. 

c) Any penetration, however slight, is sufficient. United States v. Aleman, 2 C.M.R. 269 

(A.B.R. 1951). 

d) In determining whether force and lack of consent occurred, a totality of the circumstances 

must be considered. See United States v. Webster, 40 M.J. 384, 386 (C.M.A. 1994). 

e) Lack of Consent. 

(1) Competence to consent. 

(a) No consent exists where victim is incompetent, unconscious, or sleeping. United 

States v. Booker, 25 M.J. 114 (C.M.A. 1987); United States v. Robertson, 33 C.M.R. 

828 (A.F.B.R. 1963); United States v. Maithai, 34 M.J. 33 (C.M.A. 1992); United 

States v. Grier, 53 M.J. 30 (C.A.A.F. 2000). 

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(b) A child of tender years is incapable of consent. United States v. Aleman, 2 

C.M.R. 269 (A.B.R. 1951); United States v. Thompson, 3 M.J. 168 (C.M.A. 1977); 

see United States v. Huff, 4 M.J. 816 (A.C.M.R. 1978) (because victim is under 16, 

proof of age is proof of nonconsent allowing fresh complaint evidence). 

(2) Resistance by Victim. 

(a) The lack of consent required is more than mere lack of acquiescence. If a victim 

in possession of his or her mental faculties fails to make lack of consent reasonably 

manifest by taking such measures of resistance as are called for by the circumstances, 

the inference may be drawn that the victim did consent. See MCM, App. 27, ¶ 

45.c.(1)(b). 

(b) If victim is capable of resistance, evidence must show more than victim’s lack of 

acquiescence. United States v. Bonano-Torres, 31 M.J. 175 (C.M.A. 1990) 

(acquiescence to intercourse with accused so the “victim” could go to sleep is 

insufficient for rape). 

(c) Consent may be inferred unless victim makes her lack of consent “reasonably 

manifest by taking such measures of resistance as are called for by the 

circumstances.” United States v. Tollinchi, 54 M.J. 80 (C.A.A.F. 2000) (holding 

successful resistance by intoxicated seventeen-year-old victim to oral sodomy, 

followed by lack of resistance to intercourse, rendered rape conviction legally 

insufficient). 

(d) Verbal protest may be sufficient to manifest a lack of consent sufficient to 

support rape. United States v. Webster, 40 M.J. 384 (C.M.A. 1994) (evidence of 

unwavering and repeated verbal protest in context of a surprise nonviolent sexual 

aggression by boyfriend was considered reasonable resistance). 

(3) Resistance by Victim Not Required. 

(a) Consent may not be inferred if resistance would have been futile, where 

resistance is overcome by threats of death or great bodily harm, or where the victim 

is unable to resist because of the lack of mental or physical faculties. All the 

surrounding circumstances are to be considered in determining whether a victim gave 

consent, or whether he or she failed or ceased to resist only because of a reasonable 

fear of death or grievous bodily harm. See MCM, pt. App. 27, ¶ 45.c.(1)(b). 

(b) Proof of rape of a daughter by her father may not require physical resistance if 

intercourse is accomplished under long, continued parental duress. United States v. 

Dejonge, 16 M.J. 974 (A.F.C.M.R. 1983); see United States v. Palmer, 33 M.J. 7 

(C.M.A. 1991); see United States v. Davis, 52 M.J. 201 (1999); United States v. 

Young, 50 M.J. 717 (Army Ct. Crim. App. 1999) (compulsion may apply even when 

child is not a minor); see generally TJAGSA Practice Note, Proving Lack of Consent 

for Intra-Family Sex Crimes, Army Law., Jun. 1990, at 51. 

(c) Cooperation with assailant after resistance is overcome by numbers, threats, or 

fear of great bodily harm is not consent. United States v. Burt, 45 C.M.R. 557 

(A.F.C.M.R. 1972); United States v. Evans, 6 M.J. 577 (A.C.M.R. 1978); United 

States v. Lewis, 6 M.J. 581 (A.C.M.R. 1978). 

(d) Whether the rape victim was justified in resisting by words alone involves a 

factual issue whether she viewed physical resistance as impractical or futile. United 

States v. Burns, 9 M.J. 706 (N.C.M.R. 1980). 

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(4) Mistake as to Consent. An honest and reasonable mistake of fact to the victim’s 

consent is a defense. United States v. Hibbard, 58 M.J. 71 (2003); United States v. 

Taylor, 26 M.J. 127 (C.M.A. 1988); United States v. Carr, 18 M.J. 297 (C.M.A. 1984); 

United States v. Davis, 27 M.J. 543 (A.C.M.R. 1988); United States v. True, 41 M.J. 424 

(1995) (mistake of fact as to victim’s consent to intercourse cannot be predicated upon 

accused’s negligence; mistake must be honest and reasonable); United States v. Traylor, 

40 M.J. 248 (C.M.A. 1994) (mistake of fact as to consent is not reasonable when based 

upon belief by accused that victim would consent to intercourse with anyone); United 

States v. Parker, 54 M.J. 700 (Army Ct. Crim. App. 2000) (evidence factually 

insufficient to sustain conviction where accused claimed he mistakenly believed that the 

victim consented to intercourse and sodomy where she and the accused engaged in a 

consensual relationship for several months before the first alleged rape, she sent mixed 

signals to the accused about their relationship and the relationship included consensual 

sexual acts). 

(5) Consent Obtained by Fraud. Consent obtained by fraud in the inducement (e.g., lying 

about marital status or desire to marry, a promise to pay money or to respect sexual 

partner in the morning) will not support a charge of rape. Consent obtained by fraud in 

factum (i.e., a misrepresentation of act performed or some aspects of identity) can support 

a rape charge. United States v. Booker, 25 M.J. 114 (C.M.A. 1987). 

(6) Identity of partner. The victim’s consent is not transferable to other partners. United 

States v. Traylor, 40 M.J. 248 (C.M.A. 1994) (victim consented to sexual intercourse 

with one soldier but during intercourse, another soldier, the accused, penetrated the 

victim without first obtaining her consent and victim was not aware of the accused’s 

presence until he had already penetrated her without consent). 

f) Relationship Between Elements of Lack of Consent and Force. Although force and lack 

of consent are separate elements, there may be circumstances in which the two are so closely 

intertwined that both elements may be proved by the same evidence. Consent induced by 

fear, fright, or coercion is equivalent to physical force. Such constructive force may consist 

of expressed or implied threats of bodily harm. United States v. Simpson, 58 M.J. 368, 377 

(C.A.A.F. 2003). 

g) Force. 

(1) When constructive force is not at issue and the victim is capable of resisting, some 

force more than that required for penetration is necessary; persistent sexual overtures are 

not enough. United States v. Bonano-Torres, 31 M.J. 175 (C.M.A. 1990). 

(2) If a victim is incapable of consenting, no greater force is required than that necessary 

to achieve penetration. United States v. Grier, 53 M.J. 30 (C.A.A.F. 2000). 

(3) United States v. Cauley, 45 M.J. 353 (C.A.A.F. 1996) (sufficient force where victim 

testified that she accompanied the accused without protest to his private quarters knowing 

that the accused intended to engage in sexual intercourse and offered no physical 

resistance as the accused removed her clothing and positioned her on the bed, but further 

testified that before sexual intercourse she told accused “no” several times and that she 

did “not want to do this” and “wanted to go home”, that she turned her face when he 

attempted to kiss her and that he used his legs to pry her legs open). But see United States 

v. King, 32 M.J. 558 (A.C.M.R. 1991) (evidence insufficient to show requisite force). 

(4) Constructive Force. 

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(a) If resistance would have been futile, where resistance is overcome by threats of 

death or great bodily harm, or where the victim is unable to resist because of the lack 

of mental or physical faculties, there is no consent and the force involved in 

penetration will suffice. See MCM, App. 27, ¶ 45.c.(1)(b). 

(b) Constructive force, as a substitute for actual force, may consist of express or 

implied threats of bodily harm. United States v. Bradley, 28 M.J. 197 (C.M.A. 1989) 

(threat of imprisoning husband); United States v. Hicks, 24 M.J. 3 (C.M.A. 1987); 

United States v. Palmer, 33 M.J. 7 (C.M.A. 1991) (parental figure can exert a 

psychological force over child that is constructive force). 

(c) Force can be subtle and psychological, and need not be overt or physically brutal. 

United States v. Torres, 27 M.J. 867 (A.F.C.M.R. 1989) clarified, 1989 CMR LEXIS 

1042 (A.F.C.M.R. Nov. 15, 1989); United States v. Sargent, 33 M.J. 815 (A.C.M.R. 

1991), aff’d, 36 M.J. 14 (C.M.A. 1992). 

(d) Constructive force in the form of parental compulsion is not limited to cases in 

which the victim is under 16 years of age. Age is one factor to consider in 

determining whether victim’s resistance was overcome by parental compulsion. 

United States v. Young, 50 M.J. 717 (Army Ct. Crim. App. 1999) (accused started to 

“groom” and “condition” his stepdaughter when she was five years old; sexual 

intercourse started when she was 11 years old; accused was convicted of raping his 

stepdaughter from when she was 16 to 20 years old). 

(e) Rank disparity alone is not sufficient to show constructive force. Other factors 

are relevant. United States v. Simpson, 58 M.J. 368, 377 (C.A.A.F. 2003) (accused 

was in a power relationship, not a dating one, with the trainees he was accused of 

raping and the court noted: (1) the accused’s physically imposing size; (2) his 

reputation in the unit for being tough and mean; (3) his position as a 

noncommissioned officer; (4) his actual and apparent authority over each of the 

victims in matters other than sexual contact; (5) the location and timing of the 

assaults, including his use of his official office and other areas within the barracks in 

which the trainees were required to live; (6) his refusal to accept verbal and physical 

indications that his victims were not willing participants; and (7) the relatively 

diminutive size and youth of his victims, and their lack of military experience; and 

finally, the accused’s abuse of authority in ordering the victims to isolated locations 

where the charged offenses occurred). 

(f) United States v. Bright, 66 M.J. 359 (C.A.A.F. 2008). The accused was a drill 

sergeant and was convicted of raping a female trainee on three separate occasions. 

The court concluded there was insufficient evidence, based on totality of 

circumstances, regarding lack of consent. First, the court observed that the record is 

devoid of any evidence that PVT W manifested a lack of consent or took any 

measures to resist sexual intercourse. She made arrangements to meet him at a hotel 

knowing that sex would occur and she made her own way to the hotel to meet him. 

On two occasions, she arrived at the hotel first and waited for him. Additionally, 

even though she resisted sodomy on one occasion, there is no evidence that she 

resisted “normal sexual intercourse” in any way, verbal or physical. The court next 

concluded that there is no evidence to support the inference that resistance would 

have been futile or that he resistance would have been overcome by threats of death 

or grievous bodily harm. The accused never threatened her physically—the only 

threat was to take away her pass status. Finally, the court distinguished PVT W’s 

perceived futility of resistance from the facts in United States v. Simpson, 58 M.J. 

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368 (C.A.A.F. 2003) (where the accused ordered his victims into isolated areas, 

initiated sexual activity, and then refused to accept “verbal and physical indications 

that his victims were not willing participants”) and United States v. Clark, 35 M.J. 

432 (C.M.A. 1992) (where the accused cornered the victim in a “small shed with 

brick walls and a metal door and . . . positioned himself between the door and the 

victim”). 

h) Lesser Included Offenses. When considering the lesser included offenses under the “old 

Article 120,” it is important to consider the lesser included offenses as they existed prior to 

October 2007. However, it is also important to consider the current case law with regard to 

lesser included offense. See United States v. Medina, 66 M.J. 21, 27 (C.A.A.F. 2008); United 

States v. Miller, 67 M.J. 385 (C.A.A.F. 2009); United States v. Fosler, 70 M.J. 225 (C.A.A.F. 

2011). While Appendix 27 of the 2012 MCM contains the “old Article 120” offenses as well 

as the “old Article 134” offenses, that, at the time were considered lesser included offenses, 

you must consider the strict elemental test in determining what are the actual lesser 

included offenses. In order for an accused to be on notice of a lesser included offense, the 

government must allege every element, expressly or by necessary implication, including the 

terminal element of an Article 134 offense. 

(1) Carnal knowledge. Carnal knowledge is a lesser included offense of rape when the 

pleading alleges that the victim has not yet attained the age of 16 years. 

(2) Attempted rape. 

(a) Accused who was dissuaded by the victim from completing the rape and 

abandoned the act could be found guilty of attempted rape. United States v. 

Valenzuela, 15 M.J. 699 (A.C.M.R. 1983), aff’d in part, rev’d in part on multiplicity 

grounds, 16 M.J. 305 (C.M.A. 1983). But see United States v. Byrd, 24 M.J. 286 

(C.M.A. 1987) (voluntary abandonment is a defense to attempted rape, but evidence 

insufficient to establish defense in this case). See MCM, pt. IV, ¶ 4.c.(4); supra, ch. 

5, ¶ I.E. 

(b) United States v. Polk, 48 C.M.R. 993 (A.F.C.M.R. 1974) (gross and atrocious 

attempt to persuade the victim to consent to intercourse is not attempted rape but may 

be indecent assault). 

i) Multiplicity. 

(1) Rape and aggravated assault are multiplicious for findings. United States v. Sellers, 

14 M.J. 211 (C.M.A. 1982) (summary disposition); see United States v. DiBello, 17 M.J. 

77 (C.M.A. 1983). 

(2) Rape and communication of a threat are multiplicious for findings. United States v. 

Hollimon, 16 M.J. 164 (C.M.A. 1983). 

(3) Two rapes of same victim are not multiplicious for any purpose where first rape 

completely terminated before second rape began. United States v. Ziegler, 14 M.J. 860 

(A.C.M.R. 1982); accord United States v. Turner, 17 M.J. 997 (A.C.M.R. 1984). 

(4) Rape and extortion are not multiplicious for findings or sentence. United States v. 

Hicks, 24 M.J. 3 (C.M.A. 1987). 

(5) Rape and adultery charges are not multiplicious for findings. United States v. Hill, 

1997 CAAF LEXIS 1093 (Sept. 30, 1997); United States v. Mason, 42 M.J. 584 (Army 

Ct. Crim. App. 1995). 

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(6) Rape, sodomy, and indecent acts or liberties with a child are separate offenses. 

United States v. Cox, 42 M.J. 647 (A.F. Ct. Crim. App. 1995), aff’d, 45 M.J. 153 

(C.A.A.F. 1996). 

j) Punishment. 

(1) United States v. Stebbins, 61 M.J. 366 (C.A.A.F. 2005). Appellant pled guilty to rape 

and sodomy of a child under the age of twelve. LWOP is an authorized punishment for 

rape after November 18, 1997 (extending the reasoning of United States v. Ronghi, 60 

M.J. 83 (C.A.A.F. 2004)). 

(2) Capital Punishment. 

(a) Although UCMJ art. 120(a) authorizes the death penalty for rape, a plurality of 

the Supreme Court in Coker v. Georgia, 433 U.S. 584 (1977) held that the death 

penalty for the rape of an adult woman was cruel and unusual punishment regardless 

of aggravating circumstances. R.C.M. 1004(c)(9), revised to account for Coker, 

limits the death penalty for rape to cases where the victim is under the age of 12 or 

where the accused maimed or attempted to kill the victim. See generally United 

States v. Straight, 42 M.J. 244, 247 (C.A.A.F. 1995). 

(b) In 2008, the Supreme Court held that the death penalty for the rape of a child is 

unconstitutional where the child was not killed. In Kennedy v. Louisiana, 128 S. Ct. 

2641, 171 L. Ed. 2d 525 (2008), the Court held that a Louisiana statute authorizing 

the imposition of the death penalty for the rape of a child under the age of 12 is 

prohibited by the Eighth Amendment and Fourteenth Amendments and is 

unconstitutional. The holding states specifically that “a death sentence for one who 

raped but did not kill a child, and who did not intend to assist another in killing the 

child, is unconstitutional.” Slip Opinion at 10. The case does not include the UCMJ 

in its survey of jurisdictions that provide death as the maximum punishment for the 

rape of a child under 12 years of age. In denying a petition for rehearing based on the 

exclusion of the military from the survey of jurisdictions retaining the death penalty 

for child rape, the Court stated that the fact that the Manual for Courts-Martial 

“retains the death penalty for rape of a child or an adult . . . does not draw into 

question our conclusions that there is a consensus against the death penalty for the 

crime in the civilian context. . . .” Suggesting, perhaps, that there may be facts, 

circumstances, or policy reasons justifying death as a punishment for child rape when 

committed by a member of the military, the court declined to “decide whether certain 

considerations might justify differences in the application of the Cruel and Unusual 

Punishments Clause to military cases . . . .” See Kennedy v. Louisiana, No. 07-343 

(U.S. Oct. 1, 2008) (statement accompanying denial of petition for rehearing). 

2. Carnal Knowledge. MCM, App. 27, ¶ 45; UCMJ art. 120(b). 

a) Elements. 

(1) That the accused committed an act of sexual intercourse with a certain person; 

(2) That the person was not the accused’s spouse; and 

(3) That at the time of the sexual intercourse the person was less than 16 years of age. 

b) This offense is gender-neutral. 

c) Article 120(d), UCMJ, provides special defense to carnal knowledge based upon mistake 

of fact as to the age of the victim. 

(1) The accused bears both the burden of production and persuasion for this defense. 

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(2) The defense applies only if the victim has attained the age of 12. 

(3) The accused must establish by a preponderance of the evidence that the mistake by 

the accused as to the age of the victim was both honest and reasonable. 

d) Honest and reasonable mistake as to identity of accused’s sexual partner constitutes a 

legal defense. United States v. Adams, 33 M.J. 300 (C.M.A. 1991). 

e) The victim is not an “accomplice” for purposes of a witness credibility instruction. 

United States v. Cameron, 34 C.M.R. 913 (A.F.B.R. 1964). 

f) Marriage. 

(1) Government may prove that the accused and the prosecutrix were not married 

without direct evidence on the issue. United States v. Wilhite, 28 M.J. 884 (A.F.C.M.R. 

1989). 

(2) Carnal knowledge form specification is sufficient even though it does not expressly 

allege that the accused and his partner were not married. United States v. Osborne, 31 

M.J. 842 (N.M.C.M.R. 1990). 

g) Multiplicity. Carnal knowledge and adultery are not multiplicious for findings. United 

States v. Booker, No. 97-0913, 1999 CAAF LEXIS 637 (C.A.A.F. Feb. 19, 

1999)(unpublished). 

h) Statute of Limitations. United States v. McElhaney, 54 M.J. 120 (C.A.A.F. 2000) (statute 

of limitations codified at 18 U.S.C. § 3283, which permits prosecution for offenses involving 

sexual or physical abuse of children under the age of 18 until the child reaches the age of 25, 

does not apply to courts-martial as UCMJ Article 43 provides the applicable statute of 

limitations for courts-martial). Willenbring v. Neurauter, 48 M.J. 152 (C.A.A.F. 1998) 

(statute of limitations under Article 43 does not bar trial for rape, as any offense “punishable 

by death” may be tried at any time without limitation, even if it is referred as a noncapital 

case), aff’d, 57 M.J. 321 (C.A.A.F. 2002). 

3. Forcible sodomy; bestiality. MCM, pt. IV, ¶ 51; UCMJ art. 125. 

a) The text of Article 125, UCMJ was amended effective 26 December 2013 to cover only 

acts of bestiality and forcible sodomy. The elements are: 

(1) Forcible Sodomy: 

(a) That the accused engaged in unnatural carnal copulation with another person of 

the same or opposite sex 

(b) That the act was done by unlawful force or without the consent of the other 

person 

(2) Bestiality: 

(a) That the accused engaged in unnatural carnal copulation with an animal. 

(b) Penetration, however slight, is sufficient to complete an offense under either 

subsection. 

b) Notably, in some cases the same act could be charged under either Article 125 or Article 

120/120b. There has been some suggestion that Article 125 is therefore no longer a viable 

charge as it relates to sodomistic acts. See United States v. Gross, 73 M.J. 864 (A.C.C.A. 

2014)(Krauss, E., dissenting). 

c) Sodomy – Elements pre-26 December 2013. 

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(1) That the accused engaged in unnatural carnal copulation with a certain other person 

or with an animal. 

(2) (If applicable) That the act was done with a child under the age of 16. 

(3) (If applicable) That the act was done by force and without the consent of the other 

person. 

d) Constitutionality. 

(1) Before Lawrence v. Texas, 123 S.Ct. 2472 (2003), it was clear that Article 125 was 

constitutional, even as applied to private, consensual sodomy between spouses. 

(2) United States v. Allen, 53 M.J. 402 (C.A.A.F. 2000) (Constitutional right to privacy 

(engaging in sexual relations within a marital relationship) must bear a reasonable 

relationship to activity that is in furtherance of the marriage. As part of a pattern of 

abuse, the accused beat his wife, solicited her to prostitute herself, and anally sodomized 

her. Prior to the assaults, she had refused anal sodomy, because she was forcibly 

sodomized as a teenager). 

(3) United States v. Thompson, 47 M.J. 378 (C.A.A.F. 1997) (accused could not claim 

that an act of consensual sodomy with his wife was protected by the constitutional right 

to privacy, where his wife performed fellatio on him in an attempt to divert his attention 

away from reloading a pistol which had misfired moments before when he put it against 

her head and pulled the trigger). 

(4) Article 125’s prohibition of “unnatural carnal copulation” is not unconstitutionally 

vague. United States v. Scoby, 5 M.J. 160 (C.M.A. 1978). 

(5) Lawrence: However, in Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court 

overruled as unconstitutional a Texas law criminalizing consensual homosexual sodomy. 

In that case the Court stated that “[t]he State cannot demean a homosexual person’s 

existence or control their destiny by making their private sexual conduct a crime. Their 

right to liberty under the Due Process Clause gives them the full right to engage in their 

conduct without intervention of the government. It is a promise of the Constitution that 

there is a realm of personal liberty which the government may not enter.” 

(6) Post-Lawrence cases: 

(a) United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). Appellant was an NCO 

supervisor of junior airmen newly assigned to his flight. He regularly socialized with 

his subordinates, who often spent the night at his off-post home after parties. 

Appellant was charged, inter alia, with forcible sodomy under Art. 125 but was 

convicted of the lesser included offense of non-forcible sodomy. The CAAF 

affirmed Marcum’s conviction, holding that as applied to appellant and in the context 

of his conduct, Art. 125 is constitutional. The court assumed without deciding that 

appellant’s conduct involved private sodomy between consenting adults, appellant’s 

conduct was nevertheless outside the liberty interest recognized in Lawrence. 

Specifically, appellant was the airman’s supervising NCO and knew his behavior was 

prohibited by service regulations concerning improper senior-subordinate 

relationships. Here, the situation involved a person “who might be coerced” and a 

“relationship where consent might not easily be refused,” facts the Supreme Court 

specifically identified as not present in Lawrence. The CAAF explicitly did not 

decide whether Art. 125 would be constitutional in other settings. 

(b) Marcum 3-Part Test for determining when the Constitution allows the prohibition 

of sodomy: 

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(i) Is the accused’s conduct within the liberty interest identified by the Supreme 

Court in Lawrence? 

(ii) Does the conduct encompass any behavior or factors identified as outside the 

analysis in Lawrence (i.e., public acts, prostitution, minors, persons who might 

be injured or coerced or who might not easily refuse consent)? 

(iii) Are there additional factors relevant solely in the military environment that 

affect the reach of the Lawrence liberty interest? 

(c) United States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004) (non-forcible sodomy 

that violated service regulations prohibiting improper relationships between members 

of different ranks; citing Marcum, his conduct fell outside any liberty interest 

recognized in Lawrence). 

(d) United States v. Christian, 61 M.J. 560 (N-M. Ct. Crim. App. 2005) (consensual 

sodomy between accused, a recruiter, and “RW,” originally a volunteer ASVAB tutor 

at the accused’s recruiting office; although private and not specifically excepted 

under Lawrence, appellant’s conduct implicated military-specific interests described 

in the third prong of the Marcum framework. Specifically, his role as a Marine 

recruiter & his violation of a recruit depot general order). United States v. Bart, 61 

M.J. 578 (N-M. Ct. Crim. App. 2005) (consensual sodomy between co-workers in 

violation of SecNavy Instruction, involved adultery, and one partner murdered a 

spouse to continue the relationship combined to violate Marcum third prong). 

(e) United States v. Smith, 66 M.J. 556 (C.G. Ct. Crim. App. 2008). Assuming 

arguendo that the conduct was not the result of extortion, the sodomy in this case was 

between two consenting first-class cadets in different chains of command. As such, 

the court observed that the conduct appeared to fall within the Lawrence liberty 

interest. However, addressing the Marcum factors, the court found that Coast Guard 

Academy regulations prohibit sexual activities between cadets on board military 

installations, even if consensual. As there is a regulation prohibiting the behavior, 

the court held that the conduct constituting sodomy fell outside the protected liberty 

interest recognized in Lawrence v. Texas. 

(f) United States v. Harvey, 67 M.J. 758 (A.F. Ct. Crim. App. 2009). In a 

prosecution of sodomy under Art. 133 as conduct umbecoming, military judge did 

not err in failing to instruct the members on the Marcum factors. “Whether an act 

comports with law, that is, whether it is legal or illegal [in relation to a constitutional 

or statutory right of an accused] is a question of law, not an issue of fact for 

determination by the triers of fact.” 

e) Acts Covered. 

(1) “Unnatural carnal copulation” includes both fellatio and cunnilingus. United States 

v. Harris, 8 M.J. 52 (C.M.A. 1979). 

(2) Some penetration, however, is required. UCMJ art. 125; United States v. Barrow, 42 

M.J. 655 (A.F. Ct. Crim. App. 1995) (holding “intercourse” is a synonym for 

“copulation” and connotes act of penetration that the term “oral sex” does not), aff’d, 45 

M.J. 478 (C.A.A.F. 1997); United States v. Deland, 16 M.J. 889 (A.C.M.R. 1983) aff’d in 

part, rev’d in part on multiplicity grounds, 22 M.J. 70 (C.M.A. 1986). Penetration, 

however slight, by male genital into orifice of human body except the vagina is sufficient. 

United States v. Cox, 23 M.J. 808 (N.M.C.M.R. 1986). Specification alleging “licking the 

genitalia” was not inconsistent with the penetration required for sodomy. United States v. 

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Cox, 18 M.J. 72 (C.M.A. 1984); United States v. Green, 52 M.J. 803 (N-M. Ct. Crim. 

App. 2000) (victim’s testimony that the accused’s head was between her legs, his hands 

were on her thighs, her legs were spread apart, his mouth was on her vagina, he 

performed “oral sex,” and he “was in between” her was sufficient to prove penetration). 

However, proof of licking, without proof of penetration, is insufficient for guilt. United 

States v. Milliren, 31 M.J. 664 (A.F.C.M.R. 1990); see generally TJAGSA Practice Note, 

Sodomy and the Requirement for Penetration, Army Law., Mar. 1991, at 30 (discussing 

Milliren). 

f) Evidence is sufficient to prove forcible sodomy where the child victim submitted under 

compulsion of parental command. United States v. Edens, 29 M.J. 755 (A.C.M.R. 1989), 

aff’d, 31 M.J. 267 (C.M.A. 1990). Evidence of a threat by the accused to impose nonjudicial 

punishment upon the victim, under the circumstances, was not sufficient to prove forcible 

sodomy. United States v. Carroway, 30 M.J. 700 (A.C.M.R. 1990). 

g) The defense is entitled to an accomplice instruction when the victim participates 

voluntarily in the offense. United States v. Goodman, 33 C.M.R. 195 (C.M.A. 1963). 

h) Multiplicity. 

(1) Attempted rape and forcible sodomy or rape and forcible sodomy arising out of the 

same transaction are separately punishable. United States v. Dearman, 7 M.J. 713 

(A.C.M.R. 1979); accord United States v. Rogan, 19 M.J. 646 (A.F.C.M.R. 1984) 

(Burglary, rape, and sodomy were all separately punishable offenses since different 

societal norms were violated in each instance. Burglary is a crime against the habitation, 

rape an offense against the person, and sodomy an offense against morals); United States 

v. Rose, 6 M.J. 754 (N.C.M.R. 1978). 

(2) Despite unity of time, offenses of sodomy and indecent liberties with a child were 

separate for findings and sentencing. United States v. Cox, 18 M.J. 72 (C.M.A. 1984). 

Accord United States v. Cox, 42 M.J. 647 (A.F. Ct. Crim. App. 1995), aff’d 45 M.J. 153 

(C.A.A.F. 1996). 

4. Indecent Acts or Liberties with a Child. MCM, App. 27, ¶ 87. 

a) The discussion that follows pertains to Indecent Acts or Liberties with a Child as it 

existed under Article 134 prior to October 2007. 

b) Elements. 

(1) Physical contact. 

(a) That the accused committed a certain act upon or with the body of a certain 

person; 

(b) That the person was under 16 years of age and not the spouse of the accused. 

(c) That the act of the accused was indecent; 

(d) That the accused committed the act with intent to arouse, appeal to, or gratify the 

lust, passions, or sexual desires of the accused, the victim, or both; and 

(e) That, under the circumstances, the conduct of the accused was to the prejudice of 

good order and discipline in the armed forces or was of a nature to bring discredit 

upon the armed forces. 

(2) No physical contact. 

(a) That the accused committed a certain act; 

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(b) That the act amounted to the taking of indecent liberties with a certain person; 

(c) That the accused committed the act in the presence of this person. 

(d) That the person was under 16 years of age and not the spouse of the accused. 

(e) That the accused committed the act with intent to arouse, appeal to, or gratify the 

lust, passions, or sexual desires of the accused, the victim, or both; and 

(f) That, under the circumstances, the conduct of the accused was to the prejudice of 

good order and discipline in the armed forces or was of a nature to bring discredit 

upon the armed forces. 

c) Not limited to female victim. 

d) Consent is not a defense, as a child of tender years is incapable of consent. However, 

factual consent of an alleged victim is relevant on the issue of indecency. Consensual petting 

between an eighteen-year-old and a fifteen-year-old is not necessarily outside the scope of the 

offense of indecent acts with a child, but it is a question for the members under proper 

instructions. Here, the military judge committed plain error when she failed to provide 

adequately tailored instructions on the issue of indecency after a court-martial member asked 

for such instructions. United States v. Baker, 57 M.J. 330 (C.A.A.F. 2002). 

e) Requires evidence of a specific intent to gratify the lust or sexual desires of the accused 

or the victim. United States v. Johnson, 35 C.M.R. 587 (A.B.R. 1965); see United States v. 

Robertson, 33 M.J. 832 (A.C.M.R. 1991) (absent a specific intent to gratify lust, accused’s 

act of buying 14 year-old daughter a penis shaped vibrator and “motion lotion” did not 

amount to an indecent act), rev’d on other grounds, 37 M.J. 432 (C.M.A. 1993). 

f) Physical presence required; constructive presence insufficient. See United States v. 

Miller, 67 M.J. 87 (C.A.A.F. 2008) (constructive presence through web-cam and Yahoo! 

chatroom insufficient for an attempted indecent liberties charge). 

g) Application. 

(1) Indecent acts. 

(a) Physical contact is required. United States v. Payne, 41 C.M.R. 188 (C.M.A. 

1970) (accused placed hand between child’s legs); United States v. Sanchez, 29 

C.M.R. 32 (C.M.A. 1960) (accused exposed his penis to child while cradling child in 

his arms.); see United States v. Rodriguez, 28 M.J. 1016 (A.F.C.M.R. 1989), aff’d, 31 

M.J. 150 (C.M.A. 1990) (rubbing body against female patients); United States v. 

Cottril, 45 M.J. 485 (C.A.A.F. 1997) (accused touching child’s vaginal area to the 

point of pain while bathing her was indecent, regardless of child’s purported 

enjoyment of touchings, given accused’s admissions that his acts excited his lust to 

point of masturbation). 

(b) Offense of indecent acts or liberties with a child is not so continuous as to 

include all indecent acts or liberties with a single victim, without regard to their 

character, their interrupted nature, or different times of their occurrences, and 

accused may be charged with more than one offense as a result of one act with a 

single victim. United States v. Neblock, 45 M.J. 191 (C.A.A.F. 1996). 

(2) Indecent liberties. 

(a) No physical contact is required, but act must be done within the physical 

presence of the child. United States v. Miller, 67 M.J. 87 (C.A.A.F. 2008) 

(constructive presence through web-cam and Yahoo! chatroom insufficient for an 

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attempted indecent liberties charge); United States v. Brown, 13 C.M.R. 10 (C.M.A. 

1953) (accused’s exposure of his penis to two young girls constituted an indecent 

liberty); see United States v. Thomas, supra at ¶ G.3. (participation of the child 

required); see United States v. Robba, 32 M.J. 771 (A.C.M.R. 1991) (victims 

presence implied); see also United States v. Brown, 39 M.J. 688 (N.M.C.M.R. 1993) 

(holding that a person sleeping in the room did not participate in accused’s 

masturbation, and thus charge of indecent acts with another could not lie). 

(b) Indecent liberties with a child can include displaying nonpornographic 

photographs if accompanied by the requisite intent. United States v. Orben, 28 M.J. 

172 (C.M.A. 1989); see TJAGSA Practice Note, Displaying Nonpornographic 

Photographs to a Child Can Constitute Taking Indecent Liberties, Army Law., Aug. 

1989, at 40 (discusses Orben); United States v. Marrie, 39 M.J. 993 (A.F.C.M.R. 

1994) (showing victim material that, while not legally pornographic, is accompanied 

by behavior or language that demonstrates his intent to arouse his own sexual 

passions, those of the child, or both), aff’d, 43 M.J. 35 (C.A.A.F. 1995). 

(c) Multiple acts of indecent liberties may occur simultaneously. United States v. 

Lacy, 53 M.J. 509 (N-M. Ct. Crim. App. 2000) (accused exposed his genitals, 

masturbated, and showed a pornographic video to two children simultaneously; the 

court adopted a “different victims” standard for indecent liberties, because the 

purpose of the offense is the protection of the individual person). 

(d) Indecent liberties and indecent exposure are not necessarily multiplicious. United 

States v. Rinkes, 53 M.J. 741 (N-M. Ct. Crim. App. 2000) (accused’s convictions of 

indecent liberties with a child and indecent exposure before an adult did not 

constitute an unreasonable multiplication of charges as considering the differing 

societal goals and victims, the specifications were aimed at distinctly separate 

criminal acts). 

5. Indecent Assault. MCM, App. 27, ¶ 63. 

a) The discussion that follows pertains to Indecent Assault as it existed under Article 134 

prior to October 2007. 

b) Elements. 

(1) That the accused assaulted a certain person not the spouse of the accused in a certain 

manner; 

(2) That the acts were done with the intent to gratify the lust or sexual desire of the 

accused; and 

(3) That, under the circumstances, the conduct of the accused was to the prejudice of the 

good order and discipline in the armed forces or was of a nature to bring discredit upon 

the armed forces. 

c) Nonconsensual offense requiring assault or battery. The assault or battery need not be 

inherently indecent, lewd, or lascivious but may be rendered so by accompanying words and 

circumstances. United States v. Wilson, 13 M.J. 247 (C.M.A. 1982). See United States v. 

Hester, 44 M.J. 546 (Army Ct. Crim. App. 1996) (victim was a virtual stranger to accused 

and the two of them were engaged in official business of processing victim into the unit, 

touching of victim’s thigh was an offensive touching which, when done with specific intent to 

gratify the accused’s lust, was an indecent assault). 

d) Intent. 

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(1) Requires accused’s specific intent to gratify his lust or sexual desires. United States 

v. Jackson, 31 C.M.R. 738 (A.B.R. 1962); see also United States v. Birch, 13 M.J. 847 

(C.G.C.M.R. 1982) (kissing victim against her will without evidence of specific intent to 

gratify lust or sexual desires was only a battery); United States v. Campbell, 55 M.J. 591 

(C.G. Ct. Crim. App. 2001) (although male accused’s tickling and similar touchings of 

female shipmates was unwelcome, boorish, and improper, the court could not reasonably 

describe the actions as indecent); United States v. Proper, 56 M.J. 717 (C.G. Ct. Crim. 

App. 2002) (pulling coveralls of a female subordinate away from her chest factually 

insufficient to prove that accused acted with intent to gratify his sexual lusts or desires 

even though he made comments about her breasts). 

(2) The assault or battery must be committed with a prurient state of mind. United States 

v. Arviso, 32 M.J. 616 (A.C.M.R. 1991) (evidence established specific intent of accused 

to gratify his lust or sexual desires when he inserted his finger into anus of female 

patients after examination by physicians); United States v. Hoggard, 43 M.J. 1 (1995) 

(holding evidence of attempted kiss legally insufficient to establish indecent intent); 

United States v. Hester, 44 M.J. 546 (Army Ct. Crim. App 1996). 

e) Can be committed by a male on a woman not his spouse or by a female on a male not her 

spouse. United States v. Johnson, 17 M.J. 251 (C.M.A. 1984). 

f) An accused can be found guilty of indecent assault and not guilty of rape even though 

both the victim and the accused acknowledge that intercourse occurred. United States v. 

Watson, 31 M.J. 49 (C.M.A. 1990); United States v. Wilson, 13 M.J. 247 (C.M.A. 1982). 

g) Lack of consent. 

(1) Unlike rape, mere lack of acquiescence is sufficient lack of consent for indecent 

assault; actual resistance is not required. 

(2) If accused stops advances after he knows of lack of consent, evidence is legally 

insufficient for indecent assault. United States v. Ayers, 54 M.J. 85 (C.A.A.F. 2000) 

(government failed to prove lack of consent as there was no unwanted sexual touching as 

she was a “willing participant” when the accused touched her and kissed her, but when 

the accused tried to progress to sexual intercourse the ‘victim’ drew the line, and the 

accused did not cross that line, the ‘victim’ continued the relationship by calling the 

accused after the initial incident and agreed to meet him; during subsequent incident, 

accused stopped advances after ‘victim’ demonstrated lack of consent), aff’d by 55 M.J. 

243 (C.A.A.F. 2001). 

h) Mistake of fact defense. Accused’s plea of guilty to indecent assault was provident even 

when accused stated during providency that “I personally just thought [at the time] that she 

was [consenting] and that it wasn’t unreasonable;” statement failed to raise mistake of fact 

defense and was not in substantial conflict with plea. United States v. Garcia 44 M.J. 496 

(1996), aff’d, 48 M.J. 5 (C.A.A.F. 1997). 

i) Indecent assault is lesser included offense of indecent acts with child. United States v. 

Kibler, 43 M.J. 725 (Army Ct. Crim. App. 1995), aff’d, 46 M.J. 160 (C.A.A.F. 1996), cert. 

denied 523 U.S. 1011 (1998). 

6. Indecent Exposure. MCM, App. 27, ¶ 88. 

a) The discussion that follows pertains to Indecent Exposure with a Child as it existed under 

Article 134 prior to October 2007. 

b) Elements. 

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(1) That the accused exposed a certain part of the accused’s body to public view in an 

indecent manner; 

(2) That the exposure was willful and wrongful; and 

(3) That, under the circumstances, the conduct of the accused was to the prejudice of 

good order and discipline in the armed forces or was of a nature to bring discredit upon 

the armed forces. 

c) Negligent exposure is insufficient; “willfulness” is required. United States v. Manos, 25 

C.M.R. 238 (C.M.A. 1958) (law enforcement officer viewed exposure through accused’s 

window); United States v. Stackhouse, 37 C.M.R. 99 (C.M.A. 1967) (evidence was 

insufficient to sustain the accused’s conviction of three specifications of indecent exposure 

where, in each instance, the accused was observed nude in his own apartment by passersby in 

the hallway looking in the partly open door of the apartment; such evidence is as consistent 

with negligence as with purposeful action and negligence is an insufficient basis for a 

conviction of indecent exposure); accord United States v. Ardell, 40 C.M.R. 160 (C.M.A. 

1969); United States v. Burbank, 37 C.M.R. 955 (A.F.B.R. 1967) (plea of guilty to indecent 

exposure was not rendered improvident by stipulated evidence that the accused did nothing to 

attract attention to himself and may not even have been aware of the presence of the young 

females who saw him, where the accused admitted he had exposed himself in the children’s 

section of the base library, a place so public an intent to be seen must be presumed); United 

States v. Shaffer, 46 M.J. 94 (1997) (evidence supported the conclusion that accused’s 

exposures were “willful” so as to sustain conviction for indecent exposure where, on each 

occasion of exposure, accused was naked, facing out of his open garage, towards the street, in 

unobstructed view, during daylight hours and never made an attempt to cover himself or 

remove himself from view when seen). 

d) “Public” exposure is required. To be criminal the exposure need not occur in a public 

place, but only be in public view. United States v. Moore, 33 C.M.R. 667 (C.G.B.R. 1963) 

(accused, who exposed his penis and made provocative gestures while joking with fellow 

seamen on board ship, was guilty of indecent exposure). “Public view” occurs when the 

exposure is done in a place and in a manner that is reasonably expected to be viewed by 

another. United States v. Graham, 56 M.J. 256 (2002) (accused exposed himself to his 15­

year-old baby-sitter in the bedroom of his home by inviting her into the bedroom and then 

allowing his towel to drop in front of her. The accused’s actions caused a normally private 

place, i.e., the bedroom, to become public, as he reasonably expected the babysitter to view 

his naked body), aff’d, 56 M.J. 266 (C.A.A.F. 2002). 

e) Exposure must be “indecent.” Nudity per se is not indecent; thus, an unclothed male 

among others of the same sex is generally neither lewd nor morally offensive. United States 

v. Caune, 46 C.M.R. 200 (C.M.A. 1973). 

f) United States v. Jackson, 30 M.J. 1203 (A.F.C.M.R. 1990) (rejecting indecent acts with 

another and affirming indecent exposure instead). 

g) Indecent exposure via webcam. United States v. Ferguson, No. 10-0020 (C.A.A.F. Mar. 

22, 2010) (accused admitted sufficient facts to affirm conviction for indecent exposure via 

Internet webcam to a law enforcement agent posing as a teenager). 

7. Indecent Acts With Another. MCM, App. 27 ¶ 90. 

a) The discussion that follows pertains to Indecent Acts With Another as it existed under 

Article 134 prior to October 2007. 

b) Elements. 

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(1) That the accused committed a certain wrongful act with a certain person; 

(2) That the act was indecent; and 

(3) That, under the circumstances, the conduct of the accused was to the prejudice of 

good order and discipline in the armed forces or was of a nature to bring discredit upon 

the armed forces. 

c) An indecent act is defined as “that form of immorality relating to sexual impurity which 

is not only grossly vulgar, obscene and repugnant to common propriety, but which tends to 

excite lust and deprave the morals with respect to sexual relations.” MCM, App. 27 ¶ 90c. 

d) Physical touching not required, but participation of another is required. 

(1) United States v. McDaniel, 39 M.J. 173 (C.M.A. 1994) (accused’s instructions to 

female recruits to disrobe, change positions, and bounce up and down while videotaping 

them without their knowledge was sufficient participation). 

(2) United States v. Brown, 39 M.J. 688 (N.M.C.M.R. 1993) (some minimal observation 

or actual participation by another person is required for the offense to lie; a victim who is 

asleep while the accused masturbates in her presence will not suffice). See also United 

States v. Thomas, 25 M.J. 75 (C.M.A. 1987); United States v. Murray-Cotto, 25 M.J. 784 

(A.C.M.R. 1988). Contra United States v. Jackson, 30 M.J. 1203 (A.F.C.M.R. 1990); 

United States v. Kenerson, 34 M.J. 704, (A.C.M.R. 1992); United States v. Proctor, 58 

M.J. 792 (A.F. Ct. Crim. App. 2003); but see United States v. Jackson, 30 M.J. 1203 

(A.F.C.M.R. 1990) (holding victim provided “inspiration,” not participation). 

(3) United States v. Rollins, 61 M.J. 338 (2005). Appellant was convicted of several 134 

offenses, including an indecent act with JG, “by giving him a pornographic magazine and 

suggesting that they masturbate together.” HELD: The indecent act specification is 

affirmed. A reasonable factfinder could conclude that appellant committed a service 

discrediting indecent act “with” another by giving a person under the age of eighteen a 

pornographic magazine to stimulate mutual masturbation while in a parking lot open to 

the public. 

(4) United States v. Johnson, 60 M.J. 988 (N-M. Ct. Crim. App. 2005). Appellant pled 

guilty, in relevant part, to indecent acts with another HELD: The indecent act 

specification is affirmed. Here, appellant’s conduct in watching and encouraging his 

friend’s sexual encounter constituted active participation, citing United States v. 

McDaniel, 39 M.J. 173 (C.M.A. 1994). 

e) No specific intent is required. United States v. Brundidge, 17 M.J. 536 (A.C.M.R. 1983); 

United States v. Jackson, 31 C.M.R. 738 (A.B.R. 1972). 

f) Acts covered. 

(1) Acts not inherently indecent may be rendered so by the surrounding circumstances. 

United States v. Proctor, 34 M.J. 549 (A.F.C.M.R. 1992) (spanking young boys on the 

bare buttocks found to be indecent under the circumstances), aff’d, 37 M.J. 330 (C.M.A. 

1993). 

(2) Private, heterosexual, oral foreplay between two consenting adults that does not 

amount to sodomy is not an indecent act. United States v. Stocks, 35 M.J. 366 (C.M.A. 

1992). 

(3) Not limited to female victim. 

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(a) United States v. Annal, 32 C.M.R. 427 (C.M.R. 1963) (crime was committed 

when Army captain forcefully grabbed another male and tried to embrace him). 

(b) United States v. Holland, 31 C.M.R. 30 (C.M.A.1961) (officer was convicted of 

indecent act by grabbing certain parts of the anatomy of another male officer). 

(c) United States v. Moore, 33 C.M.R. 667 (C.G.B.R.1963) (consensual homosexual 

acts may constitute the offense of indecent acts with another). 

(4) Consensual intercourse in the presence of others can constitute an indecent act. 

United States v. Tollinchi, 54 M.J. 80 (C.A.A.F. 2000); United States v. Brundidge, 17 

M.J. 586 (A.C.M.R. 1983). 

(5) Indecent acts, charged as a violation of UCMJ art. 134, need not involve another 

person. United States v. Sanchez, 29 C.M.R. 32 (C.M.A. 1960) (chicken); United States 

v. Mabie, 24 M.J. 711 (A.C.M.R. 1987) (corpse). 

(6) Physically restraining victims in public restroom while accused masturbated is an 

indecent act. United States v. Eberle, 44 M.J. 374 (C.A.A.F. 1996). 

(7) Fornication. Purely private sexual intercourse between unmarried persons is 

normally not punishable. United States v. Hickson, 22 M.J. 146 (C.M.A. 1986), 

overruled on other grounds by United States v. Hill, 48 M.J. 352 (C.A.A.F. 1997). 

Context in which the sex act is committed may constitute an offense (e.g., public 

fornication, fraternization, etc.). See United States v. Berry, 20 C.M.R. 325 (C.M.A. 

1956) (two soldiers took two girls to a room where each soldier had intercourse with each 

of the girls in open view; such “open and notorious” conduct was service discrediting). 

See also, United States v. Woodard, 23 M.J. 514 (A.F.C.M.R. 1986) vacated and 

remanded on other grounds, 23 M.J. 400 (C.M.A. 1987), findings set aside on other 

grounds, 24 M.J. 514 (A.F.C.M.R. 1987) (private, consensual, intimate contact between a 

married officer and a 16-year-old babysitter was, under the circumstances, an indecent 

act). 

(8) “Open and notorious” fornication between consenting adults was an offense under 

Article 134 prior to October 2007. The act is open and notorious when the participants 

know that a third party is present or when performed in such a place and under such 

circumstances that it is reasonably likely to be seen by others, even though others actually 

do not view the acts. Sexual intercourse in a barracks room behind a pinned up sheet, 

while two roommates were awake and suspicious, was open and notorious. United States 

v. Izquierdo, 51 M.J. 421 (C.A.A.F. 1999); see United States v. King, 29 M.J. 901 

(A.C.M.R. 1989). 

(a) Consensual fondling of a female soldier’s breasts was not “open and notorious” 

conduct when it occurred in the accused’s private bedroom with the door closed but 

unlocked. The accused was holding a promotion party with about forty attendees in a 

room next to his bedroom. Although there was a possibility that someone from the 

party would enter the bedroom and observe the sexual activity, the accused’s plea to 

indecent acts was improvident because it was not reasonably likely that a third person 

would observe the conduct. United States v. Sims, 57 M.J. 419 (C.A.A.F. 2002). 

(b) The accused’s plea of guilty to committing an indecent act by videotaping 

intercourse and sodomy with his future wife was provident. The potential that the 

videotape would be viewed by others, together with the salacious effect on the person 

doing the taping and viewer alike, contributed to the conclusion that the act of 

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Chapter 21 

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g) 

C. 

Aggravated Sexual 

Contact 

[Back to Beginning of Chapter] 

videotaping was indecent. United States v. Allison, 56 M.J. 606 (C.G. Ct. Crim. App. 

2001). 

(9) Webcam cases. Broadcasting live sexual images to a child over the Internet via 

webcam may constitute indecent acts with another under Article 134. See United States 

v. Parker, No. 20080579 (A. Ct. Crim. App. Aug. 31, 2009) (unpub.). Where the child 

victim is actually a law enforcement officer, the courts have affirmed attempted indecent 

acts with another. See United States v. Lorenz, No. 20061071 (A. Ct. Crim. App. Apr. 

20, 2009) (unpub.); United States v. Miller, No. 36829, 2009 WL 1508494 (A.F. Ct. 

Crim. App. Apr. 30, 2009) (unpublished). 

Consent is not a defense. United States v. Carreiro, 14 M.J. 954 (A.C.M.R. 1982); 

United States v. Johnson, 4 M.J. 770 (A.C.M.R. 1978); United States v. Woodard, 23 M.J. 

514 (A.C.M.R. 1986), set aside on other grounds, 24 M.J. 514 (A.F.C.M.R. 1987); United 

States v. Thacker, 37 C.M.R. 28 (C.M.A. 1966) (dicta). 

h) Fornication. Not a per se UCMJ violation. United States v. Snyder, 4 C.M.R. 15 (C.M.A. 

1952). See also United States v. Blake, 33 M.J. 923 (A.C.M.R. 1991) (fornication, in and of 

itself, is not a crime in military law). 

Article 120 (2007) 

Adult Crimes Child Crimes 

- Rape - Rape of a Child 

- Aggravated Sexual Assault - Aggravated Sexual Contact with a Child 

- Aggravated Sexual Contact - Aggravated Sexual Assault of a Child 

- Abusive Sexual Contact - Abusive Sexual Contact with a Child 

- Wrongful Sexual Contact - Aggravated Sexual Abuse of a Child 

- Indecent Liberty With a Child 

Sexual Contact 

By: 

— Force 

— Causing GBH 

— Threat/fear of death, 

GBH or kidnapping 

— Rendering unconscious 

— Drugging 

Other Sexual Crimes 

- Indecent Acts 

- Indecent Exposure 

- Forcible Pandering 

Sexual Act 

By: 

— Causing BH 

— Threat/fear < death, GBH, 

or kidnapping 

— Threat/fear of death, 

GBH or kidnapping 

— Incapacitation 

Rape Abusive Sexual 

Contact 

Aggravated Sexual 

Assault 

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1. Rape, Sexual Assault, and Other Sexual Offenses (1 October 2007 version). MCM, pt. App. 

28, ¶ 45; UCMJ art. 120 (2008). 

a) Effective date: 1 October 2007. Implementing Executive Order signed 28 September 

2007 (E.O. 13447). 

b) Statute best considered in three parts: the “Big Four” offenses, the child sexual abuse 

offenses, and the remaining sexual offenses: 

(1) The “Big Four” offenses: rape, aggravated sexual assault, aggravated sexual contact, 

and abusive sexual contact. 

(a) By adding “w/ a child” to each of these four, the titles for eight of the statute’s 

fourteen offenses emerge. 

(b) Consent and mistake of fact as to consent are affirmative defenses only available 

to these “Big Four” offenses. 

(c) Statutory definitions for “sexual act” and “sexual contact,” along with the set of 

attendant circumstances identified in the statute, combine to define each of the four 

offenses. 

(2) The Child Sexual Abuse Offenses: rape of a child, aggravated sexual assault of a 

child, aggravated sexual abuse of a child, aggravated sexual contact with a child, abusive 

sexual contact with a child, and indecent liberty with a child. 

(3) The four remaining sexual offenses include: indecent act, forcible pandering, 

wrongful sexual contact, and indecent exposure. 

c) Start with defining whether or not a “sexual act” or a “sexual contact” has been 

committed, then determine which set of attendant circumstances apply to arrive at the proper 

offense. 

(1) “Sexual Act” (MCM, App. 28, ¶ 45a(t)(1)). 

(a) The penetration described by “sexual act” excludes male-on-male sexual activity. 

(b) Broader conduct than merely sexual intercourse. 

(c) If penetration accomplished by hand, finger, or any object, specific intent 

requirement that must be alleged and proved: “with an intent to abuse, humiliate, 

harass, or degrade any person or to arouse or gratify the sexual desire of any person.” 

(2) “Sexual Contact” (MCM, App. 28, ¶ 45a(t)(2)). 

(a) May encompass same conduct proscribed by Article 125, Sodomy, including 

male-on-male sexual activity. 

(b) Specific intent requirement for all sexual contacts that must be alleged and 

proved: “with an intent to abuse, humiliate, or degrade any person or to arouse or 

gratify the sexual desire of any person.” 

(3) “Lewd Act” (MCM, App. 28, ¶ 45a(t)(10)). 

(a) Requires intentional “skin-to-skin contact” with the genitalia of another person. 

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(b) Requires the specific intent “to abuse, humiliate, or degrade any person or to 

arouse or gratify the sexual desire of any person.” 

(c) Applies only to Aggravated Sexual Abuse of a Child (Art. 120(f)). 

(4) “Force” (MCM, App. 28, ¶ 45a(t)(5)). 

(a) While “without consent” is no longer an element of any of the “Big Four” 

offenses, “force” is defined using terms that nonetheless invoke the concept of 

“consent.” Specifically, the statute says force means action to compel submission of 

another or to overcome or prevent another’s resistance. (emphasis added). These 

emphasized phrases may cause the government to prove lack of consent as part of its 

“force” proof. 

(b) The concept of “constructive force,” developed by case law prior to the revision 

of Article 120, is defined out of the new Article 120’s definition of “force” and 

appears elsewhere in other statutory definitions. 

(5) At this time, the difference between “rendering” another person unconscious or 

“administering” an intoxicant to another person (for purposes of establishing rape or 

aggravated sexual contact) and taking advantage of incapacitation (for purposes of 

establishing an aggravated sexual assault or abusive sexual contact) appears to be the 

extent to which the principal caused the victim’s incapacitation. 

(6) “Threatening or placing that other person in fear” of anything less than death or 

grievous bodily harm is defined at MCM, App. 28, ¶ 45a(t)(7) and National Defense 

Authorization Act, FY2006, PL 109-163, 119 Stat. 3260-1. This definition includes 

classic examples of the “old” Article 120’s doctrine of constructive force. By statutory 

definition, “threatening” for purposes of establishing an aggravated sexual assault or an 

abusive sexual contact includes: A threat: 

(a) To accuse a person of a crime; 

(b) To expose a secret or publicize an asserted fact, whether true or false, tending to 

subject some person to hatred, contempt, or ridicule; or 

(c) Through the use or abuse of military position, rank, or authority, to affect or 

threaten to affect, either positively or negatively, the military career of some person. 

(7) The Military Judge’s Benchbook now contains a definition for
 

“substantially incapacitated.” See DA Pam 27-9, Military Judges’ Benchbook, ¶ 3-45-5, 

subpara. d and ¶ 3-45-6, subpara. d.
 

d) Child Sexual Abuse Offenses. 

(1) The six child sexual abuse offenses are: rape of a child (Art. 120(b)), aggravated 

sexual assault of a child (Art. 120(d)), aggravated sexual abuse of a child (Art. 120(f)), 

aggravated sexual contact with a child (Art. 120(g)), abusive sexual contact with a child 

(Art. 120(i)), and indecent liberty with a child (Art. 120(j)). 

(2) Practitioners can best navigate the child sexual abuse framework by using the facts of 

the case to answer the following three questions: 

(a) How old is the child (under 12, between 12 and 16, or over 16)? 

(b) What type of sexual touching occurred (sexual act, sexual contact, lewd act, or 

some other type)? 

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(c) What type of inducement was employed (none, “rape-level,” “aggravated sexual 

assault-level”)? 

Once answers to these three questions are obtained, the practitioner can then 

navigate the elements of the six child abuse offenses in order of severity. 

(3) Aggravated Sexual Abuse of a Child. MCM, App. 28, ¶ 45a(f). 

(a) Requires a “Lewd Act” as defined at MCM, App. 28, ¶ 45a(t)(10). 

(b) Specific intent requirement for all lewd acts that must be alleged and proved: 

“with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the 

sexual desire of any person.” 

(4) Indecent Liberty with a Child. (MCM, App. 28, ¶ 45a(j)). 

(a) Requires specific intent “to arouse, appeal to, or gratify the sexual desire of any 

person” or “to abuse, humiliate, or degrade any person.” 

(b) Physical touching is not required. See MCM, App. 28, ¶ 45a(t)(11). 

(c) May include communication of indecent language and exposure of one’s 

genitalia, anus, buttocks, or female areola or nipple to a child. See MCM, App. 28, ¶ 

45a(t)(11). 

(d) Requires “Physical Presence” with the child. See MCM, App. 28, ¶ 45a(j), 

(t)(11); United States v. Miller, 67 M.J. 87 (2008) (applying old Indecent Liberties 

with a Child provision in Art. 134, constructive presence through webcam is 

insufficient). 

e) The remaining four offenses. The following notes are intended to alert the practitioner to 

issues involved with litigating these last four offenses. 

(1) Wrongful Sexual Contact. MCM, App. 28, ¶ 45a(l). 

(a) Relies on the same definition of “Sexual Contact” employed by the “Big Four” 

offenses. 

(b) Sexual contact occurs “without that other person’s permission.” This language 

may impose an affirmative consent requirement on the principal. In other words, the 

statutory language seems to suggest that a principal must ask for affirmative consent 

from the other party to engage in the conduct that might amount to sexual contact. 

(c) The statutory language for this offense is taken directly from 18 U.S.C. § 

2244(b). 

(2) The following three offenses were all Article 134 offenses before the statutory 

change. As such, the implementing executive order, signed 28 October 2007, deleted 

these offenses from Article 134. In removing these offenses from Article 134, the 

requirement that the conduct be either prejudicial to good order and discipline or service 

discrediting has been eliminated. 

(a) Indecent Act. MCM, App. 28, ¶ 45a(k). Proscribes “indecent conduct,” which is 

defined by statute. Contains no specific intent requirement. The statutory language 

specifies “voyeurism”-types of offenses, but the Benchbook instruction also imports 

traditional concepts of “open and notorious” sexual behavior. See DA Pam 27-9, 

Military Judges’ Benchbook, ¶ 3-45-9, note 2. 

(b) Forcible Pandering. MCM, App. 28, ¶ 45a(l). Replaces only the “compel” 

portion of Article 134, Pandering. 

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(c) Indecent Exposure. MCM, App. 28, ¶ 45a(n). Proscribes exposure which occurs 

in an “indecent manner.” “Indecent” is defined at MCM, App. 28, ¶ 45c(3). 

f) Although a listing of lesser included offenses for the Article 120 offenses may be found 

both in paragraph (d) and (e) of the implementing executive order, see MCM, App. 28, ¶ 45d 

& e, practitioners should reference supra ¶ B.1.h, this chapter, for a general discussion on 

determining LIOs. 

(1) United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010)(finding 

that aggravated sexual assault by causing bodily harm is a lesser 

included offense of rape by force and that the military judge did not err 

in providing the instruction, even though neither party requested it). 

(2) United States v. Bailey, No. 200800897 (N-M. Ct. Crim. App. 

Sep. 29, 2009) (unpub.). In a single incident, the accused engaged in 

various acts of sexual physical contact. He was charged with three 

specifications under Art. 120. Specification 1 alleged “sexual contact 

causing bodily harm,” Specification 2 alleged abusive sexual contact, 

and Specification 3 alleged wrongful sexual contact. The accused pled 

guilty to Specification 3 (wrongful sexual contact), and not guilty to 

the other two specifications. The military judge accepted his plea to 

Specification 3, but also convicted him of abusive sexual contact, 

finding that “the previously pleaded-to wrongful sexual contact was 

committed by placing the victim in fear of physical injury or other 

harm, constituting abusive sexual contact.” The military judge 

considered the two offenses “multiplicious for sentencing.” The NMCCA held that the two specifications were multiplicious for findings 

and the military judge erred in not dismissing the wrongful sexual 

contact specification upon finding the accused guilty of the ”more 

aggravated abusive sexual contact” specification. The MCM lists 

wrongful sexual contact as an LIO of abusive sexual contact 

“depending on the factual circumstances.” See 2008 MCM, App. 28, ¶ 

45.e.(8). The court reasoned that “the only significant difference 

between the specifications [is] the additional element of placing the 

victim in fear,” which was proven in the contested portion of the trial. 

As such, the military judge erred and there was prejudice in the form of 

an additional conviction, as well as increased punitive exposure. The 

court also found that the conviction for the specification constituted an 

unreasonable multiplication of charges. Although the specifications 

were merged for sentencing, corrective action with respect to the 

findings was necessary. 

g) Affirmative Defenses. 

(1) The 2007 version of Article 120 assigns burdens for all affirmative defenses raised in 

the context of an Article 120 prosecution: “The accused has the burden of proving the 

affirmative defense by a preponderance of evidence. After the defense meets this burden, 

the prosecution shall have the burden of proving beyond a reasonable doubt that the 

affirmative defense did not exist.” 

(a) Unconsistutional Burden Shift. United States v. Prather, 69 M.J. 338 (C.A.A.F. 

2011) (where an accused raises the affirmative defense of consent to a charge of 

aggravated sexual assault by engaging in a sexual act with a person who was 

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substantially incapacitated, the statutory interplay among the relevant provisions of 

Art 120, results in an unconstitutional burden shift to the accused.) 

(b) Double-shift impossible. United States v. Prather, 69 M.J. 338 (C.A.A.F. 2011) 

(where the members are instructed consistent with the statutory scheme, the error can 

not be cured with standard “ultimate burden” instructions.) This provision 

improperly assigns two separate burdens of persuasion to two separate parties on a 

single issue, creating a “legal impossibility.” See also Major Howard H. Hoege, III, 

Overshift: The Unconstitutional Double Burden-Shift on Affirmative Defenses in the 

New Article 120, Army Law., May 2007, at 2; Texas Dep’t of Cmty. Affairs v. 

Burdine, 450 U.S. 248, 253 (1981) (citing 9 J. Wigmore, Evidence § 2489 (3d ed. 

1940)(stating, “the burden of persuasion ‘never shifts.’”). 

(c) In the MJ Benchbook (DA Pam 27-9), the Army Trial Judiciary has taken the 

approach of treating affirmative defenses which will arise under Article 120 

prosecutions just like the majority of other affirmative defenses recognized by the 

MCM and case law. In other words, “some evidence” will raise a defense and once 

the defense is raised, the government will have the burden of proving beyond a 

reasonable doubt that the affirmative defense does not exist. See, e.g., DA Pam 27-9, 

para. 3-45-3, note 10. 

(d) See James G. Clark, “A Camel is a Horse Designed by Committee”: Resolving 

Constitutional Defects in Uniform Code of Military Justice Article 120’s Consent and 

Mistake of Fact as to Consent Defenses, ARMY LAW., July 2011, at 3. 

(2) Facial Challenges. 

(a) United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010). In a prosecution of 

an aggravated sexual contact involving force under Art. 120(e), the trial judge 

dismissed the charge, finding that consent was an “implied element” and 

concluding that Article 120 unconstitutionally shifted the burden of proof on an 

element from the Government to the defense. This occurred after the defense 

case in chief, before instructions and findings. The government appealed under 

Article 62 and the N-MCCA reversed, holding that, under the facts of the case, 

proof of the element of force does not require proof of lack of consent and the 

affirmative defense of consent does not unconstitutionally shift the burden of 

proof to the defense. The CAAF, in a 3-2 decision, affirmed the N-MCCA’s 

decision, and remanded the record of trial to the military judge. The court made 

two key interpretations of the language of the new Article 120: (1) absence of 

consent is not a fact necessary to prove the crime of aggravated sexual assault, 

and (2) the words “consent is not an issue” in Article 120(r) do not prohibit the 

factfinder from considering evidence of consent when determining whether the 

prosecution has proved the element of force beyond a reasonable doubt (see also 

Martin v. Ohio, 480 U.S. 228 (1987)). Next, the court confirmed the 

interlocutory posture of the case, noting that there were no instructions, no 

closing arguments, and no findings. The court then found that the military judge 

erred in treating lack of consent as an element of the offense and in concluding 

that the affirmative defense scheme is unconstitutional. Although the court did 

not rule on the constitutionality of the statute as applied to the accused in this 

case due to its interlocutory nature, the court cautioned that the constitutionality 

may be affected by the content of instructions, the sequence of the instructions, 

and any waiver of instructions. In a dissenting opinion, which Judge Erdmann 

joined, Judge Ryan concludes that “’ [force’ and ‘consent’ . . . are two sides of 

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the same coin,” and “making consent an affirmative defense . . . relieves the 

government of [the burden of proof as to an element] and unconstitutionally 

requires the defendant to disprove force.” 

(b) United States v. Crotchett, 67 M.J. 713 (N-M. Ct. Crim. App. 2009) 

(holding that a facial challenge to Art. 120(c), Aggravated Sexual Assault, fails 

because the court’s “construction of the statute leads to the conclusion that 

Article 120(c)(2)(C) does not mandate a shift to the defense of the burden of 

proof as to any element). 

(c) United States v. Rozmus, No. 200900052, 2009 WL 2893176 (N-M. Ct. 

Crim. App. Sep. 10, 2009) (unpub.) (facial challenge fails because court extends 

the holding of Crotchett to Article 120(c)(2)(b)). 

(3) Instructions. 

(a) United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010). The constitutionality of the 

statute may be affected by the content of instructions, the sequence of the 

instructions, and any waiver of instructions. “A properly instructed jury may 

consider evidence of consent at two different levels: (1) as raising a reasonable doubt 

as to whether the prosecution has met its burden on the element of force; and (2) as to 

whether the defense hasestablished an affirmative defense.” 

(b) United States v. Medina, 69 M.J. 462 (C.A.A.F. 2011). In a prosecution of an 

aggravated sexual assault involving an incapacitated victim under Art. 120(c), the 

trial judge gave instructions for consent that mirrored the model instructions provided 

in the Military Judges’ Benchbook and departed from the plain language from the 

statute regarding the assignment of burdens regarding the affirmative defense of 

consent. Specifically, the military judge instructed the members that “The 

prosecution has the burden to prove beyond a reasonable doubt that consent did not 

exist.” The panel convicted the accused. United States v. Medina, 69 M.J. 462 

(C.A.A.F. 2011) (“Although, in the absence of a legally sufficient explanation, the 

military judge’s decision not to employ the terms of the statute constituted error, we 

are satisfied that the error was harmless beyond a reasonable doubt.”) 

(c) United States v. Rozmus, No. 200900052, 2009 WL 2893176 (N-M. Ct. Crim. 

App. Sep. 10, 2009) (unpub.) (facial challenge fails because court extends the 

holding of Crotchett to Article 120(c)(2)(b), as applied challenge fails because no 

evidence of consent or mistake of fact as to consent raised at trial). 

(4) Multiplicity and UMC. 

(a) United States v. Oliva, No. 20080774 (A. Ct. Crim. App. Feb. 24, 2009) 

(unpublished). The accused, a drill sergeant, was charged with two specifications of 

aggravated sexual assault under Art. 120. Specification 1 alleged that he “caused the 

victim . . . to engage in a sexual act, i.e., penetration of her genital opening with [his] 

finger, by causing bodily harm in the form of bruises on her arm.” Specification 2 

alleged that he “engaged in a sexual act, i.e., penetration of [the victim’s] genital 

opening with his finger, by placing her in fear of [his] abuse of his military position 

to affect negatively her career.” He pled not guilty to these offenses, however, he 

pled guilty to two specifications of the lesser included offense of wrongful sexual 

contact by “placing his finders in [her] vagina without legal justification or 

authorization and without her consent.” He “pled guilty to the identical criminal 

conduct and acts for both specifications.” the two specifications were multiplicious 

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for findings and dismissed Specification 2. The accused pled guilty to two 

specifications of wrongful sexual contact for the exact same underlying conduct. 

(b) United States v. Bailey, No. 200800897 (N-M. Ct. Crim. App. Sep. 29, 2009) 

(unpub.). In a single incident, the accused engaged in various acts of sexual physical 

contact. He was charged with three specifications under Art. 120. Specification 1 

alleged “sexual contact causing bodily harm,” Specification 2 alleged abusive sexual 

contact, and Specification 3 alleged wrongful sexual contact. The accused pled 

guilty to Specification 3 (wrongful sexual contact), and not guilty to the other two 

specifications. The military judge accepted his plea to Specification 3, but also 

convicted him of abusive sexual contact, finding that “the previously pleaded-to 

wrongful sexual contact was committed by placing the victim in fear of physical 

injury or other harm, constituting abusive sexual contact.” The military judge 

considered the two offenses “multiplicious for sentencing.” The N-MCCA held that 

the two specifications were multiplicious for findings and the military judge erred in 

not dismissing the wrongful sexual contact specification upon finding the accused 

guilty of the ”more aggravated abusive sexual contact” specification. The MCM lists 

wrongful sexual contact as an LIO of abusive sexual contact “depending on the 

factual circumstances.” See 2008 MCM, App. 28, ¶ 45.e.(8). The court reasoned that 

“the only significant difference between the specifications [is] the additional element 

of placing the victim in fear,” which was proven in the contested portion of the trial. 

As such, the military judge erred and there was prejudice in the form of an additional 

conviction, as well as increased punitive exposure. The court also found that the 

conviction for the specification constituted an unreasonable multiplication of charges. 

(c) United States v. Marshall, No. 200900533 (N-M. Ct. Crim. App. Feb. 10, 2010) 

(unpub.). Accused engaged in sexual intercourse with an incapacitated victim. 

When victim awoke and tried to get him to stop, he withdrew, began masturbating 

over top of her, and ejaculated onto her hair, stomach, and shirt. The accused was 

convicted of both aggravated sexual assault and an indecent act, both under Art. 120. 

Charges were neither multiplicious nor an unreasonable multiplication of charges. 

(d) United States v. Swemley, No. 200900359 (N-M. Ct. Crim. App. Apr. 29, 2010) 

(unpub.). Accused was charged with aggravated sexual assault of an incapacitated 

victim, but the panel convicted of the LIO of assault consummated by a battery by 

touching the victim and removing her clothing while she was asleep. The N-MCCA 

found that the military judge did not err in instructing on assault consummated by 

battery as an LIO of aggravated sexual assault and the accused received the requisite 

notice that he could be convicted of this lesser offense. 

(e) United States v. Elespru, 73 MJ 326 (C.A.A.F. 2014). While it was proper for 

the government to charge wrongful sexual contact and abusive sexual contact for 

exigencies of proof, one of the charges should have been dismissed on UMC grounds 

where accused was convicted of both. 

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D. Article 120 (2012) 

Stalking (Art. 120a) (D.2) Adult Crimes (Art. 120) (D.1) 

- Rape (D.1.b) 

- Sexual Assault (D.1.c)	 Child Crimes (Art. 120b (D.3) 

- Rape of a Child - Aggravated Sexual Contact - Sexual Assault of a Child - Abusive Sexual Contact - Sexual Abuse of a Child 

Other Sexual Crimes (Art. 120c) (D.4) 

- Indecent Viewing, Visual Recording, or Broadcasting 

- Indecent Exposure 

- Forcible Pandering 

Low degree of force 

(fear, bodily harm, fraud, 

“knew or should have known” 

asleep... incapable of 

consenting) 

High degree of force 

(unlawful force, GBH, fear of 

GBH, render unconscious, 

administer drug...) 

Sexual contact - (touch 

private part with intent to 

abuse, OR touch any body part 

with any body part, with intent 

to arouse) 

Sexual act - (penetration of 

vulva, anus, mouth by penis, 

OR same penetration by any 

object, with sexual intent...) 

Agg. Sex 

Contact 

Agg. Sex 

Contact 

Sex 

Assault Rape 

1. Rape and Sexual Assault Generally. MCM, pt. IV, ¶ 45; UCMJ art. 120 (2012). 

a) Effective date: 28 June 2012. An implementing executive order has yet to be 

signed prescribing elements, explanations, lesser included offenses, and sample 

specifications under his authority pursuant to Article 36. Practitioners should refer to 

the appropriate statutory language and, to the extent practicable, use Appendix 28 as 

a guide. Maximum punishments were prescribed via Executive Order 13643 of May 

15, 2013. 

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(a) One service court has defined “incapable of consent” as “incapable of entering a 

freely given agreement.” United States v. Pease, 74 M.J. 763, 770 (N-M. Ct. Crim. 

App. 2015). Further, “[t]o be able to freely give an agreement, a person must first 

possess the cognitive ability to appreciate the nature of the conduct in question, then 

possess the mental and physical ability to make and to communicate a decision 

regarding that conduct to the other person.” Id. NOTE: this case is pending review 

at the C.A.A.F. as of the time of this writing. 

b) Aggravated Sexual Contact. Statutory language: Any person subject to this 

chapter who commits or causes sexual contact upon or by another person, if to do so 

would violate subsection (a) (rape) had the sexual contact been a sexual act, is guilty 

of aggravated sexual contact and shall be punished as a court-martial may direct. 

c) Abusive Sexual Contact. Statutory language: Any person subject to this chapter 

who commits or causes sexual contact upon or by another person, if to do so would 

violate subsection (b) (sexual assault) had the sexual contact been a sexual act, is 

guilty of abusive sexual contact and shall be punished as a court-martial may direct. 

d) Statute is gender neutral. 

e) Defenses. Marriage is not a defense. 

f) Definitions. The definitions of sexual act and sexual contact have both been 

expanded from the 2007 definitions under Art. 120. Though not specifically 

delineated in the statute, the touching may also be accomplished by an object. United 

States v. Schloff, 74 M.J. 312 (C.A.A.F. 2015). 

2. Stalking. MCM, pt. IV, ¶ 45a; UCMJ art. 120a (2012). 

a) Elements. 

(1) That that accused wrongfully engaged in a course of conduct directed at 

a specific person that would cause a reasonable person to fear death or bodily 

harm to himself or herself or a member of his or her immediate family; 

(2) That the accused had knowledge, or should have had knowledge, that the 

specific person would be placed in reasonable fear of death or bodily harm, 

including sexual assault, to himself or herself or a member of his or her 

immediate family; and 

(3) That the accused’s acts induced reasonable fear in the specific person of 

death or bodily harm to himself or herself or to a member of his or her immediate 

family. 

b) See infra ¶ XXXIV.E, this Chapter, for the discussion on Stalking. 

3. Rape and Sexual Assault of a Child. MCM, pt. IV, ¶ 45; UCMJ art. 120b (2012). 

a) Effective date: 28 June 2012. An implementing executive order has yet to be 

signed prescribing elements, explanations, lesser included offenses, and sample 

specifications under his authority pursuant to Article 36. Practitioners should refer to 

the appropriate statutory language and, to the extent practicable, use Appendix 28 as 

a guide. Maximum punishments were prescribed via Executive Order 13643 of May 

15, 2013. 

b) The definition of lewd act has been expanded from the 2007 statutory language: 

(1) The term ‘lewd act’ means— 

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(a) any sexual contact with a child; 

(b) intentionally exposing one’s genitalia, anus, buttocks, or female areola or 

nipple to a child by any means, including via any communication technology, 

with an intent to abuse, humiliate, or degrade any person, or to arose or 

gratify the sexual desire of any person; 

(c) intentionally communicating indecent language to a child by any means, 

including via any communication technology, with an intent to abuse, 

humiliate, or degrade any person, or to arouse or gratify the sexual desire of 

any person; or 

(d) any indecent conduct, intentionally done with or in the presence of a 

child, including via any communication technology, that amounts to a form 

of immorality relating to sexual impurity which is grossly vulgar, obscene, 

and repugnant to common propriety, and tends to excite sexual desire or 

deprave morals with respect to sexual relations. 

4. Other Sexual Misconduct. MCM, pt. IV, ¶ 45; UCMJ art. 120c (2012). 

a) Effective date: 28 June 2012. An implementing executive order has yet to be 

signed prescribing elements, explanations, lesser included offenses, and sample 

specifications under his authority pursuant to Article 36. Practitioners should refer to 

the appropriate statutory language and, to the extent practicable, use Appendix 28 as 

a guide. Maximum punishments were prescribed via Executive Order 13643 of May 

15, 2013. 

(1) Indecent viewing is only criminal insofar as the viewing is done “live” 

and in-person; viewing a recording of another’s private area, even if the 

recording was done without consent, is not criminal. See United States v. Quick, 

74 M.J. 517 (N-M.Ct.Crim.App. 2015), aff’d, 2015 CAAF LEXIS 703 (C.A.A.F. 

Aug. 11, 2015). 

(2) In some circumstances Indecent Acts may be charged for conduct 

occurring after 28 June, 2012, by charging the conduct under Clause 1 and/or 2 

of Article 134. See United States v. Quick, 74 M.J. 517 (N-M.Ct.Crim.App. 

2015), aff’d, 2015 CAAF LEXIS 703 (C.A.A.F. Aug. 11, 2015). 

E. Child Pornography – On or after 12 January 2012 

1. Prior to 12 January 2012 there was no enumerated crime addressing child pornography in the 

UCMJ and the President had not listed a child pornography offense under Article 134. Crimes in 

the military that involve child pornography prior to 12 January 2012 must be charged under a 

general article (Article 133 or Article 134); see ¶ H. 

2. Article 134 specifically criminalizes four child pornography offenses: 

a) Possessing, receiving, or viewing 

b) Possession with the intent to distribute 

c) Distribution 

d) Producing 

3. There are few reported cases on this offense. Much of the case law developed prior to 12 

January 2012 is still applicable; as such, practitioners should review ¶ H as well. 

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4. Note that child pornography as enumerated under Article 134 is defined as either (a) “an 

obscene visual depiction of a minor engaging in sexually explicit conduct” or (b) “a visual 

depiction of an actual minor engaging in sexually explicit conduct” (emphasis added). 

a) Obscenity is not defined within the text of the MCM. Practitioners should look to the 

myriad of case law defining obscenity if necessary. Note also that the C.A.A.F., in 

interpreting 18 U.S.C. § 2256(8)(B), has determined that a “graphic” exhibition of what 

appear to be a minor must necessarily include nudity. United States v. Blouin, 24 M.J. 247 

(C.A.A.F. 2015). Whether the C.A.A.F. would require nudity for an “obscene” depiction of 

what appears to be a minor remains to be seen. 

b) The word “obscene” is omitted from the model specification listed in the MCM; trial 

counsel should nevertheless allege obscenity when unable to definitively prove that the 

depictions are of actual minors. 

5. Sexually explicit conduct is defined in part as a “lascivious exhibition of the genitals or pubic 

area of any person.” This definition is not further defined within the MCM. Because it mirrors 

the definition found within 18 U.S.C. § 2256, military judges ordinarily read the definition found 

within subsection (8) of that statute. In turn, “[o]nce the military judge elects to use the statutory 

definition of child pornography under 18 U.S.C. § 2256(8), the Child Pornography Prevention 

Act (CPPA), the evidence must meet that definition.” United States v. Morris, 2014 CCA LEXIS 

645, *4 (N-M.Ct.Crim.App. Aug. 28, 2014), aff’d, 2015 CAAF LEXIS 685 (C.A.A.F. July 15, 

2015). 

a) When the images depict an actual minor, the lascivious exhibition need not include 

nudity, and "the contours of the genitals or pubic area [need not] be discernible or otherwise 

visible through the child subject's clothing." United States v. Knox, 32 F.3d 733, 746 (3d Cir. 

1994). See also United States v. Morris, 2014 CCA LEXIS 645 (N-M.Ct.Crim.App. Aug. 28, 

2014) , aff’d, 2015 CAAF LEXIS 685 (C.A.A.F. July 15, 2015). 

b) In determining whether a display is lascivious, military courts look to the non-exclusive 

factors outlined in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986). These factors 

are: 

“1) whether the focal point of the visual depiction is on the child's genitalia or pubic 

area; 

2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or 

pose generally associated with sexual activity; 

3) whether the child is depicted in an unnatural pose, or in inappropriate attire, 

considering the age of the child; 

4) whether the child is fully or partially clothed, or nude; 

5) whether the visual depiction suggests sexual coyness or a willingness to engage in 

sexual activity; 

6) whether the visual depiction is intended or designed to elicit a sexual response in 

the viewer.” 

United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986). 

c) Note: as discussed in ¶ G.4 above, depictions of a virtual child or a child not identifiable 

as an actual child might require nudity in order to qualify as “obscene.” In that case, the Dost 

factors would still otherwise apply, though nudity would be a required factor. Again, there is 

no “obscenity” requirement for depictions of actual minors. 

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6. It is an open question whether possession of child erotica – that is, nude and sexualized 

images of children which nevertheless do not depict “sexually explicit conduct” as defined within 

the MCM – is a viable offense under clause 1 or 2 of Article 134. See United States v. Moon, 73 

M.J. 382 (C.A.A.F. 2014). Possession of non-nude images of children, even if sexualized, is not 

an offense. United States v. Warner, 73 M.J. 1 (C.A.A.F. 2013). 

7. Other cases. 

a) Even where some images are found not to meet the statutory definition of child 

pornography upon appellate review, there is no longer a requirement to set aside a guilty 

verdict as long as at least one of the images constituted non-Constitutionally protected 

material. United States v. Piolunek, 74 M.J. 107 (C.A.A.F. 2015). This case overturned 

United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012). 

F. Child Pornography – Before 12 January 2012. 

1. There are two ways to charge child pornography crimes committed prior to 12 June 2012 

using Article 134: 

a) Charge the criminal conduct using Article 134, clauses 1 and 2. 

b) Charge a violation of an applicable federal statute using Article 134, clause 3. 

2. Clauses 1 and 2, Article 134. 

a) “It is a mystery to me why, after this [c]ourt’s ten-year history of invalidating convictions 

for child pornography offenses under clause 3, and of upholding convictions for such 

offenses under clause 2, we continue to see cases charged under clause 3.” United States v. 

Medina, 66 M.J. 21, 29 n.1 (C.A.A.F. 2008) (Stucky, J., dissenting). 

b) Possession of child pornography may be charged as a Clause 1 or Clause 2 offense. 

United States v. Irvin, 60 M.J. 23 (C.A.A.F. 2004). 

c) Virtual Child Pornography under Clauses 1 and 2. 

(1) United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004) (“The receipt or possession of 

“virtual” child pornography can, like “actual” child pornography, be service-discrediting 

or prejudicial to good order and discipline.”). 

(2) United States v. Brisbane, 63 M.J. 106 (C.A.A.F. 2006) (“The knowing possession of 

images depicting sexually explicit conduct by minors, whether actual or virtual, when 

determined to be service-discrediting conduct or conduct prejudicial to good order and 

discipline, is an offense under Article 134”). 

(3) The maximum punishment for possession of virtual child pornography is 4 months. 

United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011). Cf. United States v. Finch, 73 M.J. 

144 (C.A.A.F. 2014). 

d) Referencing an unconstitutional statutory definition of child pornography in the pleadings 

and instructing the members using the unconstitutional statutory definition created 

instructional error in an Article 133 child pornography case. United States v. Forney, 67 M.J. 

271 (C.A.A.F. 2009) (Effron, C.J., concurring in the result) (Erdmann, J., dissenting). This 

analysis should also apply if the offense was charged under clauses 1 and 2 of Article 134. 

e) The nature of the images is not dispositive as to whether receiving such images is 

PGO&D or SD. United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003) (providence 

inquiry failed to establish whether accused pled guilty to possession of virtual or actual child 

pornography; no LIO of clause 1 or clause 2 because no discussion of PGO&D or SD). 

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f) Although United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) provides the current state 

of the law regarding the relationship between the three clauses of Article 134, the following 

cases were affirmed under clause 2 of Article 134: 

(1) United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000) (after finding that the military 

judge failed to adequately advise the accused of the elements of federal offense of 

possession of child pornography, under 18 U.S.C. § 2252(a)(4)(A), which he was charged 

with violating under clause 3 of Article 134, the Air Force court did not err by affirming 

the lesser included offense of service-discrediting conduct, under clause 2 of Article 134. 

(2) United States v. Augustine, 53 M.J. 95 (C.A.A.F. 2000) (affirming under clause 2 

rather than clause 3 of Article 134). 

(3) United States v. Hays, 62 M.J. 158 (C.A.A.F. 2005) (holding the plea inquiry did not 

implicate the appellant’s First Amendment rights, thus placing the analysis under Sapp 

and Augustine; although the MJ did not discuss with appellant whether his conduct was 

service discrediting or prejudicial to good order and discipline, there is no doubt that 

appellant was aware of the impact of his conduct on the image of the armed forces; 

affirmed under Clause 2). 

3. Clause 3, Article 134. 

a) See generally MCM, pt. IV, ¶ 60c(4). 

b) Key federal statutes. The following federal statutes are available for charging various 

conduct involving the production, possession, transportation, and distribution of child 

pornography: 

(1) 18 U.S.C. § 2251, Sexual Exploitation of Children. Among other prohibitions, this 

provision covers the use of minors in the production of child pornography. 

(2) 18 U.S.C. § 2252, Certain Activities Relating to Material Involving the Sexual 

Exploitation of Minors. This child pornography provision was the predecessor to the 

computer-specific 18 U.S.C. § 2252A. 

(3) 18 U.S.C. § 2252A, Certain Activities Relating to Material Constituting or 

Containing Child Pornography. This is the federal provision that most comprehensively 

covers the use of computers and the Internet to possess, transport, and distribute child 

pornography. 

(4) Statutory Definitions. 18 U.S.C. § 2256 contains the applicable definitions for child 

pornography offenses. 

c) Amendments. 

(1) The Effective Child Pornography Prosecution Act of 2007, Pub. L. No. 110-358 (Oct. 

8, 2008) (adds "using any means or facility of interstate or foreign commerce" to several 

sections in 18 USC 2251, 2251A, 2252, and 2252A). 

(2) The Enhancing the Effective Prosecution of Child Pornography Act of 2007, Pub. L. 

No. 110-358 (Oct. 8, 2008) (adds to 18 USC 2252(a)(4) and 2252A(a)(5) the following 

language after "possesses": "or knowingly accesses with intent to view"). 

(3) The Providing Resources, Officer, and Technology to Eradicate Cyber Threats to 

Our Children Act of 2008 (or The PROTECT Our Children Act of 2008), Pub. L. No. 

110-401 (Oct. 13, 2008) (Sec 301 prohibits broadcast of live images of child abuse, Sec. 

302 amends the definition of "visual image" under 18 USC 2256(5) by inserting "and 

data which is capable of conversion into a visual image that has been transmitted by any 

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means, whether or not stored in a permanent format", Sec. 304 prohibits the adaptation or 

modification of an image of an identifiable minor to produce child pornography). 

d) Pleading Child Pornography Offenses Using Clause 3. 

(1) See MCM, pt. IV, ¶ 60c(6). 

e) Actual versus Virtual Children. 

(1) Using the CPPA and Clause 3, Article 134. 

(a) In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the U.S. Supreme 

Court held that specific language within the definition of child pornography in the 

1996 Child Pornography Prevention Act (CPPA) was unconstitutional. Specifically, 

the definition impermissibly prohibited “virtual” child pornography in contravention 

of the First Amendment. The “virtual image” language was contained in § 

2256(8)(B) and § 2256(8)(D). 

(b) Following Ashcroft, the CAAF made the “actual” character of visual depictions 

of child pornography a factual predicate for guilty pleas under the CPPA. United 

States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003). 

(c) Either the “appears to be” language or “conveys the impression” language found 

in the CPPA’s unconstitutional definition of child pornography can trigger the 

requirement to prove an “actual” child was used to make an image of child 

pornography. United States v. Wolford, 62 M.J. 418 (C.A.A.F. 2006). 

(2) Using Clauses 1 and 2, Article 134. Child pornography, whether virtual or actual, 

can be prejudicial to good order and discipline and service-discrediting. See United 

States v. Mason, 60 M.J. 15 (C.A.A.F. 2004); United States v. Brisbane, 63 M.J. 106 

(C.A.A.F. 2006). 

f) Issues. 

(1) Constitutionality of the Federal statute. 

(a) In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the U.S. Supreme 

Court held that specific language within the definition of child pornography in the 

1996 Child Pornography Prevention Act (CPPA) was unconstitutional. Specifically, 

the definition impermissibly prohibited “virtual” child pornography in contravention 

of the First Amendment. The “virtual image” language was contained in § 

2256(8)(B) and § 2256(8)(D). 

(b) The Prosecutorial Remedies and Other Tools to end the Exploitation of Children 

Today Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (Apr. 30, 2003), which 

amended 18 U.S.C. § 2252A to include a provision that prohibits the solicitation and 

pandering of child pornography. United States v. Williams, 128 S. Ct. 1830, 170 L. 

Ed. 2d 650 (2008) (holding the Act to be neither impermissibly vague nor overbroad 

and holding that offers to provide or requests to obtain child pornography are 

categorically excluded from the First Amendment). 

(c) The Protection of Children Against Sexual Exploitation Act, 18 U.S.C. § 2252. 

Constitutional because its prohibition against knowing transport, shipment, receipt, 

distribution, or reproduction of a visual depiction of a minor engaged in sexually 

explicit conduct requires that the accused know that the performer in the depiction 

was a minor, thereby satisfying First Amendment concerns. United States v. XCitement Video, 115 S.Ct. 464 (1994); United States v. Maxwell, 42 M.J. 568 (A.F. 

Ct. Crim. App. 1995), reversed in part United States v. Maxwell, 45 M.J. 406 

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(C.A.A.F. 1996) (transmission of visual images electronically through the use of an 

on-line computer service is “transport in interstate or foreign commerce’ in light of 

legislative intent to prevent the transport of obscene material in interstate commerce 

regardless of the means used to effect that end and statute is constitutional in light of 

United States v. X-Citement Video, 115 S.Ct. 464 (1994) (statute contains a scienter 

requirement because the word “knowingly” must be read as applying to the words 

“use of a minor”). 

(2) Extraterritoriality. Practitioners in overseas and deployed locations should ensure 

that the federal statute is applicable to the conduct at issue. 

(a) United States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005). Appellant pled guilty, 

in relevant part, to sending, receiving, reproducing, and possessing child pornography 

under Article 134, Clause 3, in violation of the CPPA. The conduct was charged 

using 18 U.S.C. §2252A(a)(1–3). Appellant’s misconduct took place in Germany, 

both at an off-post internet café, and in his on-post barracks room. HELD: 1) The 

CPPA is not extraterritorial as there is no evidence of specific congressional intent to 

extend its coverage; 2) domestic application is possible under a “continuing offense” 

theory for sending material that flowed through servers in the United States; 3) 

appellant’s plea to specification 1 under clause 3 of Article 134 is improvident under 

O’Connor because of the focus on the unconstitutional definition of child 

pornography and the lack of focus on “actual” vs. “virtual” images; and 4) there was 

no reference to appellant’s conduct as service discrediting or prejudicial to good 

order and discipline. Strong dissents from both C.J. Gierke and J. Crawford. 

(b) United States v. Reeves, 62 M.J. 88 (C.A.A.F. 2005). The accused was stationed 

in Hanau, Germany and used the on-post library computer to receive and print out 

images of child pornography that had been sent over the Internet. While still in 

Germany, he also used a videocamera to record sexually explicit imagery of two 

German girls from about 200 feet away. His conduct was charged using 18 U.S.C. 

§§ 2251 and 2252A(a)(1–3). Citing Martinelli, the court held none of the following 

acts were continuing offenses with conduct that occurred in the United States, and as 

such, there could be no domestic application of the CPPA: (1) possession of child 

pornography at an on-post public library, land used by and under the control of the 

federal government; (2) receiving child pornography that had been transmitted 

through the internet; and (3) using minors to engage in sexually explicit conduct for 

the purpose of producing a visual depiction of such conduct. 

(3) Definitions. United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009). The CPPA 

does not define “distribute.” The court looked to three sources for a definition of the 

term: (1) the plain meaning, (2) the manner Article III courts have interpreted the term, 

and (3) the guidance that the UCMJ provides through parallel provisions. See also 

United States v. Craig, 67 M.J. 742 (N-M. Ct. Crim. App. 2009) (military judge read part 

of the definition of “distribute” from Article 112a, stating, “Distribute means to deliver to 

the possession of another.”) . 

(4) Method of Distribution. 

(a) Yahoo! Briefcase. United States v. Navrestad, 66 M.J. 262 (C.A.A.F. 2008). 

Sending a hyperlink to a Yahoo! Briefcase during an internet chat session, where the 

Briefcase contained images of child pornography, does not constitute either 

distribution of child pornography as defined in the CPPA or possession of child 

pornography as affirmed by the ACCA under Clauses 1 and 2, where the link itself 

only provides a roadmap to the child pornography and where the accused did not 

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download or print any of the images to his own computer. The accused was initially 

charged under Clause 3 of Article 134, but Clause 1 and 2 language was added to 

both specifications prior to arraignment. Convictions for both possession under 

Clauses 1 and 2, and distribution under the CPPA were set aside. Note: Yahoo! 

discontinued its Briefcase service on 30 March 2009. 

(b) KaZaA. United States v. Ober, 66 M.J. 393 (C.A.A.F. 2008). Using KaZaA to 

search for and download child pornography from host users over the Internet 

constituted transportation of child pornography in interstate commerce for purposes 

of 18 U.S.C. § 2252A(a)(1) because “a user’s download caused an upload on the host 

user’s computer.” 

(c) Peer-to-Peer Software in General. United States v. Christy, 65 M.J. 657 (A. Ct. 

Crim. App. 2007). The accused downloaded peer-to-peer software and set up a 

“shared files” folder. As part of his licensing agreement with the software company, 

he agreed to share all files in that folder, i.e., his child pornography, with other users. 

While the term “distribution” is not defined in the statute, definitions found in federal 

case law are broad enough to cover the act of posting images in a shared file folder 

and agreeing to allow others to download from the folder. Additionally, the 

accused’s conduct was “knowing” under the CPPA, as he admitted during his 

providence inquiry that he knew 1) that he was posting his child pornography images 

in a shared file folder, and 2) that anyone with the same peer-to-peer software both 

had his permission and the general ability to download the files he posted. 

(5) Lesser included offenses: Clause 1 and Clause 2. The use of Clause 1 and Clause 2 

as a LIO to a Clause 3 offense has recently been limited by the CAAF holding in United 

States v. Medina, 66 M.J. 21 (C.A.A.F. 2008). The court holds that in order for either 

Clause 1 or Clause 2 to be considered as a LIO to a Clause 3 offense, the Clause 3 

specification should contain Clause 1 or Clause 2 language. If Clause 1 or Clause 2 

language is absent from a Clause 3 offense, the opinion may yet allow for Clause 1 or 

Clause 2 to operate as a LIO provided the military judge clearly explains Clause 1 and 

Clause 2 and how they can operate as a LIO to the accused. Prudence, however, dictates 

that counsel plead the Clause 1 and/or Clause 2 language to avoid the issue at trial. 

(6) Evidence to determine age of models. United States v. Russell, 47 M.J. 412 

(C.A.A.F. 1998) (accused admitted that he guessed the models were “13 or older”; a 

pediatrician testified that the females shown in the exhibits were not more than 15.5 years 

old; and members were able to look at the pictures and use their common sense and 

experience to conclude that the girls were under age 18); United States v. Maxwell, 45 

M.J. 406 (C.A.A.F. 1996) (government was only required to prove that accused believed 

the images depicted minors to support conviction for knowingly transporting or receiving 

child pornography in interstate commerce (18 U.S.C. § 2252); government was not 

required to prove that accused had basis for actual knowledge of the subjects’ ages). 

United States v. Cendejas, 62 M.J. 334 (C.A.A.F. 2006) (factfinder can make the 

determination that pornographic images are actual children based upon a review of the 

images alone). 

g) Other Applications. 

(1) United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009). As the CPPA does not 

expressly define “distribute,” the court looked to three sources for a definition of the 

term: (1) the plain meaning, (2) the manner Article III courts have interpreted the term, 

and (3) the guidance that the UCMJ provides through parallel provisions. Considering 

these sources, under the CPPA, distribution of child pornography through the Internet 

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consists of two acts: (1) the posting of the image, where the image left the possession of 

the original user, and (2) the delivery of the image, where another user accessed and 

viewed the image. Here, the accused posted the image to his Yahoo! profile prior to his 

entry on active duty. The court reasoned that the profile serves as a “’public bulletin 

board’ such that all Internet users can access information posted by the profile’s owner.” 

Although this was done prior to entering active duty, he accessed the account while on 

active duty and could have removed the image. The offense of distribution occurred 

while he was on active duty when the ICE agent accessed and viewed the image that he 

had posted for others to view. 

(2) United States v. Craig, 67 M.J. 742 (N-M. Ct. Crim. App. 2009). As 18 U.S.C. § 

2252A does not define “distribute,” the military judge read part of the definition of 

“distribute” from Article 112a, stating, “Distribute means to deliver to the possession of 

another.” the plain meaning of the term “distribute” includes “the transfer of an item 

from the possession of one person into the possession of another.” The military judge 

provided a correct statement of the law in defining “distribute.” 

(3) United States v. Smith, 61 M.J. 696 (N-M. Ct. Crim. App. 2005) (Appellant engaged 

in marketing adult entertainment for profit on the internet, posting hundreds of photos of 

females engaged in sexually explicit conduct, many of them minors. Among other 

offenses, appellant ultimately pled guilty to violating 18 U.S.C. § 2257, under Clause 3, 

Article 134 for managing a website containing these depictions without maintaining 

proper records of each performer as that section requires. HELD: Appellant’s failure to 

determine the age and record the identity of the child performer bore a direct relationship 

to the Government’s interest in preventing child pornography). 

(4) “Lascivious exhibition” category of sexually explicit conduct prohibited by § 

2251(a). United States v. Roderick, 62 M.J. 425 (C.A.A.F. 2006) (applying the “Dost” 

factors to determine “lascivious exhibition”). 

(5) In prosecuting a violation of 18 U.S.C. § 2252 (a)(2) by knowingly receiving 

sexually explicit depictions of minors that have been transported in interstate commerce, 

“knowingly” applies to the sexually explicit nature of the materials and the ages of the 

subjects. The Government does not have to prove that the accused knew that the sexually 

explicit depictions passed through interstate commerce. The interstate commerce 

element is merely jurisdictional. United States v. Murray, 52 M.J. 423 (C.A.A.F. 2000). 

(6) “Viewing” child pornography was not an offense under 18 U.S.C. § 2252 until its 

2008 amendment. As such, viewing child pornography prior to the date of this 

amendment is likewise not chargeable under Article 134. United States v. Merritt, 72 MJ 

483 (C.A.A.F. 2014). 

h) Multiplicity/UMC. 

(1) United States v. Purdy, 67 M.J. 780 (N-M. Ct. Crim. App. 2009). The accused 

downloaded child pornography from the Internet onto his personal computer while 

stationed in Belgium. He then downloaded the images from the hard drive onto a 

compact disk and reformatted the hard drive, but retained the compact disk. He was 

charged with both receiving and possessing child pornography under Clause 3 of Art. 

134. He pled guilty to both offenses under Clauses 1 and 2. In this case, his act of 

saving the images to the CD-ROM “was a clear exercise of dominion . . . separate and 

apart” from his receipt of the images at an earlier point in time. The conviction for both 

offenses was proper and the military judge did not commit plain error. 

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(2) United States v. Craig, 67 M.J. 742 (N-M. Ct. Crim. App. 2009). The accused used 

“LimeWire,” a peer-to-peer file-sharing software program to search for and download 

child pornography. He downloaded the child pornography into a “share” folder on his 

hard drive. He kept some of the images in the “share” folder, copied some to compact 

disks, and deleted others. He pled guilty to both receipt and possession of child 

pornography under 18 U.S.C. § 2252A using Clause 3 of Art. 134. The court held that 

these two specifications were not facially duplicative and therefore military judge did not 

commit plain error in failing to dismiss these specifications as multiplicious. The charges 

of receipt and possession “address at least two criminal actions by the [accused] each of 

which occurred at a different time within the charged time period and involved separate 

media. 

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I. Procedure 

II. Accident 

III. Defective Causation / Intervening Cause 

IV. Duress 

V. Inability / Impossibility – Obstructed Compliance 

VI. Entrapment – Subjective and Due Process 

VII. Self-Defense 

VIII. Defense of Another 

IX. Intoxication 

X. Mistaken Belief or Ignorance 

XI. Justification 

XII. Alibi 

XIII. Voluntary Abandonment 

XIV. Miscellaneous Defenses 

XV. Statute Of Limitations 

XVI. Former Jeopardy (Art. 44, UCMJ) 

“Special Defense” vs. “Other Defenses.” Special defenses, the military’s equivalent to affirmative 

defenses, are those which deny, wholly or partially, criminal responsibility for the objective acts 

committed, but do not deny that those acts were committed by the accused. Other defenses, such as alibi 

and mistaken identity, deny commission of the culpable act or other elements of the crime. R.C.M. 

916(a). For Mental Responsibility, see Chapter 23. 

I. PROCEDURE. 

A. Raising a Defense. 

1. The military judge must instruct upon all special defenses raised by the evidence. The test of 

whether a defense is raised is whether the record contains some evidence as to each element of 

the defense to which the trier of fact may attach credit if it so desires. United States v. Ferguson, 

15 M.J. 12 (C.M.A. 1983); United States v. Tan, 43 C.M.R. 636 (A.C.M.R. 1971); see also 

United States v. Jackson, 12 M.J. 163 (C.M.A. 1982); United States v. Jett, 14 M.J. 941 

(A.C.M.R. 1982). Generally, the reasonableness of the evidence is irrelevant to the military 

judge’s determination to instruct. United States v. Thomas, 43 C.M.R. 89 (C.M.A. 1971); United 

States v. Symister, 19 M.J. 503 (A.F.C.M.R. 1984). 

2. A defense may be raised by evidence presented by the defense, the Government, or the courtmartial. R.C.M. 916(b) discussion; United States v. Rose, 28 M.J. 132 (C.M.A. 1989). 

3. In deciding whether the defense is raised, the military judge is not to judge credibility or 

prejudge the evidence and preclude its introduction before the court members. United States v. 

Tulin, 14 M.J. 695 (N.M.C.M.R. 1982). 

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4. A defense is not raised, however, if it is wholly incredible or unworthy of belief. United 

States v. Brown, 19 C.M.R. 363 (C.M.A. 1955); United States v. Franklin, 4 M.J. 635 

(A.F.C.M.R. 1977). 

5. Appellate military courts are very generous in finding that a defense has been raised. See, 

e.g., United States v. Goins, 37 C.M.R. 396 (C.M.A. 1967) (self-defense raised against charge of 

assault with intent to commit rape). Any doubt whether the evidence is sufficient to require an 

instruction should be resolved in favor of the accused. United States v. Steinruck, 11 M.J. 322 

(C.M.A. 1981); United States v. Jenkins, 59 M.J. 893 (A. Ct. Crim. App. 2004). 

6. In a bench trial, the impact of the raised defense is resolved by the military judge, sub 

silentio, in reaching a determination on the merits. 

7. Burden of Proof. Except for the defense of lack of mental responsibility and the defense of 

mistake of fact as to age as described in pt. IV, ¶ 45c(2) in a prosecution of carnal knowledge, the 

prosecution shall have the burden of proving beyond a reasonable doubt that the defense did not 

exist. The accused has the burden of proving the defense of lack of mental responsibility by clear 

and convincing evidence, and has the burden of proving mistake of fact as to age in a carnal 

knowledge prosecution by a preponderance of the evidence. R.C.M. 916(b). 

B. Advising the Accused. If in the course of a guilty plea trial, the accused’s comments or any other 

evidence raises a defense, the military judge must explain the elements of the defense to the accused. 

See generally UCMJ art. 45(a). The accused’s comments raising the defense need not be credible. 

United States v. Lee, 16 M.J. 278 (C.M.A. 1983). Subsequently, if the accused does not negate the 

defense or other evidence belies the accused’s negation of the defense, the military judge must 

withdraw the guilty plea, enter a plea of not guilty for the accused, and proceed to trial on the merits. 

United States v. Jemmings, 1 M.J. 414 (C.M.A. 1976). 

C. Instructions. 

1. In a members trial, the military judge must instruct the members, sua sponte, regarding all 

special defenses raised by the evidence. United States v. Williams, 21 M.J. 360 (C.M.A. 1986); 

United States v. Sawyer, 4 M.J. 64 (C.M.A. 1977); United States v. Graves, 1 M.J. 50 (C.M.A. 

1975); R.C.M. 920(e)(3). 

2. In instructing a military jury on a defense, the judge is under no obligation to summarize the 

evidence, but if he undertakes to do so, the summary must be fair and adequate. United States v. 

Nickoson, 35 C.M.R. 312 (C.M.A. 1965). 

3. While the military judge must instruct upon every special defense in issue, there is no sua 

sponte duty to instruct upon every fact that may support a given defense. United States v. 

Sanders, 41 M.J. 485 (C.A.A.F. 1995) (holding no plain error to fail to mention victim’s alleged 

invitation to assault). 

D. Consistency of Defenses. 

1. Generally, conflicting defenses may be raised and pursued at trial. R.C.M. 916(b) 

(discussion); see also United States v. Viola, 26 M.J. 822, 827-28 (A.C.M.R. 1988), aff’d 27 M.J. 

456 (C.M.A. 1988); Nagle, Inconsistent Defenses in Criminal Cases, 92 Mil. L. Rev. 77 (1981). 

See generally United States v. Garcia, 1 M.J. 26 (C.M.A. 1975) (alibi and entrapment); United 

States v. Walker, 45 C.M.R. 150 (C.M.A. 1972) (lack of mental responsibility and self-defense); 

United States v. Lincoln, 38 C.M.R. 128 (C.M.A. 1967) (accident and self-defense); United States 

v. Snyder, 21 C.M.R. 14 (C.M.A. 1956) (heat of passion/voluntary manslaughter and selfdefense); United States v. Ravine, 11 M.J. 325 (C.M.A. 1981) (entrapment and agency). 

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2. The defense of self-defense is eviscerated by the defendant’s testimony that he did not inflict 

the injury, regardless of what other evidence might show. United States v. Ducksworth, 33 

C.M.R. 47 (C.M.A. 1963); United States v. Bellamy, 47 C.M.R. 319 (A.C.M.R. 1973); see also 

United States v. Crabtree, 32 C.M.R. 652 (A.B.R. 1962) (both duress and denial may not be 

raised). 

E. Burden of Proof. 

1. Lack of mental responsibility. The accused has the burden of proving this defense by clear 

and convincing evidence. UCMJ Art. 50a(b); R.C.M. 916(b). 

2. Mistake of fact as to age of victim of carnal knowledge. The accused has the burden of 

proving this defense by a preponderence of the evidence. The mistake must be both honest and 

reasonable. UCMJ Art. 120(d). Cf. United States v. Strode, 43 M.J. 29 (1995) (holding honest 

and reasonable mistake of fact as to age of victim of indecent acts with child may be a defense if 

acts would otherwise be lawful if victim was over age 16). 

3. All other defenses. If a defense is raised, the prosecution then has the burden of proving 

beyond a reasonable doubt that the defense does not exist. R.C.M. 916(b); United States v. Verdi, 

5 M.J. 330 (C.M.A. 1978). 

II. ACCIDENT. 

A. Defined. R.C.M. 916(f). To be excusable as an accident, the act resulting in death or injury must 

have been the result of doing a lawful act in a lawful manner, free of negligence and unaccompanied 

by any criminally careless or reckless conduct. United States v. Rodriguez, 31 M.J. 150 (C.M.A. 

1990); United States v. Moyler, 47 C.M.R. 82, 85 (A.C.M.R. 1973). Accident is an unexpected act 

not due to negligence. It is not the unexpected consequence of a deliberate act. United States v. 

Pemberton, 36 C.M.R. 239 (C.M.A. 1966); R.C.M. 916(f). See generally TJAGSA Practice Note. 

The Defense of Accident: More Limited Than You Might Think, Army Law., Jan. 1989, at 45. 

1. The lawful act. The unlawful nature of an accused’s actions are apparent when performed in 

the course of committing a malum in se offense, e.g., robbery. Such is not the case, however, 

when a malum prohibitum offense is involved. In United States v. Sandoval, 15 C.M.R. 61 

(C.M.A. 1954), the accused was charged with killing a fellow soldier. He claimed that the death 

resulted from an accidentally inflicted gunshot wound. The government argued that accident was 

not available as a defense because the accused’s possession of the murder weapon was a violation 

of local regulations. The Court of Military Appeals’ decision implied that violation of the 

regulation made the accused’s act per se illegal and thus precluded access to the accident defense. 

Eighteen years later in United States v. Small, 45 C.M.R. 700 (A.C.M.R. 1972), the Army Court 

of Military Review stated that an accident instruction could be denied only if the act, illegal as 

violative of a general regulation, was the proximate cause of the injury inflicted. See also United 

States v. Tucker, 38 C.M.R. 349 (C.M.A. 1968); United States v. Taliau, 7 M.J. 845 (A.C.M.R. 

1979). 

2. The unexpected act. If an act is specifically intended and directed at another, the fact that the 

ultimate consequence of the act is unintended or unforeseen does not raise the accident defense. 

a) United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993) (the defense of accident is not 

raised where accused engages a target in a combat zone that turns out to be a noncombatant; 

the death of a human being is neither unexpected nor unforeseen under these circumstances). 

b) United States v. Femmer, 34 C.M.R. 138 (C.M.A. 1964) (no instruction on accident was 

required where the accused charged with aggravated assault admitted that the victim was 

injured by a razor blade in accused’s hand which he used in a calculated effort to push the 

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victim away from him. Because the injury resulted from an act intentionally directed at the 

victim, and the accused knew he held the razor blade when he carried out the act, accident of 

the kind that would absolve one of criminal liability was not involved). 

c) Accident is not synonymous with unintended injury. A particular act may be directed at 

another without any intention to inflict injury, but if the natural and direct consequence of the 

act results in injury, the wrong is not excusable because of accident. United States v. 

Pemberton, 36 C.M.R. 239 (C.M.A. 1968) (accused’s act of struggling with victim over a 

broken beer bottle was not directed at the victim but rather at wresting the bottle from the 

victim. Accident defense was therefore available although the judge in this case instructed 

improperly). 

d) In military law, the defense of accident excuses a lawful act, in a lawful manner, which 

causes an unintentional and unexpected result. United States v. Marbury, 50 M.J. 526 (A. Ct. 

Crim. App. 1999), aff’d 56 M.J. 12 (C.A.A.F. 2001) (defense of accident did not apply where 

the accused intentionally engaged in an offer type assault with a knife against a drunk and 

combative victim who was skilled in martial arts training). 

3. Lawful manner. R.C.M. 916(f) discussion. The defense of accident is not available when the 

act which caused the death, injury, or event was a negligent act. 

a) United States v. Sandoval, 15 C.M.R. 61 (C.M.A. 1954) (pushing door open with a 

loaded weapon does not constitute due care to allow accused to interpose accident defense to 

homicide). 

b) United States v. Redding, 34 C.M.R. 22 (C.M.A. 1963) (in the course of playing “quick 

draw,” accused shot a friend with a pistol. Even though the evidence established that the 

injury was unintentionally inflicted, no accident instruction was required because of the 

accused’s culpable negligence). 

c) United States v. Moyler, 47 C.M.R. 82 (A.C.M.R. 1973) (carrying a weapon within the 

base camp with a magazine inserted, a round chambered, the safety off, and the selector on 

automatic, constitutes negligence as a matter of law). See also United States v. Rodriguez, 8 

M.J. 648 (A.F.C.M.R. 1979). 

d) United States v. Leach, 22 M.J. 738 (N.M.C.M.R. 1986) (swinging a knife upwards in 

close quarters of victim was negligent, so the accident defense was not available). 

e) United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000) (where the accused admitted that he 

was negligent by failing to properly secure his infant daughter in her car seat, the military 

judge did not err by failing to instruct sua sponte on the affirmative defense of accident). 

f) United States v. Jenkins, 59 M.J. 893 (A. Ct. Crim. App. 2004) (holding the military 

judge erred in refusing to give a requested accident instruction when there was evidence that 

the accused showed sufficient due care in firing a pistol). 

g) United States v. Ferguson, 15 M.J. 12 (C.M.A. 1983) (waving a loaded shotgun without 

placing the safety in operation was a negligent act). 

4. Negligent self-defense. Acting in self-defense can be the lawful act in a lawful manner for 

purposes of the accident defense. Negligent self-defense would deprive an accused of the 

accident defense. See United States v. Lett, 9 M.J. 602 (A.F.C.M.R. 1980) (using switchblade 

knife as passive deterrent was negligent self-defense); United States v. Taliau, 7 M.J. 845 

(A.C.M.R. 1979) (unintentional injury to innocent third party excused where accused was 

engaging in lawful self-defense); see also United States v. Jenkins, 59 M.J. 893 (Army Ct. Crim. 

App. 2004) (accident and defense of another). Instructions: MJ should instruct on both doctrines 

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where death of a victim is unintended and deadly force is not authorized. See DA PAM 27-9, 

Military Judges’ Benchbook ¶¶ 5-2, 5-4; United States v. Jones, 3 M.J. 279 (C.M.A. 1977); 

United States v. Perry, 36 C.M.R. 377 (C.M.A. 1966). 

B. Assault by Culpable Negligence and the Defense of Accident. 

1. Unavailability of the defense of accident because of the accused’s failure to act with due care 

does not establish assault under the theory of a culpably negligent act. See United States v. 

Tucker, 38 C.M.R. 349 (C.M.A. 1968). 

2. When raised by evidence, “defense” of accident applies to all allegations of assault; if 

accused is successful in raising reasonable doubt as to any requisite mens rea element, result is 

acquittal. United States v. Curry, 38 M.J. 77 (C.M.A. 1993). 

III. DEFECTIVE CAUSATION / INTERVENING CAUSE. 

A. Defined. The accused is not criminally responsible for the loss/damage/injury if his or her act or 

omission was not a proximate cause. 

1. Accused’s act may be “proximate” even if it is not the sole or latest cause. United States v. 

Moglia, 3 M.J. 216 (C.M.A. 1977); United States v. Taylor, 44 M.J. 254 (C.A.A.F. 1996) 

(accused entitled to present evidence of negligent medical care given by paramedics to drowning 

victim even if eventual death did not result solely from such negligent medical care). But see 

United States v. Reveles, 41 M.J. 388 (C.A.A.F. 1995) (possibility that victim’s death was caused 

by negligence of medical personnel subsequent to injury inflicted by accused was no defense 

because medical negligence did not loom so large that accused’s act was not a substantial factor 

in victim’s death). 

2. The accused is not responsible unless his or her act plays a “major role” or “material role” in 

causing the loss/damage/injury. United States v. Moglia, 3 M.J. 216 (C.M.A. 1977) 

(manslaughter conviction affirmed where the accused’s act of selling heroin played “major role” 

in overdose death of buyer); United States v. Romero, 1 M.J. 227 (C.M.A. 1975) (manslaughter 

conviction affirmed where the accused’s act of assisting overdose victim in inserting syringe into 

vein played “material role” in victim’s death). 

3. In a crime of negligent omission, the accused is not criminally responsible unless his or her 

omission was a “substantial factor,” among multiple causes, in producing the damage. United 

States v. Day, 23 C.M.R. 651 (N.B.R. 1957) (ship commander’s failure to keep engines in 

readiness held proximate cause of ship grounding in gale). 

4. See generally Benchbook ¶ 5-19. 

5. The Supreme Court’s decision in Burrage v. United States, 134 S. Ct. 881, 187 L. Ed. 2d 715 

(2014), is potentially at odds with the current military standard of causation. In that case, the 

Court held that where a federal statute enhanced punishment when death “resulted from” drug 

distribution, the government was required to prove “but-for” causation – that is, it was error for 

the trial judge to instruct the jury that the government needed only to prove the defendant’s 

actions contributed to the death. See also United States v. Bailey, 75 M.J. 527 (A. Ct. Crim. App. 

2015)(finding no instructional error, but nonetheless recommending that the Benchbook be 

updated in accordance with Burrage). 

B. Intervening Cause. 

1. The accused is not criminally responsible for the crime if: 

a) The injury or death resulted from an independent, intervening cause; 

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b) The accused did not participate in the intervening cause, and 

c) The intervening cause was not foreseeable. 

2. Intervening cause test from 26 Am. Jur. Homicide, § 50, cited with approval in United States 

v. Houghten, 32 C.M.R. 3 (C.M.A. 1962), states that: “If it appears that the act of the accused 

was not the proximate cause of the death for which he is being prosecuted, but that another cause 

intervened, with which he was in no way connected and but for which death would not have 

occurred, such supervening cause is a good defense to the crime of homicide.” 

3. Intervening cause must be “new and wholly independent” of the original act of the defendant. 

United States v. Eddy, 26 C.M.R. 718 (A.B.R. 1958) (to constitute an intervening cause to the 

offense of murder, medical maltreatment must be so grossly erroneous as to constitute a new and 

independent cause of death); see also United States v. Gomez, 15 M.J. 954 (A.C.M.R. 1983). 

4. The intervening cause must not be foreseeable. United States v. Varraso, 21 M.J. 129 

(C.M.A. 1985) (defense not raised where accused helped victim hang herself by tying her hands 

behind her back and putting her head in the noose; any later acts by the victim to complete the 

hanging were foreseeable). 

5. Intervening cause must intrude between the original wrongful act or omission and the injury 

and produce a result which would not otherwise have followed. United States v. King, 4 M.J. 785 

(N.C.M.R. 1977), aff’d, 7 M.J. 207 (C.M.A. 1979). Defense offered evidence that the accused 

drove onto the shoulder of the road to avoid the oncoming victim and that, in attempting to 

negotiate the sunken shoulder to regain the road, the accused crossed over the center line and 

struck the victim’s vehicle. The court noted that intervening cause would have been present had a 

third vehicle been involved or had the accused offered evidence that one of the wheels of his 

vehicle dropped off or that an earthslide forced him into the oncoming lane. 

6. Henderson v. Kibbe, 431 U.S. 145 (1977) (abandoning intoxicated robbery victim on an 

abandoned rural road in a snowstorm established culpability for death of victim resulting from his 

being struck by a speeding truck). 

7. United States v. Riley, 58 M.J. 305 (C.A.A.F. 2003). Airman gave birth to a baby girl in the 

latrine of hospital. The baby died from blunt force trauma and left in the trashcan of the latrine. 

Appellant argued that the doctors’ failure to discover her pregnancy on three prior medical visits 

was an intervening cause in the baby’s death. CAAF disagreed, concluding that, at best, the 

negligence was a contributing cause. The doctors did not intervene between the birth of the baby 

and the ultimate death. See also United States v. Cooke, 18 M.J. 152 (C.M.A. 1984). 

IV. DURESS. 

A. Defined. The defense of duress exists when the accused commits the offense because of a wellgrounded apprehension of immediate death or serious bodily harm. R.C.M. 916(h); see generally 

United States v. Rankins, 34 M.J. 326 (C.M.A. 1992); United States v. Montford, 13 M.J. 829 

(A.C.M.R. 1982). 

1. Financial hardship, no matter how extreme, does not amount to duress under military law. 

United States v. Alomarestrada, 39 M.J. 1068 (A.C.M.R. 1994). 

2. Duress is never a defense to homicide or to disobedience of valid military orders requiring 

performance of dangerous military duty. R.C.M. 916(h); United States v. Talty, 17 M.J. 1127 

(N.M.C.M.R. 1984)(where sailor refused the order of his commander to enter the reactor chamber 

of a nuclear submarine to perform maintenance, based on his belief that radiation from the reactor 

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could harm him); United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) (refusal to receive 

anthrax vaccination). 

3. Reasonable opportunity to seek assistance negates a reasonable apprehension that another 

innocent person would immediately suffer death or serious bodily injury. United States v. 

Vasquez, 48 M.J. 426 (C.A.A.F. 1998). 

4. What constitutes reasonable apprehension? Fear sufficient to cause a person of ordinary 

fortitude and courage to yield. United States v. Logan, 47 C.M.R. 1 (C.M.A. 1973) (reasonable 

fear did not exist where accused was in Korea and threats to harm his family in CONUS were 

made by local Korean nationals); United States v. Olson, 22 C.M.R. 250 (C.M.A. 1957) 

(prisoner-of-war who wrote anti-American articles while incarcerated was denied the duress 

instruction at his court-martial for aiding the enemy when the only evidence of coercion brought 

to bear on him consisted of veiled threats of future possible mistreatment); United States v. Palus, 

13 M.J. 179 (C.M.A. 1982) (inadequate providency inquiry required reversal where accused in 

Germany stated he feared for his family’s safety when his wife was harassed in Las Vegas about 

his gambling debts). See generally United States v. Ellerbee, 30 M.J. 517 (A.F.C.M.R. 1990) 

(sufficient to raise duress); United States v. Riofredo, 30 M.J. 1251 (N.M.C.M.R. 1990) (evidence 

does not raise duress); TJAGSA Practice Note, Duress and Absence Without Authority, Army 

Law., Dec. 1990, at 34 (discusses Riofredo). 

5. The military apparently does not recognize the rule that one who recklessly or intentionally 

placed himself in a situation in which it was reasonably foreseeable that he or she would be 

subjected to coercion is not entitled to the defense of duress. United States v. Jemmings, 50 

C.M.R. 247 (A.C.M.R. 1975), rev’d, 1 M.J. 414 (C.M.A. 1976); see also United States v. 

Vandemark, 14 M.J. 690 (N.M.C.M.R. 1982). 

6. The defense requires fear of immediate death or great bodily harm and no reasonable 

opportunity to avoid committing the harm. See generally United States v. Barnes, 12 M.J. 779 

(A.C.M.R. 1981). 

a) The accused must not only fear immediate death or great bodily harm but also have no 

reasonable opportunity to avoid committing the crime. R.C.M. 916(h). See United States v. 

Banks, 37 M.J. 700 (A.C.M.R. 1993) (defense of duress to charge of AWOL was not raised 

by accused’s testimony that he failed to return from leave on time because of the serious 

illness of his mother); United States v. Vasquez, 48 M.J. 426 (C.A.A.F. 1998) (duress defense 

not raised in bigamy case where accused married Turkish woman three days after being 

caught with her and authorities threatened to put them in jail). 

b) The old rule. United States v. Fleming, 23 C.M.R. 7 (C.M.A. 1957) (even though 

accused was subjected to great deprivation as POW, actions of captors did not constitute 

defense against charge of collaboration with the enemy because accused’s resistance had not 

brought him to the “last ditch.”). 

c) The new rule. The immediacy element of the defense is designed to encourage 

individuals promptly to report threats rather than breaking the law themselves. United States 

v. Jemmings, 1 M.J. 414, 418 (C.M.A. 1976) (threat to inflict harm the next day held 

sufficient to activate defense where accused’s company commander had previously refused to 

assist); United States v. Campfield, 17 M.J. 715 (N.M.C.M.R. 1983) rev’d in part on other 

grounds (multiplicity), 20 M.J. 246 (C.M.A. 1985); United States v. Biscoe, 47 M.J. 398 

(C.A.A.F. 1998) (sexual harassment did not constitute duress when victim conceded during 

providency that she did not fear for her life or the lives of her children when she went 

AWOL); United States v. Vasquez, 48 M.J. 426 (C.A.A.F. 1998) (in three days before threat 

to jail him and Turkish woman and his bigamous marriage, the accused could have sought 

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legal assistance, sought assistance from the consulate, or sought help from his chain of 

command). 

7. United States v. Le, 59 M.J. 859 (A. Ct. Crim. App. 2004). Appellant pled guilty to desertion. 

During his providence inquiry, appellant stated his primary reason for leaving was fear that his 

girlfriend’s ex-boyfriend, a purported gang member, would kill or harm him. In response to the 

military judge’s questions, appellant repeatedly said he did not fear “immediate” death or serious 

bodily injury, but he did not know when “they are going to come for me.” The appeals court held 

that appellant’s guilty plea was improvident because he raised the defense of duress, and the 

military judge failed to resolve the apparent inconsistency. Appellant’s response that he did not 

fear immediate harm was merely a recitation of a conclusion of law. Duress has long been 

recognized as a defense to absence offenses; however, it only applies so long as the accused 

surrenders at the earliest possible opportunity. Appellant’s claim of duress could only apply 

while his reasonably grounded fear still existed. Once away from the source of the fear, the threat 

lost its coercive force. 

8. United States v. Barnes, 60 M.J. 950 (N-M. Ct. Crim. App. 2005). Appellant pled guilty to a 

52 month absence terminated by apprehension. Appellant claimed that he was beaten and 

threatened regularly and this contributed to his absence. HELD: The military judge erred when 

he granted a motion in limine to preclude the affirmative defense of duress, after ruling that the 

offense of desertion and the lesser included offense of unauthorized absence were not complete 

when appellant left the ship with the intent to remain away. 

9. See generally Benchbook ¶ 5-5 

B. Who Must Be Endangered. Any innocent person. R.C.M. 916(h); see United States v. Barnes, 

12 M.J. 779 (A.C.M.R. 1981); United States v. Pinkston, 39 C.M.R. 261 (C.M.A. 1969) (threat 

against fiancée and illegitimate child can raise the defense of duress); United States v. Jemmings, 1 

M.J. 414 (C.M.A. 1976) (threat against accused’s children can raise the defense of duress). 

C. Evidence. Accused’s use of the duress defense creates an opportunity for the prosecution to 

introduce evidence of his other voluntary crimes in order to rebut the defense. United States v. 

Hearst, 563 F.2d 1331 (9th Cir. 1977); see also MRE 404(b). 

D. The Nexus Requirement. 

1. A nexus between the threat and the crime committed must exist. United States v. Barnes, 12 

M.J. 779 (A.C.M.R. 1981) (duress was not available to an accused who robbed a taxi driver 

where the threat was only to force payment of a debt; the coercion must be to commit a criminal 

act); see also United States v. Banks, 37 M.J. 700 (A.C.M.R. 1993) (defense of duress to charge 

of AWOL was not raised by accused’s testimony that he failed to return from leave on time 

because of the serious illness of his mother); United States v. Biscoe, 47 M.J. 398 (C.A.A.F. 

1998) (allegation of sexual harassment alone, absent threat of death or serious bodily injury, did 

not raise duress as a defense to AWOL). 

2. For requirements on instructions, see United States v. Rankins, 32 M.J. 971 (A.C.M.R. 1991), 

aff’d, 34 M.J. 326 (C.M.A. 1992). 

E. The Military “Defense” of Necessity. 

1. Duress Distinguished. Necessity is a defense of justification; it exculpates a nominally 

unlawful act to avoid a greater evil. Duress is a defense of excuse; it excuses a threatened or 

coerced actor. See generally Milhizer, Necessity and the Military Justice System: A Proposed 

Special Defense, 121 Mil. L. Rev. 95 (1988). 

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2. Duress and necessity are separate affirmative defenses, and the defense of necessity is not 

recognized in military law. United States v. Banks, 37 M.J. 700 (A.C.M.R. 1993). But see 

United States v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999); United States v. Olinger, 50 M.J. 365 

(1999) (common law defense of necessity, which may be broader than the defense of duress, may 

apply to the military). 

3. Necessity has arguably been recognized and applied de facto to the offenses of AWOL and 

escape from confinement, but always under the name of duress. 

a) United States v. Blair, 36 C.M.R. 413 (C.M.A. 1966) (error not to instruct on defense 

raised by accused’s flight from cell to avoid beating by a brig guard). 

b) United States v. Pierce, 42 C.M.R. 390 (A.C.M.R. 1970) (“duress” to escape from 

confinement not raised by defense offer of proof regarding stockade conditions, but lacking a 

showing of imminent danger). 

c) United States v. Guzman, 3 M.J. 740 (N.C.M.R. 1977) (accused with injury that would 

have been aggravated by duty assignment had no defense of “duress” to crime of AWOL 

because performing duty would not have caused immediate death or serious bodily injury), 

rev’d on other grounds (court-martial improperly convened), 4 M.J. 115 (C.M.A. 1977). 

d) In an early case in which a sailor went AWOL because of death threats by a shipmate, the 

Navy Board of Review held that the defense of duress was not raised. Noting that the 

accused was never in danger of imminent harm and that the threatener had never demanded 

that the accused leave his ship, the board concluded that the accused had no right to leave a 

duty station in order to find a place of greater safety. United States v. Wilson, 30 C.M.R. 630 

(N.B.R. 1960). 

e) Escapees are not entitled to duress or necessity instructions unless they offer evidence of 

bona fide efforts to surrender or return to custody once the coercive force of the alleged 

duress/necessity had dissipated. United States v. Bailey, 444 U.S. 394 (1979); accord United 

States v. Clark, NCM 79-1948 (N.C.M.R. 30 May 1980) (unpub.). 

f) United States v. Roberts, 14 M.J. 671 (N.M.C.M.R. 1982), rev’d, 15 M.J. 106 (C.M.A. 

1983) (summary disposition) (duress available to female sailor who went AWOL to avoid 

shipboard initiation when complaints about harassment went unheeded); see also United 

States v. Tulin, 14 M.J. 695 (N.M.C.M.R. 1982) (informant felt Navy could no longer protect 

him); United States v. Hullum, 15 M.J. 261 (C.M.A. 1983) (racial harassment). 

g) Note, Medical Necessity as a Defense to Criminal Liability, 46 Geo. Wash. L. Rev. 273 

(1978). 

4. Controlled Substances. No implied medical necessity exception to prohibitions established 

by the Controlled Substances Act. The necessity defense is especially controversial under a 

constitutional system in which federal crimes are defined by statute rather than common law. The 

defense of necessity cannot succeed when the legislature itself has made a determination of 

values. United States v. Oakland Cannabis Buyer’s Cooperative, 121 S.Ct. 1711 (2001). 

5. Duress and Necessity. United States v. Washington, 54 M.J. 936 (A.F. Ct. Crim. App. 2001), 

aff’d, 58 M.J. 129 (C.A.A.F. 2003). The accused conceded that he was not under an unlawful 

threat; therefore, the defense of duress was not available to him. The court further held that the 

defense of necessity was not available because the accused’s refusal to be inoculated was a direct 

flouting of military authority and detracted from the ability of his unit to perform its mission. A 

military accused cannot justify his disobedience of a lawful order by asserting that his health 

would be jeopardized. 

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V. INABILITY / IMPOSSIBILITY—OBSTRUCTED COMPLIANCE. 

A. Defined. Generally this defense pertains only to situations in which the accused has an
 

affirmative duty to act and does not. The defense excuses a failure to act.
 

B. Physical (Health-Related) Obstructions to Compliance. 

1. Physical impossibility. See generally Benchbook ¶ 5-9-1. 

a) The accused’s conduct is excused if physical conditions made it impossible to obey or 

involuntarily caused the accused to disobey. See United States v. Williams, 21 M.J. 360 

(C.M.A. 1986). 

b) When one’s physical condition is such as actually to prevent compliance with orders or to 

cause the commission of an offense, the question is not one of reasonableness but whether the 

accused’s illness was the proximate cause of the crime. The case is not one of balancing 

refusal and reason, but one of physical impossibility to maintain the strict standards required 

under military law. In such a situation, the accused is excused from the offense if its 

commission was directly caused by the physical condition and the question whether the 

accused acted reasonably does not enter into the matter. United States v. Cooley, 36 C.M.R. 

180 (C.M.A. 1966). To apply a reasonableness standard in instructing the court is error. 

United States v. Liggon, 42 C.M.R. 614 (A.C.M.R. 1970). 

c) Physical impossibility may exist as a result of illness/injury of the accused. United 

States v. Cooley, 36 C.M.R. 180 (C.M.A. 1966) (the defense applied to a charge of sleeping 

on guard where the accused suffered from narcolepsy resulting in uncontrollable sleeping 

spells.) The defense also exists when requirements placed on the accused are physically 

impossible of performance. United States v. Borell, 46 C.M.R. 1108 (A.F.C.M.R. 1973) 

(discusses the impossibility of obeying an order to report to the orderly room within a very 

short period of time). 

d) United States v. Roeseler, 55 M.J. 286 (C.A.A.F. 2001) (because the impossibility of the 

fictitious victims being murdered was not a defense to either attempt or conspiracy, it was not 

a defense to the offense of attempted conspiracy). 

e) United States v. Lee, 16 M.J. 278 (C.M.A. 1983) (collects cases on impossibility and 

AWOL). 

2. Physical Inability. See generally Benchbook ¶ 5-9-2. 

a) If the accused’s noncompliance was reasonable under the circumstances, it is excused. 

b) Unlike physical impossibility, inability to act is a matter of degree. To determine whether 

a soldier’s failure to act because of a physical shortcoming constitutes a defense, one must 

ask whether the non-performance was reasonable in light of the injury, the task imposed, and 

the pressing nature of circumstances. United States v. Cooley, 36 C.M.R. 180 (C.M.A. 1966). 

c) United States v. Amie, 22 C.M.R. 304 (C.M.A. 1957) (inability raised when accused 

testified that upon expiration of leave he was ill and, pursuant to medical advice, undertook to 

recuperate at home, thus resulting in late return to unit). 

d) United States v. Heims, 12 C.M.R. 174 (C.M.A. 1953) (law officer erred by failing to 

instruct on the physical inability defense where evidence established that accused was unable 

to comply with order to tie sandbags because he was suffering from a hand injury). 

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e) United States v. King, 17 C.M.R. 3 (C.M.A. 1954) (inability defense raised where 

accused refused order to return to his battle position allegedly because he was suffering from 

frostbitten feet). 

f) United States v. Barnes, 39 M.J. 230 (C.M.A. 1994) (defense of physical inability to 

return to unit is available only when accused’s failure to return was not the result of his own 

willful and deliberate conduct; defense was raised by testimony that accused’s failure to 

return was due to his abduction by third parties, the subsequent theft of his car, and his forty 

mile walk back to his home). 

g) If a physical inability occurred through the accused’s own fault or design, it is not a 

defense. United States v. New, 50 M.J. 729 (Army Ct. Crim. App. 1999) (military judge did 

not err by failing to instruct on inability where the accused claimed that after he willfully 

reported to the company formation in the wrong uniform, he was removed from the formation 

and unable to comply with the order to be in the follow-on battalion formation in the 

Macedonia deployment uniform), aff’d, 55 M.J. 95 (C.A.A.F. 2001). 

h) Relationship to mental responsibility defense. Military judge need not instruct on both 

lack of mental responsibility and physical inability when physical symptoms are insignificant 

compared to mental distress and are part and parcel of mental condition. United States v. 

Meeks, 41 M.J. 150 (C.M.A. 1994) 

3. Financial and Other Inability. 

a) This defense is applicable if the accused can show the following: 

(1) An extrinsic factor caused noncompliance; 

(2) The accused had no control over the extrinsic factor; 

(3) Noncompliance was not due to the fault or design of the accused after he had an 

obligation to obey; and 

(4) The extrinsic factor could not be remedied by the accused’s timely, legal efforts. 

b) See generally Benchbook ¶ 5-10. 

c) United States v. Pinkston, 21 C.M.R. 22 (C.M.A. 1966) (accused not guilty of disobeying 

order to procure new uniforms when, through no fault of his own, he was financially 

incapable of purchasing required uniforms). 

d) United States v. Smith, 16 M.J. 694 (A.F.C.M.R. 1983). Financial inability is a defense 

to dishonorable failure to pay a debt. But cf. United States v. Hilton, 39 M.J. 97 (C.M.A. 

1994) (financial inability not a defense to dishonorable failure to pay just debt where 

accused’s financial straits resulted from her own financial scheming, had debts of only $50 

each month and was receiving monthly pay of $724.20). 

e) United States v. Kuhn, 28 C.M.R. 715 (C.G.C.M.R. 1959) (seaman who was granted 

leave to answer charges by civil authorities and who was detained in confinement after the 

expiration of his leave was not AWOL). 

4. Physical Impossibility and Inability and Attempts. Generally physical impossibility and 

inability does not excuse an attempt. United States v. Powell, 24 M.J. 603 (A.F.C.M.R. 1987); 

see supra, chapter 1, section I. 

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VI. ENTRAPMENT – SUBJECTIVE AND DUE PROCESS. 

A. Subjective Entrapment: The General Rule. 

1. In United States v. Vanzandt, 14 M.J. 332 (C.M.A. 1982) the court set out the two elements 

of subjective entrapment. 

a) The suggestion to commit the crime originated in the government, and 

b) The accused had no predisposition to commit the offense. 

2. A question of fact for the finder of fact. United States v. Jursnick, 24 M.J. 504 (A.F.C.M.R. 

1987). 

3. See generally TJAGSA Practice Note, The Evolving Entrapment Defense, Army Law., Jan. 

1989, at 40. 

B. Predisposition to Commit the Crime. 

1. The prosecution must prove beyond a reasonable doubt that the defendant was disposed to 

commit the criminal act prior to first being approached by government agents. Jacobson v. 

United States, 503 U.S. 540 (1992); United States v. Vanzandt, 14 M.J. 332 (C.M.A. 1982). 

2. An accused who readily accepts the government’s first invitation to commit the offense has 

no defense of entrapment. United States v. Suter, 45 C.M.R. 284 (C.M.A. 1972); United States 

v. Garcia, 1 M.J. 26 (C.M.A. 1975); United States v. Collins, 17 M.J. 901 (A.C.M.R. 1984); see 

United States v. Rollins, 28 M.J. 803 (A.C.M.R. 1989); see also United States v. Clark, 28 M.J. 

401 (C.M.A. 1989) (accused’s hesitancy did not raise entrapment, as it was a result of fearing 

apprehension rather than a lack of predisposition); United States v. St. Mary, 33 M.J. 836 

(A.C.M.R. 1991) (evidence supported finding predisposition where accused procured hashish and 

sold it to undercover agent within 24 hours of first request.). 

3. The government’s reasonable suspicion of the accused’s criminal activity is immaterial. 

United States v. Vanzandt, 14 M.J. 332 (C.M.A. 1982); United States v. Gonzalez-Dominicci, 14 

M.J. 426 (C.M.A. 1983); United States v. Eason, 21 M.J. 79 (C.M.A. 1985) (holding error to 

instruct trier of fact that entrapment negated if gov’t agents reasonably believed that accused 

involved in criminal activity). 

4. To show predisposition the government may introduce evidence of relevant, uncharged 

misconduct to establish predisposition. United States v. Hunter, 21 M.J. 240 (C.M.A. 1986); See 

MRE 405(b). 

5. Some authority suggests that reputation and hearsay evidence may be admissible to show 

predisposition. See, e.g., United States v. Rocha, 401 F.2d 529 (5th Cir. 1968); United States v. 

Simon, 488 F.2d 133 (5th Cir. 1973); United States v. Woolfs, 594 F.2d 77 (5th Cir. 1979). But 

see United States v. Cunningham, 529 F.2d 884 (6th Cir. 1976); United States v. Whiting, 295 

F.2d 512 (1st Cir. 1961); United States v. McClain, 531 F.2d 431 (9th Cir. 1976). See generally 

Annot., 61 A.L.R. 3d 293, 314-18 (1975). 

6. In a prosecution for possession of a large quantity of hashish for the purpose of trafficking, 

accused’s prior possession and use of small quantities of hashish was held not to constitute 

“similar criminal conduct,” and did not extinguish the defense of entrapment as to the large 

quantity. The accused would be found guilty, however, of possessing the lesser amount. United 

States v. Fredrichs, 49 C.M.R. 765 (A.C.M.R. 1974); see also United States v. Jacobs, 14 M.J. 

999 (A.C.M.R. 1982). Prior possession or use of drugs does not necessarily establish a 

predisposition to sell or distribute drugs. United States v. Venus, 15 M.J. 1095 (A.C.M.R. 1983); 

United States v. Bailey, 18 M.J. 749 (A.C.M.R. 1984), aff’d, 21 M.J. 244 (C.M.A. 1986). 

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7. Continuing Defense. A valid defense of entrapment to commit the first of a series of crimes 

is presumed to carry over into the later crimes. United States v. Skrzek, 47 C.M.R. 314 

(A.C.M.R. 1973). Whether the presumption carries over to different kinds of drugs is a question 

of fact. United States v. Jacobs, 14 M.J. 999 (A.C.M.R. 1982). The taint can extend to a 

different type of crime as long as the acts come from the same inducement. United States v. 

Bailey, 18 M.J. 749 (A.C.M.R. 1984) (accused entrapped to distribute drugs could raise defense 

to larceny by trick arising from later distribution of counterfeit drugs), aff’d, 21 M.J. 244 

(C.M.A. 1986). 

8. Profit motive does not necessarily negate an entrapment defense. United States v. Eckhoff, 27 

M.J. 142 (C.M.A. 1988); United States v. Meyers, 21 M.J. 1007 (A.C.M.R. 1986); United States 

v. Cortes, 29 M.J. 946 (A.C.M.R. 1990); see TJAGSA Practice Note, Multiple Requests, Profit 

Motive, and Entrapment, Army Law., Jun. 1990, at 48 (discusses Cortes). 

9. Predisposition is a question of fact. A military judge may not find predisposition as a matter 

of law and refuse to instruct on entrapment. United States v. Johnson, 17 M.J. 1056 (A.F.C.M.R. 

1983). 

C. Government Conduct. 

1. United States v. Williams, 61 M.J. 584 (N-M. Ct. Crim. App. 2005) (wanting to get to know 

two attractive females (undercover government agents) is insufficient to raise entrapment and 

reject an otherwise provident plea). 

2. Profit motive does not necessarily negate entrapment. Eckhoff, Cortes and Meyers, all supra. 

3. Multiple requests by a government agent alone may not raise entrapment. United States v. 

Sermons, 14 M.J. 350 (C.M.A. 1982). 

4. The latitude given the government in “inducing” the criminal act is considerably greater in 

drug cases than it would be in other kinds of crimes. United States v. Vanzandt, 14 M.J. 332, 344 

(C.M.A. 1982); United States v. Cortes, 29 M.J. 946 (A.C.M.R. 1990). But cf. United States v. 

Lemaster, 40 M.J. 178 (C.M.A. 1994) 

D. Not Confession and Avoidance. In order for the defense of entrapment to be raised and 

established, the accused need not admit the crime; indeed, he may deny it. United States v. Garcia, 1 

M.J. 26 (C.M.A. 1975); United States v. Williams, 4 M.J. 507, 509 n. 1 (A.C.M.R. 1977). 

E. Due Process Entrapment. See generally Benchbook ¶ 5-6, note 4. 

1. The due process defense is recognized under military law. United States v. Vanzandt, 14 M.J. 

332 (C.M.A. 1982) (but outrageous government conduct in drug cases will be especially difficult 

to prove given the greater latitude given government agents in drug cases); United States v. 

Simmons, 14 M.J. 624 (A.F.C.M.R. 1982); United States v. Harms, 14 M.J. 677 (A.F.C.M.R. 

1982); United States v. Lemaster, 40 M.J. 178 (C.M.A. 1994) (targeting an emotionally unstable 

female suspect, sexually and emotionally exploiting her, and planting drugs upon her in a reverse 

sting operation violates the fundamental norms of military due process and is the functional 

equivalent of entrapment), amended by, 42 M.J. 91 (C.M.A. 1995). 

2. The due process defense is a question of law for the military judge. United States v. 

Vanzandt, 14 M.J. 332, 343 n. 11 (C.M.A. 1982).
 

3. Reverse sting operation does not deprive accused of due process. United States v. Frazier, 30 

M.J. 1231 (A.C.M.R. 1990). 

4. Police did not violate due process in soliciting the accused’s involvement in drug transactions 

where they had no knowledge of his enrollment in a drug rehabilitation program. United States v. 

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Harris, 41 M.J. 433 (C.A.A.F. 1995); United States v. Bell, 38 M.J. 358 (C.M.A. 1993); United 

States. v. Cooper, 33 M.J. 356 (C.M.A. 1991), cert. denied, 507 U.S. 985 (1993). 

5. United States v. St. Mary, 33 M.J. 836 (A.C.M.R. 1991) (government conduct did not violate 

due process where accused provided drugs to undercover female agent in hopes of having a future 

sexual relationship as the agent did not offer dating or sexual favors as an inducement); accord 

United States v. Fegurgur, 43 M.J. 871 (Army Ct. Crim. App. 1996) (undercover CID agent who 

repeatedly asked accused to obtain marijuana for her, knowing that he wished to date her, was not 

so outrageous as to bar prosecution of accused under either due process clause or fundamental 

norms of military due process). 

6. United States v. Bell, 38 M.J. 358 (C.M.A. 1993) (sufficient evidence existed to show 

accused’s predisposition to commit two separate offenses of distribution of cocaine; however, due 

process entrapment defense was available for drug use offenses where government improperly 

induced accused, a recovering cocaine addict enrolled in Army rehabilitation program, into using 

cocaine). 

7. Court members should be instructed only on subjective entrapment, and not the due process 

defense. United States v. Dayton, 29 M.J. 6 (C.M.A. 1989). 

F. Entrapment does not apply if carried out by foreign law enforcement activities. See United States 

v. Perl, 584 F.2d 1316, 1321 n. 3 (4th Cir. 1978). 

VII. SELF-DEFENSE. 

A. “Preventive Self-Defense” in which no injury is inflicted. If no battery is committed, but the 

accused’s acts constitute assault by offer, the accused may threaten the victim with any degree of 

force, provided only that the accused honestly and reasonably believes that the victim is about to 

commit a battery upon him. R.C.M. 916(e)(2). United States v. Acosta-Vargas, 32 C.M.R. 388 

(C.M.A. 1962); United States v. Johnson, 25 C.M.R. 554 A.C.M.R. 1958); United States v. Lett, 9 

M.J. 602 (A.F.C.M.R. 1980). See generally Benchbook ¶ 5-2-5. 

B. Crimes in which an injury is inflicted upon the victim. Two separate standards of self-defense 

exist depending on the nature of the injury inflicted on the victim. United States v. Thomas, 11 M.J. 

315 (C.M.A. 1981); United States v. Sawyer, 4 M.J. 64 (C.M.A. 1977); United States v. Jackson, 36 

C.M.R. 101 (C.M.A. 1966). 

1. R.C.M. 916(e)(1). Standard applied when homicide or aggravated assault is charged. The 

accused may justifiably inflict death or grievous bodily harm upon another if: 

a) He apprehended, on reasonable grounds, that death or grievous bodily harm was about to 

be inflicted on him; and 

b) He believed that the force he used was necessary to prevent death or grievous bodily 

harm. 

c) See United States v. Clayborne, 7 M.J. 528 (A.C.M.R. 1979) (court set aside a conviction 

for unpremeditated murder because it “was not convinced beyond a reasonable doubt that the 

accused did not act in self-defense” in using a knife against a victim who attacked the 

accused with only his hands when the accused knew 1) the victim was an experienced boxer, 

2) with a reputation for fighting anyone, 3) who had defeated three men in a street fight, and 

4) had choked and beaten a sleeping soldier once before). But see United States v. Ratliff, 49 

C.M.R. 775 (A.C.M.R. 1975) (reaching opposite result in a knife scenario). 

2. R.C.M. 916(e)(3). Standard applied when simple assault or battery is charged. The accused 

may justifiably inflict injury short of death or grievous bodily harm if: 

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a) He apprehended, upon reasonable grounds, that bodily harm was about to be inflicted on 

him, and 

b) He believed that the force he used was necessary to avoid that harm, but that the force 

actually used was not reasonably likely to result in death or grievous bodily harm. 

c) See United States v. Jones, 3 M.J. 279 (C.M.A. 1977) (one may respond to a simple fistic 

assault with similar force); United States v. Perry, 36 C.M.R. 377 (C.M.A. 1966). 

3. Loss of Self-Defense by Aggressor / Mutual Combatant. A provoker, aggressor, or one who 

voluntarily engages in a mutual affray is not entitled to act in self defense unless he first 

withdraws in good faith and indicates his desire for peace. R.C.M. 916(e)(4). United States v. 

Marbury, 50 M.J. 526 (Army Ct. Crim. App. 1999) aff’d 56 M.J. 12 (C.A.A.F. 2001) (after the 

victim struck the accused in the face, the accused retreated from her room, unsuccessfully sought 

assistance from fellow NCOs, grabbed a knife, reentered her room, and then started a 

confrontation by threatening the victim with the knife). United States v. Brown, 33 C.M.R. 17 

(C.M.A. 1963); United States v. O’Neal, 36 C.M.R. 189 (C.M.A. 1966); United States v. Green, 

33 C.M.R. 77 (C.M.A. 1963). 

4. Retreat / Withdrawal. The accused is not required to retreat when he is at a place where he 

has a right to be. The presence or absence of an opportunity to withdraw safely, however, may be 

a factor in deciding whether the accused had a reasonable belief that bodily harm was about to be 

inflicted upon him. R.C.M. 916(e)(4) (discussion); United States v. Lincoln, 38 C.M.R. 128 

(C.M.A. 1967); United States v. Smith, 33 C.M.R. 3 (C.M.A. 1963); United States v. Adams, 18 

C.M.R. 187 (C.M.A. 1955); United States v. Jenkins, 59 M.J. 893 (A. Ct. Crim. App. 2004) 

(holding when an aggressor, provoker, or mutual combatant who becomes unconscious and 

ceases resistance effectively withdraws, entitling another to exercise self-defense on his behalf). 

5. Escalation. An accused who wrongfully engages in a simple assault and battery may have a 

right to use deadly force if the victim first uses deadly force upon the accused. United States v. 

Cardwell, 15 M.J. 124 (C.M.A. 1983); United States v. Dearing, 63 M.J. 478 (2006) (citing 

Cardwell); United States v. Lewis, 65 M.J. 85 (2007); see United States v. Winston, 27 M.J. 618 

(A.C.M.R. 1988) (self-defense not raised where the accused aggressively participated in an 

escalating mutual affray); 

6. Termination of Self-Defense. The right to self-defense ceases when the threat is removed. 

United States v. Richey, 20 M.J. 251 (C.M.A. 1985) (ejecting a tresspasser). 

7. Voluntary Intoxication. The accused’s voluntary intoxication cannot be considered in 

determining accused’s perception of the potential threat which led him to believe that a battery 

was about to be inflicted, as this is measured objectively. United States v. Judkins, 34 C.M.R. 

232 (C.M.A. 1964). 

8. Requirement to Raise. Self-defense need not be raised by the accused’s testimony, even if he 

testifies. United States v. Rose, 28 M.J. 132 (C.M.A. 1989); see TJAGSA Practice Note, SelfDefense Need Not Be Raised by the Accused’s Testimony, Army Law., Aug. 1989, at 40 

(discusses Rose). See United States v. Reid, 32 M.J. 146 (C.M.A. 1991). 

9. The “Egg-Shell” Victim. R.C.M. 916(e)(3) (discussion). If an accused is lawfully acting in 

self-defense and using less force than is likely to cause death or grievous bodily harm, the death 

of the victim does not deprive the accused of the defense, if: 

a) The accused’s use of force was not disproportionate, and 

b) The death was unintended, and 

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c) The death was not a reasonably foreseeable consequence. United States v. Jones, 3 M.J. 

279 (C.M.A. 1977); United States v. Perry, 36 C.M.R. 377 (C.M.A. 1966). 

d) See generally Benchbook ¶ 5-2-4. 

VIII. DEFENSE OF ANOTHER. 

A. Traditional View Adopted by Military. R.C.M. 916(e)(5). One who acts in defense of another 

has no greater right than the party defended. United States v. Regalado, 33 C.M.R. 12 (C.M.A. 

1963); United States v. Hernandez, 19 C.M.R. 822 (A.F.B.R. 1955); United States v. Cole, 54 M.J. 

572 (A. Ct. Crim. App. 2000) (where the victim did not attack or make an offer of violence to the 

accused’s wife, he was not entitled to use deadly force in defense of his family), aff’d, 55 M.J. 466 

(C.A.A.F. 2001). See generally Benchbook ¶ 5-3. 

B. “Enlightened View” Rejected. Accused who honestly and reasonably believes he is justified in 

defending another does not escape criminal liability if the “defended party” is not entitled to the 

defense of self-defense. United States v. Lanier, 50 M.J. 772 (A. Ct. Crim. App. 1999), aff’d 53 M.J. 

220 (C.A.A.F. 2000) (accused may not use more force than the person defended was lawfully entitled 

to use under the circumstances. This “alter ego” status imposes significant limitations on the 

availability and application of the defense of defense of another); United States v. Tanksley, 7 M.J. 

573 (A.C.M.R. 1979), aff’d, 10 M.J. 180 (C.M.A. 1980); United States v. Styron, 21 C.M.R. 579 

(C.G.B.R. 1956). But see LaFave & Scott, Criminal Law § 54 at 397-399 (1972). See generally 

Byler, Defense of Another, Guilt Without Fault?, Army Law., June 1980. 

C. Accident & Defense of Another. United States v. Jenkins, 59 M.J. 893 (A. Ct. Crim. App. 2004). 

Appellant and friends traveled to another unit’s barracks area to solve a dispute with another group. 

Appellant carried with him a loaded handgun, which he gave to a friend to hold. A fight erupted 

between two members of the factions. A member of the opposing faction had beaten appellant’s 

colleague unconscious and continued to beat him. Appellant retrieved his pistol and fired three shots; 

the third shot struck another soldier and caused the loss of his kidney. At trial, defense counsel 

requested instructions on accident, defense of another, and withdrawal as reviving the right to selfdefense. The Military Judge (MJ) instructed the panel only on defense of another, and the panel 

convicted appellant of conspiracy to assault and intentional infliction of grievous bodily harm. The 

appellate court held that the MJ erred in refusing to give the requested instructions. When appellant’s 

friend became unconscious during the fight, he effectively withdrew from the mutual affray, giving 

appellant the right to defend him. Further, there was evidence in the record that appellant showed due 

care in firing his pistol to prevent further injury to his friend. Finally, the panel’s finding of guilt for 

intentional assault did not render the errors harmless. 

IX. INTOXICATION. 

A. Voluntary Intoxication. R.C.M. 916(l)(2). See generally Milhizer, Voluntary Intoxication as a 

Criminal Defense Under Military Law, 127 Mil. L. Rev. 131 (1990). 

1. Voluntary intoxication is a legitimate defense against an element of premeditation, specific 

intent, knowledge, or willfulness in any crime---except the element of specific intent in the crime 

of unpremeditated murder. R.C.M. 916(l)(2); MCM, pt. IV, ¶ 43c(2)(c); United States v. 

Morgan, 37 M.J. 407 (C.M.A. 1993) (voluntary intoxication no defense to unpremeditated 

murder; re-affirming the rule in face of lower courts calling the rule into question); United States 

v. Ferguson, 38 C.M.R. 239 (C.M.A. 1968). To constitute a valid defense, voluntary intoxication 

need not deprive the accused of his mental capacities nor substantially deprive him of his mental 

capacities. Rather, it need only be of such a degree as to create a reasonable doubt that he 

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premeditated or entertained the required intent, knowledge, or willfulness. See generally United 

States v. Gerston, 15 M.J. 990 (N.M.C.M.R. 1983); United States v. Ledbetter, 32 M.J. 272 

(C.M.A. 1991); United States v. Cameron, 37 M.J. 1042 (A.C.M.R. 1993) (defense to willful 

disobedience to a lawful order). 

2. Voluntary intoxication is not a defense to crimes involving only a general intent. United 

States v. Brosius, 37 M.J. 652 (A.C.M.R. 1993) (voluntary intoxication no defense to general 

intent crime of communicating a threat), aff’d, 39 M.J. 378 (C.M.A. 1994); United States v. 

Reitz, 47 C.M.R. 608 (N.C.M.R. 1973) (voluntary intoxication no defense to drug sale, transfer, 

possession). 

3. Where there is some evidence of excessive drinking and impairment of accused’s faculties, 

military judge must sua sponte instruct on the defense of voluntary intoxication. United States v. 

Yandle, 34 M.J. 890 (N.M.C.M.R. 1992). If no evidence of excessive drinking or impairment, 

military judge is not required to instruct. United States v. Watford, 32 M.J. 176 (C.M.A. 1991). 

4. Limitations on voluntary intoxication defense are constitutional. Montana v. Egelhoff, 116 S. 

Ct. 2013 (1996) (Montana’s statutory ban on voluntary intoxication evidence in general intent 

crimes is consistent with state interests in deterring crime, holding one responsible for 

consequences of his actions, and excluding misleading evidence, and does not violate the due 

process clause). 

5. See generally Benchbook ¶ 5-12 and 5-2-6, Note 4. 

B. Involuntary Intoxication. 

1. In issue when: 

a) Intoxicant is introduced into accused’s body either without her knowledge or by force; or 

b) Accused is “pathologically intoxicated,” i.e., grossly intoxicated in light of amount of 

intoxicant consumed and accused not aware of susceptibility; or 

c) Long-term use of alcohol causes severe mental disease. 

2. An accused is involuntarily intoxicated when he exercises no independent judgment in taking 

the intoxicant--as, for example, when he has been made drunk by fraudulent contrivances of 

others, by accident, or by error of his physician. If the accused’s intoxication was involuntary 

and his capacity for control over his conduct was affected thereby and resulted in the criminal act 

charged, he should be acquitted. United States v. Travels, 44 M.J. 654 (A.F. Ct. Crim. App. 

1996) (involuntary intoxication exists when accused is intoxicated through force, fraud, or 

trickery or actual ignorance of intoxicating nature of the substance consumed); but see United 

States v. Ward, 14 M.J. 950 (A.C.M.R. 1982) (holding intoxication not “involuntary” where 

accused knew substance was marijuana but was unaware it was laced with PCP). 

3. An accused who voluntarily takes the first drink, knowing from past experience that the 

natural and reasonably foreseeable consequences of that act will be a violent intoxicating reaction 

cannot claim that his condition was “involuntary” so as to interpose an affirmative defense. 

United States v. Schumacher, 11 M.J. 612 (A.C.M.R. 1981). See generally Kaczynski, “I Did 

What?” The Defense of Involuntary Intoxication, Army Law., Apr. 1983, at 1. 

4. Compulsion to drink that merely results from alcoholism that has not risen to the level of a 

severe mental disease or defect is considered “voluntary intoxication” and will not generally 

excuse crimes committed while intoxicated. 

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5. Involuntary intoxication is not available if accused is aware of his reduced tolerance for 

alcohol (such as when also ingesting other drugs) but chooses to consume it anyway. United 

States v. Hensler, 44 M.J. 184 (C.A.A.F. 1996). 

6. To the extent that military case law once equated involuntary intoxication to legal insanity, 

that case law is overturned. United States v. McDonald, 73 M.J. 426 (C.A.A.F. 2014). While it is 

true that the involuntary intoxication must have been such that it rendered the accused unable to 

appreciate the nature and quality or wrongfulness of his actions, the underlying cause of that 

inability is different. That is, an accused who raises the defense of involuntary intoxication has 

no burden to prove that he had an underlying mental disease or defect. Rather, the burden is on 

the prosecution to prove that the accused’s intoxication was not involuntarily. Id. 

X. MISTAKEN BELIEF OR IGNORANCE. 

A. Degrees of Mistake or Ignorance of Fact. 

1. An honest (subjective) mistake of fact or ignorance is generally a defense to crimes requiring 

premeditation, specific intent, knowledge, or willfulness. For example, an accused’s honest 

belief that he had permission to take certain property would excuse the crime of larceny or 

wrongful appropriation. R.C.M. 916(j). United States v. McDonald 57 M.J. 18 (2002) (accused 

entitled to mistake of fact instruction as to buying stolen retail merchandise); United States v. 

Binegar, 55 M.J. 1 (C.A.A.F. 2001) (honest mistake of fact a defense to larceny); United States v. 

Turner, 27 M.J. 217 (C.M.A. 1988) (honest mistake a defense to larceny); see TJAGSA Practice 

Note, Recent Applications of the Mistake of Fact Defense, Army Law., Feb. 1989, at 66 

(discusses Turner); United States v. Hill, 32 C.M.R. 158 (C.M.A. 1962) (honest belief owner 

gave permission to use car a good defense to wrongful appropriation); see also United States v. 

Jett, 14 M.J. 941 (A.C.M.R. 1982). Similarly, an honest mistake can be a defense to presenting a 

false claim, United States v. Graves, 23 M.J. 374 (C.M.A. 1987); United States v. Ward, 16 M.J. 

341 (C.M.A. 1983), and false official statement. United States v. Oglivie, 29 M.J. 1069 

(A.C.M.R. 1990). See generally Benchbook ¶ 5-11-1. 

a) United States v. Gillenwater, 43 M.J. 10 (C.A.A.F. 1995) (mistake of fact defense raised 

in prosecution for wrongful appropriation of government tools where accused’s former 

supervisor testified that he gave accused permission to take things home for government use 

& accused worked on several government projects at home); United States v. Gunter, 42 M.J. 

292 (C.A.A.F. 1995) (discussing possible defenses of self-help and honest claim of right). 

b) United States v. McDivitt, 41 M.J. 442 (C.A.A.F. 1995) (mistake of fact defense is not 

raised by evidence where accused signed official documents falsely asserting that he had 

supported dependents for prior two years in order to obtain higher allowances after being 

advised by finance clerk that he was entitled to allowances at higher rate until divorced). 

2. An honest and reasonable (objective) mistake. A defense to general intent crimes—crimes 

lacking an element of premeditation, specific intent, knowledge or willfulness. R.C.M. 916(j). 

United States v. Brown, 22 M.J. 448 (C.M.A. 1986); United States v. Carr, 18 M.J. 297 (C.M.A. 

1984) (rape); United States v. Davis, 27 M.J. 543 (A.C.M.R. 1988) (rape); United States v. 

Graham, 3 M.J. 962 (N.C.M.R. 1977) (accused’s honest and reasonable mistaken belief he had 

permission to be gone held a legitimate defense to AWOL); United States v. Jenkins, 47 C.M.R. 

120 (C.M.A. 1973) (accused’s honest and reasonable belief he had a “permanent profile” held a 

legitimate defense to disobedience of a general regulation requiring shaving); United States v. 

Oglivie, 29 M.J. 1069 (A.C.M.R. 1990) (an honest and reasonable mistake is required for a 

defense to the general intent crime of bigamy); United States v. Barnard, 32 M.J. 530 

(A.F.C.M.R. 1990) (an honest and reasonable mistake is required for a defense to general intent 

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crime of dishonorable failure to maintain sufficient funds); United States v. McMonagle, 38 M.J. 

53 (C.M.A. 1993) (mistake of fact can rebut state of mind required for depraved-heart murder and 

can negate element of unlawfulness and thus, killing was justified if accused honestly and 

reasonably thought that he was shooting at a combatant); United States v. New, 50 M.J. 729 (A. 

Ct. Crim. App. 1999), aff’d 55 M.J. 97 (C.A.A.F. 2001) (a mistake about the lawfulness of an 

order to wear UN accouterments must be both honest and reasonable); See generally Benchbook 

¶ 5-11-2. 

3. Honest mistake. Negates an element of premeditation, specific intent, willfulness, or actual 

knowledge. United States v. Binegar, 55 M.J. 1 (C.A.A.F. 2001) (larceny). 

4. Certain offenses such as bad checks and dishonorable failure to pay debts require a special 

degree of prudence and the mistake and ignorance standards must be adjusted accordingly. For 

example, in UCMJ art. 134 check offenses the accused’s ignorance or mistake to be exonerating 

must not have been the result of bad faith or gross indifference. United States v. Barnard, 32 

M.J. 530 (A.F.C.M.R. 1990). See generally Benchbook ¶ 5-11-3. 

5. Some offenses, like carnal knowledge, have strict liability elements. See Milhizer, Mistake of 

Fact and Carnal Knowledge, Army Law., Oct. 1990, at 4. Deliberate ignorance can create 

criminal liability. United States v. Dougal, 32 M.J. 863 (N.M.C.M.R. 1991). 

B. Result of Mistaken Belief. To be a successful defense, the mistaken belief must be one which 

would, if true, exonerate the accused. United States v. Vega, 29 M.J. 892 (A.F.C.M.R. 1989) (no 

defense where the accused believed he possessed marijuana rather than cocaine); United States v. 

Fell, 33 M.J. 628 (A.C.M.R. 1991) (against a charge of robbery, the accused’s honest belief that the 

money was his is a legitimate defense to robbery of the money, though not a shield against conviction 

for assault on the victim); United States v. Anderson, 46 C.M.R. 1073 (A.F.C.M.R. 1973) (accused 

charged with LSD offense has no defense because he believed the substance to be mescaline); United 

States v. Calley, 46 C.M.R. 1131, 1179 (A.C.M.R. 1973) (no defense to homicide that accused 

believed victims were detained PWs rather than noncombatants); United States v. Jefferson, 13 M.J. 

779 (A.C.M.R. 1982) (mistake not exonerating where accused accepted heroin thinking it was 

hashish); United States v. Myles, 31 M.J. 7 (C.M.A. 1990) (mistake as to type of controlled substance 

is not exculpatory); see TJAGSA Practice Note, Mistake of Drug is Not Exculpatory, Army Law., 

Dec. 1990, at 36 (discusses Myles). See generally United States v. Mance, 26 M.J. 244 (C.M.A. 

1988); United States v. Heitkamp, 65 M.J. 861 (A. Ct. Crim. App. 2007). 

C. Mistake or Ignorance and Drug Offenses. See supra ¶ IX.K.2, ch. 4. 

D. Mistake of Fact and Sex Offenses. 

1. Consent and Mistake of Fact as to Consent (for offenses involving the middle Article 120, 

effective 1 October 2007, and new Article 120, effective 28 June 2012). Article 120 provides that 

consent and mistake of fact as to consent are affirmative defenses for Rape, Aggravated Sexual 

Assault, Aggravated Sexual Contact, and Abusive Sexual Contact. See UCMJ art. 120(r) & 

(t)(14). This is an unconstitutional burden shift. See supra Ch.5, ¶ XXXVIII.C. 

2. Mistake of Fact as to Consent. An honest and reasonable mistake of fact as to consent is a 

defense in rape cases. United States v. Taylor, 26 M.J. 127 (C.M.A. 1988) (mistake of fact not 

available in conspiracy to commit rape absent evidence that all co-conspirators had a mistaken 

belief that the victim consented); United States v. Baran, 22 M.J. 265 (C.M.A. 1986); United 

States v. Carr, 18 M.J. 297 (C.M.A. 1984); United States v. Davis, 27 M.J. 543 (A.C.M.R. 1988); 

see TJAGSA Practice Note, Recent Applications of the Mistake of Fact Defense, Army Law., 

Feb. 1989, at 66 (discusses Davis); see also United States v. Daniels, 28 M.J. 743 (A.F.C.M.R. 

1989) (discusses sufficiency of evidence to raise the defense). 

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a) Mistake of fact as to victim’s consent to sexual intercourse cannot be predicated upon 

negligence of accused; mistake must be honest and reasonable to negate a general intent or 

knowledge. United States v. True, 41 M.J. 424 (1995). 

b) Mistake of fact as to whether the victim consented to intercourse is a different defense 

than actual consent by the victim. When the evidence raises only an issue as to actual 

consent, the military judge has no sua sponte duty to instruct on mistake. United States v. 

Willis, 41 M.J. 435 (1995). Cf. United States v. Brown, 43 M.J. 187 (1995) (observing “[i]n 

every case where consent is a defense to a charge of rape, the military judge would be well 

advised to either give the mistake instruction or discuss on the record with counsel the 

applicability of the defense”). 

c) Applications. 

(1) United States v. Hibbard, 58 M.J. 71 (C.A.A.F. 2003). Evidence cited by the defense 

in light of the totality of the circumstances, including the manner that the issue was 

litigated at trial, was insufficient to reasonably raise the issue of whether the accused had 

a reasonable belief that the victim consented to sexual intercourse. See also United States 

v. Hines, 75 M.J. 734 (A. Ct. Crim. App. 2016) (where victim testified she awoke to the 

accused, with whom she had no romantic relationship, touching her buttocks and Hines 

did not testify, mistake of fact was not raised by the evidence; to put the defense of 

mistake of fact at issue, there must be some evidence of honest belief the victim 

consented to the touching). 

(2) United States v. Teague, 75 M.J. 636 (A. Ct. Crim. App. 2016), review denied, 

(C.A.A.F. June 16, 2016). Article 120(b)(3) requires proof beyond a reasonable doubt 

that accused had actual knowledge that victim could not consent or reasonably should 

have known that victim could not consent. Thus, mistake of fact is not a “defense” to 

sexual assault charged under this theory of liability; it is an attack on an element. The 

government is required to disprove, as a matter of course, a mistake of fact in every such 

case. 

(3) United States v. Yarborough, 39 M.J. 563 (A.C.M.R. 1994). Mistake of fact as to 

consent in a prosecution for rape is not reasonable where the 13-year-old victim is a 

virgin who was too intoxicated to consent or resist even if she was aware of the 

intercourse, notwithstanding her response of “yeah” when the accused asked her if she 

“wanted to do it.” 

(4) United States v. Valentin-Nieves, 57 M.J. 691 (N-M. Ct. Crim. App. 2002). Victim’s 

alleged statement that she had told another witness she would not mind having sex with 

accused did not establish mistake of fact where, a few days later, accused had taken the 

very intoxicated victim into a bathroom and had sexual intercourse with victim, who at 

the time was “too weak to hold [her]self up let alone hold someone else away.” 

(5) United States v. Barboza, 39 M.J. 596 (A.C.M.R. 1994). There could be no honest or 

reasonable mistake of fact as to consent to intercourse and sodomy where the accused and 

victim had only slight acquaintance as classmates, no dating relationship, victim stated 

she did not want sex and asked accused to leave her room, accused forced her head to his 

penis to accomplish fellatio and threatened to kill her if she told anyone about the 

incident. 

(6) United States v. Campbell, 55 M.J. 591 (C.G. Ct. Crim. App. 2001). The evidence 

established the affirmative defense of mistake of fact as to consent. The victim’s failure 

to take action to stop the accused from touching her ribs and across her front after 

consenting to his giving her a back rub was sufficient to confirm in the mind of a 

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reasonable person that she was consenting to his actions. His departure from the back rub 

to front side caress ultimately led to the touching of her breasts. 

(7) United States v. Parker, 54 M.J. 700 (A. Ct. Crim. App. 2000), rev’d on other 

grounds, 59 M.J. 195 (C.A.A.F. 2003). The government did not disprove accused’s 

defense that he mistakenly believed that the victim consented to the intercourse and 

sodomy. The victim admitted that she and the accused engaged in a consensual 

relationship for several months before the first alleged rape, and she sent mixed signals to 

the accused about their relationship. The relationship included consensual sexual acts, 

which were similar to the acts she claimed were nonconsensual. 

(8) United States v. Black, 42 M.J. 505 (A. Ct. Crim. App. 1995) (evidence that victim of 

sex offenses may have engaged in oral sex with another individual prior to assault by 

accused was not relevant to show that accused was mistaken as to consent of victim to 

engage in such acts with accused). Cf. United States v. Greaves, 40 M.J. 432 (C.M.A. 

1994)(excluding evidence of accused’s projected beliefs of victim’s sexual relations with 

others); United States v. Traylor, 40 M.J. 248 (C.M.A. 1994) (holding mistake of fact as 

to consent to intercourse not reasonable when based upon belief by accused that victim 

“would consent to intercourse with anyone”). 

(9) United States v. Peterson, 47 M.J. 231 (C.A.A.F. 1997) (holding consent element is a 

general intent element, even though indecent assault requires specific intent to gratify 

lust); United States v. Johnson, 25 M.J. 691 (A.C.M.R. 1987). 

(10) Even though indecent assault is a specific intent crime, a mistake of fact as to the 

victim’s consent must be both honest and reasonable as the defense goes to the victim’s 

intent and not the accused’s intent. United States v. Johnson, 25 M.J. 691 (A.C.M.R. 

1987); United States v. McFarlin, 19 M.J. 790 (A.C.M.R. 1985). Compare this with 

assault with intent to commit rape, a specific intent crime, where a mistake of fact as to 

victim’s consent need only be honest. United States v. Langley, 33 M.J. 278 (C.M.A. 

1991); see also United States v. Apilado, 34 M.J. 773 (A.C.M.R. 1992). 

(11) United States v. Gaines, 61 M.J. 689 (N-M. Ct. Crim. App. 2005). Appellant 

went into a dark room and touched the legs and pelvic area of the woman sleeping there, 

believing she was someone else. HELD: Mistake of fact was raised in this case, 

especially as to the issue of consent. Had the victim consented to the touching, there 

would be no assault. If appellant had an honest and reasonable belief that the victim 

consented to the touching, he would have a complete defense. 

3. Mistake of Fact as to Age, Indecent Acts. United States v. Zachary, 63 M.J. 438 (C.A.A.F. 

2006) (holding that it is a defense to indecent acts with a child that, at the time of the act, the 

accused held an honest and reasonable belief that the person with whom the accused committed 

the indecent act was at least sixteen years of age). United States v. Strode, 43 M.J. 29 (1995) 

(mistake of fact may be a defense if the accused had an honest and reasonable belief as to the age 

of the victim and the acts would otherwise be lawful were the victim 16 or older). 

4. Mistake of Fact as to Age, Carnal Knowledge. The accused carries the burden to prove 

mistake of fact as to age by a preponderance of the evidence in a carnal knowledge case. R.C.M. 

916(b). 

5. Mistake of Fact as to Age, Sodomy. “There is no mistake of fact defense available with 

regard to the child’s age in the Article 125, UCMJ, offense of sodomy with a child under the age 

of sixteen.” United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008). See also United States v. 

Gross, 73 M.J. 864 (A.Ct.Crim.App. 2014). 

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6. Accused not required to take stand to raise defense of mistake of fact. United States v. 

Sellers, 33 M.J. 364 (C.M.A. 1991). 

E. Mistake of Law. 

1. Ordinarily, mistake of law is not a defense. R.C.M. 916(l). United States v. Bishop, 2 M.J. 

741 (A.F.C.M.R. 1977) (accused’s belief that under state law he could carry a concealed weapon 

not a defense to carrying a concealed weapon on base in violation of Article 134, UCMJ); United 

States v. Ivey, 53 M.J. 685 (A. Ct. Crim. App. 2000) (accused argued that he did not know what 

was meant by “actual buyer” on ATF Form 4473 when purchasing firearms for friends), aff’d, 55 

M.J. 251 (C.A.A.F. 2001); United States v. Heitkamp, 65 M.J. 861 (A. Ct. Crim. App. 2007) 

(accused believed it was lawful to possess methandienone; “[I]f an accused knows the identity of 

a substance that he is possessing or using but does not know that such possession or use is illegal, 

his ignorance is immaterial . . . because ignorance of the law is no defense.”). 

2. Under some circumstances, however, a mistake of law may negate a criminal intent or a state 

of mind necessary for an offense. R.C.M. 916(l)(1) discussion. 

a) A mistake as to a separate, nonpenal law may exonerate. See United States v. Sicley, 20 

C.M.R. 118 (C.M.A. 1955) (honest mistake of fact as to claim of right under property law 

negates criminal intent in larceny); United States v. Ward, 16 M.J. 341 (C.M.A. 1983) 

(honest mistake defense to presenting a false claim). 

b) Reliance on decisions and pronouncements of authorized public officials and agencies 

may be a defense. See United States v. Maynulet, 68 M.J. 374 (C.A.A.F. 2010) (claimed 

reliance on JAG Law of War deployment briefing not not raise a defense to “mercy killing” 

where accused could not show any pronouncement in the briefing that condoned the 

practice). 

c) Reliance on representing counsel’s advice would not be a defense. R.C.M. 916(l)(1) 

(discussion); R. Perkins and M. Boyce, Criminal Law 1041, 1043 (3rd ed. 1982). Cf. United 

States v. Lawton, 19 M.J. 886 (A.C.M.R. 1985) (behavior after obtaining lawyer’s opinion 

that married at common law, inter alia, sufficient to raise mistake defense). 

3. When an attorney advises an accused to act in manner that the accused knows is criminal, the 

accused should not escape responsibility on the basis of the attorney’s bad advice. Thus, advice 

of counsel would not afford accused any protection for misconduct which is self-evidently 

criminal, such as injuring someone, violating a lawful regulation, or taking someone else’s 

property without consent. United States v. Sorbera, 43 M.J. 818 (A.F. Ct. Crim. App. 1996). 

F. Special Evidentiary Rule. MRE 404(b) allows the prosecution to present evidence of uncharged 

crimes, wrongs, or acts committed by the accused in order to show the absence of a mistake. This is 

particularly important because such extrinsic evidence may be admitted even though the accused does 

not testify on his own behalf. See United States v. Beechum, 582 F.2d 898 (5th cir. 1978) (en banc), 

cert. denied, 440 U.S. 920 (1979). Before such evidence will be admitted, however, it must be tested 

against the criteria of MRE 403. See United States v. Reynolds, 29 M.J. 105 (C.M.A. 1989). 

XI. JUSTIFICATION. 

A. Protection of Property. 

1. Two types: “defense of property in the context of an imminent threat to the property, and 

defense of property in the context of preventing a trespass or ejecting a trespasser from the 

property.” United States v. Davis, 73 M.J. 268, 271 (C.A.A.F. 2014) 

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a) Imminent threat to property: requires a “reasonable belief that [the accused’s] real or 

personal property was in immediate danger of trespass or theft; and the accused must have 

actually believed that the force used was necessary to prevent a trespass or theft of his real or 

personal property.” Id. 

b) Preventing trespass/ejecting trespasser: “the accused may only use as much force as is 

reasonably necessary to remove an individual from his property after requesting that the 

individual leave and then allowing a reasonable amount of time for the individual to leave.” 

Id. 

2. Use of non-deadly force. Reasonable, non-deadly force may be used to protect personal 

property from trespass or theft. United States v. Regalado, 33 C.M.R. 12 (C.M.A. 1963) (one 

lawfully in charge of premises may use reasonable force to eject another, if the other has refused 

an oral request to leave and a reasonable time to depart has been allowed); United States v. Hines, 

21 C.M.R. 201 (C.M.A. 1956) (with regard to on-post quarters, commander on military business 

is not a trespasser subject to accused’s right to eject); United States v. Gordon, 33 C.M.R. 489 

(A.B.R. 1963) (the necessity to use force in defense of personal property need not be real, but 

only reasonably apparent); United States v. Wilson, 7 M.J. 997 (A.C.M.R. 1979) (accused had no 

right to resist execution of a search warrant, even though warrant subsequently held to be 

invalid); United States v. Adams, 18 C.M.R. 187 (C.M.A. 1955) (generally a military person’s 

place of abode is the place where he bunks and keeps his private possessions. His home is the 

particular place where the necessities of the service force him to live. This may be a barracks, a 

tent, or even a fox hole. Whatever the name of his place of abode, it is his sanctuary from 

unlawful intrusion and he is entitled to stand his ground against a trespasser, to the same extent 

that a civilian is entitled to stand fast in his civilian home); see also United States v. Lincoln, 38 

C.M.R. 128 (C.M.A. 1967). See generally Peck, The Use of Force to Protect Government 

Property, 26 Mil. L. Rev. 81 (1964); Benchbook ¶ 5-7. 

3. Use of deadly force. Deadly force may be employed to protect property only if (1) the crime 

is of a forceful, serious or aggravated nature, and (2) the accused honestly believes use of deadly 

force is necessary to prevent loss of the property. United States v. Lee, 13 C.M.R. 57 (C.M.A. 

1953). 

4. Reasonable force. While it is well established that a service member has a legal right to eject 

a trespasser from her military bedroom and a legal right to protect her personal property, the 

soldier has no legal right to do so unreasonably. United States v. Marbury, 56 M.J. 12 (C.A.A.F. 

2001) (accused’s immediate return to her bedroom brandishing a knife for the purpose of ejecting 

her assailant was excessive or unreasonable force and hence unlawful conduct). 

B. Prevention of Crime. 

1. Under military law a private person may use force essential to prevent commission of a 

felony in his presence, although the degree of force should not exceed that demanded by the 

circumstances. United States v. Hamilton, 27 C.M.R. 204 (C.M.A. 1959). See generally Peck, 

The Use of Force to Protect Government Property, 26 Mil. L. Rev. 81 (1964). While felony is 

not defined in the 2008 Manual for Courts-Martial, 18 U.S.C. § 1 (1) (1982) defines it as any 

offense punishable by death or imprisonment for a term exceeding one year. 

2. Use of deadly force. United States v. Person, 7 C.M.R. 298 (A.B.R. 1953) (soldier on 

combat patrol justified in killing unknown attacker of another patrol member where (1) victim 

was committing a felony in the accused’s presence, and (2) the accused attempted to inflict less 

than deadly force). 

C. Performance of Duty. 

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1. A death, injury, or other act caused or done in the proper performance of a legal duty is 

justified and not unlawful. R.C.M. 916(c). 

2. Justification is raised only if the accused was performing a legal duty at the time of the 

offense. United States v. Rockwood, 52 M.J. 98, 112 (1999) (holding that neither international 

law nor television speech by the President imposed on accused a duty to inspect Haitian 

penitentiary for possible human rights violations); United States v. McMonagle, 38 M.J. 53 

(C.M.A. 1993) (killing civilian may be justified by a mistake of fact as to victim’s identity, 

although not the facts of this case). 

3. United States v. Little, 43 M.J. 88 (C.A.A.F. 1995) (accused’s statements in providence 

inquiry about his authorization for possession of a work knife were substantially inconsistent with 

guilty plea for unauthorized possession of a dangerous weapon on naval vessel). 

4. United States v. Reap, 43 M.J. 61 (C.A.A.F. 1995) (naval custom whereby goods are bartered 

or traded from department to department in order to avoid delays, red tape, and technicalities 

incident to acquisition through regular supply channels, is not a defense to wrongful disposition 

of government property unless it rises to the level of a claim of authority or honest and reasonable 

mistaken belief of authority). 

5. United States v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999) (accused’s interpretation of the 

President’s command intent did not create a legal duty to inspect penitentiary in Haiti and 

accused could not base a special defense of justification on that ground. The commander, not the 

subordinate assesses competing concerns and develops command mission priorities). 

D. Obedience to Orders. 

1. Orders of military superiors are inferred to be legal. MCM, pt. IV, ¶ 14c(2)(a); United States 

v. Cherry, 22 M.J. 284 (C.M.A. 1986). 

2. The accused is entitled to the defense where he committed the act pursuant to an order which 

(a) appeared legal and which (b) the accused did not know to be illegal. R.C.M. 916(d); United 

States v. Calley, 46 C.M.R. 1131, 1183 (A.C.M.R. 1973). 

a) Accused’s actual knowledge of illegality required. United States v. Whatley, 20 C.M.R. 

614 (A.F.B.R. 1955) (where superior ordered accused to violate a general regulation, the 

defense of obedience to orders will prevail unless the evidence shows not only that the 

accused had actual knowledge that the order was contrary to the regulation but, also, that he 

could not have reasonably believed that the superior’s order may have been valid). 

b) Defense unavailable if man of ordinary sense and understanding would know the order to 

be unlawful. United States v. Griffen, 39 C.M.R. 586 (A.B.R. 1968) (no error to refuse 

request for instruction on defense where accused shot PW pursuant to a superior’s order); see 

United States v. Calley, 46 C.M.R. 1131 (A.C.M.R. 1973) (instruction on obedience to orders 

given). 

3. The processing of a conscientious objector application does not afford an accused a defense 

against his obligation to deploy, even if the orders to do so violate service regulations concerning 

conscientious objections. United States v. Johnson, 45 M.J. 88 (C.A.A.F. 1996). 

4. Obedience to orders given by an individual who is acting outside the scope of his authority 

does not trigger the Obedience to Lawful Orders defense—only the Obedience to Orders defense. 

United States v. Smith, 68 M.J. 316 (C.A.A.F. 2010) (military working dog (MWD) handler, who 

complied with cell-block NCOIC’s instructions to incorporate MWD into the interrogation of an 

Iraqi detainee, was not entitled to Obedience to Lawful Orders defense where task force (CJTF-7) 

commanding general had withheld authority to order MWD use during detainee interrogations). 

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5. See generally Benchbook ¶ 5-8. 

E. The Right to Resist Restraint. 

1. Illegal confinement. “Escape” is from lawful confinement only; if the confinement itself was 

illegal, then no escape. MCM, pt. IV, ¶ 19c(1)(e); United States v. Gray, 20 C.M.R. 331 (C.M.A. 

1956) (no crime to escape from confinement where accused’s incarceration was contrary to 

orders of a superior commander). 

2. Illegal apprehension/arrest. An individual is not guilty of having resisted apprehension 

(UCMJ art. 95) if that apprehension was illegal. United States v. Clark, 37 C.M.R. 621 (A.B.R. 

1967) (accused physically detained by private citizen for satisfaction of a debt may, under the 

standards of self-defense, forcefully resist and seek to escape); United States v. Rozier, 1 M.J. 469 

(C.M.A. 1976) (by forcibly detaining accused immediately following his illegal apprehension, 

NCOs involved acted beyond scope of their offices); United States v. Lewis, 7 M.J. 348 (C.M.A. 

1979) (accused cannot assert illegality of apprehension as defense to assault charge when 

apprehending official acted within the scope of his office); United States v. Noble, 2 M.J. 672 

(A.F.C.M.R. 1976) (accused may resist apprehension if he has no “reason to believe” the person 

apprehending him is empowered to do so); United States v. Braloski, 50 C.M.R. 310 (A.C.M.R. 

1975) (resisting apprehension by a German policeman is not an offense cognizable under UCMJ 

art. 95, but must be charged under UCMJ art. 134). 

F. Parental Discipline. 

1. The law has clearly recognized the right of a parent to discipline a minor child by means of 

moderate punishment. United States v. Scofield, 33 M.J. 857 (A.C.M.R. 1991). See generally 

Benchbook ¶ 5-16. 

2. The use of force by parents or guardians is justifiable if: 

a) the force is used for the purpose of safeguarding or promoting the welfare of the minor, 

including the prevention or punishment of his misconduct; and 

b) the force is not designed to cause or known to create a substantial risk of causing death, 

serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation. 

United States v. Brown, 26 M.J. 148 (C.M.A. 1988). 

3. A parent who spanks a child with a leather belt using reasonable force and thereby 

unintentionally leaves welts or bruises nevertheless acts lawfully so long as the parent acted with 

a bona fide parental purpose. United States v. Scofield, 33 M.J. 857 (A.C.M.R. 1991). But see 

United States v. Staton, 68 M.J. 569, (A.F.Ct.Crim.App. 2009) (service court looked at size and 

strength of accused versus that of the child and the objects used in the punsishments to determine 

that the government had carried its burden in proving the force to be unreasonable.) 

4. One acting in the capacity of parent is justified in spanking a child, but the disciplining must 

be done in good faith for correction of the child motivated by educational purpose and not for 

some malevolent motive. United States v. Proctor, 34 M.J. 549 (A.F.C.M.R. 1991), aff’d, 37 

M.J. 330 (C.M.A. 1993); United States v. Ward, 39 M.J. 1085 (A.C.M.R. 1994) (not a license to 

abuse the child). 

5. Applications. 

a) Tying stepson’s hands and legs and placing a plastic bag over his head went beyond use 

of reasonable or moderate force allowed in parental discipline. United States v. Gowadia, 34 

M.J. 714 (A.C.M.R. 1992). 

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b) Accused who admitted striking his child out of frustration and as means of punishment 

and who made no claim that he honestly believed that force used was not such as would cause 

extreme pain, disfigurement, or serious bodily injury was not entitled to instruction on 

parental discipline defense. United States v. Gooden, 37 M.J. 1055 (N.M.C.M.R. 1993). 

c) Evidence of one closed-fist punch, without evidence of actual physical harm, was legally 

sufficient to overcome the affirmative defense of parental discipline where the punch was 

hard enough to knock down the accused’s 13-year old son. United States v. Rivera, 54 M.J. 

489 (C.A.A.F 2001). 

d) See also United States v. Robertson, 36 M.J. 190 (C.M.A. 1992); United States v. Ziots, 

36 M.J. 1007 (A.C.M.R. 1993). 

XII. ALIBI. 

A. Not an Affirmative Defense. R.C.M. 916(a) discussion. 

B. Notice Required. R.C.M. 701(b)(2). Exclusion of alibi evidence because of lack of notice is a 

drastic remedy to be employed only after considering the disadvantage to opposing counsel and the 

reason for failing to provide notice. United States v. Townsend, 23 M.J. 848 (A.F.C.M.R. 1987). 

Military judge abused his discretion when he excluded defense testimony because R.C.M. 701(b)(1) 

notice requirements were not met. United States v. Preuss, 34 M.J. 688 (N.M.C.M.R. 1991). 

C. Raised by Evidence. Alibi raised when some evidence shows that the accused was elsewhere at 

the time of the commission of a crime. 

D. Instructions. 

1. Military judge is under no sua sponte obligation to instruct on this theory of defense. R.C.M. 

920(e)(3); United States v. Boyd, 17 M.J. 562 (A.F.C.M.R. 1983); United States v. Bigger, 8 

C.M.R. 97 (C.M.A. 1953); United States v. Wright, 48 C.M.R. 295, 297 (A.F.C.M.R. 1974). 

2. When defense is raised by the evidence and accused requests an instruction, failure to instruct 

is error. United States v. Moore, 35 C.M.R. 317 (C.M.A. 1965); United States v. Jones, 7 M.J. 

441 (C.M.A. 1979). 

E. Sufficiency. 

1. If alibi raises a reasonable doubt as to guilt, the accused is entitled to an acquittal. United 

States v. Stafford, 22 M.J. 825 (N.M.C.M.R. 1986) (finding error to require defense to prove alibi 

beyond a reasonable doubt). 

2. Rebuttal not required. United States v. Rath, 27 M.J. 600 (A.C.M.R. 1988) (holding alibi 

defense can be rejected by the trier of fact even absent rebuttal by government). 

XIII. VOLUNTARY ABANDONMENT. 

A. Special defense to a charge of attempted commission of a crime. M.C.M., pt. IV, ¶4c(4); United 

States v. Byrd, 24 M.J. 286 (C.M.A. 1987). 

1. Not available as a defense to an attempt crime where the acts committed have caused 

substantial harm to the victim. United States v. Smauley, 42 M.J. 449 (C.A.A.F. 1995); United 

States v. Thornsbury, 59 M.J. 767 (A. Ct. Crim. App. 2004). 

2. Available for a consummated attempt only when the accused has a genuine change of heart 

that causes her to renounce the criminal enterprise. United States v. Schoof, 37 M.J. 96 (C.M.A. 

1993); United States v. Walther, 30 M.J. 829 (N.M.C.M.R. 1990). 

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B. Not raised when: 

1. Not raised as a defense to attempted breaking restriction where the accused abandoned his 

efforts because of a fear of being detected or apprehended. United States v. Miller, 30 M.J. 999 

(N.M.C.M.R. 1990). 

2. Not raised as a defense where the accused merely postpones his criminal enterprise until a 

more advantageous time or transfers his criminal effort to another objective or victim, or where 

his criminal purpose is frustrated by external forces beyond his control. United States v. Rios, 33 

M.J. 436 (C.M.A. 1991). 

XIV. MISCELLANEOUS DEFENSES. 

A. Amnesia. 

1. General. Inability to recall past events or the facts of one’s identity is loosely described as 

amnesia. An accused who suffers from amnesia at the time of the trial is at a disadvantage. 

Failure to recall a past event may prevent the accused from disclaiming the possession of a 

particular intent, the existence of which is essential for conviction of the offenses charged. 

Similarly, inability to recall identity can prevent the accused from obtaining evidence of good 

character from friends and family. Amnesia, however, is, by itself, generally “a relatively neutral 

circumstance in its bearing on criminal responsibility.” United States v. Olvera, 15 C.M.R. 134 

(C.M.A. 1954). See generally United States v. Boultinghouse, 29 C.M.R. 537 (C.M.A. 1960); 

United States v. Buran, 23 M.J. 736 (A.F.C.M.R. 1986); United States v. Barreto, 57 M.J. 127 

(C.A.A.F. 2002). 

2. When Amnesia May be a Defense. 

a) Military offenses requiring knowledge of accused’s status as a service person. 

(1) Inability to recall identity might include loss of awareness of being a member of the 

armed forces; in that situation, amnesia might be a defense to a charge of failing to obey 

an order given before the onset of the condition, as it would show the existence of a 

mental state which would serve to negate criminal responsibility. United States v. 

Olvera, supra ¶ XIV.A. 

(2) An accused cannot be convicted of AWOL if he was temporarily without knowledge 

that he was in the military during the period of his alleged absence. United States v. 

Wiseman, 30 C.M.R. 724 (N.B.R. 1961). 

b) Drug/alcohol induced amnesia. 

(1) Lack of memory or amnesia resulting from drugs or alcohol has never constituted a 

complete defense. United States v. Luebs, 43 C.M.R. 315 (C.M.A. 1971); United States 

v. Butler, 43 C.M.R. 87 (C.M.A. 1971); United States v. Day, 33 C.M.R. 398 (C.M.A. 

1963). 

(2) Drug/alcohol induced amnesia in and of itself does not constitute a mental disease or 

defect which will excuse criminal conduct under the defense of lack of mental 

responsibility. United States v. Olvera, supra at ¶ XIV.A.; United States v. LopezMalave, 15 C.M.R. 341 (C.M.A. 1954). 

(3) Under earlier law, in order to require an insanity instruction, the evidence must show 

that accused’s alcoholism constitutes a mental disease or defect so as to impair 

substantially his capacity either to appreciate the criminality of his conduct or to conform 

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his conduct to the requirements of law. United States v. Brown, 50 C.M.R. 374 

(N.C.M.R. 1975); United States v. Marriott, 15 C.M.R. 390 (C.M.A. 1954). 

(4) With the passage of UCMJ art. 50a, the standard for lack of mental responsibility is 

now complete impairment. For a complete discussion of Article 50a, see Chapter 6, 

infra. 

3. Amnesia as Affecting Accused’s Competency to Stand Trial. 

a) The virtually unanimous weight of authority is that an accused is not incompetent to 

stand trial simply because he is suffering from amnesia. Thomas v. State, 301 S.W.2d 358 

(Tenn. 1957); Commonwealth v. Hubbard, 371 Mass. 160 (1976). 

b) The appropriate test when amnesia is found is whether an accused can receive, or has 

received, a fair trial. The test, as stated in Dusky v. United States, 362 U.S. 402 (1960), is 

“whether [the accused] has sufficient present ability to consult with his lawyer with a 

reasonable degree of rational understanding--and whether he has a rational as well as factual 

understanding of the proceedings against him.” 

c) The problem when the accused suffers from amnesia is not his ability to consult with his 

attorney but rather his inability to recall events during a crucial period. 

d) Where the amnesia appears to be temporary, an appropriate solution might be to defer 

trial for a reasonable period to see if the accused’s memory improves. 

e) Commonwealth v. Lombardi, 393 N.E.2d 346 (Mass. 1979). Where the amnesia is 

apparently permanent, the fairness of proceeding to trial must be assessed on the basis of the 

particular circumstances of the case. A variety of factors may be significant in determining 

whether the trial shall proceed, to include: 

(1) the nature of the crime, 

(2) the extent to which the prosecution makes a full disclosure of its case and 

circumstances known to it, 

(3) the degree to which the evidence establishes the accused’s guilt, 

(4) the likelihood that an alibi or some defense could be established but for the amnesia, 

(5) the extent and effect of the accused’s amnesia. 

f) A pretrial determination of whether the accused’s amnesia will deny him a fair trial is not 

always possible. In such a case, the trial judge may make a determination of fairness after 

trial with appropriate findings of fact and rulings concerning the relevant criteria. 

4. Guilty Pleas. An accused who fails to recall the factual basis of the offenses but is satisfied 

from the evidence that he is guilty may plead guilty. United States v. Luebs, 43 C.M.R. 315 

(C.M.A. 1971); United States v. Butler, 43 C.M.R. 87 (C.M.A. 1971). 

B. Automatism / Unconsciousness. 

1. Until recently, automatism was treated as a mental responsibility defense under military law. 

2. “In cases where the issue of automatism has been reasonably raised by the evidence, a 

military judge should instruct the panel that automatism may serve to negate the actus reus of a 

criminal offense.” United States v. Torres, 74 M.J. 154, 158 (C.A.A.F. 2015)(in an assault case, 

error to instruct under R.C.M. 916(k)(1) where defense provided evidence that the assault 

occurred during an epileptic fit). 

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3. Once the defense has been raised, the prosecution has a burden of proving beyond a
 

reasonable doubt that the accused’s actions were voluntary. 

4. In addition to epilepsy, sleepwalking or other parasomnias would likely qualify as 

automatistic disorders rather than mental diseases or defects.
 

C. Due Process Fair Warning. The touchstone of the fair warning requirement is whether the statute, 

either standing alone or as construed, made it reasonably clear at the relevant time that defendant’s 

conduct was criminal. United States v. Lanier, 117 S.Ct. 1219 (1997). 

D. Selective Prosecution. Accused was not subjected to selective or vindictive prosecution in regard 

to handling or adultery allegations, though charges were not preferred against two others alleged to 

have committed adultery, where charges were preferred against accused only after he violated a “nocontact” order. United States v. Argo, 46 M.J. 454 (C.A.A.F. 1997). 

E. Jury Nullification. Because there is no right to jury nullification, military judge did not err either 

in declining to give a nullification instruction or in declining to otherwise instruct the members that 

they had the power to nullify his instructions on matters of law. United States v. Hardy, 46 M.J. 67 

(C.A.A.F. 1997). See generally Lieutenant Colonel Donna M. Wright & Lieutenant Colonel (Ret.) 

Lawrence M. Cuculic, Annual Review of Developments in Instructions – 1997, Army Law., Jul. 1998, 

at 39, 48 (discussing Hardy). 

F. Religious Convictions. United States v. Webster, 65 M.J. 936 (A. Ct. Crim. App. 2008). The 

accused pled guilty to missing movement to Iraq by design and disobeying orders from two superior 

commissioned officers to deliver his bags for deployment. The accused had converted to Islam in 

1994 and had doubts about whether he should participate in a war against Muslims. After consulting 

Islamic scholars on the Internet, the accused determined that the consensus was that Muslims are not 

permitted to participate in the war in Iraq. By participating as a combatant, the accused believed that 

he would be placed “in an unfavorable position on the Day of Judgment.” The accused filed a 

conscientious objector packet prior to the deployment, but withdrew it. He filed another 

conscientious objector packet on the same day that he missed movement. During the guilty plea 

inquiry, the military judge ruled that his religious beliefs would not provide a defense to disobeying 

orders. The ACCA first held that the accused’s guilty plea was knowing, voluntary, and provident. 

First, the accused confirmed that the defense of duress did not apply to him. Second, there is no 

authority for the proposition that conscientious objector status provides a defense for missing 

movement or violating lawful orders. Third, under AR 600-43, conscientious objector requests made 

after an individual has entered active duty will not be favorably considered when the objection is to a 

certain war, which was the case here. Finally, it is irrelevant that the offenses involving missing 

movement and failure to obey orders were based on religious motives where such motives and beliefs 

did not rise to the level of a duress defense and did not constitute any other defense. The court then 

held that the First Amendment does not require anything more to accommodate the accused’s free 

exercise of religion than was offered here, and the accused’s rights were not violated. The ACCA 

first identified the applicable standard for analyzing alleged government infringement on the free 

exercise of religion. Under the Religious Freedom Restoration Act of 1993, the state must have a 

“compelling state interest” before it can burden the free exercise of religion. Additionally, courts are 

enjoined to apply judicial deference when strictly scrutinizing the military’s burden on the free 

exercise of religion. See Goldman v. Weinberger, 475 U.S. 503 (1986). Applying these two 

standards, the ACCA concluded that the government had a compelling interest in requiring soldiers to 

deploy with their units. The government furthered this compelling interest using the least restrictive 

means. The Army offers soldiers an opportunity to apply for conscientious objector status, and in this 

case, his command offered the accused the opportunity to deploy in a non-combat role. In applying 

the duly required judicial deference, the ACCA concluded that the Army furthered its compelling 

interest in the least restrictive manner possible. The accused “had no legal right or privilege under the 

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First Amendment to refuse obedience to the orders, and the orders were not given for an illegal 

purpose.” (citing United States v. Barry, 36 C.M.R. 829, 831 (C.G.B.R. 1966) (internal brackets 

omitted). 

XV. STATUTE OF LIMITATIONS 

A. While not an affirmative or special defense, the statute of limitations operates like a defense in 

that it time-bars prosecutions. See UCMJ art. 43 (2008); R.C.M. 907(2)(B) and discussion. 

B. The standard statute of limitations is five years. See UCMJ art. 43(a). Statute of limitations is 

tolled when the summary court-martial convening authority receives the sworn charges. See UCMJ 

art. 43(b)(1). 

C. Offenses without a statute of limitations. UCMJ art. 43(a). 

1. The following offenses may be tried at any time without limitation: 

a) Absence without leave. 

b) Missing movement in a time of war. 

c) Murder. 

d) Rape and rape of a child. 

e) Any offense punishable by death. 

2. Applications. 

a) Willenbring v. Neurauter, 48 M.J. 152 (C.A.A.F. 1998) (statute of limitations under 

Article 43 does not bar trial for rape, as any offense “punishable by death” may be tried at 

any time without limitation, even if it is referred as a noncapital case), aff’d, 57 M.J. 321 

(C.A.A.F. 2002). 

b) United States v. Thompson, 59 M.J. 432 (C.A.A.F. 2004). Appellant was charged with 

raping his stepdaughter on divers occasions within a specified four-year period. Evidence at 

trial showed a pattern of sexual abuse occurring over an eleven-year period at several duty 

stations. Over defense objection, the MJ instructed the members on carnal knowledge and 

indecent acts as LIOs. The members found appellant guilty of indecent acts or liberties. The 

MJ amended the charge sheet, deleting the time period during which the indecent acts would 

be barred by the statute of limitations, and asked the members whether the change did 

“violence” to their verdict. The president indicated that if the amended specification included 

a portion of the period at Fort Irwin, then that was satisfactory to the panel. The CAAF held 

that before instructing the members on any LIOs barred by the statute of limitations, the MJ 

failed to obtain a required waiver from the appellant. Because appellant did not waive the 

statute, the instructions erroneously included a time-barred period. The MJ was not 

authorized to modify the unambiguous findings of the panel, after announcement of the 

verdict, to reflect the non-time barred period. 

D. Child Abuse Offenses. UCMJ art. 43(b)(2)(B) defines “child abuse offense.” 

1. Prior to 24 November 2003, the statute of limitations for child abuse offenses was 5 years. 

2. Effective 24 November 2003, the statute of limitations for child abuse offenses was amended 

so that an accused could be tried as long as sworn charges were received by the SCMCA before 

the victim reached the age of 25. 

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3. Effective 6 January 2006, the the statute of limitations for child abuse offenses was amended 

once again, and an accused may now be tried for a child abuse offense as long as sworn charges 

are received by the SCMCA during the life of the child, or within 5 years of the offense, 

whichever is longer. 

4. The applicable statute of limitations is the one effective at the time of the commission of the 

offense. See United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008). 

5. United States v. McElhaney, 54 M.J. 120 (C.A.A.F. 2000) (statute of limitations codified at 

18 U.S.C. § 3283, which permits prosecution for offenses involving sexual or physical abuse of 

children under the age of 18 until the child reaches the age of 25, does not apply to courts-martial 

as UCMJ Article 43 provides the applicable statute of limitations for courts-martial). 

E. Effect of Amendments to Art. 43. 

1. An amendment to the statute of limitations may not revive and extend a statute of limitations 

that had run prior to the amendment. Stogner v. California, 539 U.S. 607 (2003) (holding that 

reviving time-barred offenses violated the Ex Post Facto Clause). 

2. An amendment to the statute of limitations may extend a statute of limitations that had not 

run prior to the amendment ONLY when Congress evinces an intent to do so. United States v. 

Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008) (holding an amendment to Article 43 that 

increased the statute of limitations for certain “child abuse” offenses did not extend existing 

limitations periods that had not run at the time of the amendment; the Article 43 amendment and 

its legislative history were silent as to retrospective application). 

F. Extended Statute of Limitations for Certain Crimes in a Time of War. UCMJ art. 43. 

1. Article 43(a). Covers AWOL and missing movement in a time of war. May be tried and 

punished at any time without limitation. 

a) Time of War for purposes of Art. 43(a) is a de facto determination. See Broussard v. 

Patton 466 F.2d 816 (9th Cir. 1972) (“time of war refers to de facto war and does not require 

a formal Congressional declaration”). 

b) Korean Conflict. United States v. Ayers 15 C.M.R. 220 (C.M.R. 1954) (Korean Conflict 

is time of war for purposes of Article 43(a)); United States v. Shell, 23 C.M.R. 110 (C.M.R. 

1957) (Armistice on July 27, 1953 terminated hostilities). 

c) Vietnam Conflict. United States v. Anderson, 38 C.M.R. 386 (C.M.R. 1968) (As of the 

Gulf of Tonkin Resolution on Aug. 10, 1964, the Vietnam Conflict is time of war for 

purposes of Article 43(a)); United States v. Michaud, 48 C.M.R. 379 (N.C.M.R. 1973) 

(Vietnam Conflict is time of war for purposes of Article 43(a)); United States v. Reyes, 48 

C.M.R. 832 (A.C.M.R. 1974) (the Vietnam “time of war” terminated on 27 January 1973). 

2. Article 43(f). Covers crimes against the United States or any agency thereof involving 

frauds, real or personal property, and contracting. Art. 43(f)(1–3). 

a) Statute of limitations is suspended during the time of war and for three years after the 

termination of hostilities. Art. 43(f). 

b) “Time of War.” 

(1) United States v. Swain, 27 C.M.R. 111 (C.M.A. 1958) (Korean Conflict constituted a 

time of war for purposes of Article 43(f)). 

(2) There is no military caselaw addressing whether OIF or OEF constitute a “time of 

war” for purposes of Art. 43(f). For arguments that OIF and OEF should be considered a 

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time of war for Art. 43, see Lieutenant Commander Joseph Romero, Of War and 

Punishment: “Time of War” in Military Jurisprudence and a Call for Congress to Define 

its Meaning, 51 Naval L. Rev. 1 (2005). 

(3) One federal district court has concluded that both OIF and OEF were, at one point, a 

time of war, invoking the federal analogue to Article 43(f), 18 U.S.C. § 3287. See United 

States v. Prosperi, 2008 U.S. Dist. LEXIS 66470 (Dist. Mass. Aug. 29, 2008). 

XVI. FORMER JEOPARDY (ART. 44, UCMJ) 

A. No person may, without his consent, be tried a second time for the same offense. Article 44(a); 

U.S. Const. amend V. 

B. When Jeopardy Attaches. 

1. A proceeding which, after introduction of evidence but before a finding, is dismissed or 

terminated by the convening authority or on motion of the prosecution for failure of available 

evidence or witnesses without any fault of the accused, is a trial. Article 44(c). 

2. In the military, jeopardy does not attach until an accused is put to trial before the trier of the 

facts. See United States v. Ragard, 56 M.J. 852, 855 (A. Ct. Crim. App. 2003). 

a) In a military judge alone case, jeopardy attaches after an accused has been indicted and 

arraigned, has pleaded and the court has begun to hear evidence. See United States v. 

McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008) (citing McCarthy v. Zerbst, 85 F.2d 640, 642 

(10th Cir. 1936)). 

b) In a panel case, this occurs when the members are empaneled and sworn. United States v. 

McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008) (citing Serfass v. United States, 420 U.S. 

377, 390-91, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975)). 

3. Withdrawal of charges after arraignment but before presentation of evidence does not 

constitute former jeopardy, and denial of a motion to dismiss charges at a subsequent trial is 

proper. United States v. Wells, 26 C.M.R. 289 (C.M.A. 1958). 

4. Double jeopardy does not attach when charges are dismissed for violating the statute of 

limitations. Thus, the government is not barred from prosecuting the accused on a charge sheet 

that had properly been received by the summary court-martial convening authority within the 

period of the statute, following dismissal of charges for the same offense (but on a different 

charge sheet) that was not received within the period of the statute. However, if evidence was 

introduced in the first proceeding, the first is considered a trial and jeopardy attaches. United 

States v. Jackson, 20 M.J. 83 (C.M.A. 1985). 

C. When Former Jeopardy Bars a Second Trial. 

1. A determination that jeopardy attaches does not end the analysis. Double jeopardy bars 

retrial only when the military judge or the panel has made a determination by regarding guilt or 

innocence. See United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008); United States v. 

Germono, 16 M.J. 987, 988 (A.C.M.R. 1988). 

2. An accused is “acquitted” only when a ruling of the judge actually resolves some or all of the 

factual elements of the offense charged in the accused’s favor, even if some or all of that 

resolution may be incorrect. See United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008) 

(citing United States v. Hunt, 24 M.J. 725, 728 (A.C.M.R. 1987) and United States v. Martin 

Linen Supply Co., 430 U.S. 564, 572 (1977)). 

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3. Retrial for offenses was not barred when the military judge granted a defense motion to 

dismiss on speedy trial grounds after hearing evidence in the first trial, but before entering 

findings. United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008). 

D. Same Offense. 

1. Once tried for a lesser offense, accused cannot be tried for a major offense that differs from 

the lesser offense in degree only. Trial for AWOL bars subsequent trial for desertion. United 

States v. Hayes, 14 C.M.R. 445 (N.B.R. 1953). 

2. “The protection against double jeopardy does not rest upon a surface comparison of the 

allegations of the charges; it also involves consideration of whether there is a substantial 

relationship between the wrongdoing asserted in the one charge and the misconduct alleged in the 

other.” United States v. Lynch, 47 C.M.R. 498, 500 (C.M.A. 1973) (doctrine of former jeopardy 

precluded another trial for unauthorized absence from different unit and shorter time period). But 

see United States v. Robinson, 21 C.M.R. 380 (A.B.R. 1956) (permitting, after conviction for an 

AWOL and after disapproval of findings and sentence by the convening authority, trial for 

AWOL for the same period but from a different unit than was previously charged); United States 

v. Hutzler, 5 C.M.R. 661, 664 n.3 (A.B.R. 1951). 

3. Nonjudicial punishment previously imposed under Article 15 for a minor offense and 

punishment imposed under Article 15 for a minor disciplinary infraction may be interposed as a 

bar to trial for the same minor offense or infraction. R.C.M. 907(b)(2)(D)(iv). 

a) “Minor” normally does not include offenses for which the maximum punishment at a 

general court-martial could be dishonorable discharge or confinement for more than one year. 

MCM, pt. V, ¶ 1.e. 

If an accused has previously received punishment under Article 15 for other than a minor offense, the 

service member may be tried subsequently by court-martial; however, the prior punishment under Article 

15 must be considered in determining the amount of punishment to be adjudged at trial if the accused is 

found guilty at the court-martial. United States v. Jackson, 20 M.J. 83 (C.M.A. 1985); see UCMJ art. 

15(f); R.C.M. 1001(c)(1)(B); United States v. Pierce, 27 M.J. 367 (C.M.A. 1989) (accused must be given 

complete credit for any and all nonjudicial punishment suffered—day-for-day, dollar-for-dollar, and 

stripe-for-stripe). 

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[Back to Table of Contents] 

CHAPTER 23
 

MENTAL RESPONSIBILITY AND COMPETENCE
 

I. Introduction 

II. Mental Responsibility 

a. The Old Standard 

b. The Current Standard 

c. Significant aspects of the current standard 

d. Procedure 

III. Partial Mental Responsibility 

e. The Old (pre-2004 Amendment) Manual Standard 

f. The Current (post-2004 Amendment) Manual Standard 

IV. Defenses Which Are Not Mental Responsibility 

g. Voluntary Intoxication 

h. Involuntary Intoxication 

i. Automatism 

V. Competency to Stand Trial 

j. Current Standard 

k. Old Standard 

l. Differences between the standards 

m. Cases 

n. Compared to Amnesia 

o. Procedure. UCMJ art. 76b and RCM 909 

p. Hospitalization of the accused 

q. Waiver 

r. Post-trial 

VI. The Sanity Board 

VII. Trial Considerations 

VIII. References 

I. INTRODUCTION 

A. Mental Responsibility. Refers to the criminal culpability of the accused based on his mental 

state at the time of the offense and includes the complete defense commonly known as the “insanity 

defense” and the more limited defense of “partial mental responsibility.” 

B. Competency to Stand Trial. Refers to the present ability of the accused to stand trial. An 

accused may not be tried unless mentally competent. Godinez v. Moran, 509 U.S 389, 396 (1993). 

To try a mentally incompetent accused is a violation of due process. Medina v. California, 505 U.S. 

437, 453 (1992). 

C. Sanity Boards. Provision under Rule for Courts-Martial (RCM) 706 governing the process 

inquiring into the mental capacity or mental responsibility of an accused. 

II. MENTAL RESPONSIBILITY 

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A. The Old Standard. Court of Military Appeals adopted the ALI test for insanity in United States 

v. Frederick, 3 M.J. 230 (C.M.A. 1977). “A person is not responsible for criminal conduct if at the 

time of such conduct as a result of mental disease or defect he lacks substantial capacity either to 

appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” 

Frederick, 3 M.J. at 234. 

B. The Current Standard. Codified in Article 50a, UCMJ. 

1. Definition. It is an affirmative defense in a trial by court-martial that, at the time of the 

commission of the acts constituting the offense, the accused, as a result of a severe mental disease 

or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental 

disease or defect does not otherwise constitute a defense. RCM 916(k)(1). Article 50a was 

modeled on 18 U.S.C. § 17. 

2. Taken from Insanity Defense Reform Act, Pub. L. No. 98-473, § 402(a), 98 Stat. 2057 

(1984). 

C. Significant aspects of the current standard. 

1. Threshold Requirements. 

a) Severe mental disease or defect. The affirmative defense requires a “severe” mental 

disease or defect. United States v. Martin, 56 M.J. 97, 103 (C.A.A.F. 2001). 

(1) The MCM defines “severe mental disease or defect” negatively. A severe mental 

disease or defect “does not include an abnormality manifested only by repeated criminal 

or otherwise antisocial conduct, or minor disorders such as nonpsychotic behavior 

disorders and personality defects.” RCM 706(c)(2)(A) (emphasis added). 

(2) However, case law indicates that a nonpsychotic disorder may constitute a severe 

mental disease or defect. See United States v. Benedict, 27 M.J. 253 (C.M.A. 1988) 

(discussing pedophilia). 

(3) Compare with Benchbook Instruction 6-4: “[A] severe mental disease or defect does 

not, in the legal sense, include an abnormality manifested only by repeated criminal or 

otherwise antisocial conduct or by nonpsychotic behavior disorders and personality 

disorders.” 

(4) Ultimate Opinion Testimony. In 1986, the President rescinded adoption of Fed. R. 

Evid. 704(b), which prohibits expert testimony offering an opinion on the issue of a 

defendant’s mental state or condition where such constituted an element or defense to a 

charged offense. Ultimate opinion testimony is admissible. See, e.g., United States v. 

Combs, 39 M.J. 288 (C.M.A. 1994). Testimony as to the ultimate opinion (diagnosis of 

severe mental disease or defect) does not, however, always equate to lack of mental 

responsibility. United States. v. Jones, 46 M.J. 535 (N-M. Ct. Crim. App. 1997), rev’d on 

other grounds, 50 M.J. 46 (C.A.A.F. 1998) (summary disposition), on remand, 1999 WL 

356311 (N-M. Ct. Crim. App. May 7, 1999) (unpublished). 

b) As a result of severe mental disease or defect, accused unable to appreciate nature and 

quality or wrongfulness of the act. Martin, 56 M.J. at 103. 

D. Procedure. 

1. The defense must give notice of the defense of lack of mental responsibility before the 

beginning of trial on the merits. RCM 701(b)(2). Reciprocal discovery may apply. RCM 

701(b)(3) and (4). 

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2. Burden and standard of proof. 

a) Burden on the accused by clear and convincing evidence. Martin, 56 M.J. at 103. A 

career Army Judge Advocate convicted, inter alia, of 29 specifications of larceny, alleged at 

trial and on appeal that he was not mentally responsible for his criminal misconduct because 

he suffered from bipolar disorder. Though the defense presented over 20 expert and lay 

witnesses (the accused did not testify), none of these witnesses described unusual or bizarre 

behavior on the dates of the alleged offenses. 

b) The constitutionality of shifting the burden. See United States v. Martin, 48 M.J. 820, 

825 n.9 (A. Ct. Crim. App. 1998); United States v. Freeman, 804 F.2d 1574 (11th Cir. 1986), 

citing Leland v. Oregon, 343 U.S. 790 (1952). 

3. Instructions on mental responsibility. The military judge has a sua sponte duty to instruct 

upon mental responsibility during final instructions if the defense is raised by the evidence. RCM 

920(e)(3). Chapter 6, DA PAM 27-9. The defense can get a preliminary instruction (6-3) when 

some evidence has been adduced which tends to show insanity of accused. The MJ is not 

required to instruct the panel regarding the consequences to the accused of a not guilty only by 

reason of lack of mental responsibility verdict. See Shannon v. United States, 512 U.S. 573 

(1994). 

4. Bifurcated voting procedures. RCM 921(c)(4). See also DA PAM 27-9, 6-4 and 6-7 

(procedural instructions on findings). Because of their complexity, the voting instructions should 

be given in writing. 

a) First vote on whether accused is guilty. 

b) If accused found guilty, the second vote is on mental responsibility. 

5. RCM 1102A. Not guilty only by reason of lack of mental responsibility. Within 40 days of 

verdict, court-martial must conduct a hearing. UCMJ art. 76b. RCM 1102A sets out the 

procedural guidelines for the hearing. 

a) Before the hearing, the judge or convening authority shall order a new psychiatric or 

psychological examination of the accused, with the resulting psychiatric or psychological 

report transmitted to the military judge for use in the post-trial hearing. RCM 1102A(b). See 

also 18 U.S.C. § 4243 (post-trial psychiatric examination). 

b) The convening authority shall commit the accused to a suitable facility until person is 

eligible for release IAW UCMJ, art. 76b(b). UCMJ, art. 76b(b)(1). The UCMJ provides no 

guidance as to a “suitable facility,” but it is almost certainly not a confinement facility. 

Rather, the accused should be committed to a mental health facility, which will require a 

court order by the military judge. 

c) Accused must prove that his release would not create a substantial risk of bodily injury or 

serious damage to property of another due to a mental disease or defect. If he fails to meet 

that burden, the GCMCA may commit the accused to the Attorney General, who turns the 

person over to a state or monitors the person until his release would not create a substantial 

risk of bodily injury or serious damage to another’s property. 

(1) If the accused is found not guilty by reason of lack of mental responsibility for an 

offense involving bodily injury to another or serious damage to property of another, or 

substantial risk of such property or injury, the standard is clear and convincing evidence. 

(2) Any other offense, standard is preponderance of the evidence. 

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d) Right to Counsel. RCM 1102A(c)(1) provides that an accused shall be represented by 

counsel. 

e) Practical Considerations 

(1) The accused’s status does not change even if jurisdiction under Article 2, UCMJ, 

terminates during the time the accused is in the custody of the Attorney General, 

hospitalized, or on conditional release. UCMJ, Art. 76b(d)(2) 

(2) If the GCMCA determines to remit the accused to the custody of the Attorney 

General after a hearing, the Attorney General is statutorily required to “take action in 

accordance with subsection (e) of section 4243 of title 18.” UCMJ, Art. 76b(b)(4)(B) 

6. Discovery of Evidence Post-Trial indicating Lack of Mental Responsibility. See United 

States v. Harris, 61 M.J. 391 (C.A.A.F. 2005). Good discussion of issues surrounding discovery, 

post-trial, of evidence of lack of mental responsibility. 

III. PARTIAL MENTAL RESPONSIBILITY 

A. The Old (pre-2004 Amendment) Manual Standard. A mental condition not amounting to a 

general lack of mental responsibility under subsection RCM 916(k)(1) is not a defense, nor is 

evidence of such a mental condition admissible as to whether the accused entertained a state of mind 

necessary to be proven as an element of the offense. RCM 916(k)(2). The old standard tried to 

prohibit a partial mental responsibility defense. 

1. The CMA rejected the old RCM 916(k)(2) because it doubted the rule’s constitutionality and 

found that the legislative history of the federal model lacked any Congressional intent to preclude 

defendants from attacking mens rea with contrary evidence. 

2. Psychiatric testimony or evidence that serves to negate a specific intent is admissible. Ellis v. 

Jacob, 26 M.J. 90 (C.M.A. 1988); see United States v. Berri, 33 M.J. 337 (C.M.A. 1991); United 

States v. Mansfield, 38 M.J. 415, 419 n.5 (C.M.A. 1993); see also United States v. Cameron, 907 

F.2d 1051 (11th Cir. 1990); United States v. Pohlot, 827 F.2d 889 (3d Cir. 1987); United States v. 

Gold, 661 F. Supp. 1127 (D.D.C. 1987); United States v. Frisbee, 623 F. Supp. 1217 (N.D. Cal. 

1985). 

B. The Current (post-2004 Amendment) Manual Standard. A mental condition not amounting 

to a lack of mental responsibility (i.e., a finding of not guilty only by reason of lack of mental 

responsibility) is not an affirmative defense, but may be admissible to determine whether the accused 

entertained the state of mind necessary to prove an element of the offense. In other words, partial 

mental responsibility is not an affirmative defense, but it is a deficiency of the government proof of a 

necessary element (e.g., specific intent). 

1. Instruction on Partial Mental Responsibility. DA PAM 27-9, instruction 6-5. The affirmative 

defense of insanity and the defense of partial mental responsibility are separate defenses, but the 

panel members may consider the same evidence with respect to both defenses. With regard to 

partial mental responsibility, the burden never shifts from the government to prove, beyond a 

reasonable doubt, that the accused entertained the mental state necessary for the charged offense. 

2. However, not all psychiatric evidence is now admissible. The evidence still must be relevant 

and permitted by UCMJ art. 50a. 

a) General intent crime. The psychiatric evidence must still rise to the level of a “severe 

mental disease or defect.” The insanity defense cannot be resurrected under another guise. 

UCMJ art. 50a. 

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b) Specific intent crime. The psychiatric evidence must be relevant to the mens rea element. 

IV. DEFENSES WHICH ARE NOT MENTAL RESPONSIBILITY 

A. Voluntary Intoxication. RCM 916(l)(2). Voluntary intoxication from alcohol or drugs may 

negate the elements of premeditation, specific intent, knowledge, or willfulness. Voluntary 

intoxication, by itself, will not reduce unpremeditated murder to a lesser offense. United States v. 

Morgan, 37 M.J. 407 (C.M.A. 1993). Voluntary intoxication not amounting to legal insanity is not a 

defense to general intent crimes. See generally Major Eugene Milhizer, Weapons Systems 

Warranties: Voluntary Intoxication as a Defense Under Military Law, 127 Mil. L. Rev. 131 (1990). 

B. Involuntary Intoxication. Generally, involuntary intoxication is a defense to a general or 

specific intent crime. See United States v. Hensler, 44 M.J. 184 (C.A.A.F. 1996). 

1. The defense of involuntary intoxication has been analogized to that of mental responsibility. 

See United Stated v. Hensler, 40 M.J. 892, 895-96 (N.M.C.M.R. 1994), aff'd, 44 M.J. 184 

(C.A.A.F. 1996). The two defenses, however, are distinct. Both defenses’ success depends on a 

finding that the accused was unable to appreciate the nature and quality or wrongfulness of his 

acts. However, a mental responsibility defense requires a finding that the inability was due to a 

severe mental disease or defect. Involuntary intoxication, however, requires a finding that the 

inability was due to involuntary ingestion of an intoxicant. See United States v. McDonald, 73 

M.J. 426 (C.A.A.F. 2014). 

2. Whether the ingestion was involuntary is a question of fact. See United States v. Ward, 14 

M.J. 950 (A.C.M.R. 1982) (involuntary intoxication not available when accused knowingly used 

marijuana, but did not know it also contained PCP). However, if the government does not present 

evidence that the ingestion was voluntary, it is error not to instruct when the defense has first 

presented some evidence of this affirmative defense. See United States v. McDonald, 73 M.J. 426 

(C.A.A.F. 2014). 

C. Automatism. Automatism (more fully discussed in Chapter 6 of this Deskbook) is an affirmative 

defense in the military. See United States v. Torres, 74 MJ 154 (C.A.A.F. 2015). Practitioners must 

take care to distinguish between an automatism defense and a mental responsibility defense. 

V. COMPETENCY TO STAND TRIAL 

A. Current Standard. “No person may be brought to trial by court-martial if that person is 

presently suffering from a mental disease or defect rendering him or her mentally incompetent to the 

extent that he or she is unable to understand the nature of the proceedings against them [sic] or to 

conduct or cooperate intelligently in the defense of the case.” RCM 909(a). See also 18 U.S.C. § 

4241(d). The accused is presumed to have capacity to stand trial. RCM 909(b). 

B. Old Standard. “No person may be brought to trial by court-martial unless that person possesses 

sufficient mental capacity to understand the nature of the proceedings against that person and to 

conduct or cooperate intelligently in the defense of the case.” MCM, RCM 909 (1984). 

C. Differences between the standards. 

1. Mental disease or defect required (need not be “severe”). 

2. “Unable to understand” vs. “sufficient mental capacity.” 

D. Cases. 

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1. The real issue is whether the accused has sufficient present ability to consult with his lawyer 

with a reasonable degree of rational understanding and whether he has rational as well as factual 

understanding of the proceeding against him. It is not enough that he is oriented to time and 

place and has some recollection of events. United States v. Proctor, 37 M.J. 330, 336 (C.M.A. 

1993) (quoting Dusky v. United States, 362 U.S. 402 (1960) (per curiam)). 

2. “The question is whether the accused is possessed of sufficient mental power, and has such 

understanding of his situation, such coherency of ideas, control of his mental facilities, and the 

requisite power of memory, as will enable him to testify in his own behalf, if he so desires, and 

otherwise to properly and intelligently aid his counsel in making a rational defense.” United 

States v. Lee, 22 M.J. 767, 769 (A.F.C.M.R. 1986). 

3. United States v. Schlarb, 46 M.J. 708 (N-M. Ct. Crim. App. 1997). The accused did not 

establish a lack of mental capacity to stand trial where she testified clearly and at length on four 

occasions, showing a clear understanding of the proceedings. 

4. Indiana v. Edwards, 554 U.S. 164 (2008). The Constitution permits judges to take realistic 

account of the particular defendant’s mental capacities by asking whether a defendant who seeks 

to conduct his own defense at trial is mentally competent to do so. Therefore, a defendant who is 

mentally competent to stand trial may still be denied the right to represent themselves, depending 

on the vagaries of the mental disease or illness. 

5. United States v. Schwisow, No. ARMY MISC 20150720, 2016 WL 1179130 (A. Ct. Crim. 

App. Mar. 22, 2016): MJ dismissed case for a speedy trial violation, finding the time taken for 

the second R.C.M. 706 board could not be excluded as the board was unnecessary; defendant was 

found competent by the previous board. ACCA held the MJ abused his discretion by conflating 

the concepts of competency and mental responsibility. The first 706 board only dealt with 

competency, and did not address whether Defendant suffered from a severe mental disease or 

defect, which was a separate question. 

E. Compared to Amnesia. 

1. Amnesia is not equivalent to a lack of capacity. “An inability to remember about the crime 

itself does not necessarily make a person incompetent to stand trial.” Lee, 22 M.J. at 769; see 

also United States v. Barreto, 57 M.J. 127 (C.A.A.F. 2002). The ability of an accused to function 

is absolutely critical to the fairness of a criminal trial. In deciding whether an accused can 

function, a military judge can apply factors set out in Wilson v. United States, 391 F.2d 460 (D.C. 

Cir. 1968): (1) the extent to which the amnesia affects the accused’s ability to consult and assist 

his lawyer; (2) the extent to which the amnesia affects the accused’s ability to testify on his own 

behalf; (3) the extent to which the evidence could be extrinsically reconstructed, in view of the 

accused’s amnesia; (4) the extent to which the Government assisted the accused and defense 

counsel in reconstruction; (5) the strength of the Government case; and, (6) any other facts and 

circumstances that would indicate whether the accused had a fair trial. 

2. United States v. Axelson, 65 M.J. 501 (A. Ct. Crim. App. 2007). A failure to recall facts 

pertaining to an offense does not preclude an accused from pleading guilty so long as, after 

assessing the Government’s evidence against him, he is convicted of his own guilt. 

F. Procedure. UCMJ art. 76b and RCM 909. 

1. Interlocutory question of fact. After referral, military judge may conduct an incompetence 

determination hearing either sua sponte or on request of either party. RCM 909(d). 

2. Defense has the burden of proof by a preponderance of the evidence. 

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3. Military judge shall conduct the hearing if sanity board completed IAW RCM 706 before or 

after referral concluded the accused is not competent. 

4. Military judge determines whether the accused is competent to stand trial. United States v. 

Proctor, 37 M.J. 330 (C.M.A. 1993); Short v. Chambers, 33 M.J. 49 (C.M.A. 1991). 

5. Once a sanity board is requested, the military judge must consider the sanity board report 

before ruling on the accused’s capacity to stand trial. United States v. Collins, 41 M.J. 610 (A. 

Ct. Crim. App. 1994). 

G. Hospitalization of the accused. An accused who is found incompetent to stand trial shall be 

hospitalized by the Attorney General for a reasonable period of time, not to exceed 4 months, to 

determine whether his condition will improve in foreseeable future, and for an additional reasonable 

period of time. The additional period of time ends when: the mental condition improves so that trial 

may proceed, or, charges are dismissed. 

1. Upon a finding of incompetence, if the convening authority agrees, there is no discretion 

regarding commitment. United States. v. Salahuddin, 54 M.J. 918 (A.F. Ct. Crim. App. 2001); 

see also RCM 909(e)(3) and 18 U.S.C. § 4241(d). 

2. The four-month time period may be extended. To justify extended commitment, the 

Government must prove by clear and convincing evidence that “a substantial probability exists 

that the continued administration of antipsychotic medication will result in a defendant attaining 

the capacity to permit the trial to proceed in the foreseeable future.” United States v. Weston, 260 

F. Supp. 2d 147, 154 (D.D.C. 2003) (approving a year-long extension from the case below in 

(3)(a)). 

3. Involuntary Medication. 

a) United States v. Weston, 255 F.3d 873 (D.C. Cir. 2001). Defendant indicted for the 

murders and attempted murder of federal law enforcement officers. A court-appointed 

forensic psychiatrist diagnosed defendant with paranoid schizophrenia, the severity of which 

rendered him incompetent to stand trial. Because he refused treatment with antipsychotic 

medication, he was simply placed in solitary confinement under constant supervision. The 

government sought a court order authorizing the involuntary administration of medication to 

render him competent to stand trial. The Circuit Court held that there was no basis to believe 

that defendant’s worsening condition rendered him more dangerous, given his near-total 

incapacitation. However, the court affirmed the District Court’s decision that the 

government’s interest in administering antipsychotic drugs overrode his liberty interest and 

that restoring his competence in this way did not violate his right to a fair trial. 

b) Sell v. United States, 539 U.S. 166 (2003). Defendant was charged with fraud. A federal 

magistrate found him incompetent to stand trial and ordered his hospitalization to determine 

whether he would attain capacity to allow his trial to proceed. Sell refused to take 

antipsychotic drugs. The magistrate found involuntary medication appropriate because Sell 

was a danger to himself and others, that medication was the only way to render him less 

dangerous, that any serious side effects could be ameliorated, that the benefits to him 

outweighed the risks, and that the drugs were substantially likely to return Sell to 

competence. The District Court, although determining that the Magistrate’s conclusion 

regarding Sell’s dangerousness was clearly erroneous, nonetheless affirmed the decision 

because it found that the medication was the only viable hope of rendering Sell competent 

and was necessary to serve the government’s interest in adjudicating his guilt or innocence. 

The Circuit Court affirmed, finding that the government had an essential interest in bringing 

Sell to trial, that treatment was medically appropriate, and that the medical evidence indicated 

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a reasonably probability that Sell would fairly be able to participate in his defense. The 

Supreme Court vacated and remanded the case. Determining that forced medication solely 

for trial competency purposes may be rare, the Court held that the Constitution permits 

involuntary medication to render a mentally ill defendant competent to stand trial on serious 

criminal charges if the treatment is medically appropriate, is substantially unlikely to have 

side effects that may undermine the trial’s fairness, and, taking account of less intrusive 

alternatives, is necessary to significantly further important governmental trial-related 

interests. 

c) United States v. Bush, 585 F.3d 806 (4th Cir. 2009). The court finds that the government 

must establish all of the Sell factors by clear and convincing evidence. The court also held 

that even where a defendant has been in an institution longer than the maximum punishment 

for the underlying offense, the government still has an important interest in bringing the 

defendant to trial. Certain consequences that convictions bring (such as firearms restrictions) 

are important governmental interests justifying continued prosecution and potential 

involuntary medication. 

4. Recovery. If the accused has recovered and is competent to stand trial, the director of the 

facility notifies the GCMCA and sends a copy of the notice to accused’s counsel. GCMCA must 

take prompt custody of the accused if the accused is still in a military status. The director of the 

facility may retain custody of the person for not more than 30 days after transmitting the required 

notifications. 

a) No Recovery. If person does not improve (18 U.S.C. § 4246). If the director of the 

facility where the accused is confined certifies that the accused is presently suffering from a 

mental disease or defect and his release would create a substantial risk of bodily injury to 

another person or serious damage to property, the director notifies the GCMCA. The district 

court then conducts further hearings. 

H. Waiver. Moore v. Campbell, 344 F.3d. 1313 (11th Cir. 2003). The Eleventh Circuit Court of 

Appeals looked at whether a defendant in a capital case can forfeit his right to competency – a case of 

first impression. Moore attempted suicide during his capital murder trial. After treatment at a 

hospital and subsequent examination by a psychiatrist, Moore appeared at trial, which resumed on 31 

August. From 27 August until the evening of 1 September, Moore had refused anything to eat or 

drink, resulting in dehydration. The state court found Moore was competent to stand trial and that he 

took a “calculated and concerted effort to disrupt his murder trial.” The state court also found 

Moore’s asserted incompetence similar to a defendant whose behavior results in exclusion from a 

trial. Reviewing the state court proceedings during a federal habeas petition, the Court of Appeals 

determined that the “state court’s determination that a capital defendant in Alabama can forfeit his 

right to be competent – that is mentally present – at trial” was not contrary to or an unreasonable 

application of clearly established Supreme Court precedent, if only because the issue has not been yet 

decided by the Supreme Court. 

I. Post-trial. The convening authority may not approve a sentence while the accused lacks the 

mental capacity to cooperate and understand post-trial proceedings. RCM 1107(b)(5). Likewise, an 

appellate authority may not affirm the findings when the accused lacks the ability to understand and 

cooperate in appellate proceedings. RCM 1203(c)(5). See Thompson v. United States, 60 M.J. 880 

(N-M. Ct. Crim. App. 2005) (holding that appellant demonstrated lack of mental capacity to assist in 

appeal; appeal stayed). 

VI. THE SANITY BOARD 

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A. Sanity Board Request. 

1. Who can request? Any commander, investigating officer, trial counsel, defense counsel, 

military judge, or member. R.C.M. 706(a). 

a) Request goes to CA (before referral) and MJ (after referral). 

b) A sanity board should be granted if request is not frivolous and is made in good faith. 

United States v. Nix, 36 C.M.R. 76, 80-81 (C.M.A. 1965); United States v. Kish, 20 M.J. 652 

(A.C.M.R. 1985). 

c) It may be prudent for trial counsel to join in the motion. See United States v. James, 47 

M.J. 641 (A. Ct. Crim. App. 1997) (finding that a mental status evaluation was not an 

adequate substitute for a sanity board). 

2. Failure to direct a sanity inquiry. 

a) Though ultimate result may be “favorable” to the government, failure to timely direct a 

sanity board can result in lengthy appellate review. United States v. Breese, 47 M.J. 5 

(C.A.A.F. 1997). 

b) “A low threshold is nonetheless a threshold which the proponent must cross.” 

United States v. Pattin, 50 M.J. 637, 639 (A. Ct. Crim. App. 1999) (finding that the military 

judge’s refusal to order a sanity board was not error where it appeared the motion for a sanity 

board was merely a frivolous attempt to get a trial delay). 

3. Sanity Board Order asks the following questions: 

a) At the time of the alleged criminal conduct, did the accused have a severe mental disease 

or defect? 

b) What is the clinical psychiatric diagnosis? 

c) Was the accused, at the time of the alleged criminal conduct and as a result of such severe 

mental disease or defect, unable to appreciate the nature and quality or wrongfulness of his 

conduct? 

d) Does the accused have sufficient mental capacity to understand the nature of the 

proceedings and to conduct or cooperate intelligently in the defense? 

4. Composition of the sanity board. 

a) One or more persons. 

b) Physician or clinical psychologist. 

c) At least one psychiatrist or clinical psychologist. 

d) A provisional license may be enough to qualify a psychologist as a clinical psychologist. 

United States v. Boasmond, 48 M.J. 912 (N-M. Ct. Crim. App. 1998). 

5. Conflict of interest. United States v. Best, 61 M.J. 376 (C.A.A.F. 2005). Two members of 

the accused’s RCM 706 sanity board had a preexisting psychotherapist-patient relationship with 

the accused. In a case of first impression, the Army court stated that an actual conflict of interest 

would exist when prior participation that materially limits his or her ability to objectively 

participate in and evaluate the subject of an RCM 706 sanity board. The CAAF declined to adopt 

a presumptive rule that there would be an actual conflict of interest if a mental health provider, 

who has established a psychotherapist-patient relationship with an accused, also serves as a 

member in an RCM 706 sanity board. In this case, the CAAF held there was no evidence 

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suggesting that the two members’ participation would be materially limited by their prior
 

relationship. 

6. The accused’s right to a speedy trial is not violated when the government delays the case for a 

time reasonably necessary to complete a thorough mental evaluation. United States v. ColonAngueira, 16 M.J. 20 (C.M.A. 1983) (fifty-one days reasonable); United States v. Carpenter, 37 

M.J. 291 (C.M.A. 1993) (the government’s negligence or bad faith can be considered in 

determining whether the sanity board was completed within a reasonable time); United States v. 

Pettaway, 24 M.J. 589 (N.M.C.M.R. 1987) (thirty-six days was reasonable time for a second 

sanity board); United States. v. Arab, 55 M.J. 508 (A. Ct. Crim. App. 2001) (140 days was not 

unreasonable, where the record reflected due diligence by the government). 

7. Results of board - limited distribution. 

a) Defense counsel gets full report. 

b) Trial counsel initially only gets answers to the above questions. 

B. The Sanity Inquiry. 

1. Compelled Examination. RCM 706. 

a) Article 31, UCMJ, not applicable. 

b) Failure to cooperate in an examination can result in the exclusion of defense expert 

evidence. 

2. Privilege Concerning Mental Examination of an Accused. MRE 302. 

a) The general rule: Anything the accused says (and any derivative evidence) to the sanity 

board is privileged and cannot be used against him. 

b) This privilege may be claimed by the accused notwithstanding the fact that the accused 

may have been warned of the rights provided by MRE 305. 

c) Waiver. There is no privilege under this rule when the accused first introduces into 

evidence such statements or derivative evidence. Privilege applies only to examinations 

ordered under RCM 706. See United States v. Toledo, 25 M.J. 270 (C.M.A. 1987), aff’d on 

reconsid., 26 M.J. 104 (C.M.A. 1988). 

3. Derivative Evidence. In United States v. Clark, 62 M.J. 195 (C.A.A.F. 2005), the accused 

was charged, inter alia, with breaking restriction. Dr. Petersen treated the accused for almost a 

month after his command referred him to mental health. She concluded that the accused suffered 

a manic episode during the charged time period. Prior to trial, the defense requested a sanity 

board. Dr. Marrero was the lone member of the board, and he agreed with Dr. Petersen’s 

diagnosis, but concluded that the accused was mentally responsible. At trial, Dr. Petersen, 

testifying for the defense, opined that there was a “high likelihood” that the accused suffered from 

a severe mental disease or defect during the relevant time period and that, as a result of that 

severe mental disease or defect, would have had a difficult time appreciating the nature and 

quality or wrongfulness of his conduct. During her testimony, Dr. Petersen acknowledged that 

she reviewed the sanity board report. The trial counsel renewed his motion to obtain a copy of 

the report (the MJ earlier denied the same request), which was granted. The CAAF held that it 

was error to release the statements of accused to Dr. Marrero as the derivative evidence 

provisions of MRE 302 had not been triggered. As a nonconstitutional error, the government 

would have to demonstrate that the error did not have a substantial influence on the findings. 

Given that the government relied heavily upon the testimony of Dr. Marrero, the court was left to 

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conclude that the insanity defense may have succeeded had the military judge not erred in 

releasing the appellant’s privileged statements to the government. 

C. Are there substitutes for a sanity board? 

1. Yes. “The point is that we do not believe that the drafters selected the sanity board format 

because they had determined that no other procedure was capable of detecting mental disorders or 

determining an accused person’s mental capacity or responsibility. That being the case, we 

believe we should look to the substance of the evaluation performed on the accused rather than 

on its form.” United States v. Jancarek, 22 M.J. 600, 603 (A.C.M.R. 1986) (emphasis added). 

2. But see United States v. Mackie, 65 M.J. 762 (A.F. Ct. Crim App. 2007), aff’d, 66 M.J. 198 

(C.A.A.F. 2008) (finding that the mental health evaluation performed by a staff psychologist as a 

result of a pretrial suicide gesture was not an adequate substitute because of her inexperience in 

performing sanity boards); United States v. James, 47 M.J. 641 (A. Ct. Crim. App. 1997) 

(finding that mental status evaluation done by a mental health counselor was not an adequate 

substitute); United States v. English, 47 M.J. 215 (C.A.A.F. 1997) (finding that an examination 

by doctors for purposes of treatment of the accused was not an adequate substitute because the 

examination did not address the judicial standards for mental capacity or responsibility). 

VII. TRIAL CONSIDERATIONS 

A. In addition to a sanity board, an accused is entitled to access to a qualified psychiatrist or 

psychologist for the purpose of presenting an insanity defense if he establishes that his sanity will be a 

“significant factor” at the trial. United States v. Mustafa, 22 M.J. 165 (C.M.A. 1986); see Ake v. 

Oklahoma, 470 U.S. 68 (1985). Significant factor defined: 

1. Mere assertion of insanity by accused or counsel is insufficient. Volson v. Blackburn, 794 

F.2d 173 (5th Cir. 1986). 

2. A “clear showing” by the accused that sanity is in issue and a “close” question that might be 

decided either way is required. Cartwright v. Maynard, 802 F.2d 1203 (10th Cir. 1986). 

3. Expert must be made part of the “defense team” under MRE 502 to be covered by the 

attorney-client privilege. United States v. Toledo, 25 M.J. 270 (C.M.A. 1987), aff’d on reconsid., 

26 M.J. 104 (C.M.A. 1988). United States v. Mansfield, 38 M.J. 415 (C.M.A. 1993). A 

physician, psychotherapist who assists the defense in preparation of a defense may fall within the 

scope of the attorney-client privilege. 

B. United States v. Collins, 60 M.J. 261 (C.A.A.F. 2004). The MJ must act when issues of mental 

responsibility and capacity arise during trial. In this case, the lone member of a sanity board testified 

in a manner apparently inconsistent with his conclusion in the report that the accused was mentally 

responsible for his actions. During trial, COL Richmond testified that the accused’s actions were 

consistent with his delusional disorder and that the accused did not understand the nature and quality 

or wrongfulness of his conduct. The MJ did not order further inquiry under RCM 706 and the CAAF 

held that he should have. 

C. Defense use of statements of the accused to an RCM 706 Board. United States v. Schap, 49 

M.J. 317 (C.A.A.F. 1998). The judge did not err when he sustained trial counsel's objection and 

prevented former sanity board psychiatrist from testifying for defense at trial as to accused's 

statements and emotions at the time of the offense. The defense was attempting to smuggle the 

accused's statements in without subjecting him to cross-examination. 

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D. Once defense offers expert testimony of accused’s mental condition, a prosecution expert may 

testify as to the reasons for the expert’s conclusions concerning accused’s mental state (may not 

extend to accused’s statements unless the accused first introduces his own statement or derivative 

evidence). MRE 302. 

E. Disclosure of full sanity board report. United States v. Cole, 54 M.J. 572 (A. Ct. Crim. App. 

2000), aff’d, 55 M.J. 466 (C.A.A.F. 2001) (summary disposition). At trial, the Government moved to 

compel defense disclosure of entire report under MRE 302(c) because defense was requesting two 

experts to testify about accused’s belief that his actions were necessary to protect his family (as 

opposed to lack of mental responsibility). The military judge’s decision to defer ruling on the 

government motion, because it was unclear in advance of the testimony whether the experts would 

testify on the issue of mental responsibility and not just on the second prong of defense of another, 

was not an abuse of discretion. 

1. United States v. Savage, 67 M.J. 656 (A. Ct. Crim. App. 2009). The appellant claimed that 

he was asleep when he stabbed his victim due to a disorder called parasomnia. An RCM 706 

inquiry concluded that the appellant was competent to stand trial, that there was a reasonable 

possibility that the appellant suffered from “parasomnia, or somnambulism that produced an 

automatism or sleep-related behavior at the time of the assault,” and that the appellant may not 

have been unable to appreciate the wrongfulness of his conduct. The defense provided the 

government with notice of intent to rely on the defense of lack of mental responsibility. 

Approximately six weeks later, the defense e-mailed the full RCM 706 report to the trial counsel 

without an order from the military judge. Six weeks after that, the appellant hired civilian 

counsel and excused the counsel who e-mailed the report. Eventually the civilian counsel 

notified the government that the defense would not pursue the defense of lack of mental 

responsibility, and instead would rely upon partial mental responsibility to negate mens rea. 

Some of those statements were eventually used in cross-examination of the appellant’s expert. 

The ACCA held that MRE 302(c) was violated, but the error was harmless. The defense case-inchief involved statements from an expert that revealed specific statements made by the appellant 

captured in the RCM 706 inquiry. The defense could have avoided the government using any 

portion of the report by not calling experts who authored the report. See United States v. Clark, 

62 M.J. 195 (C.A.A.F. 2005). 

F. Although the rule seems to condition the use of expert testimony by the prosecution on prior use 

of experts by the defense, the Court of Military Appeals rejected such an interpretation, finding that 

lay testimony can permit the government to use its experts. United States v. Bledsoe, 26 M.J. 97 

(C.M.A. 1988); see also United States v. Matthews, 14 M.J. 656 (A.C.M.R. 1982). 

G. The sanity board report is not admissible under hearsay rules. United States v. Benedict, 27 M.J. 

253 (C.M.A. 1988). 

H. Sentencing Considerations. Extenuation and Mitigation. Evidence of the accused’s mental 

condition can be used on sentencing but with caution. See United States v. Bono, 26 M.J. 240 

(C.M.A. 1988). 

I. Guilty Pleas and Sanity Issues. 

1. United States v. Harris, 61 M.J. 391 (C.A.A.F. 2005). After acceptance of the accused’s 

pleas and announcement of sentence, but before the convening authority took action, the accused 

was diagnosed with bipolar disorder. At a post-trial Article 39(a) session, the military judge 

listened to expert testimony from mental health experts who disagreed as to whether the accused 

suffered from any mental illness. The accused did not testify at this hearing. In his findings of 

fact and conclusions of law, the military judge stated that the accused “suffered from a bipolar 

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disorder that would equate to a severe mental disease or defect,” but that he appreciated the 

wrongfulness of his actions and was subsequently competent to stand trial. The CAAF disagreed, 

the majority saying that they did not see how an accused can make an informed plea without 

knowledge that he suffers from a severe mental disease or defect at the time of the offense. The 

court also stated that it was not possible for a military judge to conduct the necessary Care 

inquiry without exploring with the accused the impact of any mental health issues on those pleas. 

2. United States v. Shaw, 64 M.J. 460 (C.A.A.F. 2007). The accused pled guilty to offenses 

during a guilty plea and findings were entered. During the accused’s unsworn statement, he said 

that prior to the charged offenses he was assaulted by a man wielding a lead pipe and suffered 

severe injuries to his head and brain. The accused also said that he spent almost a month in the 

hospital and that he was diagnosed with bipolar syndrome. The CAAF determined that the 

military judge did not err when he failed to inquire into the accused mental condition because his 

statements were unsupported by other evidence entered into the record or his behavior during his 

providence inquiry or unsworn statement. A military judge is only required to inquire into 

circumstances or statements that raise a possible defense, not circumstances or statements that 

raise the “mere possibility” of defense. NOTE: the majority opinion recommend that a prudent 

military judge conduct an inquiry when a significant mental health condition is raised during the 

plea inquiry; see also United States v. Falcon, 65 M.J. 386 (C.A.A.F. 2008) (noting that “[the 

accused] has provided no authority that a diagnosis of pathological gambling can constitute a 

defense of lack of mental responsibility.”); United States v. Glenn, 66 M.J. 64 (C.A.A.F. 2008) 

(stating that the accused’s expert mitigation evidence that he suffered from a mood disorder and 

his unsworn and unsubstantiated statements that he suffered from bipolar disorder did not raise a 

substantial basis in law for questioning his guilty plea); United States v. Torgensen, No. ARMY 

20150356, 2016 WL 3545494, (A. Ct. Crim. App. June 22, 2016) (MJ erred in failing to inquire 

into lack of mental responsibility during providence inquiry where sentencing included evidence 

of mental health diagnoses and treatment). 

3. United States v. Handy, 48 M.J. 590, 593 (A.F. Ct. Crim. App. 1998). During a guilty plea, 

“[w]hen evidence of an accused’s mental health rears its head, the judge should question defense 

counsel on whether he or she has explored the mental responsibility angle of the case, including 

whether evidence exists to negate an intent or knowledge element of the offense. The judge 

should ask the accused if defense counsel has discussed that issue and how it may apply to the 

particular case. The judge should accept the guilty plea only if the mental issues are resolved for 

the record and the accused disclaims any potential mental ‘defense,’ full or partial.” 

4. United States v. Estes, 62 M.J. 544 (A. Ct. Crim. App. 2005). Appellant argued that remarks 

made during his unsworn, indicating a hyper-religiosity, should have triggered further inquiry 

from the Military Judge regarding his lack of mental responsibility and competency. Appellant 

further argued that the inquiry, together with evidence of appellant’s cannabis addiction, would 

have demonstrated significant issues of lack of mental responsibility. The Army court, in a 

carefully reasoned opinion, held appellant failed to show that a different verdict might reasonably 

have resulted if the trier of fact had evidence of a lack of mental responsibility that was not 

available for consideration at trial. 

5. United States v. McGuire, 63 M.J. 678 (A. Ct. Crim. App. 2006). Appellant’s providence 

inquiry referenced psychiatric treatment and he otherwise acting strangely during his colloquy 

with the military judge. A previous mental evaluation pursuant to RCM 706 determined that the 

accused possessed the requisite mental capacity to stand trial and that he did not lack the 

necessary mental responsibility at the time of the offense. The Army court determined that the 

military judge was not required sua sponte to order further evaluation of the appellant. With 

regard to the providence of the appellant’s plea, the court, citing to Estes, reaffirmed that not 

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every reference to psychiatric treatment or problems, no matter how vague or oblique, is 

sufficient to create a substantial basis for questioning a guilty plea. 

6. United States v. Riddle, 67 M.J. 335 (C.A.A.F. 2009). In a stipulation of fact, the parties 

agreed that the appellant had a chronic alcohol and marijuana dependence, as well as a bipolar 

and borderline personality disorder. The military judge was aware of these conditions. The judge 

knew that before her absence, she was receiving mental health treatment at an “off-post 

installation that specializes in mental issues, mental and behavioral issues.” The judge also knew 

that she arrived at the trial from the facility and would return there after trial. During the trial, the 

military judge asked the appellant if she was feeling OK when she referred to “getting the fishes 

high” by throwing a marijuana cigarette into a lake. The military judge also asked the appellant a 

series of questions regarding her mental health and competency at trial. A report of mental health 

status evaluation was admitted into evidence on sentencing, stating that appellant had attempted 

suicide twice, but was mentally responsible. Finally, the military judge noted before sentencing 

that he observed the appellant at trial, and that she was alert, articulate, and cognizant. The 

CAAF held that her guilty plea was not improvident. A military judge can presume, in the 

absence of contrary circumstances, that the accused is sane. See United States v. Shaw, 64 M.J. 

460 (C.A.A.F. 2007). If the appellant’s statement or facts in the record indicate a mental disease 

or defect, the military judge must determine if that information raises a conflict with the plea or 

merely a possibility of conflict with the plea. The former requires further inquiry, the latter does 

not. The CAAF finds that the facts of this case merely raised the possibility of conflict with the 

plea and the military judge was not required to inquire further. Moreover, the military judge 

appropriately inquired into her status, and captured his observations in the record. 

7. Like other affirmative defenses, lack of mental responsibility is subject to the rule of waiver. 

United States v. Boasmond, 48 M.J. 912 (N-M. Ct. Crim. App. 1998). 

VIII. REFERENCES 

A. Manual for Courts-Martial, United States (2012 ed.). 

B. TM 8-240, Military Mental Health Law (29 Sept. 1992). 

C. Major Timothy P. Hayes, Jr., Post-Traumatic Stress Disorder on Trial, 190-191 Mil L. Rev. 67 

(2007). 

D. Major Jeremy Ball, Solving the Mystery of Insanity Law: Zealous Representation of Mentally Ill 

Servicmembers, Army Law., Dec. 2005, at 1. 

E. Captain Charles Trant, The American Military Insanity Defense: A Moral, Philosophical, and 

Legal Dilemma, 99 Mil. L. Rev. 1 (1983). 

F. Major Rita Caroll, Insanity Defense Reform, 114 Mil. L. Rev. 183 (1986). 

G. Lieutenant Colonel Donna M. Wright, “Though this be madness, yet there is some method in it”: 

A Practitioners Guide to Mental Responsibility and Competency to Stand Trial, Army Law., Sep. 

1997, at 18. 

H. Major Jeff Bovarnick and Captain Jackie Thompson, Trying to Remain Sane Trying an Insanity 

Case: United States v. Captain Thomas S. Payne, Army Law., June 2002 at 13. 

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[Back to Table of Contents] 

CHAPTER 24 

EVIDENCE 

I.	 INTRODUCTION 

A. Implementation of the Rules 

B. Recent Modifications 

II.	 GENERAL PROVISIONS 

A. Rule 101, Scope 

B. Rule 102, Purpose 

C. Rule 103, Rulings on Evidence 

D. Rule 105, Limiting evidence 

E. Rule 106, Related Writings 

III.	 RELEVANCY AND ITS LIMITS 

A. Rule 401, Test for relevant evidence 

B. Relationship: Rules 401 and 104 

C. Relationship: Rules 401 and 403 

IV.	 CHARACTER EVIDENCE 

A. Character Evidence Generally 

B. Permissible Propensity Inference 

V.	 UNCHARGED MISCONDUCT 

A. Uncharged Misconduct Generally 

B. The Reynolds Test 

C. When Properly Admitted 

D. Limiting the Admissibility 

VI.	 METHODS OF PROVING CHARACTER 

A. Rule 405, Form of proof 

B. Rule 405, Methods of Proving Character 

VII.	 RULE 410. INADMISSIBILITY OF PLEAS, 

DISCUSSIONS, AND RELATED 

STATEMENTS 

VIII.	 THE "RAPE SHIELD" RULE 

A. Rule 412, Purpose and Background 

B. Applicability and Exceptions 

C. Rule 412, Requirements for admission 

IX.	 SIMILAR CRIMES IN SEXUAL ASSAULT 

AND CHILD MOLESTATION CASES 

A. Rule 413/414 

B. Rule 413/414, Scope of the Rule 

X.	 PRIVILEGES 

A. Privileges generally 

B. Rule 501 

C. Rule 502, Lawyer-Client Privilege 

D. 

E. 

F. 

G. 

XI. 

A. 

B. 

C. 

D. 

E. 

F. 

G. 

H. 

I. 

J. 

K. 

XII. 

A. 

B. 

C. 

D. 

E. 

F. 

G. 

H. 

XIII. 

A. 

B. 

C. 

D. 

E. 

F. 

G. 

H. 

I. 

XIV. 

A. 

B. 

Rule 503, Communications to Clergy 

Rule 504, Husband-Wife Privilege 

Rule 509, Deliberations 

Rule 513, Psychotherapist-Patient Priv. 

WITNESSES 

Rule 601, Competency 

Rule 602, Personal Knowledge 

Rule 605, The Military Judge 

Rule 607, Who May Impeach 

Methods of Impeachment 

Rule 608, Untruthful Character 

Rule 608(c), Bias 

Rule 609, Impeach: Prior Conviction 

Rule 613, Impeach: Prior Statement 

Rule 611, Mode and Order 

Rule 612, Refreshing Recollection 

EXPERTS AND SCIENTIFIC EVIDENCE 

Rule 702, Expert Witnesses 

Rule 702, The Expert's Qualifications 

Proper Subject Matter ("Will Assist") 

Form of the Opinion 

Rule 703, Basis For Expert's Testimony 

Relevance 

Reliability 

Probative Value 

HEARSAY 

The Rule Against Hearsay 

The Necessary Definitions 

Exemptions From Hearsay 

Common Hearsay Exceptions 

Rule 804, Unavailability 

Rule 804(b), Former Testimony 

Rule 804(b), Statement Against Interest 

Rule 804(b)(6), Forfeiture by wrongdoing 

Rule 805 and 806, Hearsay within Hearsay; 

Credibility of Declarant 

MISCELLANEOUS RULES 

Rule 1101, Applicability of Rules 

Rule 1102, Amendments 

I. INTRODUCTION. 

A. Implementation of the Rules 

1. Prior to the codification of specific rules, the handling of evidence at courts-martial was 

governed by prior versions of the Manual for Courts-Martial (MCM). However, those prior 

versions of the MCM were unclear as to which portions of those Manuals were binding, and 

which portions were merely explanatory. 

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2. The Military Rules of Evidence (Mil. R. Evid.) were promulgated in 1980 by Executive 

Order 12,198. Drafted by an early version of the Joint Service Committee on Military Justice, the 

Rules were created with a view toward incorporating the then-recent Federal Rules of Evidence 

into military law. For a summary of this process and its effects, see Fredric I. Lederer, "The 

Military Rules of Evidence: Origins and Judicial Implementation" (1990). Faculty Publications. 

Paper 638. http://scholarship.law.wm.edu/facpubs/638; see also Fred Borch, The Military Rules 

of Evidence: A Short History of Their Origin and Adoption at Courts-Martial, Army Law., June 

2012, at 1–4. 

B. Recent Modifications 

1. The Military Rules of Evidence have always been similar, and in some cases identical, to 

their civilian federal counterparts. This is both by design and required by law, as Article 36 of the 

UCMJ provides that “for cases arising under this chapter triable in courts-martial, military 

commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed 

by the President by regulations which shall, so far as he considers practicable, apply the 

principles of law and the rules of evidence generally recognized in the trial of criminal cases in 

the United States district courts...”. 10 U.S.C. 936(a). 

2. To recognize other developments in the law, and on recommendation of the JSC, the 

President in 2013 made numerous stylistic and substantive modifications to the Rules by 

Executive Order 13,643. Those changes are summarized at the beginning of the 2013 supplement 

to the Manual for Courts-Martial. 

3. Additionally, recent years have seen Congress become increasingly active in directing 

changes to the Rules. In particular, the National Defense Authorization Act for fiscal year 2015 

contained several changes affecting the rules of privilege and relevance. See, generally, Carl 

Levin and Howard P. ‘‘Buck’’ McKeon National Defense Authorization Act for Fiscal Year 

2015’ Pub. L. No. 113–291, 128 Stat. 3292 (2014). As a result, nearly every military rule of 

evidence has changed in recent years. 

II. GENERAL PROVISIONS. 

A. Rule 101. Scope. 

1. Scope. The Military Rules of Evidence are applicable to courts-martial, including summary 

courts-martial, to the extent and with the exceptions noted in Rule 1101. Rule 101 also provides a 

rule of construction, again linking military practice with its civilian counterpart. 

==================================================================== 

Rule 101. Scope 

(a) Scope. These rules apply to courts-martial proceedings to the extent and with the exceptions stated
 

in Mil. R. Evid. 1101.
 

(b) Sources of Law. In the absence of guidance in this Manual or these rules, courts-martial will apply: 

(1) First, the Federal Rules of Evidence and the case law interpreting them; and 

(2) Second, when not inconsistent with subdivision (b)(1), the rules of evidence at common law. 

(c) Rule of Construction. Except as otherwise provided in these rules, the term "military judge" includes 

the president of a special court-martial without a military judge and a summary court-martial officer. 

Rule 1101. Applicability of these rules 

(a) In General. Except as otherwise provided in this Manual, these rules apply generally to all courtsmartial, including summary courts-martial, Article 39(a) sessions, limited fact-finding proceedings 

ordered on review, proceedings in revision, and contempt proceedings other than contempt proceedings 

in which the judge may act summarily. 

(b) Rules Relaxed. The application of these rules may be relaxed in presentencing proceedings as 

provided under R.C.M. 1001 and otherwise as provided in this Manual. 

(c) Rules on Privilege. The rules on privilege apply at all stages of a case or proceeding. 

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(d) Exceptions. These rules - except for Mil. R. Evid. 412 and those on privilege - do not apply to the 

following: 

(1) the military judge's determination, under Rule 104(a), on a preliminary question of fact 

governing admissibility; 

(2) pretrial investigations under Article 32; 

(3) proceedings for vacation of suspension of sentence under Article 72; and 

(4) miscellaneous actions and proceedings related to search authorizations, pretrial restraint, pretrial 

confinement, or other proceedings authorized under the Uniform Code of Military Justice or this 

Manual that are not listed in subdivision (a). 

==================================================================== 

2. Secondary Sources. Rule 101 (b). If not otherwise prescribed in the Manual or rules, courtsmartial will first apply the rules of evidence recognized in the trial of criminal cases in the United 

States district courts; and secondly, the rules of evidence at common law. United States v. Toy, 

65 M.J. 405, 410 (2008). 

B. Rule 102. Purpose. 

1. Rule 102 outlines the policy contours of the Rules of Evidence generally, and mirrors its 

counterpart in the Rules for Courts-Martial 102. It is taken verbatim from the Federal Rules of 

Evidence. 

2. Though not a rule of construction per se, it has been cited for the proposition that it is 

“intended to aid in the construction and legitimate application of other specific Rules.” See 1 

SALTZBURG ET AL., MILITARY RULES OF EVIDENCE MANUAL § 102.02[1][B] at 1–20 (8th ed. 

2015). Rule 102 is mentioned in Appendix 22 (MRE Analysis) only to note that it is “not a 

license to disregard the Rules in order to reach a desired result.” This is presumably to avoid the 

possibility that another affirmative rule in the MRE collides with a military judge’s notions of 

fairness, justice, or truth. 

==================================================================== 

Rule 102. Purpose 

These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable 

expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a 

just determination. 

==================================================================== 

C. Rule 103. Rulings on Evidence. 

1. This rule imposes significant responsibility on counsel to raise and preserve evidentiary 

questions for review. 

==================================================================== 

Rule 103. Rulings on evidence 

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only 

if the error materially prejudices a substantial right of the party and: 

(1) if the ruling admits evidence, a party, on the record: 

(A) timely objects or moves to strike; and 

(B) states the specific ground, unless it was apparent from the context; or 

(2) if the ruling excludes evidence, a party informs the military judge of its substance by an offer of 

proof, unless the substance was apparent from the context. 

(b) Not Needing to Renew an Objection or Offer of Proof. Once the military judge rules definitively on 

the record admitting or excluding evidence, either before or at trial, a party need not renew an objection 

or offer of proof to preserve a claim of error for appeal. 

(c) Review of Constitutional Error. The standard provided in subdivision (a)(2) does not apply to errors 

implicating the United States Constitution as it applies to members of the Armed Forces, unless the error 

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arises under these rules and subdivision (a)(2) provides a standard that is more advantageous to the
 

accused than the constitutional standard.
 

(d) Military Judge's Statement about the Ruling; Directing an Offer of Proof. The military judge may 

make any statement about the character or form of the evidence, the objection made, and the ruling. The
 

military judge may direct that an offer of proof be made in question-and-answer form.
 

(e) Preventing the Members from Hearing Inadmissible Evidence. In a court-martial composed of a
 

military judge and members, to the extent practicable, the military judge must conduct a trial so that
 

inadmissible evidence is not suggested to the members by any means.
 

(f) Taking Notice of Plain Error. A military judge may take notice of a plain error that materially 

prejudices a substantial right, even if the claim of error was not properly preserved. 

==================================================================== 

2. Objections to evidence admitted. Rule 103(a)(1): Objections to evidence must be specific 

and timely, or the objection is waived, absent a plain error. While citation to evidentiary rules by 

number is not required, objections must be sufficiently specific to make the issue known to the 

military judge. If so, the issue will be preserved. United States v. Datz, 61 M.J. 37 (2005). 

While the rule does not require a moving party to present every argument in support of an 

objection, argument must be sufficient to make the military judge aware of the specific ground for 

objection in a practical rather than a formulaic manner. United States v. Reynoso, 66 M.J. 208 

(2008). 

3. Where the witness’ answer is objectionable, but it has been heard by the panel, the opponent 

must seek a curative instruction (to disregard the testimony) or a mistrial. Declaration of a 

mistrial lies within the sound discretion of the judge, United States v. McGeeney, 41 M.J. 544 (NM. Ct. Crim. App. 1994), and should only be granted where circumstances demonstrate the 

necessity to prevent a manifest injustice to the accused. United States v. Dancy, 38 M.J. 1 

(C.M.A. 1993). 

4. Offer of Proof. Rule 103(a)(2): If the military judge sustains an objection to the tender of 

evidence, the proponent generally must make an offer to preserve the issue for appeal. The offer 

should include the substance of the proffered evidence, the affected issue, and how the issue is 

affected by the judge’s ruling. United States v. Means, 24 M.J. 160 (C.M.A. 1987) and United 

States v. Viola, 26 M.J. 822 (A.C.M.R. 1988). 

5. Repeating Objections. Counsel do not have to repeat objections during trial if they first 

obtain unconditional, unfavorable ruling from the military judge in out-of-court session. United 

States v. Sheridan, 43 M.J. 682 (A.F. Ct. Crim. App. 1995). However, a preliminary, tentative 

ruling may require a subsequent objection to preserve the issue for appeal. United States v. 

Jones, 43 M.J. 708 (A.F. Ct. Crim. App. 1995). Rule 103 also applies at sentencing to the 

admission of documents from the accused’s personnel records. See United States v. Kahmann, 59 

M.J. 309 (2004) (holding that where defense counsel failed to object, the military judge did not 

commit plain error in admitting a summary court-martial conviction record that did not indicate 

on its face whether the accused had received Booker counseling or whether mandatory review of 

the conviction had taken place under Art. 64). 

D. Rule 105. Limiting evidence not admissible against other parties or for other purposes. 

==================================================================== 

Rule 105. 

If the military judge admits evidence that is admissible against a party or for a purpose — but not against 

another party or for another purpose — the military judge, on timely request, must restrict the evidence to its 

proper scope and instruct the members accordingly. 

==================================================================== 

1. A limiting instruction may be an appropriate alternative to exclusion of evidence. See, e.g., 

United States v. Dorsey, 16 M.J. 1 (C.M.A. 1983) (exclusion of Rule 412 evidence); United 

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States v. Ureta, 44 M.J. 290 (1996), cert. denied, 117 S. Ct. 692 (1997) (prior inconsistent 

statements offered for impeachment); United States v. Barrow, 42 M.J. 655 (A.F. Ct. Crim. App. 

1995) (uncharged misconduct). 

2. The rule embodies the view that, as a general matter, evidence should be received if it is 

admissible for any purpose. The rule places the major responsibility for the limiting instruction 

upon counsel. Counsel should state the grounds for limiting the evidence outside the hearing of 

the members. Counsel should offer—and the court may request—specific language for the 

instruction, which may be given at the time the evidence is received, as part of the general 

instructions, or both. 

E. Rule 106. Remainder of or Related Writings or Recorded Statements. 

==================================================================== 

Rule 106. 

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at 

that time, of any other part - or any other writing or recorded statement - that in fairness ought to be considered at 

the same time. 

==================================================================== 

1. In United States v. Rodriquez, 56 M.J. 336 (2002), the CAAF held that in the military there 

are two distinct rules of completeness, Rule 106 and Rule 304(h)(2). CAAF held that Rule 106 

applies when fairness demands that the rest of the evidence be considered contemporaneously 

with the portions of the evidence offered by the opposing side. They adopted a standard 

regarding Rule 304(h)(2) that allows for admissibility of statements made by the accused when 

the defense introduces the remainder of a statement or statements that are explanatory or relevant 

to the confession or admission of the accused previously offered by the government. This is 

allowed even if the statements the defense seeks to admit are otherwise inadmissible hearsay. 

CAAF requires a case-by-case determination when the defense attempts to admit a series of 

statements as part of the original confession or admission in order to determine if they are part of 

an ongoing statement or a separate transaction or course of action. 

2. In the context of a confession or an admission, read this rule in connection with Rule 

304(h)(2) (where only part of the alleged admission or confession is introduced, the defense may 

introduce other portions). Other portions admitted by the defense do not need to overcome a 

hearsay objection. United States v. Benton, 54 M.J. 717 (A. Ct. Crim. App. 2001). However, 

note that this has the potential to open the door to an accused’s character – the Goldwire trap. In 

United States v. Goldwire, 55 M.J. 139 (2001), the CAAF held that when defense counsel uses 

the rule of completeness to admit portions of their client’s statements into evidence through cross 

examination of a government witness they open the door to reputation and opinion testimony 

regarding the truthfulness of the accused. CAAF analyzed the potential application of the rule of 

completeness under both the federal and military rules, as well as the common law doctrine of 

completeness. 

3. Supplementary Statements. In United States v. Foisy, 69 M.J. 562 (N.M. Ct. Crim. App. 

2010), the accused gave a sworn statement to an NCIS agents admitting that he had sex with the 

victim, but insisting that it was consensual. He also described his interactions with the victim 

which led him to believe that it was consensual. Another NCIS agent took a second statement 

from the accused which was labeled as a “supplementary statement.” The facts in the 

supplementary statement began immediately before appellant penetrated the victim. At trial, the 

government admitted only the supplementary statement. The defense attempted to admit the first 

statement under the rule of completeness. The government objected and the military judge 

sustained the objection. Finding the military judge erred in not allowing the defense to introduce 

the first statement, the Navy-Marine Court of Criminal Appeals held that, under MRE 304(h)(2), 

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“where the Government links two statements by constructing them as a statement and a 

‘supplement’ to that statement, the Government may not deconstruct those statements for the 

purposes of trial where the admission of the second statement standing alone would create a 

misimpression on the part of the fact finder as to an accused’s actual admissions.” 

III. RELEVANCY AND ITS LIMITS 

A. Rule 401: Test for relevant evidence 

==================================================================== 

Rule 401. Test for relevant evidence 

Evidence is relevant if: 

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and 

(b) the fact is of consequence in determining the action. 

==================================================================== 

1. The Main Relevancy Provisions 

a) The Military Rules of Evidence have three main relevance provisions: Rules 401, 402, 

and 403. Rule 401 defines what is relevant. Rule 402 require that evidence be relevant in 

order to be admitted and that irrelevant evidence be excluded. Finally, Rule 403 allows the 

military judge to exclude relevant evidence which is substantially outweighed by the danger 

of unfair prejudice, confusion of issues, misleading the panel, or by considerations of undue 

delay, waste of time, or needless presentation of cumulative evidence. 

b) Justification: Relevancy requirements help save time, narrow the topics the parties have 

to develop in preparation for trial, and increase the perceived legitimacy of courts-martial by 

ensuring that outcomes based on information most people would believe have something to 

do with the issues at trial. 

2. Establishing Relevancy. The logical starting place when evaluating any issue at trial is the 

concept of relevance. Military Rule of Evidence 401 is taken without change from the Federal 

Rule and adopts a logical approach to relevance. Rule 401 permits both circumstantial and direct 

evidence to satisfy the relevancy criteria. A relevancy objection, although often overlooked, is 

frequently the most valid objection available to counsel. Military courts have used Rule 401 to 

expand the amount of information available to the members. See, e.g., United States v. 

Tomlinson, 20 M.J. 897 (A.C.M.R. 1985) (Rule 401 was “intended to broaden the admissibility” 

of most evidence.) 

3. Requirements of Counsel. Counsel should be prepared to articulate what issue the offered 

evidence relates to and show how it rationally advances the inquiry about that issue by doing the 

following: 

a) Describe the evidence; 

b) Explain its nexus to the consequential issue in the case; and 

c) Indicate how the offered evidence will establish the fact in question. 

4. The test under Mil. R. Evid. 401 for logical relevance (as opposed to legal relevance 

discussed under Rule 403 later in this outline) is whether the item of evidence has any tendency 

whatsoever to affect the balance of probabilities of the existence of a fact of consequence, and is a 

very low threshold. United States v. White, 69 M.J. 236 (2010). 

a) United States v. Schlamer, 52 M.J. 80 (1999). Accused was charged with the 

premeditated murder. Victim was found with her throat cut. At trial, the government 

introduced pictures and writings seized from the accused. In these documents, the accused 

set out in graphic detail his desires to kill women and have sex with them and commit other 

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violent acts. These writings did not mirror the actual crime, and defense claimed that they 

were not relevant. The military judge admitted the evidence over the defense objection. The 

CAAF held Rule 401 is a low standard and since the defense was trying to portray the 

accused as a docile person, this evidence had some tendency to show the darker side that was 

consistent with his confession. 

b) United States v. Berry, 61 M.J. 91 (2005). Relevant evidence under Rule 401 is evidence 

having any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without the 

evidence. Evidence of a prior uncharged sexual assault by an accused involving a younger 

victim satisfied the relevance prong of the threshold test for the admission of uncharged 

sexual assault in a case where the accused was charged with forcible sodomy of a victim who 

was drunk, as it has some tendency to make it more probable that the accused committed a 

nonconsensual act against a vulnerable person. 

5. Relationship between Rule 401 and the Due Process Clause. In United States v. Brewer, 61 

M.J. 425 (2005), the CAAF held that in a urinalysis case, the defense was entitled to introduce a 

“mosaic alibi” defense to counter the permissive inference of wrongful use, even though such 

evidence would violate Rules 404 and 405. 

B. Relationship Between Rules 401 and 104. 

1. Preliminary Questions. Rule 104 provides that the military judge must decide preliminary 

questions of admissibility of evidence. In addressing these preliminary questions, the military 

judge is not bound by the rules of evidence, except those with respect to privilege. 

2. When ruling on a relevancy objection, the military judge has four basic options: 

a) Exclude the evidence; 

b) Admit all the evidence; 

c) Admit all the evidence subject to a limiting instruction; or 

d) Admit part of the evidence and exclude part. 

3. Threshold. Although the primary responsibility for showing the relevancy of a particular 

piece of evidence rests with the proponent, it is a very low hurdle to overcome. All that the 

military judge is required to determine in order to rule a piece of evidence is relevant, is that a 

rational member could be influenced by the evidence in deciding the existence of a fact of 

consequence. The evidence only has to be capable of making determination of the fact more or 

less probable than it would be without the evidence. 

4. Relevancy that Depends on a Fact. Rule 104(b) deals with the situation where the relevancy 

of a piece of evidence is conditioned upon proof of a predicate fact. United States v. Bins, 43 

M.J. 79 (1995). The military judge’s responsibility in these cases is not to decide the credibility 

of evidence or announce a subjective belief whether a proponent has proven the predicate fact. 

Instead, the judge only decides whether counsel has introduced enough evidence so that the panel 

could reasonably conclude the existence of the conditional fact. In other words, the judge decides 

only if there is a sufficient factual predicate for admissibility of the evidence; weight and 

credibility of the evidence are matters for the members. United States v. Kelly, 45 M.J. 275 

(1996). Huddleston v. United States, 485 U.S. 681 (1988) (holding that neither FRE 104 nor 

404(b) requires the trial judge to determine by a preponderance of the evidence that a ‘similar act’ 

was committed; the trial judge is only required to consider all of the evidence offered and decide 

whether the jury could reasonably find the similar act was committed). 

5. The military judge should ask the following questions: 

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a) Will the members find it helpful in deciding the case accurately? If no, then the judge 

excludes the evidence. If yes, then the judge asks another question; 

b) Is there sufficient evidence to warrant a reasonable member in believing the evidence? If 

no, then the judge excludes the evidence. If yes, then the judge admits the evidence. 

==================================================================== 

Rule 402. General admissibility of relevant evidence 

(a) Relevant evidence is admissible unless any of the following provides otherwise: 

(1) the United States Constitution as it applies to members of the Armed Forces; 

(2) a federal statute applicable to trial by courts-martial; 

(3) these rules; or 

(4) this Manual. 

(b) Irrelevant evidence is not admissible. 

==================================================================== 

6. Exclusion of relevant evidence. The plain language of Rule 402 strongly favors admission of 

relevant evidence. However, irrelevant evidence is never admissible because it does not assist the 

trier of fact in reaching an accurate and fair result. The Rule requires the court to address three 

separate questions before admitting evidence. 

a) Does the evidence qualify under Rule 401’s definition? 

b) Does the evidence violate any of the five prohibitions listed in Rule 402? 

c) Does the evidence satisfy any provision requiring a Rule 403 related judicial assessment 

of the probative value of the evidence? See, e.g., Rules 403, 412, 413, 414, 803(6), 

804(b)(5), 807, and 1003. 

C. Relationship Between Rules 401 and 403. 

==================================================================== 

Rule 403. Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons 

The military judge may exclude relevant evidence if its probative value is substantially outweighed by a 

danger of one or more of the following: unfair prejudice, confusing the issues, misleading the members, 

undue delay, wasting time, or needlessly presenting cumulative evidence. 

==================================================================== 

1. Unfair Prejudice. Evidence is subject to exclusion if the opposing counsel can successfully 

convince the military judge that the risk of unfair prejudice substantially outweighs it probative 

value. Rule 403 is one of the most often cited rules by counsel. The rule is particularly important 

in the law of evidence since it is a rule that empowers the military judge to exclude probative 

evidence if it can be said to be unfairly prejudicial. 

a) Standard. In a sense, all evidence that either the government or defense seeks to 

introduce is intended to prejudice the opponent. If it didn’t prejudice the opponent, one could 

reasonably question the value of seeking to admit the evidence. The question under Rule 403 

is really one that addresses how the factfinder will view the evidence. It is only when a 

factfinder might react to the proffered evidence in a way (usually emotional) that is not 

supposed to be part of the evaluative process that the reaction is considered unfairly 

prejudicial. United States v. Owens, 16 M.J. 999 (A.C.M.R. 1983) (describing unfair 

prejudice as existing “if the evidence is used for something other than its logical, probative 

force”). 

(1) PROPER PREJUDICE EXAMPLE: SPC Smiffy is charged with assault upon PVT 

Jones. The government seeks to introduce evidence from CPT Honest who will testify he 

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heard SPC Smiffy say “the next time I see PVT Jones he is a dead man.” The defense 

might try to keep the testimony out under a number of justifications, but under Rule 403, 

although the evidence is prejudicial and a member may use it to determine that SPC 

Smiffy likely assaulted PVT Jones, this type of prejudice is proper because it comes from 

the member’s belief that the accused committed the charged offense. 

(2) IMPROPER PREJUDICE EXAMPLE: Same facts as above except CPT Honest is 

going to testify he heard SPC Smiffy say “the next time I see PVT Jones he is a dead 

man, because I belong to the “bare knuckles gang” that encourages members to beat 

people up.” Under Rule 403, the defense would have a much better argument to keep out 

the portion of the statement regarding SPC Smiffy’s gang membership. The risk of 

admitting the entire statement is that the members may develop a negative feeling about 

SPC Smiffy based upon their feelings about individuals that belong to a gang. Those 

impressions would be an example of unfair prejudice since they are unrelated to the 

probative value the gang information has with respect to the charged offense. Instead, 

they flow from the members’ reactions to information about the accused that would cause 

loathing whether or not it was linked to the events of the alleged offense. The risk of the 

members believing the accused is a wretch that deserves punishment no matter what the 

evidence is regarding the assault is an example of unfair prejudice under Rule 403. 

b) Legal Relevance. The probative value of any evidence cannot be substantially 

outweighed by any attendant or incidental probative dangers. Among the factors specifically 

mentioned in the rule are “the danger of unfair prejudice, confusion of the issues, or 

misleading the members.” To determine whether the risk of unfair prejudice substantially 

outweighs the probative value of evidence, the military judge is required to do some kind of 

weighing. Although there is not a clear test for the military judge to follow, some factors the 

military judge might consider include: 

(1) the strength of the probative value of the evidence (i.e., a high degree of similarity); 

(2) the importance of the fact to be proven; 

(3) whether there are alternative means of accomplishing the same evidentiary goal 

(consider in connection with defense concessions to 404(b) uncharged misconduct); and 

(4) the ability of the panel to adhere to a limiting instruction. 

(5) Berry Factors - United States v. Berry, 61 M.J. 91 (2005). When conducting a Rule 

403 balancing test, a military judge should consider the following factors: the strength of 

the proof of the prior act; the probative weight of the evidence; the potential to present 

less prejudicial evidence; the possible distraction of the factfinder; the time needed to 

prove the prior conduct; the temporal proximity of the prior event; the frequency of the 

acts; the presence of any intervening circumstances; and the relationship between the 

parties. 

c) Rule 403 favors admissibility. A military judge will exclude evidence on a legal 

relevance theory only when the probative values is “substantially outweighed” by the 

accompanying probative dangers. United States v. Teeter, 12 M.J. 716 (A.C.M.R. 1981) 

(stating that striking a balance between probative value and prejudicial effect is left to the 

trial judge and that the balance “should be struck in favor of admission”). The passive voice 

suggests that it is the opponent who must persuade that the prejudicial dangers overcome the 

probative value. United States v. Leiker, 37 M.J. 418 (C.M.A. 1993) (cautioning defense 

counsel that failure to make a satisfactory offer of proof prohibits an appellate court from 

weighing the evidence’s probative value against its possibility for causing undue delay or 

waste of time). 

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d) Rule 403 is the rule by which legal relevance is determined. While Rule 403 has broad 

application throughout the Military Rules of Evidence, some commentators have noted that 

“its greatest value may be in resolving Rule 404(b) issues” because of the low threshold of 

proof required to establish extrinsic events. See 1 SALTZBURG ET AL., MILITARY RULES OF 

EVIDENCE MANUAL § 102.02[1][B], at 4–40 (8th ed. 2015). Editorial Comment, Rule 403, 

Military Rules of Evidence at Section 403.03[7], at 4-30 (5th ed. 2003). 

e) Rule 403 and special findings. The military judge should always make special findings 

when resolving a Rule 403 objection, even without a request to do so by counsel. United 

States v. Bins, 43 M.J. 79 (1995) (criticizing the military judge for stating that he had 

performed the balancing test required by Rule 403, when all he really did was recite the 

Rule’s language). Special findings are beneficial for at least two reasons: 

(1) Appellate courts will be able to evaluate the criteria and thought process used by the 

military judge. This will reduce the likelihood of reversal for abuse of discretion. United 

States v. Hursey, 55 M.J. 34 (2001) (describing that when a military judge conducts a 

proper Rule 403 balancing test, the ruling will not be overturned unless there is a clear 

abuse of discretion). 

(2) Special findings provide counsel with an opportunity to correct erroneous 

determinations by the military judge at the trial level, instead of waiting months or years 

later to do the same on appeal. 

IV. CHARACTER EVIDENCE 

A. Character Evidence Generally Prohibited. 

1. As a general rule, the law disfavors character evidence. This principle is embodied in Mil. R. 

Evid. 404(a)(1), which prohibits the use of evidence of a person’s character to prove that the 

person acted on a specific occasion in conformity with that character. This general rule of 

prohibition is derived from the common law, where “[c]ourts... almost unanimously have come 

to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to 

establish a probability of his guilt.... The State may not show the defendant’s prior trouble with 

the law, specific criminal acts, or ill name among his neighbors, even though such facts might 

logically be persuasive that he is by propensity a probable perpetrator of the crime.” Michelson v. 

United States, 335 U.S. 469, 475 (1948) (footnotes omitted) (citation omitted). 

2. There are two main justifications for the prohibition on propensity: 

a) Propensity evidence may lead to the wrong outcome in a court-martial. 

b) Propensity evidence almost always carries a significant risk of unfair prejudice. 

3. The Rules generally break character evidence into two basic types: character traits under Mil. 

R. Evid. 404(a), and specific instances of character conduct under Mil. R. Evid. 404(b). Both 

subsections of the rule prohibited the “propensity inference”– that a person’s character (either as a 

trait, or in the form of specific instances of past conduct) suggests that the person did something 

because of a propensity to do such things. 

4. While the law embraces a general rule prohibiting introduction of propensity evidence, there 

are exceptions to that general rule. The exceptions generally fall into three categories: 

a) Narrow exceptions for character evidence of an accused or victim (Mil. R. Evid. 

404(a)(2)), including good character as a defense, and a victim’s character for peacefulness in 

homicide or assault cases; 

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b) Broad exceptions for the character of an accused in sexual assault and child molestation 

cases (Mil. R. Evid. 413 and 414); 

c) Tailored exceptions for the character of witnesses (Mil. R. Evid. 404(a)(3); this rule 

provides exceptions for witness character by incorporating the requirements of Rules 607– 

609). 

5. As a trend, the list of exceptions for admitting bad character of an accused has grown in 

recent years, while the admissibility of good character evidence of the accused has been 

restricted. 

==================================================================== 

Rule 404(a). Character evidence 

(a) Character Evidence. 

(1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove 

that on a particular occasion the person acted in accordance with the character or trait. 

(2) Exceptions for an Accused or Victim 

(A) The accused may offer evidence of the accused's pertinent trait and, if the evidence is 

admitted, the prosecution may offer evidence to rebut it. General military character is not 

a pertinent trait for the purposes of showing the probability of innocence of the accused for 

the following offenses under the UCMJ: 

(i) Articles 120–123a; 

(ii) Articles 125–127; 

(iii) Articles 129–132; 

(iv) Any other offense in which evidence of general military character of the 

accused is not relevant to any element of an offense for which the accused has 

been charged; or 

(v) An attempt or conspiracy to commit one of the above offenses. 

(B) Subject to the limitations in Mil. R. Evid. 412, the accused may offer evidence of an 

alleged victim's pertinent trait, and if the evidence is admitted, the prosecution may: 

(i) offer evidence to rebut it; and 

(ii) offer evidence of the accused's same trait; and 

(C) In a homicide or assault case, the prosecution may offer evidence of the alleged 

victim's trait of peacefulness to rebut evidence that the victim was the first aggressor. 

(3) Exceptions for a Witness. Evidence of a witness's character may be admitted under Mil R. Evid. 

607, 608, and 609. 

==================================================================== 

B. Permissible Propensity Inference 

1. While character evidence is generally prohibited, there are specific exceptions which allow 

the use of character evidence for its “propensity purpose”: using evidence to show a person acted 

in conformity with their character. The Rule lists these exceptions based on the status of the 

person offering the evidence, and about whom the evidence is offered. 

a) Pertinent Character Traits Offered by the Accused: 

(1) In the past, the accused was permitted under Rule 404(a) to offer any pertinent 

character trait which makes it unlikely that she committed the charged offense. In other 

words, this is circumstantial evidence of conduct. “Pertinent” in 404(a) means the same 

thing as “relevant” as that term is defined in 401. 

(2) When submitting the request for reputation or opinion witnesses, the proffer should 

include the following foundational elements: the name of the witness, whether the 

witness belongs to the same community or unit as the accused, how long the witness has 

known the accused, whether he knows him in a professional or social capacity, the 

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character trait known, and a summary of the expected testimony. United States v. 

Breeding, 44 M.J. 345 (1996). 

(3) The formula could be applied in the following scenarios: 

Offense Pertinent Character Trait 

Larceny Trustworthiness or Honesty 

Drunkenness Sobriety 

Assault Peacefulness 

b) General Good Military Character of the Accused—Past and Present 

(1) In the past, the Rules (and the courts) held a permissive view of a military accused’s 

general good military character as a pertinent character trait if there was a nexus, 

however strained or slight, between the crime circumstances and the military. In most 

cases this meant a likelihood that the defense would include a “good soldier defense” by 

presenting the accused’s good military character evidence. United States v. Wilson, 28 

M.J. 48 (C.M.A. 1989). Consider the impact of United States v. Foster, 40 M.J. 140 

(C.M.A. 1994) (service discrediting behavior or conduct prejudicial to good order 

inherent in all enumerated offenses). 

(2) Present practice is substantially more restrictive. The National Defense 

Authorization Act for Fiscal year 2015 directed numerous changes to the Rules of 

Evidence, including a modification to the admissibility of general good military 

character. In particular, the new Rule notes that the general good military character of an 

accused is not a pertinent (meaning not relevant to, and therefore not admissible) trait. 

The new rule prohibits general good military character to prove the probability of 

innocence for the following offenses: 

(a) Articles 120–123a; 

(b) Articles 125–127; 

(c) Articles 129–132; 

(d) Any other offense in which evidence of general military character of the accused 

is not relevant to any element of an offense for which the accused has been charged; 

or 

(e) An attempt or conspiracy to commit one of the above offenses. 

(3) NOTE: the full effect of this change in the law on lesser included offenses remains 

uncertain. Assault consummated by a battery under Article 128 is often a lesser included 

offense in a sexual assault case, meaning that a special instruction or series of instructions 

may be necessary to properly advise the members on when, and for what offenses, 

general good military character may be considered. To determine whether general good 

military character may be admissible, first determine whether an offense for which the 

introduction of general good military character is permitted is a lesser included offense of 

a charged offense. If that’s the case, then general good military character may be 

admissible; prudent counsel will request a special instruction from the military judge on 

that evidence. 

c) Rebuttal by Government of Good Character of Accused – if an accused introduces good 

character evidence (or any other pertinent character trait), the government is allowed to rebut 

this with bad character evidence to suggest that the accused is guilty. NOTE: If a defense 

counsel loses a motion in limine to preclude the government from cross-examining character 

witnesses regarding accused’s bad acts, a tactical election not to present good character case 

probably will bar review. United States v. Gee, 39 M.J. 311 (C.M.A. 1994). 

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(1) Rebuttal by the government is proper when the accused claims that he or she is not 

the sort of person who would do such a thing. “The price a defendant must pay for 

attempting to prove his good name is to throw open the entire subject which the law has 

kept closed for his benefit and to make himself vulnerable where the law otherwise 

shields him.” Michelson v. United States, 335 U.S. 469, 479 (1948); United States v. 

Johnson, 46 M.J. 8 (1997). 

(a) But see, United States v. Trimper, 28 M.J. 460 (C.M.A.) cert. denied, 493 U.S. 

965 (1989). Even if the accused opens the door to uncharged misconduct (here by 

claiming to have never used cocaine), the judge must decide whether the unfair 

prejudicial effect of the rebuttal evidence substantially outweighs its probative value. 

Rule 403. See also, United States v. Graham, 50 M.J. 56 (1999). The CAAF held it 

was reversible error to allow trial counsel to question accused about prior positive 

urinalysis, even though the accused testified he was surprised when he tested positive 

for THC. 

(b) United States v. Goldwire, 55 M.J. 139 (2001), the CAAF held that when defense 

counsel attempt to develop their theory of the case through the cross examination of 

government witnesses, they may open the door to reputation and opinion testimony 

regarding truthfulness of the accused. In Goldwire, the trial defense counsel crossexamined the CID agent on exculpatory statements made by the accused during the 

interview conducted by the CID agent. The appellant argued on appeal that this 

cross-examination was allowed under the rule of completeness and that it did not 

open the door to reputation and opinion testimony concerning the accused. The 

CAAF disagreed. 

(2) Accused’s Sexual Propensities – proof of an accused’s sexual propensities in sex 

offense courts-martial is specifically allowed, provided certain requirements are met and 

special instructions given. Rules 413 and 414 discuss these rules in greater detail later in 

this outline. 

d) Character of Victim – an accused is allowed to offer evidence of a pertinent character 

trait of an alleged victim in order to show that it makes it likely the victim acted in a certain 

way on a specific occasion. Rule 404(a)(1) and (2). For example, the accused is permitted, 

when relevant, to show that the victim was the aggressor by introducing evidence of the 

victim’s character for violence. United States v. Rodriguez, 28 M.J. 1016 (A.F.C.M.R. 1989). 

e) Rebuttal by the Government – if an accused offers evidence of a victim’s character, the 

government is permitted to rebut that evidence: 

(1) Where an accused offers a pertinent character trait of the victim, the government may 

rebut the accused’s evidence with other character evidence of the victim. Rule 

404(a)(2)(A). 

(2) Where an accused offers the character trait of the victim, that “opens the door” to 

government evidence of the same character trait, if relevant, of the accused (even without 

the accused first bringing his or her character into evidence). Rule 404(a)(1). (June 

2002 Amendment) 

(3) In homicide and assault cases, the government may introduce character evidence to 

prove the peaceful character of the victim to rebut a claim made in any way that the 

victim was the first aggressor. Rule 404(a)(2), United States v. Pearson, 13 M.J. 922 

(N.M.C.M.R. 1992) (victim’s character for peacefulness relevant after accused introduces 

evidence that victim was the aggressor). 

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f) Impeachment of a Witness – when an issue is whether a witness testified truthfully, 

evidence about that witness’s character for truth-telling is permitted to support an inference 

that the witness has acted at trial in conformity with the witness’s usual respect for truth. 

Rules 405(a) and 608. 

2. Character Evidence for Non-propensity Purpose – If the evidence has relevance independent 

of propensity, it may be admissible. For example, evidence that someone charged with an offense 

has committed similar offenses in the past could lead a trier of fact to conclude the person is a bad 

person and criminally inclined. If this were the only purpose for the evidence given by the 

government, it would not be a permissible use of character evidence (unless offered under Rules 

413 or 414). If, however, the evidence were offered to prove the accused possessed the 

knowledge necessary to commit the charged offense in the current court-martial, then 

admissibility would be possible. See “KIPPOMIA” under Rule 404(b) (treated in greater detail 

later in this outline). 

V. UNCHARGED MISCONDUCT 

==================================================================== 

Rule 404(b): Crimes, Wrongs, or Other Acts 

(b) Crimes, Wrongs, or Other Acts. 

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's 

character in order to show that on a particular occasion the person acted in accordance with the 

character. 

(2) Permitted Uses; Notice. This evidence may be admissible for another purpose, such as proving 

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of 

accident. On request by the accused, the prosecution must: 

(A) provide reasonable notice of the general nature of any such evidence that the 

prosecution intends to offer at trial; and 

(B) do so before trial - or during trial if the military judge, for good cause, excuses lack of 

pretrial notice. 

==================================================================== 

A. Uncharged Misconduct Generally 

1. Understanding the Rule: Although character evidence is generally inadmissible to prove 

action in conformity with that character (propensity) on a specific occasion (except in those 

exceptions noted elsewhere in this outline), it is admissible if introduced for a non-propensity 

purpose. Non-propensity evidence (uncharged misconduct) is not offered to prove that an 

individual acted in conformity with that individual’s character on a particular occasion. Rather, 

this evidence is offered to prove other relevant things like Knowledge, Intent, Plan, Preparation, 

Opportunity, Motive, Identity, and Absence of Mistake (KIPPOMIA). Mil. R. Evid. 404(b)(2). 

The list in Rule 404(b)(2) is not an exhaustive one: The “sole test” for admissibility of 

uncharged misconduct is whether the evidence of the misconduct is offered for some 

purpose other than to demonstrate the accused’s predisposition to crime and therefore to 

suggest that the factfinder infer that he is guilty, as charged, because he is predisposed to commit 

similar offenses. It is unnecessary that relevant evidence fit snugly into a pigeon hole provided 

by Rule 404(b). United States v. Castillo, 29 M.J. 145, 150 (C.M.A. 1989). 

2. Rule 404(b) is an “inclusive rule” which permits admission of extrinsic evidence unless the 

sole purpose is to show criminal disposition. If the proponent can articulate a non-propensity 

theory of logical relevance for the uncharged misconduct evidence, the military judge will have 

discretion to admit or exclude the evidence. 

3. Some Non-propensity Theories of Relevance. 

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a) Motive. Motive supplies the reason that nudges the will and prods the mind to indulge in 

criminal intent. Such evidence may be offered to prove that the act was committed, or to 

prove the identity of the actor, or to prove the requisite mental state. 

(1) Two inferences are required: 

(a) first, the act(s) must support an inference of some mental state; 

(b) second, the mental state must be causally related to an issue in the case. This is 

an area which is difficult to distinguish, analytically, from propensity. 

(2) Some examples: 

(a) United States v. Watkins, 21 M.J. 224, 225 (C.M.A. 1986) (motive evidence 

relevant to show a person’s action as an outlet for emotions. Prior acts of conduct 

must be of a type which reasonably could be viewed as the expression and effect of 

the existing internal emotion, and same motive must exist at time of subsequently 

charged acts). 

(b) United States v. Phillips, 52 M.J. 268 (2000). Accused charged with BAQ fraud 

and entering into a sham marriage in order to collect BAQ payments. Court held that 

evidence of the accused’s homosexual relationship was admissible under Rule 404(b) 

to show motive and intent. 

b) Intent: Negates accident, inadvertence, or causality. Intent differs from other named 

Rule 404(b) exceptions because, typically, it is an ultimate issue in the case. When 

considering whether uncharged misconduct constitutes admissible evidence of intent under 

Rule 404(b), a military judge should consider “whether ... [the accused’s] state of mind in the 

commission of both the charged and uncharged acts was sufficiently similar to make the 

evidence of the prior acts relevant on the intent element of the charged offenses.” United 

States v. McDonald, 59 M.J. 426, 430 (2004). According to the CAAF, the relevancy of the 

other crime is derived from the accused’s possession of the same state of mind in the 

commission of both offenses. The state of mind does not have to be identical, but must be 

sufficiently similar to make the evidence of the prior acts relevant on the intent element of the 

charged offenses. The link between the charged and uncharged misconduct must permit 

meaningful comparison. 

(1) The “doctrine of chances.” United States v. Merriweather, 22 M.J. 657, 661 

(A.C.M.R. 1986) (“[T]he sheer number of injuries suffered by the victim over a relatively 

short period of time would have led common persons to conclude that the charged injury 

was less likely to have been accidental, thus rebutting the inference of possible accident 

which arose from the testimony elicited by the defense counsel”). 

(2) United States v. Sweeney, 48 M.J. 117 (1998). Accused charged with stalking his 

current wife. Court allowed evidence that accused stalked former wife in a similar 

manner. Court said uncharged misconduct was probative of intent to inflict emotional 

distress. 

(3) United States v. Henry, 53 M.J. 108 (2000). At his trial for rape of his stepdaughters, 

evidence was introduced that the accused made her watch pornographic videos with him. 

No videos were found in the home, but magazines containing video order forms were 

found and introduced at trial under Rule 404(b). The CAAF affirmed holding that this 

evidence was relevant to show intent and that the accused may have groomed his victim. 

The court also said this evidence was relevant to impeach the victim’s in-court testimony 

because she was now recanting her allegations of rape. 

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(4) United States v. Hays, 62 M.J. 158 (2005), the CAAF affirmed a military judge’s 

decision to admit the appellant’s uncharged acts as evidence of intent. The appellant was 

charged with solicitation to commit the rape of a minor, and the government introduced 

numerous items of child pornography and explicit e-mails from the appellant’s computer 

to demonstrate intent to commit the offense. 

(5) United States v. Harrow, 65 M.J. 190 (2007). Appellant was charged with the 

unpremeditated murder of her five-month-old daughter. The military judge permitted 

three witnesses to testify about previous incidents where the appellant was abusive to her 

daughter. The military judge correctly applied the three-part test found in United States 

v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989) to determine admissibility of previous 

incidents of flicking, thumping, and biting reflected a state of mind indicating that the 

appellant responded to her daughter’s irritating, yet normal, behavior with deliberate, 

inappropriate physical force under M.R.E. 404(b). The CAAF determined that the 

evidence was relevant to show both absence of mistake and intent. Although the 

appellant did not argue accident, evidence produced at trial by the appellant supported an 

argument that the injuries might have been accidentally inflicted. The government was 

entitled to rebut this argument. Likewise, although the appellant did not defend on the 

ground of either lack of requisite intent or accident, the CAAF held that “evidence of 

intent and lack of accident may be admitted regardless of whether a defendant argues lack 

of intent because every element of a crime must be proven by the prosecution.” Id. at 

202. 

c) Plan: Connotes a prior mental resolve to commit a criminal act, and implies preparation, 

and working out the particulars (time, place, manner, means, and so forth). Plan may prove 

identity, intent, or the actual criminal act. Evidence of plan must actually establish a plan. 

The CAAF will examine the relationship between the victims and the appellant, ages of 

victims, nature of the acts, situs of the acts, circumstances of the acts, and time span. If the 

CAAF finds the dissimilarities too great to support a common plan theory, it will not support 

admitting the uncharged misconduct. 

(1) Some decisions have been quite liberal in admitting uncharged misconduct evidence 

under the rubric of plan. See, United States v. Munoz, 32 M.J. 359 (C.M.A.), cert. 

denied, 502 U.S. 967 (1991) (where the “age of the victim, the situs of the offense, the 

circumstances surrounding their commission, and the fondling nature of the misconduct” 

were similar to sexual misconduct of the accused 12 years earlier, the evidence was 

admissible to show a plan to sexually abuse his children (per Judge Sullivan). 

(2) The CAAF may be applying the brakes to the practice of using old acts of uncharged 

misconduct to prove plan under Rule 404(b). See, United States v. McDonald, 59 M.J. 

426, 430 (2004) (holding that a military judge abused his discretion in admitting 20-yearold acts of uncharged misconduct committed when the appellant was 13 years old to 

establish a common plan to commit charged acts of sexual misconduct against the 

appellant’s daughter. 

d) Identity: The government may use modus operandi evidence to establish the identity of 

the accused. 

(1) A high degree of similarity between the extrinsic act and the charged offense is 

required, so similar as to constitute “a signature marking the offense as the handiwork of 

the accused.” United States v. Gamble, 27 M.J. 298, 305 (C.M.A. 1988). 

e) Consciousness of Guilt: 

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(1) In United States v. Rhodes, 61 M.J. 445 (2005), the military judge admitted evidence 

of a meeting between a key government witness and the appellant to show the appellant’s 

consciousness of guilt. Shortly after the meeting, the witness manifested a sudden 

memory loss pertaining to his potential testimony. The CAAF reversed, holding that, 

while the evidence could have been admitted to evaluate the truthfulness of the witness’s 

claim of memory loss, it was not admissible to show appellant’s consciousness of guilt. 

However, consciousness of guilt may be admissible in some circumstances. 

(2) In United States v. Staton, 69 M.J. 228 (C.A.A.F. 2010), the court held that 

prosecutor intimidation, where the accused drove his car aggressively towards the trial 

counsel in the commissary parking lot, is probative of consciousness of guilt, and that a 

carefully tailored instruction appropriately mitigated defense concerns that the evidence 

would be used for the wrong purpose. The Court used the Reynolds test to determine 

admissibility. 

B. The Reynolds Test 

1. In 1989, the Court of Military Appeals in United States v Reynolds (29 M.J. 105 (C.M.A. 

1989) announced a 3-part test to determine admissibility of uncharged misconduct: 

a) Does the evidence reasonably support a finding that the appellant committed the prior 

crimes, wrongs, or acts? 

(1) Identify the “other act” and show who did it. This is a question of conditional 

relevancy, and governed by Rule 104(b). The judge is required only to consider the 

evidence offered and decide whether the panel reasonably could find that the “similar 

act” was committed by the accused. 

(2) In determining whether the government has introduced enough evidence, the trial 

court neither weighs credibility nor makes a finding that the government has proven the 

conditional fact by a preponderance of the evidence. The court simply examines all the 

evidence in the case and decides whether the panel members could reasonably find the 

conditional fact. See, Huddleston v. United States, 485 U.S. 681 (1988) (preliminary 

finding by the court that the government has proven the act by a preponderance of the 

evidence is not required by FRE 104(a); United States v. Castillo, 29 M.J. 145, 151 

(C.M.A. 1989). 

b) Does the evidence make a fact of consequence in the case more or less probable? What 

inferences and conclusions can be drawn from the evidence? If the inference intended 

includes one’s character as a necessary link, the past bad act evidence is excluded. 

c) Is the probative value of the evidence substantially outweighed by the danger of unfair 

prejudice? 

C. When Properly Admitted 

1. United States v. Hays, 62 M.J. 158 (2005). After being convicted of possessing child 

pornography and soliciting the rape of a child, the accused appealed on grounds that the 

introduction of uncharged misconduct in the form of emails in which he solicited pictures of child 

pornography was improper. The evidence included emails and pictures from the appellant 

discussing and showing children and adults engaging in sexual activity. The defense objected 

under Rules 401 and 403. The CAAF focused on the third Reynolds prong. Although the 

pictures and language in the e-mails were offensive, the CAAF believed that this was the nature 

of much of the evidence in cases involving child pornography. See United States v. Garot, 801 

F.2d 1241, 1247 (10th Cir. 1986) (noting that defendants in child pornography cases unavoidably 

risk the introduction of evidence that would offend an average juror). The CAAF determined that 

in light of the nature of the offense and the other evidence admitted, the prejudicial impact of the 

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admitted exhibits did not substantially outweigh their probative value in demonstrating 

appellant’s intent and motive to solicit sex with a child. See United States v. Acton, 38 M.J. 330, 

334 (C.M.A. 1993) (explaining that any prejudicial impact due to the “shocking nature” of a 

pornographic video depicting incest was diminished because the same conduct was already before 

the court members). 

2. United States v. Harrow, 62 M.J. 649 (A.F. Ct. Crim. App. 2006). After conducting a 

detailed Reynolds analysis, the AFCCA affirmed the introduction of prior instances of “flicking, 

biting, and thumping” the child in a shaken baby syndrome death case, finding the prior incidents 

demonstrated the state of mind of the accused and were sufficiently similar to pass the second 

Reynolds prong. The AFCCA went on to note “that, generally speaking, Rule 404(b) is 

interpreted more restrictively in military jurisprudence than its counterpart in other federal courts. 

In applying this jurisprudence, it is clear that military decisions are very fact specific, often based 

upon the totality of the circumstances, rather than granting the military judge broad discretion.” 

Harrow, 62 M.J. at 660; See e.g., Hays, 62 M.J. 158 (2005); Bresnahan, 62 M.J. 137 (2005); 

Rhodes, 61 M.J. 445 (2005); and Diaz 59 M.J. at 79 (2003). The interesting dicta on the 

difference between M.R.E. 404(b) and F.R.E. 404(b) notwithstanding, the Harrow court also 

mentions that 404(b) is a “rule of inclusion, not exclusion.” Harrow, 62 M.J. at 659. In a 

subsequent appeal, CAAF ignored the AFCCA dicta and instead focused on Reynolds’ second 

prong, analyzing whether the evidence was relevant to show the appellant’s intent or absence of 

mistake. United States v. Harrow, 65 M.J. 190 (2007). 

3. United States v. Booker, 62 M.J. 703 (A.F. Ct. Crim. App. 2006). In Booker, the government 

sought admission of evidence to show an accused’s consciousness of guilt. This case generally 

stands for the principle that, so long as the evidence is offered for a purpose other than to show 

the accused’s predisposition to commit the crime, evidence may be admitted under M.R.E. 

404(b). The relevant evidence need not fit exactly into one of the pigeon holes described under 

M.R.E. 404(b). 

4. Admissibility of Post-Offense Misconduct. Evidence of an accused’s crack-related activities 

occurring after the charged offense was admissible to show intent and knowledge as to earlier 

offense. United States v. Latney, 108 F.3d 1446 (D.C. Cir. 1997). But see United States v. 

Matthews, 53 M.J. 465 (2000) (holding that evidence of a hot urinalysis that occurred after the 

charged wrongful use could not be used to show knowing use on the date of the charged offense). 

5. Effect of an Acquittal on Admissibility of Rule 404(b): In United States v. Mundell, 40 M.J. 

704 (A.C.M.R. 1994), the Army appellate court applied earlier precedents in United States v. 

Hicks, 24 M.J. 3 (C.M.A. 1987) and Dowling v. United States, 493 U.S. 342 (1990) to uphold the 

introduction of other acts for which the accused had been previously acquitted. “[C]ollateral 

estoppel does not preclude using otherwise admissible evidence even though it was previously 

introduced on charges of which an accused has been acquitted.” (Hicks, 24 M.J. at 8 (Cox, J., 

concurring)). 

D. Limiting the Admissibility 

1. In United States v. Diaz, 59 M.J. 79 (2003), the government introduced evidence of several 

other injuries the appellant had allegedly inflicted on his daughter to establish a “pattern of 

abuse” that would help establish that the death of his daughter was a homicide and appellant was 

the perpetrator. The CAAF applied the Reynolds test and concluded that the uncharged 

misconduct was improperly admitted: (1) The government failed to establish that the accused had 

inflicted the other injuries on his daughter; (2) the evidence did not make a fact of consequence 

more or less probable because the accused’s defense was a general denial and a claim that the 

death was due to unknown causes; and (3) when viewed in the light of improper opinion 

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testimony that was also admitted at trial, the evidence was substantially more prejudicial than 

probative. 

2. United States v. McDonald, 59 M.J. 426 (2004). Applying the second prong of Reynolds, 

CAAF held that evidence of appellant’s uncharged acts was not logically relevant to show either 

a common plan or appellant’s intent. The CAAF concluded that the military judge abused his 

discretion in admitting the uncharged acts to establish a common plan due to how dissimilar the 

uncharged acts were to the charged offenses. The CAAF focused on the fact the appellant was 13 

years of age at the time of the uncharged acts, rather than a 33-year-old adult; the uncharged acts 

were committed in the home of his stepsister, where he was visiting, while the charged acts 

occurred where he was the head of the household; the uncharged acts were with a stepsister who 

was about five years younger, rather than with a young stepchild under his parental control, who 

was about 20 years younger. The CAAF also held the uncharged acts were not relevant to show 

intent. The CAAF focused on the fact the appellant was a 13-year-old child at the time of the 

uncharged acts, and a 33-year-old married adult at the time of the charged acts. Absent evidence 

of that 13-year-old adolescent’s mental and emotional state, sufficient to permit meaningful 

comparison with appellant’s state of mind as an adult 20 years later, the CAAF held that the 

military judge’s determination of relevance on the issue of intent was “fanciful and clearly 

unreasonable.” 

3. United States v. Rhodes, 61 M.J. 445 (2005). The CAAF reversed the affected findings and 

sentence after holding that the military judge abused his discretion in applying the third prong of 

the Reynolds test. The case involved a government witness who suddenly lost his memory after 

speaking with the appellant shortly before trial. The witness had given a confession implicating 

himself and the appellant in drug offenses. The trial counsel wanted to offer evidence of the 

previous meeting to argue the appellant had intimidated the witness. The CAAF determined that 

the military judge did not err by allowing the government to enter evidence about the meeting 

between the appellant and the government witness. The Court concluded this evidence placed the 

memory loss in its proper context. However, the military judge did err when he instructed the 

members that they could use the evidence to prove consciousness of guilt on the appellant’s part. 

The CAAF believed the military judge’s instruction erroneously allowed the Government to 

suggest that the Appellant was at fault for a key government witness’s memory loss (other factors 

could have contributed to the memory loss, such as the significant time between the confession 

and trial). “When evidence is admitted under Rule 404(b), the [members] must be clearly, 

simply, and correctly instructed concerning the narrow and limited purpose for which the 

evidence may be considered.” 

4. United States v. Bresnahan, 62 M.J. 137 (2005). Military judge abused his discretion by 

admitting uncharged misconduct evidence. Although not expressly stated in the opinion, the 

military judge’s decision failed the first prong of the Reynolds test. The CAAF determined that 

the admission was harmless. When a military judge erroneously admits uncharged misconduct, 

that decision will not be overturned “unless the error materially prejudices the substantial rights 

of the accused.” UCMJ, art. 59(a). The harmlessness of the error will be evaluated by 

“‘weighing: (1) the strength of the Government’s case, (2) the strength of the defense case, (3) the 

materiality of the evidence in question, and (4) the quality of the evidence in question.’” 

McDonald, 59 M.J. at 430, citing United States v. Kerr, 51 M.J. 401, 405 (1999). 

5. United States v. Thompson, 63 M.J. 228 (2006). The Appellant was convicted of wrongful 

use, possession and distribution of marijuana. The uncharged misconduct at issue on appeal 

involved statements by the Appellant about his preservice drug use. The appellant maintained the 

uncharged misconduct served no legitimate purpose and merely painted him as a habitual drug 

user. Focusing again on the second Reynolds prong, CAAF found that Thompson did not raise 

the issues of lack of knowledge or mistake of fact regarding marijuana. Although the defense 

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counsel referred to the Appellant as “naïve” and “young” in his opening statement, this 

description was never tied to marijuana or tied to anything that caused the Appellant to 

misapprehend any fact of consequence. Because the military judge admitted the uncharged acts 

evidence for the purpose of disproving lack of knowledge or mistake of fact, that evidence served 

no relevant purpose. Since it was not relevant, the evidence failed the second prong of the 

Reynolds analysis. The evidence did not make a fact of consequence more or less probable by the 

existence of the evidence. 

6. Uncharged Acts During Sentencing: Admissibility of uncharged misconduct during 

presentencing is controlled by Rule 1001(b)(4), not Rule 404(b). Rule 404(b) evidence which 

may have been admissible on the merits is not admissible during presentencing unless it 

constitutes aggravating circumstances within the purview of Rule 1001(b)(4). 

7. Defense Concessions. United States v. Crowder, 141 F.3d 1202 (D.C. Cir. 1998). Case 

remanded from the Supreme Court in light of Old Chief v. United States, 519 U.S. 172 (1997). In 

an en banc reversal, a majority of the court held that the defense could not stipulate to uncharged 

misconduct in an effort to preclude the government from introducing evidence under Rule 404(b). 

The D.C. Circuit said that the evidence was relevant under Rule 401 even though there may have 

been other forms of evidence available. The defense cannot force the government to stipulate, 

and if the evidence fits an exception under Rule 404(b) and is not unduly prejudicial under Rule 

403, then it is admissible in the form the government wants. Stipulations are not the same as 

other evidence and government is not required to sacrifice the context and richness of the 

evidence through stipulations unless, as in Old Chief, the stipulation deals with the legal status of 

the accused and the stipulation gives the government everything they otherwise would want 

through use of the evidence. See also United States v. McCrimmon, 60 MJ 145 (2004) (assuming 

no overreaching by the government, evidence of uncharged misconduct, otherwise inadmissible 

evidence, may be presented to the court by stipulation and may be considered by the court). 

VI. METHODS OF PROVING CHARACTER
 

==================================================================== 

Rule 405. Methods of proving character 

(a) By Reputation or Opinion. When evidence of a person's character or character trait is admissible, it may 

be proved by testimony about the person's reputation or by testimony in the form of an opinion. On crossexamination of the character witness, the military judge may allow an inquiry into relevant specific instances 

of the person's conduct. 

(b) By Specific Instances of Conduct. When a person's character or character trait is an essential element of a 

charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the 

person's conduct. 

(c) By Affidavit. The defense may introduce affidavits or other written statements of persons other than the 

accused concerning the character of the accused. If the defense introduces affidavits or other written 

statements under this subdivision, the prosecution may, in rebuttal, also introduce affidavits or other written 

statements regarding the character of the accused. Evidence of this type may be introduced by the defense or 

prosecution only if, aside from being contained in an affidavit or other written statement, it would otherwise 

be admissible under these rules. 

(d) Definitions. "Reputation" means the estimation in which a person generally is held in the community in 

which the person lives or pursues a business or profession. "Community" in the Armed Forces includes a 

post, camp, ship, station, or other military organization regardless of size. 

==================================================================== 

A. Rule 405. Form of proof. 

1. While Rule 404 governs whether character evidence is admissible, by contrast, Rule 405 

governs “how” a proponent may prove character or a character trait. The rule applies in those 

situations where “character is in issue” (likely only entrapment cases) and in certain instances of 

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allowable character evidence under Rule 404(a)(1) (character of the accused), Rule 404(a)(2) 

(character of the alleged victim) and Rule 608 (character of a witness). 

2. Rule 405 does not apply to the following: 

a) Propensity Inferences under Rule 404(a). Since this use of character evidence is 

prohibited, there is no acceptable form of proof to introduce the character evidence. 

b) Non-propensity purpose under Rule 404(b). If one of the stated purposes of introduction 

under Rule 404(b) (KIPPOMIA – Knowledge, Intent, Plan, Preparation, Opportunity, 

Motive, Identity, or Absence of mistake) or any other non-character basis is offered for 

introduction of the evidence, then Rule 405 does not apply. Under Rule 404(b), relevancy 

does not depend upon conclusions about a person’s character. 

c) Habit under Rule 406. Habit evidence is not treated as character evidence and as such, is 

exempted from Rule 405. 

d) Evidence of victim’s traits under Rule 412. This rule allows the government or defense, 

in specific relatively rare instances, to use character evidence. Rule 405 does not govern the 

method of proof. Under Rule 412, if character evidence is allowed, it may only be proven by 

extrinsic specific acts. 

e) Evidence of similar crimes under Rules 413 and 414. These rules are exempted from 

405. Under Rules 413 and 414, the accused’s sex-related traits in sex offense or child 

molestation cases may be proven by reputation, opinion, or extrinsic specific acts. 

B. Rule 405. Methods of Proving Character. 

1. Rule 405(a) limits a proponent of character evidence to proving it either through using 

reputation or opinion testimony. A proponent is generally not allowed to elicit testimony 

regarding specific instances of conduct (unless character is an essential element of an offense or 

defense – discussed in detail below). 

a) Reputation evidence is information that a witness knows about an individual from having 

heard discussion about the individual in a specified community. Rule 405(d) lists several 

permissible examples of a “community.” See United States v. Reveles, 41 M.J. 388 (1995) 

(for purposes of reputation testimony, “community” broadly defined to include patrons at 

officer’s club bar). 

b) Opinion evidence is a witness’s personal opinion of an individual’s character. From a 

practical standpoint, the impact of this evidence, depends greatly upon the individual giving 

it. 

c) On cross-examination of a character witness, inquiry is allowable into relevant instances 

of conduct (discussed in greater detail below). 

2. Mechanically, the proponent demonstrates reputation/opinion/specific instances character 

evidence by showing the following that an individual has a particular character trait; the witness 

has an opinion about the trait, or is familiar with the person’s reputation concerning that particular 

trait, or can testify concerning specific acts relevant to the trait; AND the witness states an 

opinion, relates the reputation, or, under very limited circumstances, testifies about specific 

instances of conduct relevant to trait in issue. 

3. Cross-Examining a Character Witness 

a) The witness giving the reputation or opinion testimony is subject to impeachment by 

relevant specific instances of conduct. Rule 405(a). The rule in practice tends almost 

exclusively to be used by the government; however, it applies equally to both trial and 

defense counsel. This method is obviously a very effective way of testing a witness’s opinion 

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or reputation knowledge. If the witness admits hearing or knowing of the act, the trier of fact 

may discredit their testimony. If the witness denies having heard or knowing of the act, the 

trier of fact may question how well the witness knows the individual or the individual’s 

reputation. 

b) Counsel may inquire about specific instance of conduct by asking “Have you heard” or 

“Do you know” questions. Prior to asking any such question, however, counsel must have a 

good faith belief. United States v. Pruitt, 43 M.J. 864 (A.F. Ct. Crim. App. 1996). The 

opponent to such inquiry may require the proponent to state their good faith belief by way of 

a motion in limine. 

c) The witness either knows of the specific instances of conduct or they do not. The counsel 

asking the question is stuck with the witness’s response. United States v. Robertson, 39 M.J. 

211 (C.M.A. 1994), cert. denied, 115 S. Ct. 721 (1995). This is true since the purpose of the 

specific instance of conduct is to test the basis of the witness providing the character 

evidence. 

d) When cross-examining on specific instances of conduct, the focus should be on the 

underlying conduct and not the government action taken in response to the underlying 

conduct. For example, counsel’s questions should focus on the conduct which led to an 

article 15 and not the fact of the article 15 itself. Robertson, 39 M.J. at 214-15. 

e) Timeliness of Acts – Rule 405(a) is concerned with character at the time of the charged 

offense. Under the rule, any cross-examination should be limited to acts that would have 

occurred prior to the offense charged, because the court wants to test character at that time. 

Thus, it is improper to ask a character witness whether the charges brought in the case have 

affected reputation or their opinion. United States v. Brewer, 43 M.J. 43 (1995) (although not 

objected to, the court held that counsel are not permitted to test the basis of a witness’ 

character opinion by using the charged offense). 

4. Under Rule 405(b), specific instances of conduct are allowed in cases where character or a 

trait of character of an individual is an essential element of an offense or defense. Character is 

rarely an essential element of an offense or defense. An example of when character would be an 

essential element of an offense or defense is in a court-martial where the defense to purchasing 

illegal drugs is entrapment. Either the government or defense would be permitted to offer 

character evidence regarding the predisposition to purchase illegal drugs. Such evidence escapes 

the general proscription against character evidence because it is not offered to prove conformity, 

but because of the significance of the trait in relation to the crime. Where character is “an 

essential element of the offense or defense,” proof may be made by means of opinion or 

reputation evidence or specific instances of a person’s conduct. Rule 405(a) and (b). 

a) United States v. Schelkle, 47 M.J. 110 (1997) (character is not an essential element of 

good soldier defense such that proof may be made by reference to specific acts of conduct). 

b) United States v. Dobson, 63 M.J. 1 (2006). May evidence of specific acts of violence by 

an alleged victim, known to the accused, be admitted into evidence on the issue of the 

accused’s intent? Yes. Although the military judge correctly prevented the defense from 

using specific acts under Rule 405 to prove character of the accused, the military judge erred 

by not admitting the evidence to show the appellant’s state of mind at the time of the victim’s 

death. Under Rule 405, a relevant character trait may only be admitted by reputation or 

opinion testimony, unless the character trait is an essential element of an offense or defense. 

The military judge determined that although the victim’s character for violence could be 

proved by opinion or reputation evidence, specific acts by the victim were not admissible 

because the character trait for violence was not an essential element of the self-defense claim. 

The CAAF held the military judge erred when he did not address the question of whether 

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evidence of specific acts of violence known to the appellant were admissible on the issue of 

the appellant’s intent. Since the government lacked any direct evidence on premeditation, the 

prohibited testimony was material. With no direct evidence of intent, the panel could have 

accepted all of the government’s evidence pointing to the appellant as the perpetrator of the 

murder, but still have a reasonable doubt as to whether she premeditated the murder in light 

of the impact of abuse on her intent. Under these circumstances, the CAAF could not be 

confident that the error of excluding the testimony of the defense’s two witnesses was 

harmless on the issue of premeditation. The findings as to premeditated murder and sentence 

were reversed. 

5. Rule 405(c) has no federal counterpart, and is made necessary by the worldwide disposition 

of the armed forces and the difficulty of securing witnesses, particularly in connection with brief 

statements concerning character. Rule 405(c) is based on prior military practice and permits the 

defense to use affidavits or other documentary evidence to establish the accused’s character. The 

rule permits the government to make use of similar evidence in rebuttal. 

a) This use may have Sixth Amendment difficulties under Crawford v. Washington, 541 

U.S. 36 (2004). 

b) United States v. Lowe, 56 M.J. 914 (N-M Ct. Crim. App. 2002), the service court held 

that the military judge erred in allowing opinion testimony through the introduction of 

hearsay documents containing a “litany” of uncharged misconduct. The court went on to note 

that while Rule 405(c) relaxes the rules of evidence regarding hearsay concerning the form of 

such testimony, it does not relax the rules of evidence concerning the substance of such 

evidence. While the government counsel could have presented a written opinion under Rule 

405(c) rebutting the opinion offered by the defense, it couldn’t use Rule 405(c) to admit 

extrinsic evidence of otherwise inadmissible uncharged misconduct to rebut the offered 

opinion. 

VII. RULE 410. INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS, AND RELATED 

STATEMENTS. 

==================================================================== 

Rule 410. Pleas, plea discussions, and related statements 

(a) Prohibited Uses. Evidence of the following is not admissible against the accused who made the plea or 

participated in the plea discussions: 

(1) a guilty plea that was later withdrawn; 

(2) a nolo contendere plea; 

(3) any statement made in the course of any judicial inquiry regarding either of the foregoing pleas; 

or 

(4) any statement made during plea discussions with the convening authority, staff judge advocate, 

trial counsel or other counsel for the government if the discussions did not result in a guilty plea or 

they resulted in a later-withdrawn guilty plea. 

(b) Exceptions. The military judge may admit a statement described in subdivision (a)(3) or (a)(4): 

(1) when another statement made during the same plea or plea discussions has been introduced, if in 

fairness the statements ought to be considered together; or 

(2) in a proceeding for perjury or false statement, if the accused made the statement under oath, on 

the record, and with counsel present. 

(c) Request for Administrative Disposition. A "statement made during plea discussions" includes a statement 

made by the accused solely for the purpose of requesting disposition under an authorized procedure for 

administrative action in lieu of trial by court-martial; "on the record" includes the written statement submitted 

by the accused in furtherance of such request. 

==================================================================== 

1. Rule 410. The rule aims to encourage legitimate plea bargaining by protecting open, candid 

discussions between the accused and the prosecution. See Notes of Advisory Committee to 

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Federal Rule of Evidence 410 (1975); Standard 14-2.2, ABA Standards Relating to Pleas of 

Guilty (1986). Mezzanatto v. United States, 513 U.S. 196 (1995). 

2. The Military Rule extends to pretrial agreements, or discussions of the same with the trial 

counsel, staff judge advocate, or convening authority or other counsel for the Government. 

The federal rule extends only to “an attorney for the prosecuting authority.” 

3. The following are inadmissible against an accused: 

a) A plea of guilty that is later withdrawn; 

b) Any statement made by the accused and defense counsel in the course of the providence 

inquiry concerning a plea of guilty that is later withdrawn; 

c) Any statement made by the accused and defense counsel in the course of plea discussions 

which do not ultimately result in a plea of guilty or which result in a plea of guilty that is later 

withdrawn. 

4. United States v. Vasquez, 54 M.J. 303 (2001). Accused submitted a chapter 10 request 

admitting to a 212 day AWOL. That charge was not before the court. Government admitted that 

request in the sentencing case as part of the accused’s service records. CAAF said that accused’s 

statements were covered by Rule 410 in light of the court’s long-standing precedent for avoiding 

an excessively formalistic application of the rule in favor of a broad application. 

5. Rule 410 Examples. 

a) United States v. Barunas, 23 M.J. 71 (C.M.A. 1986) (accused’s letter to commander 

requesting non-judicial disposition of use and possession of cocaine charges was inadmissible 

under Rule 410). 

b) United States v. Brabant, 29 M.J. 259, 264-65 (C.M.A. 1989) (accused’s statement that 

he would do whatever it took to “make this right” was inadmissible). 

c) United States v. Watkins, 34 M.J. 344 (C.M.A. 1992) (accused’s questions to investigator 

as to amount of likely prison sentence is not plea negotiation as CID not within enumerated 

exceptions of Rule 410). 

d) United States v. Balagna, 33 M.J. 54, (C.M.A. 1991). CSM testified concerning the 

accused’s duty performance. CSM previously had spoken for the accused in an Article 15 

hearing based on a positive urinalysis, but stated that because of a report he had read, he 

would not do so again. Court member asked about the report. The panel was told about a 

Chapter 10 request, and the judge instructed that the report had no relevance to the trial. 

e) The Government may be able to introduce such evidence if it can establish that the same 

information was independently obtained or pursuant to other theories. See United States v. 

Magee, 821 F.2d 234 (5th Cir. 1987). 

VIII. THE “RAPE SHIELD” – RULE 412 

====================================================================== 

Rule 412. Sex offense cases: The victim's sexual behavior or predisposition 

(a) Evidence generally inadmissible. The following evidence is not admissible in any proceeding involving an 

alleged sexual offense except as provided in subdivisions (b) and (c): 

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. 

(2) Evidence offered to prove any alleged victim's sexual predisposition. 

(b) Exceptions. 

(1) In a proceeding, the following evidence is admissible, if otherwise admissible under these rules: 

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(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove 

that a person other than the accused was the source of semen, injury, or other physical 

evidence; 

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to 

the person accused of the sexual misconduct offered by the accused to prove consent or by 

the prosecution; and 

(C) evidence the exclusion of which would violate the constitutional rights of the accused. 

(c) Procedure to determine admissibility. 

(1) A party intending to offer evidence under subsection (b) must— 

(A) file a written motion at least 5 days prior to entry of pleas specifically describing the 

evidence and stating the purpose for which it is offered unless the military judge, for good 

cause shown, requires a different time for filing or permits filing during trial; and 

(B) serve the motion on the opposing party and the military judge and notify the alleged 

victim or, when appropriate, the alleged victim's guardian or representative. 

(2) Before admitting evidence under this rule, the military judge must conduct a hearing, which shall 

be closed. At this hearing, the parties may call witnesses, including the alleged victim, and offer 

relevant evidence. The alleged victim must be afforded a reasonable opportunity to attend and be 

heard. However, the hearing may not be unduly delayed for this purpose. The right to be heard under 

this rule includes the right to be heard through counsel, including Special Victims' Counsel under 

section 1044e of title 10, United States Code. In a case before a court-martial composed of a military 

judge and members, the military judge shall conduct the hearing outside the presence of the members 

pursuant to Article 39(a). The motion, related papers, and the record of the hearing must be sealed in 

accordance with R.C.M. 1103A and remain under seal unless the military judge or an appellate court 

orders otherwise. 

(3) If the military judge determines on the basis of the hearing described in paragraph (2) of this 

subsection that the evidence that the accused seeks to offer is relevant for a purpose under subsection 

(b) and that the probative value of such evidence outweighs the danger of unfair prejudice to the 

alleged victim's privacy, such evidence shall be admissible under this rule to the extent an order made 

by the military judge specifies evidence that may be offered and areas with respect to which the alleged 

victim may be examined or cross-examined. Such evidence is still subject to challenge under Mil. R. 

Evid. 403. 

(d) For purposes of this rule, the term "sexual offense" includes any sexual misconduct punishable under the 

Uniform Code of Military Justice, federal law or state law. "Sexual behavior" includes any sexual behavior not 

encompassed by the alleged offense. The term "sexual predisposition" refers to an alleged victim's mode of 

dress, speech, or lifestyle that does not directly refer to sexual activities or thoughts but that may have a sexual 

connotation for the fact finder. 

====================================================================== 

A. Purpose and Background. 

1. Basics: Rule 412 is a rule of relevance which prohibits the introduction of evidence of a 

victim’s other sexual behavior or predisposition. The logical foundation of the rule is similar 

to—though broader in scope than—the prohibition on propensity evidence from Rule 404, and 

rests on the premise that evidence of a person’s other sexual conduct rarely is relevant to the 

question of how a person acted on a specific occasion. The Rule “is intended to shield victims of 

sexual assaults from the often embarrassing and degrading cross-examination and evidence 

presentations common to prosecutions of such offenses.” (MCM, App. 22, at A22–36)(2012)). 

2. Prior to adoption of Rule 412, an accused was permitted to introduce evidence of the 

“unchaste” character of the victim, regardless whether the victim testified at trial. The prior rule 

often produced evidence “of at best minimal probative value with great potential for 

distraction...[which] discourages both the reporting and prosecution of many sexual assaults.” 

This use of the alleged victim’s sexual history by an accused came under criticism in the late 

1970s. As a result, Congress passed the Privacy for Rape Victim Act of 1978 as Federal Rule of 

Evidence 412. Congress revised the rule as part of the Violent Crime Control and Law 

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Enforcement Act of 1994. The military adopted Federal Rule of Evidence 412 under the
 

provisions of Rule 1102 as Rule 412. 

3. Early decisions of military appellate courts expressed “grave doubts whether Rule 412(a) 

should be properly construed as an absolute bar to the admission of evidence of a prosecutrix’ 

sexual reputation.” United States v. Elvine, 16 M.J. 14 (C.M.A. 1983). However, since that time 

the contours of Rule 412 have become clearer through both case law and refinements to the rule 

itself. In addition, the implementation of the Special Victims’ Counsel (SVC) program included 

fielding dozens of counsel authorized by statute and regulation to represent victims in sexual 

assault cases, including trial and writ practice associated with exercising the victim’s rights under 

Rule 412. See, e.g., LRM v. Kastenberg, 72 M.J. 364 (CAAF, 2013). 

B. Applicability and Exceptions. 

1. Rule 412 applies to both consensual and non-consensual offenses under the UCMJ. The 

rule’s protections depend on the status and presence of a victim, rather than consent. United 

States v. Banker, 60 M.J. 216 (2004). After CAAF’s decision in Banker, the Rule was amended 

in 2007 to clarify that Rule 412 applies in all sexual offense cases where the evidence is offered 

against a person that can reasonably be characterized as a “victim of the alleged sexual offense.” 

Hence, Rule 412 applies to nonconsensual as well as consensual offenses, sexual offenses 

specifically proscribed under the UCMJ, federal sexual offenses prosecutable under clause 3 of 

Article 134, and state sexual offenses prosecutable under the Federal Assimilative Crimes Act. 

Accordingly, the “nonconsensual” language was removed from the rule by Executive Order 

13,447 in September 2008. 

2. There are three enumerated exceptions to the general rule of prohibition under 412: 

a) Someone else is the source of physical evidence: If the trial counsel has introduced 

evidence of semen, injury, or other physical evidence, the defense must be allowed to 

introduce other specific instances of the victim’s sexual behavior (if relevant) to show another 

was the source of the evidence. Rule 412(b)(1)(A). 

b) Evidence of other specific instances of sexual behavior between the victim and the 

accused if offered to prove consent, or if offered by the prosecution: this may be offered by 

the accused to prove consent or by the prosecution to prove lack of consent. Rule 

412(b)(1)(B). 

(1) United States v. Jensen, 25 M.J. 284 (C.M.A. 1987). Includes acts and statements of 

intent to engage in intercourse. 

(2) United States v. Kelly, 33 M.J. 878 (A.C.M.R. 1991). The military judge erred in 

excluding evidence of an alleged rape victim’s flirtatious and sexually provocative 

conduct. To admit evidence of past sexual behavior, the proponent must demonstrate that 

the evidence is relevant, material, and favorable to the defense. The prosecutrix’s past 

sexual conduct met those requirements. The rape shield provisions aim to protect the 

victim from harassment and humiliation, but those ends are not served by excluding 

evidence of open, public displays of sexually suggestive conduct. Findings and sentence 

were set aside. 

c) Constitutionally-required evidence: Under Rule 412(b)(1)(C), the standard is that the 

evidence must be (1) relevant, (2) material, and (3) favorable (defined by case-law as “vital”) 

to the defense. For all practical purposes, this is a test of necessity or vitality in military 

courts-martial. United States v. Banker, 60 M.J. 216 (2004). 

(1) United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011). The military judge denied the 

accused’s initial MRE 412(b)(1)(c) motion to cross examine the victim on a prior, 

unfounded rape allegation. During direct examination the government opened the door 

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by using it to bolster her reason for delayed reporting the current allegation. The court 

found it error to deny the accused the ability to cross examine on it after the government 

opened the door. Denying the accused the right to confront the victim with her previous 

allegation of rape under MRE 412(b)(1)(c) after the government opened the door on 

direct examination in an effort to bolster her credibility denied the accused his right to 

confrontation despite the military judge’s earlier ruling to exclude the evidence in pretrial 

motions. A key component of the Confrontation Clause is the crucible of crossexamination. Davis v. Alaska, 415 U.S. 308, 316-317 (1974). This right becomes even 

broader when the prosecution opens the door to impermissible evidence during their case 

in chief. A failure by the intermediate court was not recognizing that witness credibility 

is an issue for the fact finder. 

(2) United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011). The C.A.A.F. held that the 

prior decision in United States v. Banker was wrong in holding that an accused’s 

constitutional rights should be balanced against a victim’s privacy interests when 

determining admissibility under MRE 412(b)(1)(c). While the balancing test itself is not 

per se unconstitutional, it can be applied in an unconstitutional manner. If evidence is 

constitutionally required, and it survives MRE 403 balancing, the evidence is admissible 

regardless of the level of embarrassment. Despite this holding, the facts of this case did 

not allow the accused to confront the victim with evidence under MRE 412. The accused 

in this case did not make a showing that the evidence found in e-mails alluding to the 

victim being sexually active was constitutionally required under MRE 412(b)(1)(c). The 

military judge did allow cross-examination on the e-mails without allowing questions 

into the content by using MRE 611. While an accused has a right to confront his accuser, 

that right is not without limitations. Davis v. Alaska, 415 U.S. 308, 316 (1974). The 

Confrontation Clause protects a person’s rights to a fair cross-examination of a witness to 

establish bias or motive to lie. That cross-examination can be curtailed when the 

probative value is outweighed by the danger of unfair prejudice. These dangers of unfair 

prejudice include harassment, prejudice, confusion of the issues, the witness' safety, or 

interrogation that is repetitive or only marginally relevant. Delaware v. Van Arsdall, 475 

U.S. 673, 678–79 (1986). Here, the judge had already determined that there was 

insufficient probative value in the e-mails to rise to the level of constitutionally required 

evidence. As such, he may be allowed an opportunity to expose her motive to lie, but not 

in every possible manner. The military judge placed limits on the inquiry, and CAAF 

held that the judge had admitted sufficient evidence to establish TE’s motive to lie. 

Excluding the sexual nature of the worrisome e-mails did not violate the constitutional 

rights of the accused. The court did not conduct any MRE 403 analysis. 

(3) United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011). The C.A.A.F. held that in 

an Article 120 case it was error for the military judge to exclude evidence that the victim 

had an extra-marital affair two years prior. When she disclosed the earlier affair to her 

husband, he became enraged and kicked down the wife’s lover’s door. The court found 

that the military judge prevented Ellerbrock from presenting a theory that a previous 

affair made it more likely that CL would have lied in this case; that it was a fair inference 

that a second affair would be more damaging to CL’s marriage than a single event; and 

there was evidence in the record to support this inference, particularly the evidence that 

the husband had had a prior violent reaction when learning about CL’s affair. The court 

found that the proffered evidence had a direct and substantial link to CL’s credibility, and 

her credibility was a material fact in the case. The probative value of the evidence was 

high because the other evidence in the case was so conflicting, and was not outweighed 

by other concerns. The court did not conduct any MRE 403 analysis. 

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(4) United States v. Williams, 37 M.J. 352 (C.M.A. 1993). The military judge denied the 

defense motion for a rehearing based on newly discovered evidence concerning the 

victim’s credibility. The evidence suggested a motive to fabricate, and showed that the 

government expert based his opinion testimony on her “deceitful and misleading” 

information. Since the evidence was relevant, material and favorable to the defense, it 

was “constitutionally required to be admitted.” 

(5) United States v. Greaves, 40 M.J. 432 (C.M.A. 1994). The military judge properly 

prevented accused from testifying that he knew that rape victim was a hostess at a 

Japanese bar and dressed provocatively. The testimony was not relevant where the 

victim was semi-conscious and where the accused was allowed to testify about 

circumstances which allegedly led him to believe the victim consented. 

(6) United States v. Harris, 41 M.J. 890 (A. Ct. Crim. App. 1995). Evidence of a 

victim’s prior sexual activity as a prostitute was constitutionally required to be admitted 

where defense theory was that victim agreed to sexual intercourse in expectation of 

receiving money for a bus ticket to Cleveland, and was motivated to retaliate by alleging 

rape only after accused called her a “skank bitch.” See also United States v. Saipaia, 24 

M.J. 172 (C.M.A. 1987), cert. denied, 484 U.S. 1004 (1988). 

(7) United States v. Buenaventura, 45 M.J. 72 (1996). Evidence of sexual abuse of an 

eight-year-old victim by the grandfather, and expert testimony regarding “normalization” 

– replacing abusive person (grandfather) with friendly person (accused) in recalling the 

abuse – was constitutionally required to be admitted. But see United States v. Gober, 43 

M.J. 52 (1995); United States v. Pagel, 45 M.J. 64 (1996). 

d) The victim’s past sexual history must be relevant to the defense’s theory before it is 

admissible under a Constitutionally-required standard. 

(1) United States v. Velez, 48 M.J. 220 (1998). Accused was convicted of rape. The 

CAAF noted that the defense theory of the case was that the contact never happened, so 

even if the victim was promiscuous, it didn’t matter under the defense theory. 

(2) United States v. Datz, 59 M.J. 510 (C.G. Ct. Crim. App. 2003). Affirming 

appellant’s rape conviction, the court held that evidence of the victim’s previous sexual 

encounters with another servicemember was too speculative and not commonly viewed 

as being relevant. 

(3) United States v. Banker, 60 M.J. 216 (2004); abrogated by United States v. Gaddis, 

70 M.J. 248 (C.A.A.F. 2011) (holding that the prior decision in United States v. Banker 

was wrong when it held that the victim’s privacy interests should be balanced against 

evidence determined to be constitutionally required before allowing it into evidence). In 

Banker, the C.A.A.F. held that evidence proffered under the constitutionally required 

exception to M.R.E. 412(a) is admissible only if the evidence is 1) relevant; 2) material; 

and 3) favorable to the defense AND it is not outweighed by the victim’s privacy. This 

balancing test, applied in this manner, is unconstitutional under United States v. Gaddis. 

While other sections of Banker may be useful in helping counsel determine relevant and 

material, if evidence is found constitutional, the victim’s privacy cannot be used to 

exclude it regardless of the significance. 

C. Rule 412. Requirements for admission. 

1. As a foundational matter the proponent must show: The act is relevant for one of the 

specified purposes in Rule 412(b); where the act occurred; when the act occurred; AND who was 

present; 

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2. Proponent (typically the defense) must show that its probative value outweighs the danger of 

unfair prejudice to the alleged victim’s privacy. 

a) United States v. Sanchez, 44 M.J. 174 (1996). As offer of proof failed to identify the 

significance and theory of admissibility of the victim’s prior sexual behavior, accused was 

not entitled to hearing on the admissibility of Rule 412 evidence. Judge Everett claims that, 

where alleged motive is commonly understood and obvious from the facts, it is unnecessary 

for the defense to produce expert testimony. However, where the proffered motive is highly 

speculative and not commonly understood, expert testimony is essential to understand the 

connection between the motive to lie and the prior consensual behavior. 

b) United States v. Banker, 60 M.J. 216 (2004). In applying Rule 412, the military judge is 

not asked to determine if the proffered evidence is true. Rather, the military judge serves as a 

gatekeeper by deciding first whether the evidence is relevant and next whether it is 

admissible under the Rule. The members weigh the evidence and determine its veracity. 

While evidence of a motive to fabricate an accusation is generally constitutionally required to 

be admitted, the alleged motive must itself be articulated to the military judge in order for her 

to properly assess the threshold requirement of relevance. 

c) United States v. Zak, 65 M.J. 786 (A. Ct. Crim. App. 2007). The military judge abused 

her discretion in excluding evidence of the victim’s prior sexual behavior towards appellant 

(i.e., a mostly nude massage) because she did not believe that the incident occurred. Based 

on Banker, the ACCA reiterated that the military judge only determines whether the evidence 

is relevant and meets one of the exceptions under MRE 412 (b), not whether the evidence is 

true. 

3. Evidence admissible under Rule 412 is still subject to challenge, and may therefore be 

excluded, under Rule 403. (Note that the 2007 Amendment to 412 (c)(3) specifically states, 

“Such evidence is still subject to challenge under Mil. R. Evid. 403.”). 

4. Procedural Requirements for admission. Rule 412(c) imposes procedural and notice 

requirements that must be implemented before a defense counsel may use one of the exceptions. 

The defense must file a written motion at least five days prior to entering a plea. The motion 

must specifically describe the desired evidence and the purpose for which it is being offered. The 

defense must serve the motion on the government, the military judge, and notify the alleged 

victim. The military judge, if necessary, conducts a closed Article 39(a) session. During this 

proceeding both parties may call witnesses, including the alleged victim and offer other evidence. 

The alleged victim must be afforded a reasonable opportunity to attend and be heard. The 

defense is required to establish that its evidence satisfies one of the stated exceptions. The 

military judge must determine whether, on the basis of the hearing, the evidence the defense 

seeks to admit is relevant. Evidence admissible under Rule 412 is still subject to challenge under 

Rule 403. 

IX. EVIDENCE OF SIMILAR CRIMES IN SEXUAL ASSAULT CASES AND CHILD 

MOLESTATION CASES 

==================================================================== 

Rule 413. Similar crimes in sexual offense cases 

(a) Permitted Uses. In a court-martial proceeding for a sexual offense, the military judge may admit evidence 

that the accused committed any other sexual offense. The evidence may be considered on any matter to which 

it is relevant. 

(b) Disclosure to the Accused. If the prosecution intends to offer this evidence, the prosecution must disclose 

it to the accused, including any witnesses' statements or a summary of the expected testimony. The prosecution 

must do so at least 5 days prior to entry of pleas or at a later time that the military judge allows for good cause. 

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(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other 

rule. 

(d) Definition. As used in this rule, "sexual offense" means an offense punishable under the Uniform Code of 

Military Justice, or a crime under federal or state law (as "state" is defined in 18 U.S.C. § 513), involving: 

(1) any conduct prohibited by Article 120; 

(2) any conduct prohibited by 18 U.S.C. chapter 109A; 

(3) contact, without consent, between any part of the accused's body, or an object held or controlled 

by the accused, and another person's genitals or anus; 

(4) contact, without consent, between the accused's genitals or anus and any part of another person's 

body; 

(5)	 contact with the aim of deriving sexual pleasure or gratification from inflicting death, bodily 

injury, or physical pain on another person; or 

(6) an attempt or conspiracy to engage in conduct described in subdivisions (d)(1)–(5). 

Rule 414. Similar crimes in child-molestation cases 

(a) Permitted Uses. In a court-martial proceeding in which an accused is charged with an act of child 

molestation, the military judge may admit evidence that the accused committed any other offense of child 

molestation. The evidence may be considered on any matter to which it is relevant. 

(b) Disclosure to the Accused. If the prosecution intends to offer this evidence, the prosecution must disclose 

it to the accused, including witnesses' statements or a summary of the expected testimony. The prosecution 

must do so at least 5 days prior to entry of pleas or at a later time that the military judge allows for good cause. 

(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other 

rule. 

(d) Definitions. As used in this rule: 

(1) “Child” means a person below the age of 16; and 

(2) “Child molestation” means an offense punishable under the Uniform Code of Military Justice, or 

a crime under federal law or under state law (as "state" is defined in 18 U.S.C. § 513), that 

involves: 

(A) any conduct prohibited by Article 120 and committed with a child; 

(B) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child; 

(C) any conduct prohibited by 18 U.S.C. chapter 110; 

(D) contact between any part of the accused's body, or an object held or controlled by the 

accused, and a child's genitals or anus; 

(E) contact between the accused's genitals or anus and any part of a child's body; 

(F) contact with the aim of deriving sexual pleasure or gratification from inflicting death, 

bodily injury, or physical pain on a child; or 

(G) an attempt or conspiracy to engage in conduct described in subdivisions (d)(2)(A)–(F). 

==================================================================== 

A.	 Rule 413/414. 

1. Rule 413 allows, in sexual assault cases, the introduction of evidence that the accused has 

committed another sexual assault offense. If admitted, the evidence may be considered on any 

matter to which it is relevant (including propensity). The rule operates as an exception to the rule 

prohibiting propensity evidence under Rule 404. Rule 414 functions the same way in cases of 

child molestation. The rules were written to overcome three main criticisms of Rule 404(b) in 

sex offense cases: (1) Rule 404(b) requires trial counsel to articulate a non-propensity purpose; 

(2) the military judge always has discretion under Rule 403 to exclude the evidence; and (3) the 

limiting instruction from the military judge prohibited the government from using the evidence to 

argue an accused has a propensity to commit sexual offenses. 

2. Congress enacted Rules 413 and 414 as part of the Violent Crime Control and Enforcement 

Act of 1994. During the Congressional debate on these provisions, Representative Susan 

Molinari, the Rules’ primary sponsor, said it was the intent of Congress that the courts “liberally 

construe” both Rules so that finders of fact can accurately assess a defendant’s criminal 

propensities and probabilities in light of his past conduct. 

B.	 Rule 413/414. Scope of the Rule. 

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1. Prior to admitting evidence under Rule 413 or 414, the military judge must make three 

threshold determinations: 

a) The accused is charged with an offense of sexual assault/child molestation; 

b) The evidence proffered is evidence of the accused’s commission of another offense of 

sexual assault/child molestation; and 

c) The evidence is relevant under Rules 401 and 402. United States v. Berry, 61 M.J. 91 

(2005). 

2. Balancing under Rule 403. If the evidence offered meets these threshold requirements, a 

military judge must next apply the balancing test under Rule 403 to determine whether the 

evidence may be excluded because its probative value is substantially outweighed by the danger 

of unfair prejudice, confusion of the issues, or misleading the members. Numerous military 

appellate courts have published opinions which clarify the contours of this important rule. 

a) United States v. Green, 51 M.J. 835 (A. Ct. Crim. App. 1999). Military judge 

erroneously believed Rule 413 “trumped” Rule 403, and that the Rule 403 balancing test was 

not required. The Army appellate court held that a military judge is required to conduct a 

Rule 403 balancing test prior to admitting evidence under either Rules 413 or 414. 

b) In United States v. Wright, 53 M.J. 476, 482 (2000), the accused pled guilty to indecent 

assault of P in October of 1996. He pled not guilty but was convicted of indecent assault of 

D in April of 1996, and housebreaking of P’s room in October of 1996. The government 

admitted the assault on P under Rule 413 to prove propensity to commit indecent assault 

against D. The CAAF rejected the appellant’s claim that 413 was unconstitutional, finding 

the internal procedural protections of the rule and 403 balancing were sufficient to safeguard 

the interests of an accused. In addition, CAAF outlined a list of several nonexclusive factors 

(now widely referenced as the “Wright factors”) a military judge must consider in performing 

the required balancing of probative value and prejudicial effect. These include: strength of 

proof of the prior act (e.g. a conviction, versus mere gossip); probative weight of the 

evidence; potential for less prejudicial evidence; distraction of the factfinder; time needed for 

proof of prior conduct; temporal proximity; frequency of the acts; presence or lack of 

intervening circumstances; and relationship between the parties. 

c) United States v. Henley, 53 M.J. 488 (2000). The accused was convicted of committing 

oral sodomy on his natural son and daughter. At trial, the government introduced incidents 

falling outside the statute of limitations under both Rules 414 and 404(b). The trial court 

admitted the evidence under both rules. The Air Force Court found the evidence admissible 

under Rule 404(b), and therefore did not need to address the Rule 414 issue. While CAAF 

agreed with the Air Force Court’s approach and affirmed, the opinion included dicta noting 

that, in light of its opinion in Wright, the evidence would have been admissible under 414 as 

well. 

d) United States v. Bailey, 55 M.J. 238 (2001). Appellant was convicted at a general courtmartial of rape, forcible sodomy, aggravated assault, and other offenses. He argued on appeal 

that the military judge erred in admitting, over defense objection, evidence of prior acts of 

forcible sodomy through the testimony of the appellant’s former wife and former girlfriend 

when the acts in question occurred up to a decade in time prior to the charged offenses. The 

military judge allowed the evidence under Rule 413, after performing a balancing test under 

Rule 403. The military judge also provided a limiting instruction to the panel concerning this 

evidence. The CAAF held that the balancing test conducted by the military judge, in 

conjunction with his limiting instruction, met the requirements for an appropriate balancing 

test outlined in United States v. Wright, even though the trial judge had not applied all of the 

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non-exclusive factors outlined in the Wright decision. See also United States v. Dewrell, 55 

M.J. 131 (2001). 

e) United States v. Berry, 61 M.J. 91 (2005). Appellant was convicted of forcible sodomy 

involving another male soldier. At trial, the appellant’s defense to the charge of forcible 

sodomy was that the alleged victim had consented to the oral sex incident. To counter this 

defense, the Government sought to introduce testimony from LS, who testified he had been 

the victim of a similar act by the appellant eight years earlier. The military judge found that 

the testimony was relevant and admissible under Rule 413. The ruling was affirmed by 

ACCA in an unpublished opinion. The CAAF found that although the testimony was 

relevant, the military judge erred in admitting it because he failed to do an adequate balancing 

test under Rule 403 and that under a proper Rule 403 balancing test the testimony was 

inadmissible and prejudicial. 

3. No Temporal Limit. United States v. James, 63 M.J. 217 (2006). The CAAF concluded that 

the clear language of Rule 414 does not limit the admission of other incidents of child molestation 

to those occurring before the charged offenses. This reading has equal application to Rule 413. 

Therefore, the fact that propensity evidence under Rule 413/414 occurs after the date of the 

charged offenses is not a barrier to its admission in the accused’s court-martial. 

4. Same acts not required. No requirement that the acts admitted under MRE 413/414 be the 

exact same acts of molestation as the charged offenses. United States v. Ediger, 68 M.J. 243 

(C.A.A.F. 2010). 

5. Limiting instructions may be required. 

a) In United States v. Dacosta, 63 M.J. 575 (Army Ct. Crim. App. 2006), the Army Court of 

Criminal Appeals held that trial judges have a sua sponte duty to issue a specific list of 

instructions to members on considering evidence offered under Rule 413. The Benchbook 

was later modified to meet this requirement. 

b) United States v. Schroder, 65 M.J. 49 (2007) illustrates the need for the type of 

instruction mandated by Dacosta. In Schroder, the military judge properly admitted the 

uncharged misconduct under M.R.E. 414, but failed adequately to instruct the members on its 

proper uses. While finding that the military judge’s instruction fell short of what was 

required when M.R.E. 414 evidence is admitted at trial, CAAF noted that the military judge 

correctly instructed the members on the government’s burden, but improperly qualified the 

statement by informing the members that they may “[h]owever . . . consider the similarities in 

the testimony” of the three alleged victims concerning the alleged rape and indecent acts. 

The CAAF believed the instruction was “susceptible to unconstitutional interpretation” 

because it could be construed to mean the similarities between the charged and uncharged 

misconduct could, standing alone, convict the appellant. The CAAF pointed to Dacosta and 

Benchbook instruction 7-13-1. While not adopting the entirety of the Dacosta instruction as 

its own, the CAAF stated the members “must be instructed that the introduction of such 

propensity evidence [under M.R.E. 414] does not relieve the government of its burden of 

proving every element of every offense charged. Moreover, the factfinder may not convict 

on the basis of propensity evidence alone.” In this case, the CAAF was convinced beyond 

reasonable doubt that the error did not contribute to the appellant’s conviction. As such, the 

court determined the error was harmless. 

c) In 2016 ACCA revisited the issue and overturned the portion of Dacosta which required 

those specific instructions. United States v. Williams, 75 M.J. 621, 629–30 (Army Ct. Crim. 

App. 2016). While the “formulaic” requirement of Dacosta has been eliminated, ACCA 

reaffirmed a more general requirement that a judge’s “instruction on M.R.E. 413 or M.R.E. 

414 evidence must still inform the panel that: 1) an accused may not be convicted based on 

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propensity evidence alone; and 2) that M.R.E. 413 or M.R.E. 414 evidence does not relieve 

the government of its burden to prove every element of every offense charged.” Williams, 75 

M.J. at 630, citing Schroder, 65 M.J. at 56. 

6. Admissibility of juvenile offenses. In United States v. Bare, 65 M.J. 35 (2007), the accused 

was charged with sexually molesting his natural daughter, RB. At the time of the trial, RB was 

fourteen years old. However, the sodomy specification covered a period when RB was under the 

age of twelve. At trial, the government sought to admit the testimony of the appellant’s sister 

KB regarding his sexual molestation of her when she was between the ages of seven and eleven 

and the appellant was between the ages of fifteen and nineteen. The Government also sought to 

admit the testimony of TA, the appellant’s stepdaughter. TA alleged the appellant had sexually 

molested her when she was about eleven years old. The government offered KB and TA’s 

testimony under M.R.E. 414. The appellant did not challenge the admissibility of TA’s 

testimony (since this occurred when he was an adult). However, the appellant did argue that the 

military judge erred in conducting the required M.R.E. 403 analysis. The appellant analogized 

his case to that of United States v. Berry, 61 M.J. 91 (2005) and United States v. McDonald, 59 

M.J. 426 (2004). In both Berry and McDonald, the CAAF concluded the military judge erred in 

admitting evidence of uncharged adolescent sexual misconduct to prove the charged adult sexual 

misconduct. The appellant in Bare argued that, as in Berry and McDonald, the military judge 

failed to give adequate consideration to his young age at the time of the uncharged misconduct 

when conducting his M.R.E. 403 analysis. The CAAF considered whether, in light of Berry and 

McDonald, the military judge erred in admitting uncharged sexual acts between the appellant, 

when he was an adolescent, and his sister. The CAAF stated that a military judge must take care 

to meaningfully analyze the different phases of an accused’s development when projecting on a 

child the mens rea of an adult or extrapolating an adult mens rea from the acts of a child. The 

CAAF cautioned military judges to not treat the different phases of the accused’s development as 

being unaffected by time, experience, and maturity. In this case, however, CAAF was persuaded 

that the appellant’s facts were distinguishable from those in Berry. Unlike Berry, the military 

judge conducted a meaningful MRE 403 balancing analysis which considered factors weighing 

both against and in favor of admission of the evidence; the misconduct occurred while the 

accused was an adult as well as an adolescent; the appellant was charged with an offense of child 

molestation (Berry was not); and the misconduct occurred regularly for a period of about two or 

three years. All of these factors, according to the CAAF, made KB’s testimony more probative 

and less unfairly prejudicial than the testimony admitted in Berry. As such, the military judge did 

not abuse his discretion in admitting the evidence under M.R.E. 414. 

7. Scope of evidence. The evidence offered under MRE 413 or 414 does not necessarily have to 

be the acts which constitute a sexual offense. 

a) In United States v. Yammine, 69 M.J. 70 (C.A.A.F. 2010), the government admitted over 

defense objection file names suggestive of homosexual acts with preteen and teenage boys 

under MRE 414 (and alternatively under MRE 404(b) against the accused who was charged 

with sodomizing a fourteen-year-old male. The CAAF held that the file names were not 

proper propensity evidence under MRE 414, nor were they admissible for any purpose under 

MRE 404(b). 

b) In order to be admissible under MRE 414, the proffered propensity evidence must be 

evidence of the accused’s commission of another offense of child molestation as defined by 

the rule. The military judge admitted the evidence under MRE 414(d)(5) and alternatively 

under section (d)(2). MRE 414(d)(5) allows evidence of an offense of child molestation that 

constitutes a crime under any Federal law that prohibits “deriving sexual pleasure or 

gratification from the infliction of death, bodily injury, or physical pain on a child.” MRE 

414(d)(2) allows evidence of “any sexually explicit conduct with children” proscribed by the 

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UCMJ, Federal, or State law. The court held that MRE 414(d)(5) could not include 

possession of just the file names suggestive of child pornography because, in the absence of 

the actual files, it was not possible to determine if the conduct depicted in the media fell 

within the parameters of MRE 414(d)(5). 

c) The court further held that MRE 414(d)(2) did not apply because it requires that the 

qualifying “sexually explicit conduct” proscribed by Federal law be “with children.” 

According to the court, under military law, “with children” means in the physical presence of 

children. United States v. Miller, 67 M.J. 87 (C.A.A.F. 2008).1 As such, possession or 

attempted possession of child pornography would not qualify under MRE 414(d)(2) because 

the appellant himself was not physically present with the children depicted in the child 

pornography. But see United States v. Conrady, 69 M.J. 714 (A. Ct. Crim. App. 2011) 

(holding that images clearly depicting a child in pain where the appellant saved them to his 

personal computer and admitted receiving sexual gratification from the images qualified 

under MRE 414(d)(5)). Conrady is discussed further below. 

d) The court also held that the unassociated file names were not admissible under MRE 

404(b) because the military judge failed to make a proper MRE 404(b) analysis. The court 

noted that the military judge specifically referenced “propensity” in making his MRE 404(b) 

determination. Propensity may be a relevant basis under MRE 413 and 414, but it is not a 

proper basis for admitting evidence under MRE 404(b). Accordingly, the military judged 

erred in alternatively admitting the unassociated file names under MRE 404(b). Additionally, 

the court independently determined that the probative value of the proffered evidence did not 

outweigh the danger of unfair prejudice. 

e) Finally, the court held that admitting the unassociated file names was prejudicial and 

therefore set aside appellant’s conviction for sodomy and indecent acts. The court also noted 

that the indecent acts charge was not subject to rehearing because the finding to that charge 

was reached as a lesser included offense of forcible sodomy under Article 125, UCMJ. 

Pursuant to United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010), indecent acts with a child is 

no longer a lesser included offense of sodomy. 

f) United States v. Conrady, 69 M.J. 714 (A.C.C.A. 2011). The Appellant had a previous 

court-martial conviction for receiving child pornography through interstate commerce in 

violation Article 134, U.C.M.J. (charged as 18 U.S.C. §2252A(a)(2)(B)). The government 

sought to admit several items from the Appellant’s prior court-martial, two of which were 

images of child pornography. The government argued that the images qualified under MRE 

414 as a prior crime of child molestation under MRE 414(d)(1) and (2). PE 14 depicted a 

child, obviously in pain, engaged in sexual activity with two adults, while PE 18 contained an 

image of child pornography but no element of infliction of pain or injury. While the military 

judge did err in admitting the PE 14 under MRE 414(d)(1) and (2), the error was harmless 

because PE 14 was admissible under MRE 414(d)(5). Possession, receipt or transport of an 

image of child pornography alone does not meet the definition of a sexual act or sexual 

conduct with children because it is not done in the presence of a child, which is required 

under MRE 414(d)(1) and (2). United States v. Yammine, 69 M.J. 70, 76 (C.A.A.F. 2010). 

However, this court’s prior decision in Yammine did not rule out the possibility that child 

pornography could be a qualifying prior crime under MRE 414 in other circumstances. MRE 

414(d)(5) does not refer to engaging in sexual contact and, as such, does not require the 

presence of a child. Instead, it focuses on “deriving pleasure . . . from the infliction of 

1 In Miller, CAAF held that an accused cannot be convicted of indecent liberties with a child under Article 134 when 

the alleged indecent conduct takes place over a webcam rather than in the actual presence of the child. United States 

v. Miller, 67 M.J. 87, 90-91 (C.A.A.F. 2008). 

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physical pain on a child,” which the accused here did through receiving and viewing the 

photograph. While the admission of PE 18 admission was in error and it was not admissible 

under another subsection, based on the other evidence admitted, the error was harmless. 

[NOTE: the subsections of MRE 414 have been renumbered since the court’s decision in 

Conrady, but the law remains substantively the same.] 

8. Admissibility between charged offenses. In the past, Rule 413 permitted the government to 

argue a propensity inference—subject to the Wright factors noted above—between charged 

offenses. See, generally, United States v. Barnes, 74 M.J. 692 (A.C.C.A. 2015)(trial counsel’s 

comments on the propensity of the accused during closing argument in a case involving only 

charged misconduct were proper under MRE 413); United States v. Bass, 74 M.J. 806 (N–M. 

C.C.A. 2015)(military judge’s instructions on the members’ consideration of the propensity of the 

accused was proper where only charged misconduct was before the court); United States v. 

Maliwat, 2015 CCA LEXIS 443 (A.F.C.C.A., Oct. 19, 2015)(there is a general presumption of 

admission for MRE 413 evidence which, when admissible, may be considered for the propensity 

of the accused to commit a sexual assault). However, in United States v. Hills, 75 M.J. 350 

(C.A.A.F. 2016), CAAF held that the use of sexual offense evidence for propensity purposes as 

between charged offenses was unconstitutional because it undermined the presumption of 

innocence and diluted the government’s burden of proving charged offenses beyond a reasonable 

doubt. 

X. RULES 501-513. PRIVILEGES. 

====================================================================== 

Rule 501. Privilege in general 

(a) A person may not claim a privilege with respect to any matter except as required by or provided for in: 

(1) the United States Constitution as applied to members of the Armed Forces; 

(2) a federal statute applicable to trials by courts-martial; 

(3) these rules; 

(4) this Manual; or 

(5) the principles of common law generally recognized in the trial of criminal cases in the United 

States district courts under rule 501 of the Federal Rules of Evidence, insofar as the application of 

such principles in trials by courts-martial is practicable and not contrary to or inconsistent with the 

Uniform Code of Military Justice, these rules, or this Manual. 

(b) A claim of privilege includes, but is not limited to, the assertion by any person of a privilege to: 

(1) refuse to be a witness; 

(2) refuse to disclose any matter; 

(3) refuse to produce any object or writing; or 

(4) prevent another from being a witness or disclosing any matter or producing any object or writing. 

(c) The term "person" includes an appropriate representative of the Federal Government, a State, or political 

subdivision thereof, or any other entity claiming to be the holder of a privilege. 

(d) Notwithstanding any other provision of these rules, information not otherwise privileged does not become 

privileged on the basis that it was acquired by a medical officer or civilian physician in a professional capacity. 

====================================================================== 

A. Privileges generally. 

1. Privileges are distinctive in their operation, in that they govern not just the admissibility and 

use of evidence at trial (whether members of the court may see or hear it, and how counsel may 

argue on those things), but govern also whether the materials may be produced in the first place. 

The authors of Military Evidentiary Foundations (5th Edition) explain privilege analysis in the 

following manner: in certain proceedings, the holder has a privilege unless it is waived or there is 

an applicable exception. DAVID A. SCHLUETER ET AL., MILITARY EVIDENTIARY FOUNDATIONS, 

§ 7–1[1] et seq. (5th ed. 2013). There are six considerations in this analytical framework: 

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a) The proceedings to which the privileges apply: pursuant to Rule 1101, the Rules 

respecting privileges apply at all stages in virtually all proceedings conducted pursuant to the 

UCMJ: investigations, Article 32 hearings, Article 72 vacation proceedings, search and 

seizure authorizations, and proceedings involving pretrial confinement. 

b) The holder of the privilege: The original holder is the intended beneficiary (e.g., the 

client, the penitent), although in certain cases, the holder’s agent will have authority to assert 

the privilege. 

c) The nature of the privilege: Encompasses three rights - to testify and refuse to disclose 

the privileged information; to prevent third parties from making disclosure; and the right to 

prevent counsel or the judge from commenting on the invocation of the privilege. 

d) What is privileged? The confidential communication between properly related parties 

made incident to their relation. 

(1) “Communication” is broadly defined. 

(2) “Confidential” implies physical privacy and intent on the part of the holder to 

maintain secrecy. 

e) Waiver of the privilege: Voluntary disclosure of the privileged matter, in-court or out-ofcourt, will waive the privilege. 

f) Exceptions to the privilege: In the military, exceptions to a privilege (as well as the 

privilege itself) are expressly delineated. See United States v. Custis, 65 M.J. 366, 370-71 

(2007) (stating that “whereas privileges evolve in other federal courts based on case law 

determinations, in the military system the privileges and their exceptions are expressly 

delineated.”). 

2. To claim a privilege, the elements of the foundation, in general, are: The privilege applies to 

this proceeding; the claimant is asserting the right type of privilege; the claimant is a proper 

holder of the privilege; and the information to be suppressed is privileged because it was a 

communication, it was confidential, it occurred between properly related parties, and it was 

incident to the relation. 

B. Rule 501. 

1. Rule 501 is the basic rule of privilege, recognizing privileges required by or provided for 

by the Constitution, acts of Congress, the Military Rules of Evidence, the MCM, and the 

privileges “generally recognized in the trial of criminal cases in the United States district 

courts pursuant to FRE 501 to the extent that application of those principles to courts-martial 

is practicable.” United States v. Miller, 32 M.J. 843 (N.M.C.M.R. 1991) (although it was 

unaware of any case applying 501(a)(4) to a privilege arising entirely from state law, here, 

accused did not even have standing to claim a statutory privilege for statements made by 

daughter to state social services officials). 

2. Despite the express provisions of MRE 501 (a)(4), can military courts apply federal 

common law privileges? See United States v. Custis, 65 M.J. 366, 370-71 (2007) (stating 

that “whereas privileges evolve in other federal courts based on case law determinations, in 

the military system the privileges and their exceptions are expressly delineated.”) See also 

United States v. Wuterich, 68 M.J. 511 (N-M. Ct. Crim. App. 2009) (refusing to recognize a 

“reporter’s privilege,” in part, because the privilege was not specifically delineated.) 

C. Rule 502. Lawyer-Client Privilege. 

====================================================================== 

Rule 502. Lawyer-client privilege 

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(a) General Rule. A client has a privilege to refuse to disclose and to prevent any other person from disclosing 

confidential communications made for the purpose of facilitating the rendition of professional legal services to 

the client: 

(1) between the client or the client's representative and the lawyer or the lawyer's representative; 

(2) between the lawyer and the lawyer's representative; 

(3) by the client or the client's lawyer to a lawyer representing another in a matter of common interest; 

(4) between representatives of the client or between the client and a representative of the client; or 

(5) between lawyers representing the client. 

(b) Definitions. As used in this rule: 

(1) "Client" means a person, public officer, corporation, association, organization, or other entity, 

either public or private, who receives professional legal services from a lawyer, or who consults a 

lawyer with a view to obtaining professional legal services from the lawyer. 

(2) "Lawyer" means a person authorized, or reasonably believed by the client to be authorized, to 

practice law; or a member of the Armed Forces detailed, assigned, or otherwise provided to represent 

a person in a court-martial case or in any military investigation or proceeding. The term "lawyer" does 

not include a member of the Armed Forces serving in a capacity other than as a judge advocate, legal 

officer, or law specialist as defined in Article 1, unless the member: 

(A) is detailed, assigned, or otherwise provided to represent a person in a court-martial case 

or in any military investigation or proceeding; 

(B) is authorized by the Armed Forces, or reasonably believed by the client to be authorized, 

to render professional legal services to members of the Armed Forces; or 

(C) is authorized to practice law and renders professional legal services during off-duty 

employment. 

(3) "Lawyer's representative" means a person employed by or assigned to assist a lawyer in providing 

professional legal services. 

(4) A communication is "confidential" if not intended to be disclosed to third persons other than those 

to whom disclosure is in furtherance of the rendition of professional legal services to the client or those 

reasonably necessary for the transmission of the communication. 

(c) Who May Claim the Privilege. The privilege may be claimed by the client, the guardian or conservator of 

the client, the personal representative of a deceased client, or the successor, trustee, or similar representative of 

a corporation, association, or other organization, whether or not in existence. The lawyer or the lawyer's 

representative who received the communication may claim the privilege on behalf of the client. The authority 

of the lawyer to do so is presumed in the absence of evidence to the contrary. 

(d) Exceptions. There is no privilege under this rule under any of the following circumstances: 

(1) Crime or Fraud. If the communication clearly contemplated the future commission of a fraud or 

crime or if services of the lawyer were sought or obtained to enable or aid anyone to commit or plan 

to commit what the client knew or reasonably should have known to be a crime or fraud; 

(2) Claimants through Same Deceased Client. As to a communication relevant to an issue between 

parties who claim through the same deceased client, regardless of whether the claims are by testate or 

intestate succession or by inter vivos transaction; 

(3) Breach of Duty by Lawyer or Client. As to a communication relevant to an issue of breach of duty 

by the lawyer to the client or by the client to the lawyer; 

(4) Document Attested by the Lawyer. As to a communication relevant to an issue concerning an 

attested document to which the lawyer is an attesting witness; or 

(5) Joint Clients. As to a communication relevant to a matter of common interest between two or more 

clients if the communication was made by any of them to a lawyer retained or consulted in common, 

when offered in an action between any of the clients. 

====================================================================== 

1. An attorney-client relationship is created when an individual seeks and receives professional 

legal service from an attorney. In addition, there must be an acceptance of the attorney by the 

client and an acceptance of the client by the attorney before the relationship is established. 

2. This privilege may be claimed by the client, or the lawyer on the client’s behalf. However, 

Rule 502(d)(1) removes the privilege with respect to future crimes, as does 502(d)(3) with regard 

to breach of duty by lawyer or client, etc. United States v. Smith, 33 M.J. 527 (A.C.M.R. 1991). 

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3. Waiver is examined strictly. In United States v. Marcum, 60 M.J. 198 (2004), the appellant 

went AWOL after findings but before sentencing. His defense counsel used a 20-page document 

the appellant had prepared for use at trial as an unsworn statement on sentencing. The document 

contained unflattering observations about several of the victims involved in the case, and the trial 

counsel capitalized on those observations in his sentencing argument. The CAAF held that the 

right to introduce an unsworn statement is personal to the accused, and in the absence of 

affirmative evidence of waiver, the evidence was admitted in violation of the attorney-client 

privilege. 

4. Remedy for breach. In United States v. Pinson, 57 M.J. 489 (2002), the CAAF held that 

when the actions of the government breached the attorney-client relationship between the accused 

and the defense counsel it may warrant reversal if it impacted the attorney’s performance or 

resulted in the disclosure of privileged information at the time of trial. The CAAF identified the 

following factors when making that determination: (1) whether an informant testified at the 

accused’s trial as to the conversation between the accused and his attorney; (2) whether the 

prosecution’s evidence originated in the conversations; (3) whether the overheard conversation 

was used in any other way to the substantial detriment of the accused; or (4) whether the 

prosecution learned from the informant the details of the conversations about trial preparations. 

Based upon these factors the court concluded no harm to the defense and affirmed the case. 

D. Rule 503. Communications to Clergy. 

====================================================================== 

Rule 503. Communications to clergy 

(a) General Rule. A person has a privilege to refuse to disclose and to prevent another from disclosing a 

confidential communication by the person to a clergyman or to a clergyman's assistant, if such communication 

is made either as a formal act of religion or as a matter of conscience. 

(b) Definitions. As used in this rule: 

(1) "Clergyman" means a minister, priest, rabbi, chaplain, or other similar functionary of a religious 

organization, or an individual reasonably believed to be so by the person consulting the clergyman. 

(2) "Clergyman's assistant" means a person employed by or assigned to assist a clergyman in his 

capacity as a spiritual advisor. 

(3) A communication is "confidential" if made to a clergyman in the clergyman's capacity as a spiritual 

adviser or to a clergyman's assistant in the assistant's official capacity and is not intended to be 

disclosed to third persons other than those to whom disclosure is in furtherance of the purpose of the 

communication or to those reasonably necessary for the transmission of the communication. 

(c) Who May Claim the Privilege. The privilege may be claimed by the person, guardian, or conservator, or by 

a personal representative if the person is deceased. The clergyman or clergyman's assistant who received the 

communication may claim the privilege on behalf of the person. The authority of the clergyman or clergyman's 

assistant to do so is presumed in the absence of evidence to the contrary. 

====================================================================== 

1. This privilege protects communications made as a formal act of religion or conscience. The 

privilege may be claimed by the penitent or in the absence of contrary evidence, by the clergyman 

or his/her assistant. United States v. Napoleon, 46 M.J. 279 (1997). For privilege to apply, the 

communication must: be made either as a formal act of religion or as matter of conscience; be 

made to a clergyman in his or her capacity as a spiritual advisor or to a clergyman’s assistant in 

his or her capacity as an assistant to a spiritual advisor; and be intended to be confidential. Note 

that the privilege was amended in 2007 to include communications made to a clergyman’s 

assistant. A “clergyman’s assistant” is “a person employed by or assigned to assist a clergyman 

in his capacity as a spiritual advisor.” See MRE 503(b)(2). 

2. United States v. Benner, 57 MJ 210 (2002). The CAAF reversed the case, holding that when 

a chaplain meets with a penitent, Rule 503 allows the disclosing person to prevent the chaplain 

from disclosing the contents of the statement when it was made as a formal act of religion or as a 

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matter of conscience. In this case the chaplain spoke with the accused and then informed him that 

army regulations would force the chaplain to disclose the confession of the accused. That was an 

erroneous statement of the Army’s regulation governing chaplains. Based upon statements made 

by the chaplain the accused then made an involuntary confession to CID agents after the chaplain 

took him to the MP station. The CAAF held that the confession was involuntary, and under a 

totality of the circumstances test could not be deemed admissible. 

3. In United States v. Shelton, 64 M.J. 32 (C.A.A.F. 2006), the CAAF held that communications 

made to a civilian minister acting as a marital counselor were covered by the attorney-client 

privilege. 

E. Rule 504. Marital Privilege. 

====================================================================== 

Rule 504. Marital privilege 

(a) Spousal Incapacity. A person has a privilege to refuse to testify against his or her spouse. There is no 

privilege under subdivision (a) when, at the time of the testimony, the parties are divorced, or the marriage has 

been annulled. 

(b) Confidential Communication Made During the Marriage. 

(1) General Rule. A person has a privilege during and after the marital relationship to refuse to 

disclose, and to prevent another from disclosing, any confidential communication made to the spouse 

of the person while they were married and not separated as provided by law. 

(2) Who May Claim the Privilege. The privilege may be claimed by the spouse who made the 

communication or by the other spouse on his or her behalf. The authority of the latter spouse to do so 

is presumed in the absence of evidence of a waiver. The privilege will not prevent disclosure of the 

communication at the request of the spouse to whom the communication was made if that spouse is 

an accused regardless of whether the spouse who made the communication objects to its disclosure. 

(c) Exceptions. 

(1) To Confidential Communications Only. Where both parties have been substantial participants in illegal 

activity, those communications between the spouses during the marriage regarding the illegal activity in 

which they have jointly participated are not marital communications for purposes of the privilege in 

subdivision (b) and are not entitled to protection under the privilege in subdivision (b). 

(2) To Spousal Incapacity and Confidential Communications. There is no privilege under subdivisions (a) 

or (b): 

(A) In proceedings in which one spouse is charged with a crime against the person or property of 

the other spouse or a child of either, or with a crime against the person or property of a third 

person committed in the course of committing a crime against the other spouse; 

(B) When the marital relationship was entered into with no intention of the parties to live together 

as spouses, but only for the purpose of using the purported marital relationship as a sham, and with 

respect to the privilege in subdivision (a), the relationship remains a sham at the time the 

testimony or statement of one of the parties is to be introduced against the other, or with respect to 

the privilege in subdivision (b), the relationship was a sham at the time of the communication; or 

(C) In proceedings in which a spouse is charged, in accordance with Article 133 or 134, with 

importing the other spouse as an alien for prostitution or other immoral purpose in violation of 18 

U.S.C. § 1328; with transporting the other spouse in interstate commerce for prostitution, immoral 

purposes, or another offense in violation of 18 U.S.C. §§ 2421–2424; or with violation of such 

other similar statutes under which such privilege may not be claimed in the trial of criminal cases 

in the United States district courts. 

(d) Definitions. As used in this rule: 

(1) “A child of either” means a biological child, adopted child, or ward of one of the spouses and includes a 

child who is under the permanent or temporary physical custody of one of the spouses, regardless of the 

existence of a legal parent-child relationship. For purposes of this rule only, a child is: 

(A) an individual under the age of 18; or 

(B) an individual with a mental handicap who functions under the age of 18. 

(2) “Temporary physical custody” means a parent has entrusted his or her child with another. There is no 

minimum amount of time necessary to establish temporary physical custody, nor is a written agreement 

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required. Rather, the focus is on the parent’s agreement with another for assuming parental responsibility for the 

child. For example, temporary physical custody may include instances where a parent entrusts another with the 

care of his or her child for recurring care or during absences due to temporary duty or deployments. 

(3) As used in this rule, a communication is “confidential” if made privately by any person to the spouse of 

the person and is not intended to be disclosed to third persons other than those reasonably necessary for 

transmission of the communication. 

====================================================================== 

1. Rule 504 reflects the Supreme Court’s decision in Trammel v. United States, 445 U.S. 40 

(1998), in which the Court held that the witness spouse alone has a privilege to refuse to testify, 

and a defendant spouse may assert only the privilege concerning confidential communications. 

Thus, one spouse may refuse to testify against the other. Confidential communications made 

during marriage are privileged, and that privilege may be asserted by the spouse who made the 

communication, or on his behalf by or the spouse to whom it was made during or after the marital 

relationship. See United States v. Durbin, 68 M.J. 271 (C.A.A.F. 2010) (allowing a witness 

spouse to testify concerning statements she made during a confidential marital communication so 

long as those statements did not repeat or reveal the accused spouse’s privileged statements). 

2. The rule contains several exceptions to the privilege, most importantly: (1) when the accused 

is charged with a crime against the person or property of the spouse or a child of either, and (2) 

when, at the time of the testimony is to be given, the marriage has been terminated by divorce or 

annulment. To prevent unwarranted discrimination among child victims, the term “a child of 

either” was amended in 2007 to include “not only a biological child, adopted child, or ward of 

one of the spouses but also includes a child who is under the permanent or temporary physical 

custody of one of the spouses, regardless of the existence of a legal parent-child relationship. For 

purposes of this rule only, a child is: (i) an individual under the age of 18; or (ii) an individual 

with a mental handicap who functions under the age of 18.” Prior to this amendment, there was 

no de facto child privilege in the military. See United States v. McCollum, 58 M.J. 323(2003) 

(holding that Rule 504(c)(2)(A) requires a lawful parental relationship, as opposed to a custodial 

relationship, to trigger the “child of either” exception). 

3. Adultery. United States v. Taylor, 64 M.J. 416 (C.A.A.F. 2007). Adultery constitutes a 

crime “against the person or property of the other spouse.” Thus, when one spouse is charged 

with adultery, the marital privilege, pursuant to M.R.E. 504(c)(2)(A) does not apply to 

communications involving the adultery. 

4. Presumption of Confidentiality. In United States v. McCollum, 58 M.J. 323 (2003), the 

appellant raped his wife’s 14-year-old sister, who was staying with the family for a summer visit. 

He made several statements to his wife about the incident. At trial, the military judge admitted 

two of the statements, claiming that the appellant did not establish the intent to hold the 

communications confidential. The CAAF reversed, holding that marital communications carry a 

presumption of confidentiality. Once the party asserting the privilege has established that the 

communication was made privately during a valid marriage, the burden shifts to the opposing 

party to overcome the presumption. 

5. Joint-Participant Exception. Although civilian federal courts recognize the joint-participant 

exception to the marital privilege, the joint-participant exception does not apply in military cases. 

See United States v. Custis, 65 M.J. 366 (C.A.A.F. 2007). In Custis, the CAAF reasoned that 

unlike privileges in the federal civilian courts that evolve based on case law, privileges in the 

military system are specifically delineated. Hence, the only exceptions are those expressly 

authorized. Consequently, there is no joint-participant exception to the marital privilege. Note 

that the ACCA in United States v. Davis, 61 M.J. 530 (A. Ct. Crim. App. 2005) had previously 

recognized a joint-participant exception to marital communications privilege. 

F. Rule 509. Deliberations of Courts and Juries. 

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1. Rule 509 preserves the sanctity of the factfinder’s deliberative process. 

2. Rule 606(b) provides an exception and permits intrusion into the factfinder’s deliberative 

process when there are questions concerning: 

a) Whether extraneous prejudicial information was brought to bear upon any member; 

b) Whether any outside influence was improperly brought to the member’s attention; or 

c) Whether there was unlawful command influence. 

3. Note that the deliberative process of military judges, like that of a panel, is protected from 

post-trial inquiry. United States v. Matthews, 68 M.J. 29 (C.A.A.F. 2009) 

G. Rule 513. Psychotherapist Patient Privilege. 

====================================================================== 

Rule 513. Psychotherapist-patient privilege 

(a) General Rule. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing 

a confidential communication made between the patient and a psychotherapist or an assistant to the 

psychotherapist, in a case arising under the Uniform Code of Military Justice, if such communication was made 

for the purpose of facilitating diagnosis or treatment of the patient's mental or emotional condition. 

(b) Definitions. As used in this rule: 

(1) "Patient" means a person who consults with or is examined or interviewed by a psychotherapist 

for purposes of advice, diagnosis, or treatment of a mental or emotional condition. 

(2) "Psychotherapist" means a psychiatrist, clinical psychologist, clinical social worker, or other 

mental health professional who is licensed in any State, territory, possession, the District of Columbia, 

or Puerto Rico to perform professional services as such, or who holds credentials to provide such 

services as such, or who holds credentials to provide such services from any military health care 

facility, or is a person reasonably believed by the patient to have such license or credentials. 

(3) "Assistant to a psychotherapist" means a person directed by or assigned to assist a psychotherapist 

in providing professional services, or is reasonably believed by the patient to be such. 

(4) A communication is "confidential" if not intended to be disclosed to third persons other than those 

to whom disclosure is in furtherance of the rendition of professional services to the patient or those 

reasonably necessary for such transmission of the communication. 

(5) "Evidence of a patient's records or communications" means testimony of a psychotherapist, or 

assistant to the same, or patient records that pertain to communications by a patient to a 

psychotherapist, or assistant to the same, for the purposes of diagnosis or treatment of the patient's 

mental or emotional condition. 

(c) Who May Claim the Privilege. The privilege may be claimed by the patient or the guardian or conservator 

of the patient. A person who may claim the privilege may authorize trial counsel or defense counsel to claim 

the privilege on his or her behalf. The psychotherapist or assistant to the psychotherapist who received the 

communication may claim the privilege on behalf of the patient. The authority of such a psychotherapist, 

assistant, guardian, or conservator to so assert the privilege is presumed in the absence of evidence to the 

contrary. 

(d) Exceptions. There is no privilege under this rule: 

(1) when the patient is dead; 

(2) when the communication is evidence of child abuse or of neglect, or in a proceeding in which one 

spouse is charged with a crime against a child of either spouse; 

(3) when federal law, state law, or service regulation imposes a duty to report information contained 

in a communication; 

(4) when a psychotherapist or assistant to a psychotherapist believes that a patient's mental or 

emotional condition makes the patient a danger to any person, including the patient; 

(5) if the communication clearly contemplated the future commission of a fraud or crime or if the 

services of the psychotherapist are sought or obtained to enable or aid anyone to commit or plan to 

commit what the patient knew or reasonably should have known to be a crime or fraud; 

(6) when necessary to ensure the safety and security of military personnel, military dependents, 

military property, classified information, or the accomplishment of a military mission; 

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(7) when an accused offers statements or other evidence concerning his mental condition in defense, 

extenuation, or mitigation, under circumstances not covered by R.C.M. 706 or Mil. R. Evid. 302. In 

such situations, the military judge may, upon motion, order disclosure of any statement made by the 

accused to a psychotherapist as may be necessary in the interests of justice; or 

(e) Procedure to Determine Admissibility of Patient Records or Communications. 

(1) In any case in which the production or admission of records or communications of a patient other 

than the accused is a matter in dispute, a party may seek an interlocutory ruling by the military judge. 

In order to obtain such a ruling, the party must: 

(A) file a written motion at least 5 days prior to entry of pleas specifically describing the 

evidence and stating the purpose for which it is sought or offered, or objected to, unless the 

military judge, for good cause shown, requires a different time for filing or permits filing 

during trial; and 

(B) serve the motion on the opposing party, the military judge and, if practical, notify the 

patient or the patient's guardian, conservator, or representative that the motion has been filed 

and that the patient has an opportunity to be heard as set forth in subdivision (e)(2). 

(2) Before ordering the production or admission of evidence of a patient's records or communication, 

the military judge must conduct a hearing, which shall be closed. At the hearing, the parties may call 

witnesses, including the patient, and offer other relevant evidence. The patient must be afforded a 

reasonable opportunity to attend the hearing and be heard. However, the hearing may not be unduly 

delayed for this purpose. The right to be heard under this rule includes the right to be heard through 

counsel, including Special Victims' Counsel under section 1044e of title 10, United States Code. In a 

case before a court-martial comprised of a military judge and members, the military judge must 

conduct the hearing outside the presence of the members. 

(3) The military judge may examine the evidence or a proffer thereof in camera, if such examination 

is necessary to rule on the production or admissibility of protected records or communications. Prior 

to conducting an in camera review, the military judge must find by a preponderance of the evidence 

that the moving party showed: 

(A) a specific factual basis demonstrating a reasonable likelihood that the records or 

communications would yield evidence admissible under an exception to the privilege; 

(B) that the requested information meets one of the enumerated exceptions under subsection 

(d) of this rule; 

(C) that the information sought is not merely cumulative of other information available; and 

(D) that the party made reasonable efforts to obtain the same or substantially similar 

information through non-privileged sources. 

(4) Any production or disclosure permitted by the military judge under this rule must be narrowly 

tailored to only the specific records or communications, or portions of such records or 

communications, that meet the requirements for one of the enumerated exceptions to the privilege 

under subsection (d) of this Rule and are included in the stated purpose for which the records or 

communications are sought under subsection (e)(1)(A) of this Rule. 

(5) To prevent unnecessary disclosure of evidence of a patient's records or communications, the 

military judge may issue protective orders or may admit only portions of the evidence. 

(6) The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 

1103A and must remain under seal unless the military judge or an appellate court orders otherwise. 

====================================================================== 

1. Rule 513 is a now-distant derivative of the Supreme Court’s decision in Jaffe v. Redmond 

(518 U.S. 1 (1996)), and safeguards the confidentiality of communications between patients and 

psychotherapists and other counselors. The privilege applies “at all stages of a case or 

proceeding” (see MRE 1101(c)) in actions arising under the UCMJ, but it is not a broader doctorpatient privilege (which is excluded from the Rules under Mil. R. Evid. 501(d)). While military 

courts were initially reluctant to implement psychotherapist-patient privilege, the rule has become 

more firmly rooted over time, and has been recently modified by statute. 

a) United States v. Rodriguez, 54 M.J. 156 (2000). The CAAF affirmed the Army Court’s 

ruling that Jaffee v. Redmond did not create a psychotherapist-patient privilege in the 

military. 

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b) United States v. Paaluhi, 54 M.J. 181 (2000). Consistent with Rodriguez, the court ruled 

that Jaffe v. Redmond did not create a psychotherapist-patient privilege in the military. The 

CAAF reversed the conviction on other grounds, finding ineffective assistance on the part of 

defense counsel to tell the accused to talk to a Navy psychologist without first having the 

psychologist appointed to the defense team. 

c) While Rodriguez and Paaluhi were not decided until 2000, in 1999 President Clinton 

directed the inclusion of MRE 513 in Executive Order 13,140 (6 October 1999). 

d) U.S. v. Jenkins, 63 M. J. 426 (CAAF, 2006). Doctor’s testimony was permitted under 

MRE 513(d)(4) and (6) because the privilege under MRE 513 reflects a more limited 

privilege based on the “specialized society” of the military and “the needs of military 

readiness and national security.” 

e) United States v. Bazar, 2012 WL 2505280 (AFCCA, 2012). Judge did not allow 

evidence from mental health records to impeach victim during sentencing; not 

constitutionally required and properly excluded by MRE 403. 

f) U.S. v. Hudgins, 2014 CCA LEXIS 227 (AFCCA, 2014). Mental health records 

indicating marginal dissatisfaction with relationship do not meet the “constitutionally 

required” standard. 

g) U.S. v. Klemick, 65 M.J. 576 (N–M. C.C.A., 2006). In Klemick, the N–M. C.C.A. 

considered what threshold should apply to directing the production of privileged 

psychotherapist-patient records under MRE 513. Finding no precedent in military or federal 

case law, the court turned to analyze state law on the issue. The court ultimately adopted the 

treatment afforded these records under a Wisconsin state court decision. Finding that “a 

threshold showing is required prior to an in camera review” of privileged communications, 

based on three considerations: 

(1) Did the moving party set forth a specific factual basis demonstrating a reasonable 

likelihood that the requested privileged records would yield evidence admissible under an 

exception to Mil. R. Evid. 513; 

(2) Is the information sought merely cumulative of other information available; and 

(3) Did the moving party make reasonable efforts to obtain the same or substantially 

similar information from unprivileged sources? Klemick, 65 M.J. 576, at 580. 

2. Statutory amendments. The standard announced in Klemick was adopted (with an additional 

element) by Congress in the changes to MRE 513 mandated by the Carl Levin and Howard P. 

“Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291 

(2014) [hereinafter 2015 NDAA]. In general, those provisions Congress added in the 2015 

NDAA clarify the scope of the privilege, curtail exceptions, enhance procedural remedies for 

patients, and make it more difficult to obtain and admit privileged matter. The 2015 NDAA also 

added an enforcement mechanism for MREs 412 and 513 by amending Article 6b of the UCMJ to 

provide that victims who believe their rights under those rules have been violated by the military 

judge may petition the Courts of Criminal Appeals (CCA) for a writ of mandamus. See 2015 

NDAA, § 535 (2014). Congress subsequently amended Article 6b to both expand and extend that 

mandamus practice to include MREs 514 and 615, as well as permitting victims to seek a writ 

from the decisions of a Preliminary Hearing Officer at Article 32 hearings. See § 531 of the 

National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92 (2015) [hereinafter 

2016 NDAA]. 

3. The rule. The most prominent feature of the modifications directed in the FY 2015 NDAA 

was removal of the “constitutionally required” exception under MRE 513(d)(8). In addition, MRE 

513(e)(3) imposes a clearly stated burden of proof (preponderance of the evidence) where a party 

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seeks production of privileged records or communications (even for in camera review). Because 

the modified Klemick standard announced in the rule requires proof by a preponderance that “the 

requested information meets one of the enumerated exceptions under subsection (d)[,]” 

(emphasis added) in theory a party cannot prevail on a motion for production or admissibility of 

privileged records because the “constitutionally required” exception is no longer enumerated. 

This issue has not yet been directly addressed by a military appellate court. 

4. Cases. The military courts have, however, addressed jurisdiction and procedural defects 

encountered at trial. 

a) In D.B. v. Lippert, ___ M. J. ___ (A.C.C.A., 2016), The Army appellate court set aside 

the trial court’s ruling on MRE 513 because the trial judge directed production of the records 

prior to conducting the required hearing under MRE 513(e). In addition, ACCA noted that 

the modification of Article 6b established a distinct basis for jurisdiction at the CCA. D.B., 

Slip Op. at 4. 

b) In E.V. v. United States, 75 M.J. 331, 334 (C.A.A.F., 2016), CAAF dismissed a victim’s 

petition for review and held that, while Article 6b is an independent grant of jurisdiction to 

the CCAs, it does not grant appellate jurisdiction of those petitions at CAAF. In Randolph v. 

H.V., No. 16–0678 (C.A.A.F., Feb. 2, 2017), CAAF reaches the same conclusion in 

dismissing a petition for review of the Coast Guard CCA brought by the accused. 

5. Quasi psychotherapist-patient privilege also exists under limited circumstances: 

a) Where psychiatrist or psychotherapist is detailed to assist the defense team, 

communications are protected as part of attorney-client confidentiality. United States v. 

Tharpe, 38 M.J. 8, 15 n.5 (C.M.A. 1993). 

b) Communications made by an accused as part of a sanity inquiry under Rule 302. United 

States v. Toledo, 26 M.J. 104 (C.M.A.), cert. denied, 488 M.J. 889 (1988). Note that 

confidentiality privilege for statements made during mental responsibility exams may not 

automatically apply retroactively to exams which the military judge deems as adequate 

substitute for court-ordered R.C.M. 706 examinations. United States v. English, 44 M.J. 612 

(N-M. Ct. Crim. App. 1996), rev’d on other grounds, 47 M.J. 215 (1997). 

XI. WITNESSES. 

A. Rule 601. Competency. 

====================================================================== 

Rule 601. Competency to testify in general 

Every person is competent to be a witness unless these rules provide otherwise. 

====================================================================== 

1. The rule eliminates the categorized disabilities which existed at common law and under prior 

military law. United States v. Morgan, 31 M.J. 43 (C.M.A. 1990), cert. denied, 498 U.S. 1085 

(1991). The very young (4 year old child here) are competent, even if hesitant, apprehensive, and 

afraid. 

2. In the event that the competency of a witness is challenged, e.g., a child, the proponent of the 

witness must demonstrate that the witness has: capacity to observe; capacity to remember; 

capacity to relate; and recognition of the duty to tell the truth. 

B. Rule 602. Personal Knowledge. 

====================================================================== 

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Rule 602. Need for personal knowledge 

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness 

has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own 

testimony. This rule does not apply to a witness's expert testimony under Mil. R. Evid. 703. 

====================================================================== 

1. As long as the panel could find that the witness perceived the event, the testimony should be 

admitted. Note, however, the term “sufficient,” which affirms that the military judge retains 

power to reject evidence if it could not reasonably be believed. 

2. To demonstrate personal knowledge, the proponent must show the witness was in a position 

to perceive the event, and did actually perceive it. 

C. Rule 605. The military judge. 

====================================================================== 

Rule 605. Military judge's competency as a witness 

(a) The presiding military judge may not testify as a witness at any proceeding of that court-martial. A party 

need not object to preserve the issue. 

(b) This rule does not preclude the military judge from placing on the record matters concerning docketing of 

the case. 

====================================================================== 

1. United States v. Howard, 33 M.J. 596 (A.C.M.R. 1991). Without any supporting evidence at 

trial, the military judge used his own specialized knowledge of drug use in Germany to conclude 

the accused used hashish instead of leaf marijuana, how a pipe was used in the process, and that 

the charged offense was not the accused’s first use of marijuana. In doing so, the judge became a 

witness, was disqualified, and all actions from then on were void. 

2. The rule is an exception to Rule 103 waiver rule. It does not apply to: 

a) Subsequent proceedings concerning trial presided over; e.g., limited rehearing such as 

those ordered pursuant to United States v. Dubay, 37 C.M.R. 411 (1967). 

b) Judicial notice under Rule 201. 

D. Rule 607. Who May Impeach. 

====================================================================== 

Rule 607. Who may impeach a witness 

Any party, including the party that called the witness, may attack the witness's credibility. 

====================================================================== 

1. Under prior practice, the party calling a witness was said to “vouch” for the witness. 

Ordinarily, that meant the party could not attack the credibility of that witness. That is no longer 

the case. Under the current rules a party may impeach its own witness, and may even call a 

witness for the sole purpose of impeachment. See 2013 Supplement to Manual for Courts-Martial, 

at A22–54. 

2. Rule 607 provides that “[t]he credibility of a witness may be attacked by any party, including 

the party calling the witness.” The rule contemplates impeachment, however, not the attempted 

introduction of evidence which otherwise is hearsay. Put differently, the Government may not 

use impeachment by prior inconsistent statement as a “subterfuge” to avoid the hearsay rule. 

United States v. Hogan, 763 F.2d 697, 702 (5th Cir. 1985). United States v. Ureta, 44 M.J. 290 

(1996), cert. denied, 117 S. Ct. 692 (1997). 

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E. Methods of Impeachment. 

1. Attacks focused on: Defects in capacity to observe, remember or relate; untruthful character; 

bias, partiality, interest in the outcome; prior convictions; prior inconsistent statements; or delay 

in reporting abuse or subsequent recantation. 

2. Defects in Capacity. Here the focus is on the witness’s ability to observe, remember, and 

relate the information. 

a) Observation. The common mode of attack is that the witness could not adequately 

see/hear the incident in question because of poor lighting, cross-racial identification 

problems, distance from the scene, etc. 

b) Recall. Because of the witness’s age, mental condition at the time of the incident or at 

the time of trial, time lapse between the incident and their in-court testimony, etc., the witness 

cannot accurately remember the incident. 

c) Relate. Because of the witness’s age, mental condition, lack of expertise, etc., the 

witness cannot accurately relate the information. 

F. Rule 608. Untruthful Character. 

====================================================================== 

Rule 608. A witness's character for truthfulness or untruthfulness 

(a) Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by testimony about 

the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of 

an opinion about that character. Evidence of truthful character is admissible only after the witness's character 

for truthfulness has been attacked. 

(b) Specific Instances of Conduct. Except for a criminal conviction under Mil. R. Evid. 609, extrinsic evidence 

is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's 

character for truthfulness. The military judge may, on cross-examination, allow them to be inquired into if they 

are probative of the character for truthfulness or untruthfulness of: 

(1) the witness; or 

(2) another witness whose character the witness being cross-examined has testified about. By 

testifying on another matter, a witness does not waive any privilege against self-incrimination for 

testimony that relates only to the witness's character for truthfulness. 

====================================================================== 

1. Once a witness testifies, including the accused or a hearsay declarant, his or her credibility 

becomes an issue. Evidence of character is then relevant. Rule 608(a) limits the relevance to 

truthfulness or untruthfulness. Methods of proving character are set out in Rule 405. Under 

608(a), the character must be attacked before it may be rehabilitated. Thus, bolstering is 

prohibited by the rule. Once attacked, the witness’ character for being truthful may be 

rehabilitated with opinion or reputation evidence. See United States v. Jenkins, 50 M.J. 577 (N. 

M. Ct. Crim. App. 1999), witness cannot comment directly about the credibility of another 

witness’s testimony. 

a) The foundational elements: 

(1) Reputation witness must show he or she is a member of the same community as the 

witness to be attacked or rehabilitated and that he or she has lived or worked there long 

enough to have become familiar with the witness’ reputation for truthfulness or the 

untruthfulness. United States v. Toro, 37 M.J. 313 (C.M.A. 1993). 

(2) Opinion witness must demonstrate that he or she is personally acquainted with 

witness and on that basis is able to have formed an opinion about the truthfulness or the 

lack thereof. United States v. Perner, 14 M.J. 181 (C.M.A. 1982). 

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b) When cross-examination is conducted in such a manner as to induce the belief of 

untrustworthiness, rehabilitation is permitted. United States v. Allard, 19 M.J. 346 (C.M.A. 

1985). Also, a “slashing cross-examination” will satisfy the “or otherwise” component of 

Rule 608(a). United States v. Everage, 19 M.J. 189 (C.M.A. 1985). Note, however, that 

merely introducing evidence that contradicts a witness’s testimony or statement is not an “or 

otherwise” attack under Rule 608(a). 

c) Rule 608(b)(2) provides that a character witness can be asked questions about specific 

acts of the person whose credibility has been attacked or rehabilitated as a means of “testing” 

the character witness. 

2. The questioner is precluded from introducing extrinsic evidence in support of his inquiry. 

This avoids a “trial within a trial.” If witness denies knowledge of the specific acts, no extrinsic 

evidence of specific acts is permitted. You are “stuck with the answer.” United States v. 

Cerniglia, 31 M.J. 804 (AFCMR 1991). 

a) Operation of the “Collateral Fact Rule.” Under the rule, extrinsic evidence is 

inadmissible to impeach witnesses on collateral facts. The purpose of the rule is to prevent 

digression into unimportant matters, since the potential for wasting time and confusing the 

factfinder is particularly high when extrinsic evidence is used to impeach. It does not limit 

the cross-examiner’s questioning a witness about collateral facts, subject to the general 

discretion of the court. 

(1) The rule applies to: Impeachment under Rule 608(b) and the cross-examination of a 

character witness under Rule 405(a). 

(2) When the rule does not apply, the cross-examiner may question the witness and offer 

extrinsic evidence. The rule does not apply to: 

(a) Bias under Rule 608(c); 

(b) Defects in capacity (United States v. White, 45 M.J. 345 (1996)); 

(c) Prior inconsistent statements under Rule 613 and 801(d)(1)(A); 

(d) Impeachment by contradiction; or 

(e) Impeachment under Mil.R.Evid 609. 

b) “Human Lie Detector” Testimony. In United States v. Kasper, 58 M.J. 314 (2003), the 

CAAF held that “human lie detector” testimony by an OSI agent violates the limits on 

character evidence in Rule 608(a) because it offers an opinion of the declarant’s truthfulness 

on a specific occasion. At trial, an OSI agent testified that her training had helped her to 

identify whether subjects were being truthful in interviews. In U.S. v. Knapp (73 M.J. 33 

(C.A.A.F., 2014), CAAF found similar techniques evaluating nonverbal cues of an accused 

during an interview to be inadmissible human lie detector testimony, and set aside the 

findings and sentence. 

G. Rule 608(c): Bias. 

====================================================================== 

Rule 608. A witness's character for truthfulness or untruthfulness 

(c) Evidence of Bias. Bias, prejudice, or any motive to misrepresent may be shown to impeach the witness 

either by examination of the witness or by evidence otherwise adduced. 

====================================================================== 

1. Ulterior motives are never collateral and may be proved extrinsically. The three categories 

under 608(c) are a representative list, not an exhaustive one. 

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2. Rules should be read to allow liberal admission of bias-type evidence. United States v. 

Hunter, 21 M.J. 240 (C.M.A.), cert. denied, 476 U.S. 1142 (1986). See United States v. Aycock, 

39 M.J. 727 (N.M.C.M.R. 1993) (the military judge abused his discretion and committed 

prejudicial error in excluding extrinsic evidence of a government witness’ bias and motive to 

testify falsely (anger and resentment toward the appellant through loss of $195 wager)). But See 

United States v. Sullivan, 70 M.J. 110 (C.A.A.F. 2011) (requiring a stronger showing other than 

the mere fact that a victim has undergone psychological counseling to inquire into a victim’s 

medical history in order to attack victim’s bias and credibility). 

3. Constitutional dimensions: 

a) United States v. Bahr, 33 M.J. 228 (C.M.A. 1991). 14 year-old prosecutrix testified 

concerning sodomy and indecent acts by her stepfather. Defense sought to introduce extracts 

from her diary showing a profound dislike of her mother and home life. The military judge 

ruled the extracts were inadmissible, and kept the defense from examining the prosecutrix 

concerning a prior false claim of rape, and alleged advice to her friends to turn in their family 

members for child sexual abuse. These rulings were evidentiary and constitutional error. 

Prosecutrix’s hatred of her mother could be motive to hurt mother’s husband. 

b) United States v. Moss, 63 M.J. 233 (2006). Does the exclusion of evidence of bias under 

Rule 608(c) raise issues regarding an accused’s Sixth Amendment right to confrontation? 

Yes. An accused’s right under the Sixth Amendment to cross-examine witnesses is violated 

if the military judge precludes an accused from exploring an entire relevant area of crossexamination. The military judge erred when he excluded evidence that the accused sought in 

order to challenge the credibility of the alleged victim. It is the members’ role to determine 

whether an alleged victim’s testimony is credible or biased. As such, bias evidence, if 

logically and legally relevant, are matters properly presented to the members. 

The test is to determine whether a limitation on the presentation of evidence of bias 

constitutes a Sixth Amendment violation is “whether ‘[a] reasonable jury might have 

received a significantly different impression of [the witness’s] credibility had [defense 

counsel] been permitted to pursue his proposed line of cross-examination.’” United 

States v. Collier, 67 M.J. 347, 352 (C.A.A.F. 2009). 

H. Rule 609. Impeachment with a Prior Conviction. 

====================================================================== 

Rule 609. Impeachment by evidence of a criminal conviction 

(a) In General. The following rules apply to attacking a witness's character for truthfulness by evidence of a 

criminal conviction: 

(1) For a crime that, in the convicting jurisdiction, was punishable by death, dishonorable discharge, 

or by imprisonment for more than one year, the evidence: 

(A) must be admitted, subject to Mil. R. Evid. 403, in a court-martial in which the witness is 

not the accused; and 

(B) must be admitted in a court-martial in which the witness is the accused, if the probative 

value of the evidence outweighs its prejudicial effect to that accused; and 

(2) For any crime regardless of the punishment, the evidence must be admitted if the court can readily 

determine that establishing the elements of the crime required proving—or the witness's admitting— 

a dishonest act or false statement. 

(3) In determining whether a crime tried by court-martial was punishable by death, dishonorable 

discharge, or imprisonment in excess of one year, the maximum punishment prescribed by the 

President under Article 56 at the time of the conviction applies without regard to whether the case was 

tried by general, special, or summary court-martial. 

(b) Limit on Using the Evidence After 10 Years. Subdivision (b) applies if more than 10 years have passed 

since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction 

is admissible only if: 

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(1) its probative value, supported by specific facts and circumstances, substantially outweighs its 

prejudicial effect; and 

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the 

party has a fair opportunity to contest its use. 

(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible 

if: 

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other 

equivalent procedure based on a finding that the person has been rehabilitated, and the person has not 

been convicted of a later crime punishable by death, dishonorable discharge, or imprisonment for more 

than one year; or 

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based 

on a finding of innocence. 

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if: 

(1) the adjudication was of a witness other than the accused; 

(2) an adult's conviction for that offense would be admissible to attack the adult's credibility; and 

(3) admitting the evidence is necessary to fairly determine guilt or innocence. 

(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending, 

except that a conviction by summary court-martial or special court-martial without a military judge may not be 

used for purposes of impeachment until review has been completed under Article 64 or Article 66, if applicable. 

Evidence of the pendency is also admissible. 

(f) Definition. For purposes of this rule, there is a "conviction" in a court-martial case when a sentence has 

been adjudged. 

====================================================================== 

1. This method of impeachment can be done in cross-examination, with extrinsic evidence, or 

both. An important element in the analysis is the type of crime for which the witness was 

convicted. 

2. Crimen falsi convictions are crimes such as perjury, false statement, fraud, or embezzlement, 

which involve deceitfulness or untruthfulness bearing on the witness’s propensity to testify 

truthfully. For crimen falsi crimes, the maximum punishment is irrelevant and the military judge 

must admit proof of the conviction. 

3. Non crimen falsi crimes involve convictions for offenses punishable by death, dishonorable 

discharge, or imprisonment in excess of one year under the law of the prosecuting jurisdiction. 

The key is the maximum punishment the witness faced, not the actual punishment the witness 

received. 

a) Balancing test for witnesses: Admissibility of non crimen falsi convictions of witnesses 

is governed by Rule 403. The military judge can exclude this evidence if the probative value 

is substantially outweighed by unfair prejudice. 

b) Balancing test for the accused witness: Admissibility of non crimen falsi convictions of 

the accused is more restrictive than Rule 403. Convictions are only admissible if the military 

judge determines the probative value outweighs the prejudicial effect. See United States v. 

Ross, 44 M.J. 534 (A.F. Ct. Crim. App. 1996). 

4. Time Limit. Conviction generally inadmissible if more than 10 years old. May be admitted 

if: Interests of justice require; probative value substantially outweighs prejudicial effect; 

proponent provides other party with notice. Although not specifically stated in the rule, most 

commentators believe the ten year limitation applies to crimen falsi as well as non crimen falsi 

convictions. 

5. Juvenile Adjudications. Generally not admissible unless necessary to a fair resolution of the 

case, and evidence would have been admissible if witness previously had been tried as an adult. 

Juvenile proceedings may be used against an accused in rebuttal when he testifies that his record 

is clean. See United States v Kindler, 34 CMR 174 (C.M.A. 1964). 

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6. Summary courts-martial are allowed only if the accused was represented by counsel or 

representation was affirmatively waived. United States v. Rogers, 17 M.J.990 (A.C.M.R. 1984) 

I. Rule 613. Impeachment with Prior Statements. 

====================================================================== 

Rule 613. Witness's prior statement 

(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness's prior 

statement, a party need not show it or disclose its contents to the witness. The party must, on request, show it or 

disclose its contents to an adverse party's attorney. 

(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness's prior inconsistent 

statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse 

party is given an opportunity to examine the witness about it, or if justice so requires. Subdivision (b) does not apply 

to an opposing party's statement under Mil R. Evid. 801(d)(2). 

====================================================================== 

1. Evidence that on a previous occasion a witness made a statement inconsistent with his or her 

present testimony is “probably the most effective and most frequently employed” attack on 

witness credibility. Saying one thing on the stand and something different previously raises a 

doubt as to the truthfulness of both statements. A prior inconsistent statement (PIS) casts doubt 

on the general credibility of the declarant. Such evidence is considered only for purposes of 

credibility, not to establish the truth of the contents (avoiding a hearsay issue). Thus, a limiting 

instruction would be appropriate. 

2. A witness may be impeached with competent evidence to show that he or she made a 

previous statement, oral or written, inconsistent with his or her in-court testimony. The evidence 

may be: 

a) Intrinsic: controlled by 613(a), involving interrogation of the witness concerning the 

prior statement, or 

b) Extrinsic: controlled by 613(b), involving extrinsic proof (testimony or documents) of 

the inconsistent statement. 

3. Impeachment, however, is not the only possible use of a prior inconsistent statement. 

Pursuant to Rule 801(d)(1)(A), such statements are admissible substantively, and may be 

considered by the fact-finder for the truth of the matter asserted, as an exemption to the rule 

against hearsay when three requirements are met: The statement is inconsistent with the 

declarant’s testimony; the declarant made the statement under oath subject to the penalty of 

perjury; and the statement was made at a trial, hearing, or other proceeding, or in a deposition. 

J. Rule 611. Mode and Order of Interrogation and Presentation 

====================================================================== 

Rule 611. Mode and order of examining witnesses and presenting evidence 

(a) Control by the Military Judge; Purposes. The military judge should exercise reasonable control over the mode 

and order of examining witnesses and presenting evidence so as to: 

(1) make those procedures effective for determining the truth; 

(2) avoid wasting time; and 

(3) protect witnesses from harassment or undue embarrassment. 

(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct 

examination and matters affecting the witness's credibility. The military judge may allow inquiry into additional 

matters as if on direct examination. 

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop 

the witness's testimony. Ordinarily, the military judge should allow leading questions: 

(1) on cross-examination; and 

(2) when a party calls a hostile witness or a witness identified with an adverse party. 

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(d) Remote live testimony of a child. 

(1) In a case involving domestic violence or the abuse of a child, the military judge must, subject to the 

requirements of subdivision (d)(3) of this rule, allow a child victim or witness to testify from an area outside 

the courtroom as prescribed in R.C.M. 914A. 

(2) Definitions. As used in this rule: 

(A) "Child" means a person who is under the age of 16 at the time of his or her testimony. 

(B) "Abuse of a child" means the physical or mental injury, sexual abuse or exploitation, or negligent 

treatment of a child. 

(C) "Exploitation" means child pornography or child prostitution. 

(D) "Negligent treatment" means the failure to provide, for reasons other than poverty, adequate food, 

clothing, shelter, or medical care so as to endanger seriously the physical health of the child. 

(E) "Domestic violence" means an offense that has as an element the use, or attempted or threatened 

use of physical force against a person by a current or former spouse, parent, or guardian of the victim; 

by a person with whom the victim shares a child in common; by a person who is cohabiting with or 

has cohabited with the victim as a spouse, parent, or guardian; or by a person similarly situated to a 

spouse, parent, or guardian of the victim. 

(3) Remote live testimony will be used only where the military judge makes the following three findings on 

the record: 

(A) that it is necessary to protect the welfare of the particular child witness; 

(B) that the child witness would be traumatized, not by the courtroom generally, but by the presence 

of the defendant; and 

(C) that the emotional distress suffered by the child witness in the presence of the defendant is more 

than de minimis. 

(4) Remote live testimony of a child will not be used when the accused elects to absent himself from the 

courtroom in accordance with R.C.M. 804(d). 

(5) In making a determination under subdivision (d)(3), the military judge may question the child in 

chambers, or at some comfortable place other than the courtroom, on the record for a reasonable period of 

time, in the presence of the child, a representative of the prosecution, a representative of the defense, and the 

child's attorney or guardian ad litem. 

====================================================================== 

1. This rule is the basic source of the military judge’s authority to control proceedings at courtmartial. 

2. Scope of examination. 

a) United States v. Stavely, 33 M.J. 92 (1992). When cross-examination goes to witness 

credibility, military judge should afford counsel wide latitude. 

b) United States v. Barnard, 32 M.J. 530 (A.F.C.M.R. 1990). An accused who chooses to 

testify on the merits is subject to same cross-examination as any other witness. Here, TC did 

not impermissibly comment on right to counsel when he asked accused if he saw a lawyer 

before making a pretrial statement. 

c) Controlling examination to avoid constitutional problems. In United States v. Mason, 59 

M.J. 416 (2004), the CAAF held that it was error to permit a trial counsel to ask on re-direct 

whether the accused had ever requested a re-test of the DNA evidence in his case, because the 

question tended to improperly shift the burden of proof in the case to the defense. 

d) Alternatives to in-court testimony. The 1995 Amendments to Drafter’s Analysis provides 

that “when a witness is unable to testify due to intimidation by the proceedings, fear of the 

accused, emotional trauma, or mental or other infirmity, alternatives to live in-court 

testimony may be appropriate. 

K. Rule 612. Refreshing Recollection. 

====================================================================== 

Rule 612. Writing used to refresh a witness's memory 

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(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: 

(1) while testifying; or 

(2) before testifying, if the military judge decides that justice requires the party to have those options. 

(b) Adverse Party's Options; Deleting Unrelated Matter. An adverse party is entitled to have the writing produced 

at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that 

relates to the witness's testimony. If the producing party claims that the writing includes unrelated or privileged 

matter, the military judge must examine the writing in camera, delete any unrelated or privileged portion, and order 

that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record. 

(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the 

military judge may issue any appropriate order. If the prosecution does not comply, the military judge must strike 

the witness's testimony or—if justice so requires—declare a mistrial. 

(d) No Effect on Other Disclosure Requirements. This rule does not preclude disclosure of information required to 

be disclosed under other provisions of these rules or this Manual. 

====================================================================== 

1. This is NOT Rule 803(5), the recorded recollection hearsay exception. 

2. Foundation and Procedure. Show the memory of the witness has failed; show there is some 

means available which will refresh the recollection of the witness; have the witness read/examine 

the refreshing document silently; recover the refreshing document; proceed with questioning; 

make the refreshing document an appellate exhibit and append it to the record of trial; protect 

privileged matters contained in the writing; nothing is read into the record. Refreshing document 

need not be admissible; and opposing counsel may inspect the writing, use it in cross 

examination, and introduce it into evidence. 

XII. EXPERTS AND SCIENTIFIC EVIDENCE 

====================================================================== 

Rule 702. Testimony by expert witnesses 

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the 

form of an opinion or otherwise if: 

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand 

the evidence or to determine a fact in issue; 

(b) the testimony is based on sufficient facts or data; 

(c) the testimony is the product of reliable principles and methods; and 

(d) the expert has reliably applied the principles and methods to the facts of the case. 

====================================================================== 

A. Rule 702. Expert Witnesses 

1. Trial judges decide preliminary questions concerning the relevance, propriety and necessity 

of expert testimony, the qualification of expert witnesses, and the admissibility of his or her 

testimony. See Rule 104(a). 

a) United States v. Warner, 62 M.J. 114 (2005), the CAAF held “Article 46 is a clear 

statement of congressional intent against government exploitation of its opportunity to obtain 

an expert vastly superior to the defense’s.” Where the government provides itself with a top 

expert, it must provide a reasonably comparable expert to the defense. 

b) United States v. Lee, 64 M.J. 213 (2006), commenting on Warner and Article 46, CAAF 

held the playing field is even more uneven when the government benefits from scientific 

evidence and expert testimony and the defense is denied a necessary expert to prepare for and 

respond to the government’s expert. Arguably, Warner and Lee can be read together to give 

the defense a much stronger argument for not only the need for an expert witness (especially 

if the government has an expert), but the need for a particular expert witness (or one 

comparable to the government’s expert). 

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c) United States v. McAllister, 64 M.J. 248 (2007), the issue on appeal was: Whether the 

appellant’s right to present his defense was violated when he was prevented from employing 

and utilizing a necessary DNA expert at his trial? The CAAF answered the question in the 

affirmative. Had the military judge granted the defense request for a PCR expert, the 

members would have heard testimony about the discovery of DNA from three previously 

unidentified individuals. The defense could have used this evidence to attack not only the 

thoroughness of the original test, but the weight that the members should have given to the 

government’s expert testimony. Additionally, the CAAF believed the new evidence would 

have changed the evidentiary posture of the case. At trial, the defense had nothing to 

contradict the character of the government’s DNA evidence which excluded all known 

suspects other that the appellant. The DNA evidence, according to the CAAF, was the 

linchpin of the government’s case. The additional evidence from TAI was hard evidence that 

someone other than the appellant, or any other known suspect, was in physical contact with 

the victim at or near the time of her death. It was error for the military judge to have denied 

the defense request for an additional expert and retesting of the government’s sample. The 

CAAF concluded that this evidence could have raised a reasonable doubt as to guilt. As 

such, the CAAF held that the appellant was deprived of his constitutional right to a fair 

hearing as required by the Due Process Clause. The error in denying the defense request for 

expert assistance was not harmless beyond a reasonable doubt. As such, the findings of guilt 

with regards to the unpremeditated murder and the sentence were set aside. 

2. In United States v. Houser, 36 M.J. 392 (1993) the CAAF set out six factors that a judge 

should use to determine the admissibility of expert testimony. Although Houser is a pre-Daubert 

case, it is consistent with Daubert, and the CAAF continues to follow it. See United States v. 

Griffin, 50 M.J. 278, 284 (1999) and United States v. Billings, 61 M.J. 163 (2005). They are: 

a) Qualified Expert. To give expert testimony, a witness must qualify as an expert by virtue 

of his or her “knowledge, skill, experience, training, or education.” See Rule 702 

b) Proper Subject Matter. Expert testimony is appropriate if it would be “helpful” to the 

trier of fact. It is essential if the trier of fact could not otherwise be expected to understand 

the issues and rationally resolve them. See Rule 702. 

c) Proper Basis. The expert’s opinion may be based on admissible evidence “perceived by 

or made known to the expert at or before the hearing” or inadmissible hearsay if it is “of a 

type reasonably relied upon by experts in the particular field in forming opinions or 

inferences upon the subject. . . .” The expert’s opinion must have an adequate factual basis 

and cannot be simply a bare opinion. See Rule 702 and 703. 

d) Relevant. Expert Testimony must be relevant. See Rule 402. 

e) Reliable. The expert’s methodology and conclusions must be reliable. See Rule 702. 

f) Probative Value. The probative value of the expert’s opinion, and the information 

comprising the basis of the opinion must not be substantially outweighed by any unfair 

prejudice that could result from the expert’s testimony. See Rule 403. 

B. Rule 702. The Expert’s Qualification to Form an Opinion. 

1. Knowledge, Training, and Education Foundation. Show degrees attained from educational 

institutions; show other specialized training in the field; show the witness is licensed to practice 

in the field and has done so (if applicable) for a long period of time; show teaching experience in 

the field; show the witness’ publications; and show membership in professional organizations, 

honors or prizes received, previous expert testimony. 

2. Skill and Experience Foundation. An expert due to specialized knowledge. See United 

States v. Mustafa, 22 M.J. 165 (C.M.A. 1986). 

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a) United States v. Banks, 36 M.J. 150 (C.M.A. 1992). Military judge erred when he refused 

to allow defense clinical psychologist to testify about the relevance of specific measurements 

for a normal prepubertal vagina, solely because the psychologist was not a medical doctor. 

As the court noted, testimony from a qualified expert, not proffered as a medical doctor, 

would have assisted the panel in understanding the government’s evidence. 

b) United States v. Harris, 46 M.J. 221 (1997). Military judge did not err in qualifying a 

highway patrolman who investigated over 1500 accidents, as an expert in accident 

reconstruction. 

c) United States v. McElhaney, 54 M.J. 120 (2000). During the sentencing phase, the 

government called an expert on future dangerousness of the accused. The expert said he 

could not diagnose the accused because he had not interviewed him nor had he reviewed his 

medical records. In spite of this and objections by defense counsel, the expert did testify 

about pedophilia and made a strong inference that the accused was a pedophile who had little 

hope of rehabilitation. The CAAF held that it was error for the judge to admit this evidence. 

Citing Houser, the court noted that the expert lacked the proper foundation for this testimony, 

as noted by his own statements that he could not perform a diagnosis because of his lack of 

contact with the accused. 

d) United States v. Billings, 61 M.J. 163 (2005). To link the appellant to a stolen (and never 

recovered) Cartier Tank Francaise watch, the Government called a local jeweler as an expert 

witness in Cartier watch identification to testify that a watch the appellant was wearing in a 

photograph had similar characteristics as a Tank Francaise watch. Although the jeweler had 

never actually seen a Tank Francaise watch, his twenty-five years of experience and general 

familiarity with the characteristics of Cartier watches qualified him as a technical expert. 

C. Proper Subject Matter (“Will Assist”) 

1. Helpfulness. Expert testimony is admissible if it will assist the fact finder. There are two 

primary ways an expert’s testimony may assist. 

a) Complex Testimony. Experts can explain complex matters such as scientific evidence or 

extremely technical information that the fact finders could not understand without expert 

assistance. 

b) Unusual Applications. Experts can also help explain apparently ordinary evidence that 

may have unusual applications. Without the expert’s assistance, the fact finders may 

misinterpret the evidence. See, United States v. Rivers, 49 M.J. 434 (1998); United States v. 

Brown, 49 M.J. 448 (1998). 

2. United States v. Traum, 60 M.J. 226 (2004). To answer the question of why a parent would 

kill her child, the government called a forensic pediatrician, who testified to the following 

matters: (1) overwhelmingly, the most likely person to kill a child would be his or her biological 

parent; (2) the most common cause of trauma death for children under four is child maltreatment; 

(3) for 80% of child abuse fatalities, there are no prior instances of reported abuse; (4) Caitlyn 

died of non-accidental asphyxiation. The CAAF held that there was no error in admitting “victim 

profile” evidence regarding the most common cause of trauma death in children under four and 

the fact that most child abuse deaths involve first-time abuse reports for that child. The CAAF 

held that the military judge erred in admitting evidence that overwhelmingly, the most likely 

person to kill a child is its biological parent. In context, however, the error was harmless because 

the government already had admitted the appellant’s confession. 

3. United States v. Cendejas, 62 M.J. 334 (2006). Do you need expert testimony in a child 

pornography prosecution based upon the Child Pornography Prevention Act (CPPA), to prove 

actual children were used to produce the images? No. A factfinder can make a determination as 

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to whether actual children were used to produce the images based upon a review of the images 

alone, without expert testimony. See also United States v. Wolford, 62 M.J. 418 (2006). 

D. Form of the Opinion. 

1. The foundation consists of no more than determining that the witness has formed an opinion, 

and of what that opinion consists. 

2. Rule 704. 

====================================================================== 

Rule 704. Opinion on an ultimate issue 

An opinion is not objectionable just because it embraces an ultimate issue. 

====================================================================== 

a) The current standard is whether the testimony assists the trier of fact, not whether it 

embraces an “ultimate issue” so as to usurp the panel’s function. At the same time, ultimateissue opinion testimony is not automatically admissible. Opinion must be relevant and 

helpful as determined through Rules 401-403 and 702. 

b) In United States v. Diaz, 59 M.J. 79 (2003), the CAAF held that it was improper for an 

expert to testify that the death of appellant’s child was a homicide and that the appellant was 

the perpetrator, when the cause of death and identity of the perpetrator were the primary 

issues at trial. 

c) One recurring problem is that an expert should not opine that a certain witness’s rendition 

of events is believable or not. See, e.g., United States v. Petersen, 24 M.J. 283, 284 (C.M.A. 

1987) (“We are skeptical about whether any witness could be qualified to opine as to the 

credibility of another.”) The expert may not become a “human lie detector.” United States v. 

Palmer, 33 M.J. 7, 12 (C.M.A. 1991); see also United States v. Brooks, 64 M.J. 325 (2007) 

(discussing that in a child sexual abuse case, where the government expert’s testimony 

suggested that there was better than a ninety-eight percent probability that the victim was 

telling the truth, such testimony was the functional equivalent of vouching for the credibility 

or truthfulness of the victim, and implicates the very concerns underlying the prohibition 

against human lie detector testimony. 

(1) Questions such as whether the expert believes the victim was raped, or whether the 

victim is telling the truth when she claimed to have been raped (i.e. was the witness 

truthful?) are impermissible. 

(2) However, the expert may opine that a victim’s testimony or history is consistent with 

what the expert’s examination found, and whether the behavior at issue is typical of 

victims of such crimes. Focus on symptoms, not conclusions concerning veracity. See 

United States v. Birdsall, 47 M.J. 404 (1998) (expert’s focus should be on whether 

children exhibit behavior and symptoms consistent with abuse; reversible error to allow 

social worker and doctor to testify that the child-victims were telling the truth and were 

the victims of sexual abuse). Example: An expert may testify as to what symptoms are 

found among children who have suffered sexual abuse and whether the child-witness has 

exhibited these symptoms. United States v. Harrison, 31 M.J. 330, 332 (C.M.A. 1990). 

E. Rule 703. Basis For the Expert’s Testimony. 

1. Rule 703 provides: 

====================================================================== 

Rule 703. Bases of an expert's opinion testimony 

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An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally 

observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an 

opinion on the subject, they need not be admissible for the opinion to be admitted. If the facts or data would 

otherwise be inadmissible, the proponent of the opinion may disclose them to the members of a court-martial only if 

the military judge finds that their probative value in helping the members evaluate the opinion substantially 

outweighs their prejudicial effect. 

====================================================================== 

2. The language of the rule is broad enough to allow three types of bases: facts personally 

observed by the expert; facts posed in a hypothetical question; and hearsay reports from third 

parties. United States v. Reveles, 42 M.J. 388 (1995), expert testimony must be based on the facts 

of the case. 

a) Hypothetical questions (no longer required). No need to assume facts in evidence, but, if 

used, must be reasonable in light of the evidence. United States v. Breuer, 14 M.J. 723 

(A.F.C.M.R. 1982). The proponent may specify historical facts for the expert to assume as 

true, or may have the expert assume the truth of another witness or witnesses. 

b) Personal Perception. United States v. Hammond, 17 M.J. 218 (C.M.A. 1984). The fact 

that expert did not interview or counsel victim did not render expert unqualified to arrive at 

an opinion concerning rape trauma syndrome. United States v. Snodgrass, 22 M.J. 866 

(A.C.M.R. 1986); United States v. Raya, 45 M.J. 251 (1996). Defense objected to social 

worker’s opinion that victim was exhibiting symptoms consistent with rape trauma 

accommodation syndrome and suffered from PTSD on basis that opinion was based solely on 

observing victim in court, reading reports of others and assuming facts as alleged by victim 

were true. Objection went to weight to be given expert opinion, not admissibility. The 

foundational elements include: Where and when the witness observed the fact; who was 

present; how the witness observed the fact; and a description of the observed fact. 

c) Facts presented out-of-court (non-record facts), if “of a type reasonably relied upon by 

experts in the particular field” (even if inadmissible). “The rationale in favor of admissibility 

of expert testimony based on hearsay is that the expert is fully capable of judging for himself 

what is, or is not, a reliable basis for his opinion. This relates directly to one of the functions 

of the expert witness, namely to lend his special expertise to the issue before him.” United 

States v. Sims, 514 F.2d 147, 149 (9th Cir.), cert. denied, 423 U.S. 845 (1975). There is a 

potential problem of smuggling in otherwise inadmissible evidence. 

(1) United States v. Neeley, 25 M.J. 105 (C.M.A. 1987), cert. denied, 484 U.S. 1011 

(1988). Psychiatrist’s testimony that she consulted with other psychologists in reaching 

her conclusion that accused had inflated results of psychiatric tests and her opinion was 

the consensus among these people was hearsay and inadmissible. Military judge may 

conduct a 403 balancing to determine if the probative value of this foundation evidence is 

outweighed by unfair prejudice. 

(2) United States v. Hartford, 50 M.J. 402 (1999). Defense was not allowed to crossexamine the government expert about contrary opinions from two colleges. The defense 

did not call the two as witnesses and there was no evidence that the government expert 

relied on the opinions of these colleges. The CAAF held the MJ did not err in excluding 

this questioning as impermissible smuggling under Rule 703. 

(3) The elements of the foundation for this basis include: The source of the third party 

report; the facts or data in the report; if the facts are inadmissible, a showing that they are 

nonetheless of the type reasonably relied upon by experts in the particular field. In 

United States v. Traum, 60 M.J. 226 (2004), the CAAF emphasized that the key to 

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evaluating the expert’s basis for her testimony is the type of evidence relied on by other 

experts in the field. 

(4) United States v. Ellis, 68 M.J. 341 (C.A.A.F. 2010). Over defense objection, the 

government’s expert testified that the accused had a moderately high risk of recidivism 

without having personally interviewed the accused. The expert had reviewed the 

accused’s records, the charges and specifications, the stipulation of fact, chat logs, and 

the expert had listened to the accused’s providency inquiry. The CAAF found that the 

military judge had not abused his discretion, stating that “[t]here can be no hard and fast 

rule as to what constitutes ‘sufficient information and knowledge about the accused’ 

necessary for an expert’s opinion as to an accused’s rehabilitation potential.” 

(5) United States v. Mullins, 69 M.J. 113 (C.A.A.F. 2010). Appellant was charged with 

sexually abusing his daughters who were seven and nine years old. The girls testified to 

sexual abuse that included rape, oral and anal sex, and masturbation. The Government 

called a forensic child interviewer as an expert witness. On redirect, the expert witness 

testified that the frequency of children lying about sexual abuse was less than 1 out of 

100 or 1 out of 200. Defense counsel did not object. The CAAF held that it was error to 

allow the expert testimony which impermissibly invaded the province of the panel. 

F. Relevance. 

1. Expert testimony, like any other testimony must be relevant to an issue at trial. See Rule 401, 

402; Daubert, v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993). 

2. If the expert testimony is not relevant, it is de facto not helpful to the trier of fact. 

G. Reliability. 

1. The Test for Scientific Evidence. In Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 

579 (1993), the Supreme Court held that nothing in the Federal Rules indicates that “general 

acceptance” is a precondition to admission of scientific evidence. The rules assign the task to the 

judge to ensure that expert testimony rests on a reliable basis and is relevant. The judge assesses 

the principles and methodologies of such evidence pursuant to Rule 104(a). 

a) The role of the judge as a “gatekeeper” leads to a determination of whether the evidence 

is based on a methodology that is “scientific,” and therefore reliable. The judgment is made 

before the evidence is admitted, and entails “a preliminary assessment of whether the 

reasoning or methodology is scientifically valid.” Trial court possessed with broad 

discretion in admitting expert testimony; rulings tested only for abuse of discretion. General 

Electric Co. v. Joiner, 118 S. Ct. 512 (1997). See also United States v. Kaspers, 47 M.J. 176 

(1997); United States v. Sanchez, 65 M.J. 145 (2007). 

b) Factors. The Supreme Court discussed a nonexclusive list of factors to consider in 

admitting scientific evidence, which included the Frye v. United States, 293 F. 1013 (D.C. 

Cir. 1923) test as a separate consideration: 

(1) whether the theory or technique can be and has been tested; 

(2) whether the theory or technique has been subjected to peer review and publication; 

(3) whether the known or potential rate of error is acceptable; 

(4) whether the theory/technique enjoys widespread acceptance. 

2. Non-Scientific Evidence. The Supreme Court resolved whether the judge’s gatekeeping 

function and the Daubert factors apply to non-scientific evidence. In Kumho Tire v. Carmichael, 

119 S. Ct. 1167 (1999), the Court held that the trial judge’s gatekeeping responsibility applies to 

all types of expert evidence. The Court also held that to the extent the Daubert factors apply, 

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they can be used to evaluate the reliability of this evidence. Finally, the Court ruled that factors 

other than those announced in Daubert can also be used to evaluate the reliability of nonscientific expert evidence. 

3. Other Factors. Other factors courts have considered to evaluate the reliability of scientific 

and non-scientific testimony include: 

a) Was the information developed for the purpose of litigation? 

b) Did the expert unjustifiably extrapolate facts to support conclusions? 

c) Are there alternative explanations? 

d) Is the expert being as careful as they would be in their regular professional work outside 

paid litigation? 

e) Is there a well-accepted body of learning in this area? 

f) How much practical experience does the expert have and is there a close fit between the 

experience and the testimony? 

g) Is the testimony based on objective observations and standards? 

H. Probative Value 

1. The probative value of the expert’s opinion and the information comprising the basis of the 

opinion must not be substantially outweighed any unfair prejudice that could result from the 

expert’s testimony. 

2. This is a standard Rule 403 balancing. 

XIII. HEARSAY. 

A. The Rule Against Hearsay. Military Rule of Evidence 802 prohibits the introduction of 

hearsay unless a federal statute applicable to trials by courts-martial or the Mil. R. Evid. Provide 

otherwise. 

====================================================================== 

Rule 801. Definitions that apply to this section; exclusions from hearsay 

(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the 

person intended it as an assertion. 

(b) Declarant. “Declarant” means the person who made the statement. 

(c) Hearsay. “Hearsay” means a statement that: 

(1) the declarant does not make while testifying at the current trial or hearing; and 

(2) a party offers in evidence to prove the truth of the matter asserted in the statement. 

(d) Statements that Are Not Hearsay. A statement that meets the following conditions is not hearsay: 

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination 

about a prior statement, and the statement: 

(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, 

hearing, or other proceeding or in a deposition; 

(B) is consistent with the declarant’s testimony and is offered: 

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from 

a recent improper influence or motive in so testifying; or 

(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground; 

or 

(C) identifies a person as someone the declarant perceived earlier. 

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and: 

(A) was made by the party in an individual or representative capacity; 

(B) is one the party manifested that it adopted or believed to be true; 

(C) was made by a person whom the party authorized to make a statement on the subject; 

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(D) was made by the party’s agent or employee on a matter within the scope of that relationship 

and while it existed; or 

(E) was made by the party’s co-conspirator during and in furtherance of the conspiracy. 

The statement must be considered but does not by itself establish the declarant’s authority under (C); 

the existence or scope of the relationship under (D); or the existence of the conspiracy or participation 

in it under (E). 

====================================================================== 

B. Definitions. 

1. Hearsay is an oral, written or nonverbal assertion made while not testifying at the current trial 

or hearing which is offered to prove the truth of what’s asserted in the statement. Pursuant to 

MRE 802, hearsay is inadmissible unless an exception to that general rule of prohibition applies. 

2. Under Rule 801(b), the declarant is a “person” who makes a statement, not a computer, a 

drug detection dog, or other animal (although the data entered into a computer may be a statement 

of a person). 

3. Out-of-court means that at the time the person made the statement, the person was not in the 

courtroom, unless it satisfies the requirements of Rule 801(d). 

4. Proving the Truth of the Matter Asserted: This is the definitional prong that addresses the 

advocate’s need to cross-examine the declarant. The proponent must offer the statement to prove 

the truth of an assertion contained in the statement. If the statement is logically relevant to 

another theory, it is non-hearsay. In other words, the value of the statement lies in the fact that it 

was made. For example, an uttered statement that constitutes an element of an offense is not 

hearsay, but may be called an operative fact or a verbal act, e.g.: disrespectful language; 

swearing, provoking language, threats, etc. Other common non-hearsay uses include using the 

statement as circumstantial evidence of the declarant’s state of mind (e.g, premeditation), using 

the statement to show its effect on the state of mind of the hearer or reader. 

C. Exemptions From Hearsay. There are several types of statements which are expressly defined 

under MRE 801(d) as “not hearsay,” even though they might otherwise meet the definition of hearsay 

in MRE 801(a). Subject to the other rules of evidence (for example, MRE 403), these non-hearsay 

statements are admissible to prove that what they say is true (they are “substantively” admissible): 

1. Prior statements of a declarant-witness: Both prior inconsistent and consistent statements 

may be non-hearsay under MRE 801(d) if the declarant testifies at the trial or hearing and is 

subject to cross-examination, and the out of court assertion: 

a) Is inconsistent with the declarant’s trial testimony and was given under penalty of 

perjury at a trial, hearing, or other proceeding or deposition (MRE 801(d)(1)(A); or 

b) Is consistent with the declarant’s trial testimony and is offered either: 

(1) To rebut an express or implied charge of recent fabrication, improper influence, or 

improper motive in testifying (MRE 801(d)(1)(B)(i); or 

(2) To rehabilitate the declarant’s credibility as a witness when attacked on another 

ground (MRE 801(d)(1)(B)(ii). Note: the exemption under MRE 801(d)(1)(B)(ii) 

providing for substantive admissibility of prior consistent statements parallels an 

identical change to the Federal Rules of Evidence, and was implemented in 2016. See 

Exec. Order No. 13,730, 81 Fed. Reg. 33331, 33355 (May 20, 2016) (creating MRE 

801(d)(1)(B)(ii)). 

2. A prior statement of identification of a person made after perceiving the person is admissible 

as substantive evidence of guilt. Rule 801(d)(1)(c). The foundation includes: The witness is on 

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the stand subject to cross-examination; the testifying witness made a prior out-of-court 

identification of a person; where and when the identification occurred; and who was present. 

3. An Opposing Party’s Statement. Rule 801(d)(2). 

a) The logical underpinning of the admissions doctrine derives from the simple fact that a 

party cannot be heard to complain that it should have an opportunity to cross-examine itself. 

There are three kinds of admissions: personal, adoptive, and vicarious. 

b) Personal admissions are statements by the party, and should not be confused with 

statements against interest in Rule 804(b)(3). The latter derives its guarantee of reliability 

from the fact that it was against the declarant’s interest when made. No similar rule is 

imposed on the admission, although for the accused there frequently will be constitutional 

and statutory rights that must be protected. The proponent must show: The declarant, 

identified by the witness as the accused, made a statement; if rights warning necessary, the 

accused was warned of his or her rights and waived them; the oral or written statement was 

voluntary; and the statement is offered against the accused. 

c) Adoptive admissions. See, e.g., United States v. Potter, 14 M.J. 978 (N.M.C.M.R. 1982) 

(accused adopted another’s statement when he introduced it at his own magistrate’s hearing). 

See also United States v. Datz, 61 M.J. 37 (2005) (holding that a nod in response to equivocal 

and confusing compound questions was not an adoptive admission). The doctrine requires 

proof that the declarant made a statement in the party’s presence; the party heard, read, or 

understood the statement; the party made a statement which expressed agreement with the 

declarant’s statement; and the statement is offered against the party. Where a “tacit 

admission” is averred, that is, an adoption by silence, the critical inquiry is whether the 

accused was faced with self-incrimination issues (i.e., official questioning). If not, the 

proponent must show the accused had the opportunity to deny the statement, that a reasonable 

innocent person would have denied it, and that the accused did not do so. While this 

exemption can cover authorized spokespersons or agents, the most common use is the coconspirator’s statement: the proponent must show a conspiracy existed; the declarant was part 

of the conspiracy at time of statement; the statement was made in furtherance of the 

conspiracy; and the statement was offered against the accused. 

D. Common Hearsay Exceptions—Availability of the Declarant Immaterial. As noted above, 

otherwise inadmissible hearsay is admissible if an exception applies. Most exceptions fall under two 

broad categories: those assessing reliability (and for which the availability of the declarant is 

immaterial) under Mil. R. Evid. 803; and those based on the unavailability of an important piece of 

evidence unless an exception to the hearsay rule applied. The second category (under Rule 804) 

requires that the declarant be unavailable for the present trial, and is addressed later in this outline. 

The text of Rules 803 and 804 are omitted from this outline due to their length; please refer to your 

current copy of the Rules. 

1. Present Sense Impressions and Excited Utterances. 

a) Present sense impression, unlike excited utterance, does not require the perceived event 

to be a startling one. It does, however, apply only to statements made at the time the event is 

“perceived” or “immediately thereafter.” The proponent must show: an event occurred; the 

declarant had personal knowledge of the event; the declarant made the statement soon after 

the event; and the statement “describes or explains” an event. 

b) The excited utterance requires a showing that the event occurred; was startling; the 

declarant was acting under the stress of excitement cause by the event; and statement 

“relates” to a startling event. The time element or factor may determine whether the declarant 

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was acting under the stress of excitement. See United States v. Arnold, 25 M.J. 129 (C.M.A. 

1987), cert. denied, 484 U.S. 1060 (1988) (12 hours until first opportunity); United States v. 

Le Mere, 22 M.J. 61 (C.M.A. 1986) (3 year-old victim after 16 hours); United States v. 

Armstrong, 30 M.J. 769 (A.C.M.R. 1990) (4 to 5 days too long for an excited utterance), 

rev’d, 36 M.J. 311 (1993); United States v. Knox, 46 M.J. 688 (N.M. Ct. Crim 1996). App. 

1997) (one year too long). See also United States v. Miller, 32 M.J. 843 (N.M.C.M.R. 1991), 

aff’d, 36 M.J. 124 (C.M.A. 1992). Spontaneous statement by crying, upset student to teacher 

concerning her father’s sexual molestation 18 hours earlier held admissible. Focus is not on 

lapse of time since the exciting incident, but whether declarant is under stress of excitement 

so as to lack opportunity to reflect and to fabricate an untruthful statement. See also United 

States v. Morgan, 40 M.J. 405 (C.M.A. 1994), cert. denied, 115 S. Ct. 907 (1995) (textbook 

example of excited utterance). The proponent must show: A startling or stressful event 

occurred; the declarant had personal knowledge of the event; the declarant made a statement 

about the event; and the declarant made the statement while he or she was in a state of 

nervous excitement. 

c) United States v. Grant, 42 M. J. 340 (1995). Accused charged with various sexual 

offenses against his seven-year-old stepdaughter. Trial counsel offered victim’s statements 

made to family friend 36-48 hours after one of the alleged incidents, both as excited utterance 

and residual hearsay. MJ admits as excited utterance but rejects as residual hearsay. While 

passage of time is not dispositive, CAAF concluded the requirements of 803(2) were not met 

where, as here, statements were the product of sad reflection and not made under the stress or 

excitement of the event. The statement was, however, admissible under the residual 

exception based on its spontaneity, lack of suggestiveness, corroboration, the non-threatening 

home environment, and its general similarity to an excited utterance. Case demonstrates the 

importance of using alternative theories for admissibility of evidence. 

d) In United States v. Feltham, 58 M.J. 470 (2003), the CAAF held that a military judge did 

not abuse his discretion in admitting the statements a male sailor made to his roommate 

approximately one hour after appellant forcibly orally sodomized him. The military judge 

specifically found that the victim was still under the stress of a startling event; therefore, the 

lapse of time was not dispositive. 

e) In United States v. Donaldson, 58 M.J. 477 (2003), the CAAF upheld the admission as 

an excited utterance of a 3-year-old sexual assault victim’s statements to her mother 12 hours 

after the incident. Although the girl had spent the entire day with her mother, they had 

always been in the company of others. Her statement represented the first opportunity she 

had to be alone with and speak to a trusted adult. 

f) In United States v. Bowen, CAAF applies the factors noted in Arnold, supra, ((1) the 

statement must be spontaneous; (2) the event must be startling; and (3) the declarant must be 

under the stress or excitement of that event). See Bowen, No. 16–0229 (February 8, 2017). In 

Bowen, the declarant was both severely intoxicated and impaired by the beating at issue in the 

case. Analyzing the nonverbal assertion by the victim of nodding her head when asked 

leading questions by an investigator, CAAF held that the military judge did not properly 

determine whether the declarant had sufficient mental capacity to be under the stress or 

excitement of the event as required by the third prong of the Arnold test. Accordingly, the 

head nods were not properly excited utterances under MRE 803(2), and were inadmissible. 

2. Statements for purposes of medical diagnosis or treatment. 

a) Proponent must show declarant had some expectation of promoting well-being (and thus 

incentive to be truthful), and statement was made for purposes of medical diagnosis or 

treatment. As small children typically cannot articulate that they expected some benefit from 

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treatment, it is important that someone, like a mother or father, explain to them why they are 

going to the doctor, the importance of the treatment, and they need to tell what happened to 

feel better. CAAF also recommends the caretakers identify themselves as such and engage in 

activity which could be construed as treatment by the child. United States v. Siroky, 44 M.J. 

394 (1996). 

b) If statement is in response to questioning, the questioning must be of medical necessity. 

United States v. Haner, 49 M.J. 72 (1998). United States v. Armstrong, 36 M.J. 311 (C.M.A. 

1993) (statement made to TC was in preparation for trial, and repetition to the psychologist 

several days later did not “change the character of the statements.”) See United States v. 

Henry, 42 M.J. 593 (A. Ct. Crim. App. 1995). Statements made to medical personnel not 

made with expectation of receiving medical benefits but instead for the purpose of facilitating 

collection of evidence. NOTE: 803(4) not limited to patient-declarants. United States v. 

Yazzie, 59 F.3d 807 (9th Cir. 1995) (mother’s statements to docs ok). United States v. Austin, 

32 M.J. 757 (A.C.M.R. 1991) (child’s mom to social services). 

c) United States v. Rodriguez-Rivera, 63 M.J. 372 (2006). Referral of a victim to a medical 

professional by trial counsel “is not a critical factor in deciding whether the medical 

exception applies to the statements she gave to those treating her. The critical question is 

whether she had some expectation of treatment when she talked to the caregivers.” United 

States v. Haner, 49 M.J. 72, 76 (1998). Under the circumstances of this case, the fact the trial 

counsel initiated the examination of JK by Dr. Craig is not a sufficient reason to hold that the 

military judge erred by concluding the medical exception applied. The military judge’s 

findings that Dr. Craig saw JK for the purpose of medical diagnosis and treatment, and that 

JK expected to receive medical treatment when she saw Dr. Craig, support his decision to 

admit the statement made by JK to Dr. Craig under Rule 803(4). As such, the military 

judge’s decision was not an abuse of discretion. 

3. Recorded Recollection. 

a) Foundation and Procedure: Attempt refreshing memory; establish that the memory of the 

witness cannot be refreshed; establish that this witness made a record when the matter was 

fresh in the memory of this witness; establish that the record made accurately reflects the 

knowledge of the witness at the time of the making; then have the witness read the recorded 

recollection into evidence. 

b) Note: The record could be marked as a prosecution or defense exhibit for identification, 

or as an appellate exhibit. It should not be admitted unless offered by the adverse party. 

Attach it to the record of trial. It should not go to the deliberation room unless offered by the 

adverse party. United States v. Gans, 32 M.J. 412 (C.M.A. 1991). Excellent case detailing 

the differences between using writings to refresh memory under Rule 613 and writings used 

to establish past recollection recorded under Rule 803(5). 

4. Records of Regularly Conducted Activities (Business Records). 

a) Bank Records. Must lay the foundation specified in the Rule: Timely recording by a 

regularly conducted business activity in accordance with a regular practice of recording. 

When laying the business records foundation, witness familiarity with the records-keeping 

system must be sufficient to explain the system and establish the reliability of the documents. 

Witnesses need not be those who made the actual entries or even the records custodian. 

United States v. Garces, 32 M.J. 345 (C.M.A. 1991) and United States v. Tebsherany, 32 

M.J. 351 (C.M.A. 1991). United States v. Brandell, 35 M.J. 369 (C.M.A. 1992). Bank 

records not admissible under this provision unless a custodian or other qualified person 

testifies. 

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b) NCIC Reports. United States v. Littles: 35 M.J. 644 (N.M.C.M.R. 1992): NIS agent 

testified that he saw a National Crime Information Center (NCIC) report showing criminal 

activity and conviction of, the accused’s father. The report was hearsay, and based upon the 

evidence presented, did not qualify for admission under Rule 803(6) or 803(8) (i.e., not 

shown to have been made at or near the time by a person with knowledge; the testifying agent 

was not the custodian of the record, nor did he show familiarity with the records-keeping 

system; the “rap” sheet was not a record or report of the activities of NCIC). 

c) Lab Reports. United States v. Schoolfield, 36 M.J. 545 (A.C.M.R. 1992), aff’d, 40 M.J. 

132 (CMA 1994): The accused alleged error in the admission of blood sample medical 

records (4 serology reports and a Western Blot test result) pursuant to Rule 803(6). He 

argued the records were not kept in the ordinary course of business, no chain of custody was 

established, and that errors called into question the reliability of the records. ACMR 

disagreed, finding no abuse of discretion by the military judge. The medical director of 

WRAMC Institute of Research was qualified to testify as to the record keeping system and 

maintenance of records. Lab reports and chain of custody documents are admissible. United 

States v. Vietor, 10 M.J. 69 (C.M.A. 1980); United States v. Robinson, 14 M.J. 903 

(N.M.C.M.R. 1982). Admission under the rule does not preclude the defense from calling the 

lab technicians to attack the report. United States v. Magyari, 63 M.J. 123 (2006). Is data in 

a lab report a testimonial statement giving an accused the right to confront the makers of 

those statements pursuant to Crawford v. Washington, 541 U.S. 36 (2004)? MAYBE. In the 

context of random urinalysis screening, where the lab technicians do not equate specific 

samples with particular individuals or outcomes, and the sample is not tested in furtherance of 

a particular law enforcement investigation, the data entries of the technicians are not 

“testimonial” in nature. IF, however, the lab reports were prepared at the behest of law 

enforcement in anticipation of a prosecution, the reports may become “testimonial.” See 

United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) (finding lab reports to be testimonial 

since law enforcement requested the report). 

d) Computer Phone Records. United States v. Casey, 45 M.J. 623 (N.M. Ct. Crim. App. 

1996). Computer system does not have to be foolproof, or even the best available, to produce 

records of adequate reliability. 

e) VHS Videotapes. Rule 803(6) Business records. U.S. v. Harris, 55 M.J. 433 (2001). 

The CAAF adopted the prevailing view of state and federal courts regarding the “silent 

witness” theory of admissibility vis-à-vis videotapes. The court noted that over the last 25 

years, the “silent witness” theory of authentication has developed in almost all jurisdictions to 

allow photographs to substantively “speak for themselves” after being authenticated by 

evidence that supports the reliability of the process or system that produced the photographs. 

The court adopted the silent witness theory, noting that “any doubts about the general 

reliability of the video cassette recording technology had gone the way of the beta tape”. The 

court also addressed when a witness could meet the requirements of 803(6). They noted that 

in order for a witness to meet the qualification requirements of 803(6) they must be 

“generally familiar” with the process. 

f) Duty Rosters. In U.S. v. Bess, after members had adjourned to deliberate on the merits, 

they forwarded questions to the military judge about documents which had been mentioned 

during cross-examination. During an Article 39(a) session, the military judge heard evidence 

from witnesses which established the foundation to admit those documents as business 

records. The defense cross examined government witnesses and presented a witness of its 

own, after which the trial judge granted the government’s motion to admit the records over 

defense objection. The judge denied the defense request to examine the witnesses before the 

members in order to attack the reliability of the records. CAAF found this to violate the 

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constitutional rights of the accused to due process, confrontation, and presenting a defense. 

See U.S. v. Bess, 75 M.J. 70 (C.A.A.F., 2016). 

5. Public Records and Reports. Rule 803(8). 

a) Permits introduction of evidence from public office or agency where the data and source 

of information are indicative of trustworthiness and set forth (a) the activities of the office; or 

(b) matters observed pursuant to a duty imposed by law; or (c) (against the Government) 

factual findings resulting from an investigation made pursuant to authority granted by law. 

Presumption of regularity. Substantial compliance with regulation is sufficient. Irregularities 

material to the execution preclude admissibility. United States v. Anderson, 12 M.J. 527 

(N.M.C.M.R. 1981). Excludes matters observed by police or personnel acting in a law 

enforcement capacity, if offered by the Government. Defense can admit police reports under 

Rule 803(8)(c). Purely ministerial recordings of police may be admissible. United States v. 

Yeoman, 22 M.J. 762 (N.M.C.M.R. 1986), aff’d, 25 M.J. 1 (C.M.A. 1987) (the reporting of a 

filed complaint). 

b) In United States v. Taylor, 61 M.J. 157 (2005), the CAAF held that a military judge erred 

by admitting a document with undecipherable content under the public records exception; the 

custodian could not explain the origin or meaning of the undecipherable content. The CAAF 

further held that any underlying documents used to create a public record must satisfy a 

hearsay exception to satisfy Rule 805. 

c) United States v. Rankin, 64 M.J. 243 (2007). Are service record entries documenting an 

accused’s period of unauthorized absence “testimonial” for purposes of the Confrontation 

Clause? No. Service records documenting absence are not prepared by law enforcement or 

any prosecutorial agency, rather, they are routine personnel documents that chronicle the 

relevant dates, times, and locations of the accused. Additionally, at the time the documents 

are created, an objective witness would not reasonably believe the statement would be 

available for use at a later trial. But see Whorton v. Bockting, 127 S. Ct. 1173 (2007) 

(changing the analysis of non-testimonal statements under the Confrontation Clause, “Under 

Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination 

could not be admitted without a judicial determination regarding reliability. Under Crawford, 

on the other hand, the Confrontation Clause has no application to such statements and 

therefore permits their admission even if they lack indicia of reliability.”) 

6. Contents of Learned Treatises. 

a) Main requirement for using the exception, whether on direct or cross-examination, is the 

establishment of the treatise, periodical, or pamphlet as reliable authority. See generally 

David F. Binder, Hearsay Handbook, ch. 7 §19.01 at 337 (3d ed. 1991). The proponent of 

the evidence accomplishes this task either by obtaining an admission from an expert witness 

concerning the reliability or authority of the statement. The provision concerning calling the 

treatise to the attention of the expert in cross-examination, or having the expert rely upon the 

treatise on direct examination “is designed to ensure that the materials are used only under the 

sponsorship of an expert who can assist the fact finder and explain how to apply the 

materials.” 2 C. McCormick, McCormick on Evidence ch. 34, §321 at 352 (4th ed. 1992). 

Another method is through judicial notice. “Given the requirements for judicial notice, Rule 

201, and the nature and importance of the item to be authenticated, the likelihood of judicial 

notice being taken that a particular published authority other than the most commonly used 

treatises is reliable is not great.” Michael H. Graham, Federal Practice and ProcedureEvidence §6769 at 714, note 4 (1992). 

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b) As is the case with the hearsay exception for recorded recollections, Rule 803(18) 

provides that statements from the learned treatise are read into evidence; the learned treatise 

itself does not become an exhibit. 

7. Residual Hearsay Rule—The “Catchall”. The residual hearsay rule formerly appeared under 

Rules 803(24) and 804(b)(5), but has been transferred to Rule 807. 

====================================================================== 

Rule 807. Residual exception. 

(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay 

even if the statement is not specifically covered by a hearsay exception in Mil. R. Evid. 803 or 804: 

(1) the statement has equivalent circumstantial guarantees of trustworthiness; 

(2) it is offered as evidence of a material fact; 

(3) it is more probative on the point for which it is offered than any other evidence that the proponent can 

obtain through reasonable efforts; and 

(4) admitting it will best serve the purposes of these rules and the interests of justice. 

(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party 

reasonable notice of the intent to offer the statement and its particulars, including the declarant's name and address, 

so that the party has a fair opportunity to meet it. 

====================================================================== 

a) The proponent must demonstrate “equivalent circumstantial guarantees of 

trustworthiness”; 

(1) Inherent Reliability. Idaho v. Wright, 497 U.S. 805 (1990) (admissibility of child’s 

statement to doctor regarding abuse pursuant to residual hearsay rule requires a showing 

of indicia of reliability at the time statement made, not through corroborating evidence.) 

(2) United States v. Morgan, 40 M.J. 405 (CMA 1994), cert. denied, 115 S. Ct. 907 

(1995): Military judge properly admitted sworn statement of rape complainant under 

residual exception. The statement was made near to the time of the attack and was 

consistent with earlier excited utterances. 

b) Establish the evidence is offered to prove a material fact in issue; 

c) Show evidence offered is more probative of the point than any other evidence reasonably 

available; 

(1) All the prerequisites for use must be met, including the requirement that it be more 

probative than any other evidence on the point for which it is offered. United States v. 

Pablo, 50 M.J. 658 (A. Ct. Crim. App. 1999), testimony of school counselor inadmissible 

hearsay because victim testified on the same issues and counselor’s testimony did not 

shed any new light on the issue. 

(2) United States v. Czachorowski, 66 M.J. 432 (2008). The military judge ruled that the 

alleged child-victim was unavailable based on the trial counsel’s proffer that the child 

had forgotten the alleged instances of abuse. The military judge admitted the child’s 

statements of the alleged incident to both the mother and the grandparents as residual 

hearsay. The CAAF found that the government failed to meet its burden that it could not 

obtain more probative evidence despite “reasonable efforts.” The government offered 

nothing to corroborate its assertions that the child had forgotten the alleged incident, and 

the military judge relied solely on government’s assertions without seeking any 

corroboration before declaring the child unavailable. Because the residual hearsay 

exception should be rarely used, “Absent personal observation or a hearing, there must be 

some specific evidence of reasonable efforts to obtain other probative evidence.” 

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d) Demonstrate that admission of the evidence fosters fairness in the administration of 

justice; and 

e) Provide notice of intended use. 

(1) United States v. Holt, 58 M.J. 227 (2003). During the sentencing phase of appellant’s 

court-martial for writing bad checks, the military judge admitted a letter from one of the 

victims to show victim impact and the full circumstances of the offenses. The letter was 

not admitted for the truth of the matters asserted therein. On appeal, the AFCCA held that 

the contents of the letter were admissible as residual hearsay under Rule 807. The CAAF 

reversed, holding that the AFCCA failed to apply the notice and foundational 

requirements of Rule 807. In order to admit evidence under Rule 807, the appellant must 

be afforded sufficient notice in advance of the trial or hearing to prepare to meet the 

evidence; this requirement applies equally to trial and appellate proceedings. 

(2) United States v. Czachorowski, 66 M.J. 432 (2008). The CAAF took a flexible 

approach and found that the advance notice requirement applies to the statements and not 

the means that the proponent intended to use to seek admission of the statements. While 

the trial counsel gave no formal notice, the defense counsel knew about the statements 

and the trial counsel’s intent to offer the statements. Notice was satisfied. 

f) Harmless Error Test. In United States v. Lovett, 59 M.J. 230 (2004), the appellant was 

convicted of raping his 5-year-old daughter. The daughter testified at trial. The Government 

also introduced several hearsay statements of the victim through written statements by her 

mother and the testimony of a family friend. The CAAF refused to rule as to whether 

admission of these items was error, holding instead that any errors in admitting the evidence 

were harmless because the statements were cumulative to and consistent with the victim’s incourt testimony, and some of the statements were contained in another Government exhibit 

that was entered into evidence without defense objection. 

E. Rule 804. Common Hearsay Exceptions - Unavailability. 

1. 804(a)(1): Claim of privilege (which cannot be remedied by grant of testimonial immunity). 

United States v. Robinson, 16 M.J. 766 (A.C.M.R. 1983). 

2. 804(a)(4): Death, Physical Inability, Mental Incapacity, or Intimidation. United States v. 

Arruza, 26 M.J. 234 (C.M.A. 1988), cert. denied, 489 U.S. 1011 (1989) (child intimidated); 

United States v. Ferdinand, 29 M.J. 164 (C.M.A. 1989), cert. denied, 493 U.S. 1044 (1990) (A 

child victim may become unavailable if testifying would be too traumatic). But see United States 

v. Harjak, 33 M.J. 577 (N.M.C.M.R. 1991) (notwithstanding judge’s empathetic concerns for 

child, unauthenticated medical reports detailing victim’s physical and psychological condition to 

demonstrate unavailability irrelevant as reports did not discuss her current condition). 

3. 804(a)(5): Absence. Inability to locate or procure attendance or testimony through good 

faith, major efforts: United States v. Hampton, 33 M.J. 21 (C.M.A. 1991). The victim refused to 

return for the trial and the military judge had no means to compel the victim’s attendance. She 

properly was determined to be unavailable under Rule 804(a)(5). Under these circumstances, the 

pretrial deposition was admissible. 

4. United States v. Gardinier, 63 M.J. 531 (A. Ct. Crim. App. 2006). Military judge erred when 

he determined a child-witness was unavailable within the meaning of Rule 804(a). Even though a 

child-witness may not provide any “helpful” information, this is not a valid basis for a finding of 

unavailability. The Confrontation Clause guarantees only an opportunity for effective crossexamination, not necessarily effective cross-examination. 

F. Rule 804(b). Former Testimony. 

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1. The foundational requirements are: The first hearing was a fair one; the witness testified 

under oath at the first hearing; the opponent was a party in the first hearing; the opponent had an 

opportunity to develop the witness’ testimony; the opponent had a motive to develop the witness’ 

testimony at the first hearing; the witness is unavailable; and there is a verbatim transcript of the 

first hearing. 

2. Despite wording of Rule 804(b)(1), admissibility of Article 32 testimony under former 

testimony exception depends on opponent’s opportunity to cross-exam, not whether crossexamination actually occurred or the intent of the cross-examiner. United States v. Connor, 27 

M.J. 378 (C.M.A. 1989); United States v. Hubbard, 28 M.J. 27 (C.M.A.), cert. denied, 493 U.S. 

847 (1989). United States v. Austin, 35 M.J. 271 (C.M.A. 1992): UCMJ art. 32 testimony was 

admitted under Rule 801(d)(1)(A) and 804(b)(1). After the testimony was read to the members, 

they were permitted to take it into deliberations, over defense objection. Analogizing to a 

deposition, which is not taken into deliberations (See R.C.M. 702(a), Discussion), COMA 

concluded the verbatim Article 32 testimony was not an “exhibit” within the meaning of R.C.M. 

921(b). See also United States v. Montgomery, CM 9201238, (A.C.M.R. 28 July 1994) (per 

curiam) (unpub.), the A.C.M.R. applied a similar analysis to a verbatim transcript of a prior trial. 

G. Rule 804(b)(3). Statement Against Pecuniary, Proprietary, or Penal Interests. 

The foundational requirements include: The declarant is unavailable; the declarant 

previously made a statement; the declarant subjectively believed that the statement was 

contrary to his or her interest; the interest was of a recognized type; and if the defense 

offers a statement which tends to expose the declarant to criminal liability, to exculpate 

the accused, there must be corroboration to show the statement is trustworthy. United 

States v. Perner, 14 M.J. 181 (C.M.A. 1982). 

H. Rule 804(b)(6). Forfeiture by wrongdoing. 

1. Giles v. California, 128 S. Ct. 2678 (2008) (holding that before finding that a defendant 

forfeited his right to confrontation by his wrongdoing, the government must prove that the 

defendant intended to prevent a witness from testifying.) 

2. United States v. Marchesano, 67 M.J. 535 (A. Ct. App. 2008) (adopting a four- part test for 

determining whether a party “acquiesced in the wrongdoing.” (1) Whether “the witness was 

unavailable through the actions of another;” (2) whether “the act of another was wrongful in 

procuring the unavailability of the witness;” (3) whether “the accused expressly or tacitly 

accepted the wrongful actions of another;” and (4) whether “the accused did so with the intent 

that the witness be unavailable.” 

I. Rule 805 and 806. Hearsay within Hearsay; Attacking and Supporting Credibility of Declarant. 

1. Hearsay included within hearsay is not excluded under the hearsay rule if each part of the 

combined statements conforms with an exception to the hearsay rule. United States v. Little, 35 

M.J. 644 (N.M.C.M.R. 1992). 

2. When a hearsay statement, or a statement defined in rule 801(d)(2)(c), (D), or (E), has been 

admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be 

supported, by any evidence which would be admissible for those purposes if declarant had 

testified as a witness. 

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XIV. MISCELLANEOUS RULES. 

A. Rule 1101. Applicability of Rules. 

====================================================================== 

Rule 1101. Applicability of these rules 

(a) In General. Except as otherwise provided in this Manual, these rules apply generally to all courts-martial, 

including summary courts-martial, Article 39(a) sessions, limited fact-finding proceedings ordered on review, 

proceedings in revision, and contempt proceedings other than contempt proceedings in which the judge may act 

summarily. 

(b) Rules Relaxed. The application of these rules may be relaxed in presentencing proceedings as provided under 

R.C.M. 1001 and otherwise as provided in this Manual. 

(c) Rules on Privilege. The rules on privilege apply at all stages of a case or proceeding. 

(d) Exceptions. These rules - except for Mil. R. Evid. 412 and those on privilege - do not apply to the following: 

(1) the military judge's determination, under Rule 104(a), on a preliminary question of fact governing 

admissibility; 

(2) pretrial investigations under Article 32; 

(3) proceedings for vacation of suspension of sentence under Article 72; and 

(4) miscellaneous actions and proceedings related to search authorizations, pretrial restraint, pretrial 

confinement, or other proceedings authorized under the Uniform Code of Military Justice or this Manual 

that are not listed in subdivision (a). 

====================================================================== 

1. The Military Rules apply generally to all courts-martial, including summary courts-martial; to 

proceedings pursuant to Article 39(a); to limited fact-finding proceedings ordered on review; to 

proceedings in revision; and to contempt proceedings except those in which the judge may act 

summarily. 

2. The application of the rules may be relaxed in sentencing proceedings. 

3. The Military Rules do not apply (except for MREs 412 and the rules governing privilege) in 

investigative hearings pursuant to Article 32; proceedings for vacation of suspension of sentence 

pursuant to Article 72; proceedings for search authorizations; proceedings involving pretrial 

restraint; and in other proceedings authorized under the Uniform Code of Military Justice or the 

MCM and not listed in rule 1101(a). 

B. Rule 1102. Amendments and exceptions. 

1. The Rule provides that “Amendments to the Federal Rules of Evidence—other than Articles 

III and V—will amend parallel provisions of the Military Rules of Evidence by operation of law 

18 months after the effective date of such amendments, unless action to the contrary is taken by 

the President.” 

2. Rule 1102 also reflects the judgment of the President that Federal Rules of Evidence 301, 

302, 415, and 902(12) do not apply in military proceedings. 

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[Back to Table of Contents] 

CHAPTER 25
 

CONFRONTATION CLAUSE
 

I. Introduction 

II. Satisfying the Confrontation Clause 

III. Restrictions on Confrontation Imposed by Law 

IV. Literal Confrontation: Admissibility of Out-of-Court Statements 

V. Appellate Review 

Appx A Confrontation Analysis Chart 

Appx B Confrontation – Nontestimonial Statement Chart 

I. INTRODUCTION 

A. General 

1. The Sixth Amendment to the Constitution provides: “In all criminal prosecutions, 

the accused shall enjoy the right...to be confronted with the witnesses against him....” 

U.S. Const. amend. VI. 

2. The protections of the Sixth Amendment’s Confrontation Clause apply in 

prosecutions of members of the armed forces. United States v. Jacoby, 29 C.M.R. 244, 

246-247 (C.M.A. 1960) (Overruling United States v. Sutton, 11 C.M.R.220 (C.M.A. 

1953) and United States v. Parrish, 22 C.M.R. 127 (C.M.A. 1956) 

B. Organization of Outline 

1. Part II discusses satisfying the Confrontation Clause through witness production, 

waiver, and forfeiture by wrongdoing. 

2. Parts III and IV discuss two broad categories of Confrontation Clause cases. Part III 

discusses the law involving restrictions imposed by law or by a court on the scope of 

cross-examination. Part IV discusses the law involving the admissibility of out-ofcourt statements and reflecting the right to literally confront a witness at trial. [Note: 

the classification of cases in Part IV is modeled in part on the organizing principles of the 

National District Attorney Association’s “Crawford Outline.”] 

3. Part V discusses the appellate review issues for Confrontation Clause cases. 

4. The appendices contain Confrontation Clause analysis charts. 

II. SATISFYING THE CONFRONTATION CLAUSE THROUGH 

OPPORTUNITY TO CROSS-EXAMINE, WAIVER, AND FORFEITURE 

A. Opportunity to Cross Examine. 

1. Producing the witness will satisfy the Confrontation Clause even if the witness 

cannot be cross-examined effectively. The Confrontation Clause guarantees only an 

opportunity to cross-examine witnesses. There is no right to meaningful crossexamination. Generally speaking, an opportunity to cross-examine a forgetful witness 

satisfies the confrontation clause. If, however, a witness is unable or refuses to testify 

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(even though the witness is on the witness stand), it follows that the witness cannot be 

cross-examined. 

2. Delaware v. Fensterer, 474 U.S. 15 (1985) (per curiam). The Court held that an 

expert witness’ inability to recall what scientific test he had used did not violate the 

Confrontation Clause even though it frustrated the defense counsel’s attempt to crossexamine him. “[T]he Confrontation Clause is generally satisfied when the defense is 

given a full and fair opportunity to probe and expose these infirmities through crossexamination, thereby calling to the attention of the fact finder the reasons for giving scant 

weight to the witness’ testimony.” 

3. United States v. Owens, 484 U.S. 554 (1988). While in the. hospital, the victim 

identified the accused to an FBI agent. At trial, due to his injuries, which affected his 

memory, the victim could only remember that he earlier identified the accused, but not 

the reason for the identification. The victim was under oath and subject to crossexamination; the Confrontation Clause was satisfied. 

4. United States v. Rhodes, 61 M.J. 445 (2005). Witness against accused testified but 

claimed a lack of memory. The previous confession of the witness, implicating accused, 

was admitted against appellant with certain conditions. The defense argued that the 

appellant’s confrontation rights were violated because the witness did not “defend or 

explain” his statement as required by Crawford v. Washington. The court ruled that the 

Supreme Court’s previous case of United States v. Owens was not overruled by 

Crawford. By presenting the witness, the government met the confrontational 

requirements of the Sixth Amendment. 

5. United States v. Gans, 32 M.J. 412 (C.M.A. 1991). The military judge admitted a 

sexual abuse victim’s statement given thirty months earlier to MPs as past recollection 

recorded (MRE 803(5)). At trial, victim could not remember details of sexual abuse 

incidents. Appellant claimed that because the daughter’s recollection was limited, his 

opportunity to cross-examine was also limited. The Court of Military Appeals disagreed, 

relying on the Fensterer and Owens decisions that there is no right to meaningful crossexamination. 

B. Waiver. 

1. Affirmative waiver of confrontation by the accused will satisfy the Sixth 

Amendment. Waiver cases generally arise when the defense makes a tactical decision not 

to cross-examine a witness, then asserts a Confrontation Clause violation. 

2. United States v. Martindale, 40 M.J. 348 (C.M.A. 1994). During a deposition and 

again at an Article 39(a) session, a 12-year-old boy could not or would not remember acts 

of alleged sexual abuse. The military judge specifically offered the defense the 

opportunity to put the boy on the stand, but defense declined. Confrontation was waived 

and the boy’s out-of-court statements were admissible. 

a) United States v. McGrath, 39 M.J. 158 (C.M.A. 1994). Government 

produced the 14-year-old daughter of the accused in a child sex abuse case. The 

girl refused to answer the trial counsel’s initial questions, but conceded that she 

had made a previous statement and had not lied in the previous statement. The 

military judge questioned the witness, and the defense declined crossexamination. The judge did not err in admitting this prior statement as residual 

hearsay. 

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b) United States v. Bridges, 55 M.J. 60 (2001). The Court of Appeals for the 

Armed Forces (CAAF) held that the Confrontation Clause was satisfied when the 

declarant took the stand, refused to answer questions, and was never crossexamined by defense counsel. The military judge admitted the declarant’s 

hearsay statements into evidence. While a true effort by the defense counsel to 

cross-examine the declarant may have resulted in a different issue, the defense’s 

clear waiver of cross-examination in this case satisfied the Confrontation Clause. 

Once the Clause was satisfied, it was appropriate for the military judge to 

consider factors outside the making of the statement to establish its reliability and 

to admit it during the government case-in-chief under the residual hearsay 

exception. 

C. Forfeiture by Wrongdoing. 

1. An accused may forfeit his right to confront a witness if he engaged in wrongdoing 

that was intended to, and did, procure the unavailability of the witness. 

2. Crawford v. Washington, 541 U.S. 36, 62 (2004). “[T]he rule of forfeiture by 

wrongdoing...extinguishes confrontation claims on essentially equitable grounds.” 

3. Giles v. California, 128 S. Ct. 2678 (2008). The doctrine of forfeiture by 

wrongdoing requires the government to show that the accused intended to make the 

witness unavailable when he committed the act that rendered the witness unavailable. 

This interpretation is consistent with the Federal and identical Military Rule of Evidence 

804(b)(6). It is not enough to simply show that the accused’s conduct caused the 

unavailability. 

4. United States v. Clark, 35 M.J. 98 (C.M.A. 1992). Accused’s misconduct in 

concealing the location of the victim and her mother waived any constitutional right the 

accused had to object to the military judge’s ruling that the victim was “unavailable” as a 

witness. 

5. Forfeiture of hearsay rights versus confrontation rights. The constitutional doctrine of 

forfeiture and the codification of that doctrine in the evidentiary hearsay rules are related, 

but functionally separate, concepts. 

a) Military Rule of Evidence 804(b)(6) provides that “[a] statement offered 

against a party that has engaged or acquiesced in wrongdoing that was intended 

to, and did, procure the unavailability of the declarant as a witness” is not 

excluded by the hearsay rule if the declarant is unavailable. The overwhelming 

majority of federal courts apply a preponderance of the evidence standard to 

determine whether an accused engaged or acquiesced in wrongdoing. 2 Stephen 

A. Saltzburg, Lee D. Schinasi, and David A. Schlueter, Military Rules of 

Evidence Manual 804.05[3][f] (2003). 

b) Giles v. California, 128 S. Ct. 2678, 2686 (2008). “No case or treatise that 

we have found...suggested that a defendant who committed wrongdoing 

forfeited his confrontation rights but not his hearsay rights.” 

c) United States v. Marchesano, 67 M.J. 535 (Army Ct. Crim. App. 2008). 

Indicates that an accused could forfeit his hearsay rights under MRE 804(b)(6) 

through wrongdoing by acquiescence but perhaps not his confrontation rights 

(confrontation forfeiture requires some intent or design on the behalf of the 

accused). 

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d) Standard of proof at trial for judge’s determination of forfeiture: 

Preponderance of evidence. United States v. Marchesano, 67 M.J. 535, 544 

(Army Ct. Crim. App. 2008). 

III. RESTRICTIONS ON CONFRONTATION IMPOSED BY LAW 

A. Limitations on Cross-Examination 

1. Cross-examination is an important part of the right to confront witnesses. The right to 

confrontation, however, is not absolute. The courts balance the competing state interest(s) 

inherent in rules limiting cross-examination with the accused's right to confrontation. 

a) “The right of cross-examination is implicit in the constitutional right of 

confrontation, and helps assure the ‘accuracy of the truth-determining process.’” 

Chambers v. Mississippi, 410 U.S. 284, 295 (1973). 

b) Cross-examination is the principal means by which the believability of a 

witness and the truth of his testimony are tested. Subject always to the broad 

discretion of a trial judge to preclude repetitive and unduly harassing 

interrogation, the cross-examiner is not only permitted to delve into the witness’ 

memory, but the cross-examiner has traditionally been allowed to impeach, i.e., 

discredit, the witness. Davis v. Alaska, 415 U.S. 308, 316 (1974). 

c) “[W]e have never questioned the power of States to exclude evidence 

through the application of evidentiary rules that themselves serve the interests of 

fairness and reliability – even if the defendant would prefer to see that evidence 

admitted.” Crane v. Kentucky, 476 U.S. 683, 690 (1986). 

d) “[T]he right to confront and cross-examine is not absolute and may, in 

appropriate cases, bow to accommodate other legitimate interests in the criminal 

trial process.” Chambers, 410 U.S. at 295. 

e) “[T]rial judges retain wide latitude insofar as the Confrontation Clause is 

concerned to impose reasonable limits on such cross-examination based on 

concerns about, among other things, harassment, prejudice, confusion of the 

issues, the witness' safety, or interrogation that is repetitive or only marginally 

relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). 

f) Although a criminal defendant waived his rights under the Confrontation 

Clause to object to the admission of hearsay statements because of his 

misconduct in intimidating a witness, he did not also forfeit his right to crossexamine that same witness. Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003). 

2. Juvenile Convictions of Key Prosecution Witness. Davis v. Alaska, 415 U.S. 308 

(1974). The exposure of a witness’s motivation is a proper and important function of 

cross-examination, notwithstanding state statutory policy of protecting the anonymity of 

juvenile offenders. 

3. Voucher Rule. Chambers v. Mississippi, 410 U.S. 284, 295 (1973). The defendant 

was deprived of a fair trial when he was not allowed to cross-examine a witness who had 

confessed on numerous occasions that he committed the murder. The Court observed that 

“the right to confront and to cross-examine is not absolute and may, in appropriate cases, 

bow to accommodate other legitimate interests in the criminal trial process. But its denial 

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or significant diminution calls into question the ultimate ‘integrity of the fact-finding 

process’ and requires that the competing interest be closely examined (citations omitted). 

4. Ability to remember. United States v. Williams, 40 M.J. 216 (C.M.A. 1994). Judge 

erred in precluding defense from cross-examining government witness (and accomplice) 

to robbery about drug use the night of the robbery. 

5. Bias. 

a) United States v. George, 40 M.J. 540 (A.C.M.R. 1994). Judge improperly 

restricted defense cross-examination of government toxicology expert who 

owned stock in the lab that tested accused’s urine sample pursuant to a 

government contract. Questions about the expert’s salary were relevant to 

explore bias. Judge also erred in preventing defense from asking the defense 

expert about possible sources of contamination of the urine sample. 

b) United States v. Gray, 40 M.J. 77 (C.M.A. 1994). Accused was charged with 

indecent acts with nine-year-old daughter of SGT M and sodomy and adultery 

with SGT M’s wife. Evidence that DHS had investigated the “victim’s” family 

was improperly excluded. Mrs. M. could have accused Gray of the offenses to 

divert attention away from her dysfunctional family and the evidence would have 

corroborated Gray’s claim that he visited Mrs. M’s home in response to requests 

for help. This violated accused’s right to present a defense. 

6. Motive to lie. United States. v. Everett, 41 M.J. 847 (A.F.C.M.R. 1994). The military 

judge improperly prevented the defense counsel from cross-examining a rape victim 

about her husband’s infidelity and his physical abuse of her. 

7. Discrepancy in Laboratory Tests. United States v. Israel, 60 M.J. 485 (2005). In a 

urinalysis case, the military judge limited the defense ability to cross-examine witnesses 

regarding the possibility of error in the testing process by precluding the defense from 

confronting expert witnesses with material impeachment evidence. The CAAF held that 

the military judge abused his discretion in limiting the ability of the defense to crossexam the government experts, and that the error was not harmless beyond a reasonable 

doubt. 

8. M.R.E. 403. 

a) United States v. Carruthers, 64 M.J. 340 (2007). Appellant was convicted of 

stealing over a million dollars worth of military property from the Defense 

Reutilization and Marketing Office (DRMO) at Fort Bragg over a three year 

period. At trial, one of his coconspirators, SFC Rafferty, testified for the 

government in return for an agreement to plead guilty in federal court to one 

count of larceny of government property valued over one thousand dollars. 

Appellant’s civilian defense counsel cross-examined SFC Rafferty at length 

about his agreement with the government, however the government objected 

when the defense counsel attempted to delve further into the possible 

punishments SFC Rafferty might receive at his federal trial. The military judge 

sustained the objection. The issue was whether appellant was denied his Sixth 

Amendment right to confrontation when the military judge limited crossexamination of a key government witness regarding the possible sentence under 

the witness’s plea agreement. (There were two issues granted, the other involved 

instructions given by the military judge) The holding was: No, sufficient crossexamination was permitted, and the military judge properly identified and 

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weighed the danger of misleading the members under M.R.E. 403. The military 

judge in this case had already allowed plenty of inquiry into the witness’s bias as 

a result of his agreement with the government, and merely limited the defense 

from further questioning on another aspect of the agreement. Since sufficient 

cross-examination into bias as a result of the plea agreement was permitted, 

appellant’s Sixth Amendment right to Confrontation was not violated by the 

military judge’s limitation. 

b) United States v. James, 61 M.J. 132 (2005). Before members, appellant 

pleaded guilty to using and distributing ecstasy. During the sentencing phase of 

the trial, appellant sought to cross-exam a witness whom the appellant argued 

had convinced him to try ecstasy. Specifically, appellant sought to crossexamine the witness concerning the specific terms of the witness’ pretrial 

agreement with the government. The purpose of the cross-examination into the 

quantum of the agreement would be to establish that the friend had a reason to lie 

given the benefit of the deal afforded to him (his agreement was for eighteen 

months confinement from a maximum of fifty-two years). The military judge 

precluded cross-examination of the specifics of the agreement, but allowed the 

defense to cross-examine the witness on the existence and general nature of the 

agreement, the order by the convening authority to the witness to testify, the 

grant of immunity to the witness, and the considerations of pending clemency. 

The court found that that military judge did not err by reasonably limiting the 

scope of cross-examination to avoid the confusion of the issues. 

9. Rule 412. 

a) United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011). The military judge 

denied the accused’s initial MRE 412 motion to cross examine the victim on a 

prior, unfounded rape allegation. During direct examination the government 

opened the door by using it to bolster her reason for delayed reporting the current 

allegation. The court found it error to deny the accused the ability to cross 

examine on it after the government opened the door. Denying the accused the 

right to confront the victim with her previous allegation of rape under MRE 

412(b)(1)(c) after the government opened the door on direct examination in an 

effort to bolster her credibility denied the accused his right to confrontation 

despite the military judge’s earlier ruling to exclude the evidence in pretrial 

motions. A key component of the Confrontation Clause is the crucible of crossexamination. Davis v. Alaska, 415 U.S. 308, 316-317 (1974). This right 

becomes even broader when the prosecution opens the door to impermissible 

evidence during their case in chief. A failure by the intermediate court was not 

recognizing that witness credibility is an issue for the fact finder. 

b) United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011). The C.A.A.F. held 

that the prior decision in United States v. Banker, see below, was wrong when it 

held that the victim’s privacy interests should be balanced against an accused’s 

constitutional rights when determining admissibility under MRE 412. While the 

balancing test itself is not per se unconstitutional, it could be applied in an 

unconstitutional manner. Where evidence is constitutionally required and 

survives the balancing test under MRE 403, an accused will be allowed to 

confront his accuser with the same regardless of the level of invasive to a 

victim’s privacy. Despite this holding, the facts of this case did not allow the 

accused to confront the victim with evidence under MRE 412. The accused in 

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this case did not make a showing that the evidence found in e-mails alluding to 

the victim being sexually active was constitutionally required under MRE 

412(b)(1)(c). The military judge did allow cross-examination on the e-mails 

without allowing questions into the content by using MRE 611 MRE 611. While 

an accused has a right to confront his accuser, that right is not without 

limitations. Davis v. Alaska, 415 U.S. 308, 316 (1974). The Confrontation 

Clause protects a person’s rights to a fair cross-examination of a witness to 

establish bias or motive to lie. That cross-examination can be curtailed when the 

probative value is outweighed by the danger of unfair prejudice. These dangers 

of unfair prejudice include harassment, prejudice, confusion of the issues, the 

witness' safety, or interrogation that is repetitive or only marginally relevant. In 

Delaware v. Van Arsdall, 475 U.S. 673, 678–79 (1986). Here, the judge had 

already determined that there was insufficient probative value in the e-mails to 

rise to the level of constitutionally required evidence. As such, he may be 

allowed an opportunity to expose her motive to lie, but not in every possible 

manner. The military judge placed limits on the inquiry, and CAAF held that the 

judge had admitted sufficient evidence to establish TE’s motive to lie. Excluding 

the sexual nature of the worrisome e-mails did not violate the constitutional 

rights of the accused. The court did not conduct any MRE 403 analysis. 

c) United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011). The C.A.A.F. 

held that in an Article 120 case it was error for the military judge to exclude 

evidence that the victim had an extra marital affair two years prior. When she 

disclosed the earlier affair to her husband, he became enraged and kicked down 

the wife’s lover’s door. The court found that the military judge prevented 

Ellerbrock from presenting a theory that a previous affair made it more likely that 

CL would have lied in this case; that it was a fair inference that a second affair 

would be more damaging to CL’s marriage than a single event; and there was 

evidence in the record to support this inference, particularly the evidence that the 

husband had had a prior violent reaction when learning about CL’s affair. The 

court found that the proffered evidence had a direct and substantial link to CL’s 

credibility, and her credibility was a material fact in the case. The probative 

value of the evidence was high because the other evidence in the case was so 

conflicting, and was not outweighed by other 

d) United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004). Abrogated by United 

States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011). The C.A.A.F. held that evidence 

proffered under the constitutionally required exception under M.R.E. 412(a) is 

admissible only if the evidence is 1) relevant; 2) material; and 3) favorable to the 

defense AND it is not outweighed by the victim’s privacy. This balancing test, 

applied in this manner, is unconstitutional under United States v. Gaddis. While 

other sections of Banker may be useful in helping counsel determine relevant and 

material, if evidence is found constitutional, the victim’s privacy cannot be used 

to exclude it regardless of the significance. 

e) United States v. Roberts, 69 M.J. 23 (C.A.A.F. 2010). In a marital rape and 

assault case, the CAAF held that, although the trial judge’s exclusion of extrinsic 

evidence of an alleged relationship between the accused’s wife and another man 

did violate the accused’s constitutional right to confrontation, but that the error 

was harmless beyond a reasonable doubt. See also, United States v. Smith, 68 

M.J. 445 (C.A.A.F. 2010) 

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B. Limits on Face-To-Face Confrontation (Remote & Screened Testimony) 

1. The issue in remote and screened testimony is balancing confrontation rights against 

state’s interest in protecting certain witnesses. Arguably, this section could also fit under 

the category of “Literal Confrontation: The Admissibility of Out-of-Court Statements” at 

Part IV, Supra. See, Maryland v. Craig, 497 U.S. 836 (1990) (Scalia, J., joined by 

Brennan, J., Marshall, J., and Stevens, J., dissenting). 

2. The Supreme Court. 

a) Maryland v. Craig, 497 U.S. 836 (1990). The child victim testified by oneway closed circuit television with a defense counsel and a prosecutor present. 

The testimony was seen in the courtroom by the accused, jury, judge, and other 

counsel. 

(1) The preference for face-to-face confrontation may give way if it is 

necessary to further an important public policy, but only where the 

reliability of the testimony can otherwise be assured. 

(2) Necessity. Before allowing a child victim to testify in the absence of 

face-to-face confrontation with the accused, the government must make a 

case specific showing that: 

(a) The procedure proposed is necessary to protect the 

child victim, 

(b) The child victim would be traumatized by the presence 

of the accused, and 

(c) The emotional distress would be more than de minimis. 

What does de minimis mean? Generally, “more than ‘mere 

nervousness or excitement or some reluctance to testify.’” 

See United States v. McCollum, 58 M.J. 323 (2003) (citing 

Maryland v. Craig, 497 U.S. 836 (1990).What's the 

constitutional minimum required? See Marx v. Texas, 987 

S.W.2d 577 (Tex.). 

(3) Important Public Policy. The state’s interest in "protecting child 

witnesses from the trauma of testifying in a child abuse case" is an 

important state interest. 

(4) Reliability Assured. The Court stated that confrontation has four 

component parts that assure reliability. You preserve reliability by 

preserving as many of these component parts as possible in the proposed 

procedure. 

(a) Physical presence; 

(b) Oath; 

(c) Cross-examination; 

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(d) Observation of the witness by the fact finder. 

3. Military Cases. 

a) United States v. Pack, 65 M.J. 381 (2008). Remote live testimony by a child 

victim witness. The CAAF held that the Supreme Court opinion in Crawford did 

not affect its earlier opinion in Maryland v. Craig, which laid out the standards 

for remote live testimony of child abuse victims. In so holding, the CAAF 

acknowledged that Crawford appeared inconsistent with Craig, but, because the 

Supreme Court did not expressly overrule Craig, the CAAF would continue to 

apply the Craig standard. 

b) United States v. Anderson, 51 M.J. 145 (1999). The court approved the 

government’s repositioning of two child victims such that they did not face the 

accused and the government’s use of a screen and closed circuit television. 

Closed circuit television was used so the military judge, counsel, and the reporter 

could all see the testimony. 

c) United States v. McCollum, 58 M.J. 323 (2003). The CAAF approved the 

military judge’s decision to permit a 12-year-old child victim to testify via twoway closed circuit television after finding the witness would be traumatized if 

required to testify in open court in the presence of the accused and that the 

witness would be unable to testify in open court in the accused’s presence 

because of her fear that the accused would beat her. Accused absented himself 

from the courtroom pursuant to R.C.M. 804. The military judge found that the 

victim would be unable to testify in the accused’s presence because of both fear 

and trauma, linking the two concepts. CAAF noted that MRE 611(d)(3)(A) and 

(B) are sufficient independent of each of each other, meaning that military judge 

must find that a witness will be unable to testify reasonably because of fear or 

trauma caused by the accused’s presence. Further, as long as the finding of 

necessity is based on the fear or trauma caused by the accused’s presence alone, 

“it is irrelevant whether the child would also suffer some fear or trauma from 

testifying generally.” The CAAF also determined that a military judge is not 

required under the Sixth Amendment nor MRE 611(d) to interview or observe a 

child witness before making a necessity ruling. Further, the fear of a witness need 

not be fear of imminent harm nor need it be reasonable. Rather, the fear required 

under the rule must “be of such a nature that it prevents the child from being able 

to testify in the accused’s presence.” 

4. Options. Several ways have been tried and approved by courts. They include: 

a) One-way closed circuit television. Maryland v. Craig, 497 U.S. 836 (1990); 

U.S. v. Longstreath, 45 M.J. 366 (1996). 

b) Two-way closed circuit television. R.C.M. 914A; 18 U.S.C. § 3509. 

c) A partition. United States v. Batten, 31 M.J. 205 (C.M.A. 1990). An 

elaborate courtroom arrangement to protect the child victim, which included 

screens and closed circuit television. Testimony by a psychologist to show the 

impact conventional testimony would have on the witness. Special findings by 

the military judge (judge alone trial) that he relied on the child’s excited 

utterance and not on her courtroom testimony. Harmless error analysis by CMA 

as allowed by US Supreme Court in Coy and Craig. Case affirmed. 

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d) Witness testifying with her back to the accused but facing the judge, and 

counsel. United States v. Thompson, 31 M.J. 168 (C.M.A. 1990). The child 

victims testified at a judge alone court-martial with their backs to the accused. 

The military judge, defense counsel, and trial counsel could see them. A 

psychologist testified for the government in support of the courtroom 

arrangement. 

e) Profile to the accused. United States v. Williams, 37 M.J. 289 (C.M.A. 1993). 

Child victim testified from a chair in the center of the courtroom, facing the 

military judge with the defense table to the immediate left of her chair. The 

accused was not deprived of his right to confrontation even though he could not 

look into the witness’ eyes. The witness testified in the accused’s presence and he 

could see her face and demeanor. 

f) Whisper Method. United States v. Romey, 32 M.J. 180 (C.M.A.). The child 

victim whispered her answers to her mother who repeated the answers in open 

court. The mother was certified as an interpreter. Craig was satisfied when “[t]he 

judge impliedly made a necessity finding in this case” (emphasis added). The 

military judge relied on representations made about the Article 32 testimony; trial 

counsel’s pretrial discussions with the child witness; and the military judge’s 

observations of the child at an Article 39(a) session in the accused’s presence. 

The Court also held that the child victim was available for cross-examination, 

and the accused’s due process rights were not violated. 

5. Article 32 Investigation. United States v. Bramel, 29 M.J. 958 (A.C.M.R. 1990). The 

child victim testified behind a partition at the Article 32 investigation. Accused could 

hear but not see the victim, but the defense counsel cross-examined him. The child 

testified at the court-martial without the partition. Held: (1) right to face-to-face 

confrontation is a trial right; (2) Article 32, UCMJ, only provides for the right of crossexamination, not confrontation; (3) an Article 32 investigation is not a critical stage of the 

trial; (4) Bramel is comparable to Kentucky v. Stincer, 482 U.S. 730 (1987) (defendant 

excluded from competency hearing of child witness); and (5) the accused did not have the 

right to proceed pro se at the Article 32 investigation. 

6. Do not remove the accused from courtroom. See United States v. Daulton, 45 M.J. 

212 (1996) (accused watched testimony of daughter over closed circuit television; 

confrontation rights violated); United States v. Rembert, 43 M.J. 837 (Army Ct. Crim. 

App. 1996) (accused watched testimony of 13-year-old carnal knowledge victim via twoway television in the deliberation room; without ruling on Sixth Amendment, the Army 

court agreed that accused’s due process rights were violated). The accused may, under 

R.C.M. 804(c), voluntarily leave the courtroom to preclude the use of the procedures 

outlined in R.C.M. 914A. 

7. Can witnesses who are not victims use remote procedures? Yes. Federal courts have 

interpreted 18 U.S.C. § 3509 to allow non-victim child witnesses to testify remotely. 

United States v. Moses, 137 F.3d 894 (6th Cir. 1998); United States v. Quintero, 21 F.3d 

885 (9th Cir. 1994). Both cases interpret Maryland v. Craig. Both cases focus on the 

Court’s approval of the state interest: “the state interest in protecting child witnesses from 

the trauma of testifying in a child abuse case.” The courts do not comment on the fact that 

the four witnesses in Craig who testified remotely were all victims. 

8. Other issues in remote testimony. 

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a) United States v. Yates, 2006 U.S. App. LEXIS 3433 (11th Cir. 2006). 

Prosecution witnesses living in Australia declined to travel to the United States 

for trial. The witnesses testified at trial via live, two-way video conference. The 

Eleventh Circuit, following an en banc hearing, held that this arrangement 

violated the defendants’ Sixth Amendment right to confront witnesses against 

them. Citing to Maryland v. Craig as the controlling case, the court found that 

the prosecutor's need for the video conference testimony to make a case and 

expeditiously resolve it were not the type of public policies that were important 

enough to outweigh defendants' rights to confront their accusers face-to-face. The 

court further found that the prosecution had failed to establish the necessity for 

the use of remote testimony when another viable option, deposition under the 

Federal Rules for Criminal Procedure, was available to the government. 

b) Harrell v. Butterworth, 251 F.3d 926 (11th Cir. 2001). Appellant was 

convicted of robbing an Argentinean couple. At trial, the victims were 

unavailable to testify in person because of illness and unwillingness to return to 

the United States. The trial judge agreed to allow testimony via satellite over 

defense objection. Citing to Maryland v. Craig, the Florida Supreme Court 

pointed out that the Confrontation Clause does not guarantee an absolute right to 

a face-to-face meeting between a defendant and witnesses; rather, the underlying 

purpose is to ensure the reliability of trial testimony. In this case, Maryland v. 

Craig was satisfied because (1) public policy considerations justified an 

exception to face-to-face confrontation, given the state interest “to expeditiously 

and justly resolve criminal matters that are pending in the state court system;” (2) 

the remote testimony was necessary, given the fact that the witnesses were 

absolutely essential to the government case and lived beyond the court’s 

subpoena power; and (3) the testimony was reliable because the witnesses were 

able to see the jury and the defendant, they were sworn by the clerk of court, the 

jury and the defendant were able to observe the witnesses testifying, and they 

were subject to cross-examination. On habeas review, the 11th Circuit concluded 

that Florida Supreme Court’s decision was not contrary to, or an unreasonable 

application of, clearly established federal law as determined by the Supreme 

Court. 

c) United States. v. McDonald, 55 M.J. 173 (2001). Shortly before the 

presentencing portion of the court-martial, the government’s only witness was 

notified of a unit deployment to the Middle East. He was at Fort Stewart, some 

distance from the trial location and was scheduled to report to the terminal at 

midnight that night for a departure at 0600 hours the next morning. Over defense 

objection, the military judge allowed the witness to testify by telephone. On 

appeal, the issue was whether the Sixth Amendment’s Confrontation Clause 

applies to the presentencing portion of a court-martial. Agreeing with the NavyMarine Corps Court of Criminal Appeals, the CAAF held that the Confrontation 

Clause does not apply to non-capital presentencing proceedings. However, the 

Due Process Clause of the Fifth Amendment requires that the evidence 

introduced in sentencing meet minimum standards of reliability. The Court 

pointed out that while the safeguards in the rules of evidence applied to the 

prosecution’s sentencing evidence, the language of RCM 1001(e)(2)(D) allowed 

relaxation of the evidence rules and did not specifically prohibit telephonic 

testimony. The CAAF also emphasized that this was an unusual situation causing 

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the military judge to “craft a creative solution,” lest the testimony be temporarily 

lost. 

d) United States v. Shabazz, 52 M.J. 585 (N-M. Ct. Crim. App. 1999). The 

military judge allowed a government witness to testify via video teleconference 

(VTC). The trial was in Japan; the witness testified from California. The NavyMarine Corps Court found a violation of the right to confrontation because the 

trial judge did not do enough to control the remote location. 

e) United States v. Gigante, 166 F.3d 75 (2d Cir. 1999). The U.S. government 

asserted that Gigante was the boss of the Genovese crime family and supervised 

its criminal activity. Gigante was convicted of racketeering, criminal conspiracy 

under the RICO statute, conspiracy to commit murder, and a labor payoff 

conspiracy. The government proved its case with six former members of the 

Mafia, including Peter Savino. Savino was allowed to testify via closed circuit 

television because he was in the Federal Witness Protection Program and was in 

the final stages of an inoperable, fatal cancer. The Court held the trial judge did 

not violate Gigante's right to confront Savino. See also Minnesota v. Sewell, 595 

N.W.2d 207 (Minn. App. 1999). 

9. Testimony in disguise. Romero v. State, 136 S.W.3d 680 (Tex. Ct. App. 2004). A 

state’s witness testified wearing dark sunglasses, a baseball cap pulled low over his eyes, 

and a jacket with an upturned collar, leaving visible only his ears. The trial court made 

no finding of necessity to justify the witness’s appearance. The court held that the 

defendant’s right to confrontation was violated. 

C. Right To Be Present at Trial 

1. General Rule. The accused has a right “to be present in his own person whenever his 

presence has a relation, reasonably substantial, to the fullness of his opportunity to defend 

against the charge.” Snyder v. Massachusetts, 291 U.S. 97, 105-6 (1934). 

2. Disruptive Accused. 

a) In Illinois v. Allen, 397 U.S. 337 (1970), the Court held that a disruptive 

defendant can lose his right to be present at trial if, after he has been warned by 

the judge that he will be removed if he continues his disruptive behavior, he 

nevertheless insists on conducting himself in a manner so disorderly, disruptive, 

and disrespectful of the court that his trial cannot be carried on with him in the 

courtroom. Once lost, the right to be present can be reclaimed if the defendant is 

willing to conduct himself consistently with the decorum and respect inherent in 

judicial proceedings. 

b) RCM 804. A military judge faced with a disorderly and disruptive accused 

has three constitutionally-permissible responses: 

(1) Bind and gag the accused as a last resort, thereby keeping him 

present; 

(2) Cite the accused for criminal contempt; 

(3) Remove the accused from the courtroom until he promises to 

conduct himself properly. 

3. Intentionally absent accused. Trial may continue in the absence of the accused when 

the accused voluntarily absents himself from trial. R.C.M. 804(b) and United States v 

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McCollum, 56 M.J. 837 (A.F. Ct. Crim. App. 2002), aff’d, 58 M.J. 323, (2003) (accused 

voluntarily absented himself so that child-victim could testify in the courtroom). 

D. Comment on Exercising Sixth Amendment Rights 

1. United States v. Kirt, 52 M.J. 699 (N-M. Ct. Crim. App. 2000). The accused testified 

at trial and was asked during cross-examination, “Do you admit here today that you are 

the only witness in this court who has heard the testimony of every other witness?” On 

appeal, the accused argued that this question improperly invited the members to infer 

guilt from the appellant’s exercise of his constitutional right to testify and confront the 

witnesses against him. The Court held that the question did not constitute error, but if it 

did, it was waived and did not constitute plain error. 

2. Portuondo v. Agard, 529 U.S. 61 (2000). In summation, the prosecutor commented 

that the defendant had the benefit of getting to listen to all other witnesses before 

testifying, giving the defendant a “big advantage.” The defendant argued that the 

prosecutor’s comments on his presence and ability to fabricate unlawfully burdened his 

Sixth Amendment right to be present at trial and to be confronted with witnesses against 

him and his Fifth and Sixth Amendment right to testify on his own behalf. The Court 

rejected the defendant’s arguments distinguishing comments that suggest exercise of a 

right is evidence of guilt and comments that concern credibility as a witness. 

IV. LITERAL FACE-TO-FACE CONFRONTATION: THE 

ADMISSIBILITY OF OUT-OF-COURT STATEMENTS 

A. Introduction 

1. The Crawford Rule: Under Crawford v. Washington, 541 U.S. 36 (2004) 

“testimonial” statements are admissible only if the declarant is unavailable and the 

defendant has had a prior opportunity to cross-examine the declarant. Crawford 

overturned the Ohio v. Roberts, 448 U.S. 56 (1980) decision, under which judges 

determined the substantive reliability of out-of-court statements. Crawford returned to the 

historical roots of the Confrontation Clause, which is a procedural guarantee “not that 

evidence be reliable, but that reliability be assessed in a particular manner; by testing in 

the crucible of cross-examination.” Crawford, 541 U.S. at 61. 

2. What is Testimonial? The Crawford Court declined to provide a comprehensive 

definition of “testimonial.” The definition has been the subject of thousands of judicial 

decisions since the Court decided Crawford, and is discussed in Part IV.B., below. 

3. Witness Present at Trial. “[W]hen the declarant appears for cross-examination at trial 

the Confrontation Clause places no constraints at all on the use of his prior testimonial 

statements....The Clause does not bar admission of a statement so long as the declarant is 

present at trial to defend or explain it.” Crawford, 541 U.S. at 59. 

4. Hearsay and the Confrontation Clause. 

a) It is important to remember that issues regarding evidentiary hearsay rules 

and issues regarding Confrontation Clause are separate and require a separate 

analysis. “Although the hearsay rules and the Confrontation Clause are generally 

designed to protect similar values, they do not completely overlap. Thus, a 

statement properly admitted under a hearsay exception may violate 

confrontational rights. Similarly, a violation of the hearsay rules may not infringe 

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upon the Sixth Amendment.” United States v. Russell, 66 M.J. 597, 602 (A. Ct. 

Crim. App. 2008) (internal quotations omitted). 

b) Application of the Confrontation Clause to Non-Hearsay. “The Clause...does 

not bar the use of testimonial statements for purposes other than establishing the 

truth of the matter asserted.” Crawford, 541 U.S. at 59. 

5. Problem-solving. A Confrontation Clause analysis chart is provided at Part VI., 

below. 

B. What Statements are “Testimonial”? 

1. U.S. Supreme Court Cases. 

a) Crawford v. Washington, 541 U.S. 36 (2004). 

(1) Articulated three categories of testimonial statements that defined 

the Confrontation Clause’s “coverage at various levels of abstraction.” 

The Court held that statements that fell within one or more of these three 

categories were testimonial. These categories, or “formulations,” were 

(a) “Ex parte in-court testimony or its functional 

equivalent—that is, material such as affidavits, custodial 

examinations, prior testimony that the defendant was 

unable to cross-examine, or similar pretrial statements that 

declarants would reasonably expect to be used 

prosecutorially...” 

(b) “Extrajudicial statements . . . contained in formalized 

testimonial materials, such as affidavits, depositions, prior 

testimony, or confessions...” 

(c) “Statements that were made under circumstances which 

would lead an objective witness reasonably to believe that 

the statement would be available for use at a later trial.” 

(2) At a minimum, the term “testimonial” applies to “prior testimony at 

a preliminary hearing, before a grand jury, or at a former trial; and to 

police interrogations.” But see, Davis v. Washington, 547 U.S. 813 

(2006) (statement given in response to police interrogation is 

nontestimonial where primary purpose of police is meeting an ongoing 

emergency). 

b) Davis v. Washington, 547 U.S. 813 (2006) (companion case with Hammon v. 

Indiana, 547 U.S. 813 (2006)). 

(1) Davis and Hammon are cases that dealt with statements made to 

government officials after domestic violence situations. The Court held 

that statements made to the police at the scene of a domestic dispute, but 

after the actual incident, were testimonial and could not be admitted 

where the victim did not testify at trial, but that statements made in 

response to questions from a 911 operator immediately after the domestic 

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assault occurred (and assailant had just left the premises) were 

nontestimonial, and thus could be admitted at trial even though the 

victim did not testify. 

(2) “Statements are nontestimonial when made in the course of police 

interrogation under circumstances objectively indicating that the 

primary purpose of the interrogation is to enable police assistance to 

meet an ongoing emergency. They are testimonial when the 

circumstances objectively indicate that there is no such ongoing 

emergency and that the primary purpose of the interrogation is to 

establish or prove past events potentially relevant to later criminal 

prosecution.” 

c) Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143 (2011) (The Emergency 

Exception Doctrine) 

(1) Procedural History: A jury convicted the defendant of second degree 

murder, possession of a firearm by a felon, and possession of a firearm 

during commission of a felony. The Michigan Court of Appeals 

affirmed, the Michigan Supreme Court returned the case for 

reconsideration. The appellate court then affirmed again. The Michigan 

Supreme Court reversed and SCOTUS granted certiorari. 

(2) Facts: Police were dispatched to a local gas station following a 

shooting. The victim lay in the parking lot with mortal gunshot wounds. 

Police spoke with him and he told them that the suspect, Bryant, had shot 

him when he was outside of Bryant’s house and then he drove himself to 

the gas station. Once medical services arrived, the police called for 

backup and went in search of Bryant, though they did not find him that 

day. The victim died at the hospital. 

(3) At trial, the victim’s statements were admitted through the police 

officer. The trial occurred pre-Crawford. The case was reversed on 

appeal, post-Crawford, when the statements were found testimonial. 

(4) Issues: Whether preliminary inquiries of a wounded citizen 

concerning the perpetrator and circumstances of the shooting are 

nontestimonial because they were “made under circumstances 

objectively indicating that the primary purpose of the interrogation is to 

enable police assistance to meet an ongoing emergency,” including not 

only aid to a wounded victim, but also the prompt identification and 

apprehension of an apparently violent and dangerous individual?? 

(5) Holding: Yes. The objective circumstances of the victim’s 

statement indicate the “primary purpose” of the interrogation was to 

assist in an ongoing emergency. 

(6) Discussion: This case expands the usual emergency exception 

doctrine because it looks to the totality of the circumstances, not just the 

emergency itself. The victim’s statements do not focus on the threat to 

the immediate environment, usually a domestic situation or an 

individual, but rather the public at large and for a longer period of time. 

Further, the victim went into greater detail about the circumstances of 

what happened. Despite this, court relied on an objective analysis of the 

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d) 

e) 

encounter between the two individuals. First, it occurred at a crime 

scene rather than a formal, station house setting. Second, the existence 

of an emergency of Bryant’s at large status was a threat to the public 

even if the threat to the current victim had passed. Finally, while the 

analysis is objective, the court does look at the victim’s condition to 

determine the purpose in providing information to police. 

(7) Dissent: Justice Scalia, as the author and torch-bearer of Crawford, 

provides interesting and entertaining reading in his dissent, which begins 

“[t]oday’s tale . . .” continues assuming a fantasy in the majority’s 

decision. Whether it takes a hardline on Crawford or just a hard jab the 

majority’s lack of understanding about the distinction between 

investigating and responding to an emergency, it’s certainly an effort to 

keep the court closer to the Crawford line of cases as he sees the majority 

decision as looking at reliability factors, something we abandoned when 

we left the Ohio v. Roberts sinking ship in 2004. 

Ohio v. Clark, 576 U.S. ____ (2015). 

(1) Facts: A preschool teacher (who was a “mandatory reporter” to law 

enforcement under Ohio law) became suspicious of several injuries she 

observed on a three-year-old child, L.P. The teacher brought the injuries 

to the attention of a lead teacher at the school, asked the child about the 

injuries. The child told the teachers that the accused had inflicted the 

injuries. 

(2) Procedural History: The trial judge conducted a hearing pursuant to 

Ohio law, and determined that the child was not competent to testify. The 

statements were admitted as residual hearsay under Ohio Rule of 

Evidence 807, over defense objection. On appeal, the Ohio Appellate and 

Supreme Courts both found the admission of L.P.’s statements to the 

teachers to violate the Confrontation Clause. The Supreme Court 

reversed and remanded. 

(3) Issue: Whether statements made by young children to “mandatory 

reporters” are testimonial hearsay under Crawford. 

(4) Holding: No. “Because neither the child nor his teachers had the 

primary purpose of assisting in Clark’s prosecution, the child’s 

statements do not implicate the Confrontation Clause and therefore 

were admissible at trial.” Clark, slip op. at 1. 

(5) Analysis: Writing for the majority, Justice Alito applies the Court’s 

prior analysis in Hammon, Davis, and Bryant. In particular, Justice Alito 

noted factors such as the lack of investigative purpose on the part of the 

listeners and declarant; the informality of the conversation; the fact that 

the listeners were teachers, not police; the potential that the listeners 

were responding to an ongoing emergent situation involving child abuse; 

and the very young age of the declarant. 

Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). 

(1) Facts: Accused was convicted on drug charges. Police sent cocaine 

connected to the accused to state forensic lab for analysis. The lab 

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analysts issued three sworn “certificates of analysis” attesting to the 

results of their analysis. In accordance with state law, the certificates 

were introduced at trial as “prima facie evidence of the composition, 

quality, and the net weight of the narcotic...analyzed.” The analysts who 

wrote the statements did not testify at trial. Melendez-Diaz objected to 

the admission of the statements as a violation of his right of 

confrontation, citing Crawford. 

(2) Procedural History: The Appeals Court of Massachusetts affirmed 

the conviction, rejecting Melendez-Diaz’s Sixth Amendment claim under 

Crawford. In doing so the court relied on the Massachusetts Supreme 

Judicial Court’s decision in Commonwealth v. Verde. The Verde court 

concluded that a drug analysis certificate is “akin to a business or official 

record” and was thus not testimonial under Crawford. After the 

Massachusetts Supreme Judicial Court denied review without comment, 

Melendez-Diaz appealed to the U.S. Supreme Court, arguing that the 

Verde holding was in conflict with the Crawford decision. The Supreme 

Court granted certiorari and the case was argued in November 2008. 

(3) Issue: Whether affidavits reporting the results of forensic analysis 

which showed that material seized by the police and connected to a 

defendant was cocaine were “testimonial,” rendering the affiants 

“witnesses” subject to the defendant’s right of confrontation under the 

Sixth Amendment. 

(4) Holding: Justice Scalia, writing for the majority and joined by 

Justices Stevens, Souter, Thomas, and Ginsberg, held: The affidavits 

were “testimonial” statements, and the affiants were “witnesses” for 

purposes of the Sixth Amendment; admission of the affidavits violated 

the defendant’s right to confrontation. 

(5) Analysis. 

(a) The Court found that the affidavits fell within the “core 

class of testimonial statements” under Crawford. Noting 

that its description of the core class mentioned affidavits 

twice, the Court found that a “certificate of analysis” was 

an “affidavit,” because it was a “‘solemn declaration or 

affirmation made for the purpose of establishing or proving 

some fact.’” (Citing Crawford, 541 U.S. at 51 (quoting 2 N. 

Webster, An American Dictionary of the English Language 

(1828))). 

(b) In addition to being “affidavits”, the Court found that 

the certificates of analysis were also “‘made under 

circumstances which would lead an objective witness 

reasonably to believe that the statement would be available 

for use at a later trial.’” (Citing Crawford, 541 U.S. at 52). 

As evidence, the Court pointed out that, according to 

Massachusetts law, the “sole purpose” of the certificates 

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was to provide “prima facie evidence” about the tested 

substance. The Court surmised that the analysts who 

prepared the certificates must have been aware of this 

purpose, as it was reprinted on the certificates. 

(6) Chain of custody evidence. The Court, in a footnote, made clear that 

it did not hold “that anyone whose testimony may be relevant in 

establishing the chain of custody, authenticity of the sample, or accuracy 

of the testing device must appear in person.” The Court reasoned that 

“gaps in the chain of custody go to weight, not admissibility” but also 

held that any chain of custody evidence presented must be presented live. 

f) Briscoe v. Virginia, 130 S.Ct. 1316 (2010). In accordance with Virginia law, 

the prosecution introduced a certificate of a forensic laboratory analysis without 

presenting the testimony of the analyst who prepared the certificate. Under the 

law, the accused has a right to call the analyst as his own witness. In a per curiam 

opinion, the Court vacated the judgment of the Virginia Supreme Court and 

remanded the case (along with a companion case, Cypress) for further 

proceedings not inconsistent with the U.S. Supreme Court’s opinion in MelendezDiaz v. Massachusetts, 557 U.S. ----, 129 S.Ct. 2527 (2009). 

g) Bullcoming v. New Mexico, 562 U.S. ___, 131 S.Ct. 2705 (2011) 

(1) Procedural History: Defendant was convicted of Driving while 

Under the Influence of Intoxicating Liquor (DWI). The New Mexico 

Court of Appeals and New Mexico Supreme Court affirmed. SCOTUS 

granted certiorari. 

(2) Facts: Following his arrest for DWI, police collected a blood sample 

from the defendant. An analyst named Caylor tested the sample at New 

Mexico’s state lab. At trial, the government did not call Caylor because 

he was on unpaid leave. Defense objected (they did not have prior notice 

of this change). Government offered a surrogate witness, Razatos, who 

had neither certified, performed nor observed the testing on the 

defendant’s sample. The court overruled the objection and admitted the 

entire report as a business record. The report contained statements about 

proper procedures being followed, results of the testing, the state of the 

sample upon receipt, the validity of the process, etc. 

(3) Melendez-Diaz v. Massachusetts came down during this appeal, 

holding that forensic reports affidavits were testimonial. The New 

Mexico Supreme Court recognized this decision and found the certificate 

testimonial but that it did not violate the Confrontation Clause because 

Caylor, the testing analyst was merely a “scrivener” who wrote down 

machine generated results and Razatos, the surrogate witness, was more 

than qualified as an expert to testify about how the machines work. 

(4) Issue: Does the Confrontation Clause permit the prosecution to 

introduce a forensic laboratory report containing a testimonial 

certification through the in-court testimony of a scientist who did not 

sign the certification or perform or observe the test? 

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h) 

(5) Holding: No. Surrogate testimony does not satisfy the 

Confrontation Clause. The accused has a right to confront the witness 

who made the certification. If he or she is unavailable, there must have 

been a prior opportunity for cross-examination. 

(6) Discussion: Bullcoming answers an unanswered question for 

military courts, one that C.A.A.F. is seeking answers to, “are statements 

in documents and certifications that all procedures were properly 

followed, such as on specimen custody documents, testimonial?” 

Bullcoming tells us, “yes.” The declarant is necessary for these types of 

statements. Everything the analyst does to get the sample from the first 

step into the testing machine is ripe for cross-examination. They go 

beyond machine generated data. They are assertions you cannot get from 

a surrogate witness or a document. This question is not quite reached in 

the cases we’ve had before our courts. 

(a) Bullcoming does tell us that the C.A.A.F. was ahead of 

its time in Blazier II by confirming the general holding that 

an expert may “consistent with the Confrontation Clause 

and Rules of Evidence, rely on, but not repeat, testimonial 

hearsay that is otherwise an appropriate basis for an expert 

opinion, so long as the expert opinion arrived at is the 

expert’s own.” 

(b) Justice Sotomayor writes a concurrence that provides 

food for thought. While Blazier II’s general holding 

stands, she suggests that not every situation might work this 

way and gives several hypothetical situations that might 

change the outcome. One situation that military 

practitioners should concern themselves with is ensuring 

your expert is relying on far more than testimonial hearsay. 

You may face an impossible battle under MRE 703 

presenting a surrogate expert and saying he formed his own 

opinion if he relied solely on testimonial hearsay. The 

machine generated data is still your “key to freedom” 

where non-declarant experts are concerned in this area of 

the law. 

Williams v. Illinois, 132 S.Ct. 2221 (2012) 

(1) Procedural History: Williams is tried for sexual assault in Illinois 

state court. The government uses DNA evidence at his trial presented 

through a state lab analysis who did not conduct either test. Defense 

alleges a Confrontation Clause violation, which the trial judge overrules. 

The appellate court concurs and SCOTUS grants certiorari. 

(2) Facts: DNA is collected during a sexual assault examination. That 

DNA sample (semen sample) is tested by a private lab though there is no 

suspect for comparison at the time of the assault. The lab produces a 

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document for the profile and returns it to the state. A few months after 

the assault, Williams is arrested on unrelated charges. Because of that 

arrest, his DNA is taken and entered into the state crime computer by the 

state crime lab. Shortly thereafter, an analyst at the state crime lab runs 

the DNA profile from the private lab’s semen sample against the state 

crime computer. She gets a match to Williams DNA sample taken from 

his unrelated crime. At a judge alone trial, the government calls the state 

crime lab personnel as their expert. She testifies about running the 

samples and getting a match and explains, as an expert, how the samples 

compare and the DNA profile is a match. During her testimony, she 

refers to the DNA profile generated by the private lab and its origin from 

the semen sample taken from the victim during the sexual assault exam. 

She testifies that she used this profile to form her opinion that the 

samples matched. The government did not admit the private lab’s report. 

(3) Issue: Whether a state rule of evidence allowing an expert witness to 

testify about the results of DNA testing performed by non-testifying 

analysts, where the defendant has no opportunity to confront the actual 

analysts, violates the Confrontation Clause. 

(4) Holding: No. In a plurality opinion, the court found that this 

testimony did not violate the confrontation clause. The report was not 

admitted and the testimony that the expert gave referring to the DNA 

report done by the private lab was used for a non-hearsay purpose-to 

show how she formed her opinion-and not for its truth. The court 

reasoned that this type of testimony has been allowed by experts under 

FRE 703 (or the state equivalent rule). 

(5) Discussion: The Justices dissent greatly in not only the holding but 

even the reasoning within the plurality opinion. This case follows a 

series of cases that prohibit use of the report and reading its results when 

the analyst who performed, supervised, observed or certified the results 

is not the testifying witness. Here, the plurality made a distinction, 

possibly without a difference, but a distinction under the law just the 

same. Because this witness testified as an expert, she is allowed to 

comment on what she used to form her opinion, Under our own rule 

703, an expert can refer to evidence that is otherwise inadmissible 

hearsay to let the fact-finder know what they used to form their opinion. 

This goes to the weight to be given the experts opinion. The hearsay 

evidence itself is not admitted as a document or generally read from, in 

most cases. The dissent strongly urges that this practice, under this 

scenario, bypasses the Constitution by allowing the government to 

smuggle in a report and its results that they could otherwise not admit 

without the proper witness. Even within those who join the plurality 

decision, some Justices disagree with the idea that this is permissible in 

this case; however, they agree that that the testimony did not violate the 

Confrontation Clause because when the DNA profile was created from 

the semen sample, there was no suspect, he was still at large and it was 

not a formalized report or affidavit. This reasoning relies on the type of 

reasoning we see in the Emergency Exception/Primary Purposes cases 

like Hammon, Davis and Michigan v. Bryant. 

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(6) Practice Point: The reach of MRE 703 is broad. An expert can often 

smuggle in hearsay where you have another purpose for offering it, that 

you could not get in through documents or lay witnesses. However, keep 

in mind that this decision is based on a judge alone trial and a rule that 

permitted such testimony in judge alone cases. Where your fact finder is 

a panel, who is not trained to separate “truth of the matter” from other 

purposes, this holding may prove no more helpful than Bullcoming and 

its predecessors for admitting expert testimony. 

2. Military Cases 

a) Tests for Determining if a Statement is “Testimonial”. United States v. 

Rankin, 64 M.J. 348 (C.A.A.F. 2007).Military courts use the following analytical 

framework to analyze statements falling within the Crawford third category of 

potential testimonial statements (the “objective witness” category): “First, was 

the statement at issue elicited by or made in response to a law enforcement or 

prosecutorial inquiry? Second, did the “statement” involve more than a routine 

and objective cataloging of unambiguous factual matters? Finally, was the 

primary purpose for making, or eliciting, the statements the production of 

evidence with an eye toward trial?” See also, United States v. Foerster, 65 M.J. 

120 (C.A.A.F. 2007); United States v. Gardinier, 65 M.J. 60 (C.A.A.F. 2007). 

b) Affidavits. United States v. Foerster, 65 M.J. 120 (2007). SGT Porter was 

deployed when he discovered somebody was using his identity to cash checks in 

his name. When he returned to home station he went to the bank and filled out a 

“forgery affidavit” containing the facts of his situation. Specifically, the sworn 

affidavit contained the check numbers and amounts he believed were false. This 

document was required by the bank in order for SGT Porter to get his money 

back. When the time came for trial, SGT Porter was already deployed again, and 

thus not available to testify. The government admitted the affidavit over defense 

objection in the place of SGT Porter’s live witness testimony. The granted issue 

was whether an affidavit filled out by a victim of check fraud pursuant to internal 

bank procedures and without law enforcement involvement in the creation of the 

document is admissible as a nontestimonial business record in light of Crawford 

v. Washington and Washington v. Davis. The court held that the affidavit was 

nontestimonial and properly admissible under the business records exception. 

The CAAF used the three factors previously identified in Rankin to analyze 

whether the bank affidavit in this case was testimonial. First, was the statement 

at issue elicited by or made in response to law enforcement or prosecutorial 

inquiry? Here there was no governmental involvement in the making of the 

affidavit at all. The affidavit was made out before appellant had even been 

identified as the forger, long before there was any request aimed at preparation 

for trial. Second, did the “statement” involve more than a routine and objective 

cataloging of unambiguous factual matters? The information contained in the 

affidavit merely cataloged objective facts, specifically the check numbers and 

amounts, and SGT Porter’s signature. Finally, was the primary purpose for 

making, or eliciting, the statements the production of evidence with an eye 

toward trial? Looking at the context in which the affidavit was made, it is clear 

that the purpose of the document was to protect the bank from being defrauded 

by an account holder. The CAAF acknowledged that the Supreme Court opinion 

in Crawford uses the term “affidavit” several times to describe documents 

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considered testimonial hearsay, however the CAAF does not believe the Court 

intended for every document titled affidavit to be considered testimonial. If there 

is no governmental involvement in the making of a statement, then it is unlikely 

to be considered testimonial. 

c) Statements made to a Sexual Assault Nurse Examiner (SANE). United 

States v. Gardinier, 65 M.J. 60 (2007). Appellant was convicted of indecent acts 

and indecent liberties with a child under age 16 and the convening authority 

approved the sentence to a BCD, three years confinement, and reduction to E-1. 

The victim was appellant’s five-year-old daughter, KG. KG received a medical 

exam the day she reported the acts. She was then interviewed a couple days later 

by a detective and a social worker, followed by a second interview with a sexual 

assault nurse examiner (SANE). The military judge admitted the “forensic 

medical form” completed by the SANE and also allowed her to testify about 

what KG had told her during the exam. The granted issue was whether statements 

KG made to the SANE were testimonial under Crawford. (There were three 

granted issues, but only this one implicated the Confrontation Clause. Of the 

other two issues, one involved Article 31 rights and the other admission of a 

videotaped statement.) The CAAF held KG’s statements to the SANE were 

testimonial hearsay and their admission into evidence at the court-martial was 

error. The CAAF used the three factors previously identified in its opinion in 

United States v. Rankin, 64 M.J. 348 (2007) for distinguishing between 

testimonial and nontestimonial hearsay to analyze the statements KG made to the 

SANE. Taking the first and third Rankin factors together, the CAAF reasoned 

that on balance the statements were made in response to government questioning 

designed to produce evidence for trial. The SANE testified at trial that she 

conducts examinations for treatment, however the form itself is called a 

“forensic” medical examination form. She also asked questions beyond what 

might be necessary for mere treatment, including questions about what KG had 

told the police investigators. Also, the examination was arranged and paid for by 

the local sheriff’s department. The totality of the circumstances indicated the 

statements made to the SANE were testimonial. 

d) Alcohol, Urine and Drug Analysis Results 

(1) Random Urinalysis. United States v. Magyari, 63 M.J. 123 (2006); 

overruled by United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), 

infra, (holding that the test for testimonial does not turn on random or 

non-random urinalysis procedures). The CAAF granted on the following 

issue: Whether, in light of Crawford v. Washington, appellant was denied 

his Sixth Amendment right to confront the witnesses against him where 

the government’s case consisted solely of appellant’s positive urinalysis. 

Holding: “in the context of random urinalysis screening, where the lab 

technicians do not equate specific samples with particular individuals or 

outcomes, and the sample is not tested in furtherance of a particular law 

enforcement investigation, the data entries of the technicians are not 

“testimonial” in nature.” 

(2) Urinalysis Based on Individualized Suspicion. United States v. 

Harris, 65 M.J. 594 (N-M Ct. Crim. App. 2007). Appellant was arrested 

for trespassing by local police after he was discovered digging in his 

neighbor’s yard in the pouring rain, wearing only a pair of muddy shorts. 

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One of his explanations for his unusual behavior was that he was 

“digging for diamonds.” After he admitted to using crystal 

methamphetamine, he was ordered to undergo a command directed 

urinalysis based on probable cause. His urinalysis result came back 

positive, and was introduced against him at trial. The issue was whether 

the Navy Drug Lab Report on a command directed urinalysis admitted 

against appellant testimonial hearsay. (There were five assignments of 

error, however only one implicated the Sixth Amendment.) The holding 

was: No, the lab report was nontestimonial, and its admission did not 

violate appellant’s Confrontation rights under the Sixth Amendment. 

Although the CAAF opinion in Magyari was limited to cases of random 

urinalysis, the result is the same here in the case of a command directed 

urinalysis because the lab procedures are the same regardless of the 

origin of the sample. More specifically, urinalysis samples are processed 

by the Navy lab in batches of 100, and given a separate identification 

number, such that there is no way for any lab technician to know which 

sample is being tested. The lab employees don’t know whether 

prosecution is anticipated or whether the sample is from a random 

urinalysis. Therefore, urinalysis lab reports from testing processed in the 

way it is done at the Navy lab, are nontestimonial hearsay admissible 

under the business records exception. But see Blazier I & II, infra; see 

also Sweeney, which finds that the analysis of whether a statement is 

testimonial is done at the time they are made, not when a sample is 

provided. 

(3) Physical Evidence Sent to Lab Post-Arrest. United States v. 

Williamson, 65 M.J. 706 (Army Ct. Crim. App. 2007). Appellant was 

convicted of wrongful possession with intent to distribute over three 

pounds of marijuana, based on his possession of a FedEx package 

containing three bundles of marijuana he mailed to himself on leave in 

New Orleans. He mailed the package from El Paso, where it was 

detected by DEA agents using a drug dog. Agents effected a controlled 

delivery to the address on the package in New Orleans, and executed a 

search warrant fifteen minutes later. After seizing the package, it was 

sent to the United States Army Criminal Investigation Laboratory 

(USACIL), where the substance contained in the three bundles was 

confirmed to be marijuana. At trial, the government admitted the lab 

report over defense objection. The military judge admitted the lab report 

under the business records exception to the hearsay rules. The issue was 

whether the forensic lab report produced by USACIL at the request of 

the government after appellant had been arrested constitutes testimonial 

hearsay. The holding was: Yes, the forensic lab report does constitute 

testimonial hearsay where the lab report was requested after local police 

had arrested appellant. The court first briefly reviewed Supreme Court 

and CAAF caselaw on the Confrontation right since Crawford, before 

analyzing the facts of this case primarily using the three factors the 

CAAF enunciated in Rankin. First, was the statement at issue elicited 

by or made in response to law enforcement or prosecutorial inquiry? 

Second, did the “statement” involve more than a routine and objective 

cataloging of unambiguous factual matters? Finally, was the primary 

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purpose for making, or eliciting, the statements the production of 

evidence with an eye toward trial? Clearly the testing was done and the 

report produced in response to a specific request by law enforcement. 

The lab report was limited to the identity and amount of the tested 

substance, however, the purpose of the testing was to produce 

incriminating evidence for use at trial. The court pointed out that this 

circumstance was described by the CAAF in Magyari as a situation 

where a lab report would likely be considered testimonial, i.e. prepared at 

the request of the government, while appellant was already under 

investigation, for the purpose of discovering incriminating evidence. 

Critical to the court’s reasoning was the fact that the testing was done 

after appellant had been arrested and charges had been preferred. 

(4) Physical Evidence Sent to Lab Post-Arrest. United States v. 

Harcrow, 66 M.J. 154 (2008). Appellant was found guilty of use and 

manufacture of various illegal drugs among other offenses. NCIS and 

local law enforcement officials arrested him at his house in Stafford 

County, Virginia, pursuant to a warrant issued on probable cause that he 

was manufacturing methamphetamine at his residence. While searching 

the house, plastic bags and metal spoons were seized as evidence 

consistent with the manufacture of methamphetamine. The plastic bags 

and spoons were subsequently tested by the Virginia forensic science lab 

and found to contain heroin and cocaine residue. The government 

introduced the lab reports against appellant at trial. The Confrontation 

issue was whether the forensic lab reports constituted testimonial hearsay 

prohibited by the Sixth Amendment. CAAF used its three factors from 

Rankin along with its reasoning in Magyari to conclude the lab reports 

were testimonial. The case is important as the first CAAF case to find a 

lab report inadmissible as a testimonial statement rather than admissible 

as a nontestimonial business record. 

(5) Urinalysis. United States v. Blazier (Blazier I), 68 M.J. 439 

(C.A.A.F. 2010). 

(a) Accused convicted of wrongful use of controlled 

substances based on a random and a consent urinalysis. The 

command requested “the drug testing reports and specimen 

bottles” from the lab, stating that they “needed for courtmartial use.” The lab sent the command two Drug Testing 

Reports (DTR) consisting of 1) a cover memo that 

described and summarized the tests and the results; 2) 

attached records that included, among other things, the 

underlying testing data, chain of custody documents, and 

some handwritten annotations of employees of the lab. The 

cover memos were signed by the “Results Reporting 

Assistants” and contained a signed, sworn declaration by 

Dr. Vincent Papa, the lab’s forensic toxicologist and 

“Laboratory Certifying Official.” Dr. Papa’s declaration 

confirmed the authenticity of the records and stated that 

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they were “made and kept in the course of the regular 

conducted activity” at the lab. 

(b) Held: The portions of the drug testing report cover 

memoranda which summarized and set forth the 

“accusation” that certain substances were confirmed 

present in Blazier’s urine at concentrations above the DOD 

cutoff level were testimonial. 

(c) The court declined to decide the entire question before 

it, and instead ordered additional briefings from the parties 

on the following issues not previously raised by the parties: 

While the record establishes that the drug testing reports, as 

introduced into evidence by the prosecution, contained 

testimonial evidence (the cover memoranda of August 16), 

and the defense did not have the opportunity at trial to 

cross-examine the declarants of such testimonial evidence, 

(a) was the Confrontation Clause nevertheless satisfied by 

testimony from Dr. Papa?; or (b) if Dr. Papa’s testimony 

did not itself satisfy the Confrontation Clause, was the 

introduction of testimonial evidence nevertheless harmless 

beyond a reasonable doubt under the circumstances of this 

case if he was qualified as, and testified as, an expert under 

M.R.E. 703 (noting that “[i]f of a type reasonably relied 

upon by experts in the particular field in forming opinions 

or inferences upon the subject, the facts or data [upon 

which the expert relied] need not be admissible in evidence 

in order for the opinion or inference to be admitted”)? See, 

Blazier II, infra. 

(6) Urinalysis. United States v. Blazier (Blazier II), 69 M.J. 218 

(C.A.A.F. 2010). 

(a) Held: “Cross-examination of Dr. Papa was not 

sufficient to satisfy the right to confront [the lab personnel 

who prepared the testimonial portions of the cover 

memoranda], and the introduction of their testimonial 

statements as prosecution exhibits violated the 

Confrontation Clause.” 

(b) Held: “[W]here testimonial hearsay is admitted, the 

Confrontation Clause is satisfied only if the declarant of 

that hearsay is either (1) subject to cross-examination at 

trial, or (2) unavailable and subject to previous cross 

examination. We further hold that an expert may, consistent 

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with the Confrontation Clause and the rules of evidence, (1) 

rely on, repeat, or interpret admissible and non-hearsay 

machine-generated printouts of machine-generated data..., 

and/or (2) rely on, but not repeat, testimonial hearsay that is 

otherwise an appropriate basis for an expert opinion, so 

long as the expert opinion arrived at is the expert’s own.... 

However, the Confrontation Clause may not be 

circumvented by an expert’s repetition of otherwise 

inadmissible testimonial hearsay of another.” 

(c) The court reversed the Air Force court’s decision and 

remanded the case for the lower court to conduct a 

harmlessness analysis. 

(7) United States v. Dollar, 69 M.J. 411 (C.A.A.F. 2011) 

(a) Procedural History: Appellant was convicted of 

adultery and wrongful use of cocaine in violation of 

Articles 134 and 112a, U.C.M.J. The Air Force Court of 

Criminal Appeals initially affirmed, but reconsidered its 

decision following Blazier II. Upon reconsideration, the 

AFCCA found harmless error in the admission of 

testimonial hearsay of a laboratory cover memorandum and 

surrogate witness. The C.A.A.F. granted review. 

(b) Facts: The Appellant tested positive for cocaine 

through random urinalysis. At trial, over defense objection, 

the government pre-admitted, the lab report including the 

cover memorandum. Further, they called a witness from 

the lab who was not involved in the testing who provided 

an expert opinion that included testifying verbatim from 

portions of the report that were not machine generated. 

(c) Issue: Whether the lower court erred after finding that 

the testimonial evidence was improperly admitted at trial, 

then concluding that the Appellants Confrontation rights 

were satisfied by a surrogate witness, or that it was 

harmless error beyond a reasonable doubt. 

(d) Holding: No. The Appellant’s rights were not satisfied 

by a surrogate witness and the lower court’s factual 

findings used to support harmless error were incorrect. 

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(e) Discussion: While Dollar does not add much to 

Confrontation jurisprudence, it reaffirms that surrogate 

witnesses, while able to rely on non-testimonial hearsay to 

reach conclusions, cannot smuggle in testimonial hearsay. 

More importantly, Dollar was the first case to take a step in 

the direction of questioning United States v. Magyari, 63 

M.J. 123 (C.A.A.F. 2006), which drew a distinction 

between random urinalysis reports and those generated for 

law enforcement purposes. 

(8) United States v. Cavitt, 69 M.J. 413 (C.A.A.F. 2011) 

(a) Procedural History: The Appellant was convicted of 

wrongful use of marijuana and assault in violation of 

Articles 112a and 128, U.C.M.J. The Air Force Court of 

Criminal Appeals found error in admission of the 

laboratory cover memorandum but found the error 

harmless. C.A.A.F. granted review. 

(b) Facts: Appellant consented to a drug tested following a 

period of unauthorized absence. The lab report, containing 

a cover memorandum, custody document, confirmation 

intervention log, quality control memorandum, chain of 

custody documents and machine generated data were 

admitted at trial over defense objection. The AFCCA 

found error in the memorandum but found the remainder of 

the report admissible as a business record. 

(c) Issue: Did the military judge abuse his discretion when 

he allowed the lab expert to testify using testimonial 

hearsay and did admission of the report without the 

declarant who conducted the testing being present violate 

the Appellant’s Sixth Amendment’s Confrontation right? 

(d) Holding: The case was reversed and remanded for 

reconsideration in light of Blazier II. 

(e) Discussion: The court explained that the AFCCA 

incorrectly relied on the business records exception as a 

firmly rooted exception for lab reports based on Ohio v. 

Roberts, 448 U.S. 56 (1980) . This does not satisfy the 

Confrontation Clause. Even without Blazier II, AFCCA 

should have identified this problem relying solely on 

Crawford v. Washington, 541 U.S. 36 (2004). The question 

before the court was not one of hearsay, rather one of 

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Confrontation and the landscape changed in 2004 from 

Roberts to Crawford. Beyond that, the court pointed out 

that the military judge failed to address the issue of the 

expert repeating testimonial hearsay during his testimony. 

Again in this case, Magyari raises its ugly head on the issue 

of random vs. non-random urinalysis. 

(9) United States v. Lusk, 70 M.J. 278 (C.A.A.F. 2011) 

(a) Procedural History: An officer panel convicted the 

Appellant of wrongful use of cocaine in violation of Article 

112a, U.C.M.J. The Air Force Court of Criminal Appeal 

found harmless error in failure to give an instruction and 

affirmed. C.A.A.F. granted review. 

(b) Facts: Appellant provided a urine sample during a unit 

inspection. On request by trial counsel, Appellant’s sample 

was tested by both the AFDTL and AFIP. Both yielded 

positive results. In pretrial motions, the military judge 

excluded the AFIP reported stating it violated the accused’s 

Sixth Amendment Confrontation rights. He reserved ruling 

on whether it could be used later, in rebuttal. During crossexamination of government’s expert witness, defense 

counsel challenged the validity and reliability of the 

AFDTL report. The prosecution moved to use the AFIP 

report to rebut the attack. The military judge ruled that the 

government’s expert could testify about his reliance on the 

AFIP report to form his opinion under MRE 703, but that 

the report would not be admitted into evidence. The judge 

stated he would give an instruction that the report or results 

could not be used for the truth but only to show how the 

expert reached his conclusions. However, after extensive 

cross-examination by defense counsel, the judge 

determined he would not give the instruction. 

(c) Issue: Did the military judge error in admitting the 

testimonial hearsay of the AFIP report in violation of the 

accused’s Sixth Amendment Confrontation rights through 

the surrogate expert and then further error by failing to give 

a limiting instruction that such information could only be 

used to show how the expert formed his opinion? If it was 

error, was the error harmless? 

(d) Holding: The intermediate court erred in not 

considering how unrestricted use of inadmissible 

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(10)
 

testimonial hearsay, admitted through a surrogate witness 

in violation of the Sixth Amendment, influenced the 

conviction. The court held the failure to give the limiting 

instruction, regardless of how both sides used the 

information, was error. As such, the findings of the 

intermediate court are set aside and the case is remanded 

for a review. 

(e) Discussion: Lusk tells us that the court intends to 

closely follow its holding in Blazier II where the 

government attempts to “smuggle” in testimonial hearsay 

through anyone other than the declarant from the testing 

laboratory. Government counsel should proceed with 

caution even when using a surrogate expert who will give 

an opinion based on reviewing a report. Carefully form 

questions to ensure that no testimonial hearsay is repeated. 

While the counsel in this case were obviously over the line, 

it is easy to see how C.A.A.F. is scrutinizing records to 

ensure that only machine generated data and nontestimonial 

hearsay is repeated by surrogate experts and requiring 

limiting instructions even where defense counsel have used 

the evidence themselves during cross-examination. 

United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011) 

(a) Procedural History: Appellant was convicted of several 

offenses, to include one specification of wrongful use of 

cocaine in violation of Article 112a. This case was tried 

prior to Melendez Diaz v. Massachusetts, et. al. The NavyMarine Corps Court of Criminal Appeals found no error 

and affirmed. C.A.A.F. granted review. 

(b) Facts: The government called an expert witness from 

the lab who neither tested, observed nor signed the cover 

memorandum for the urinalysis sample. The expert was the 

FLCO (final lab certifying official) who reviews all the 

data after the fact and essentially says everything was 

conducted IAW DoD procedures. The court admitted the 

lab report, which included a cover memorandum as well as 

a specimen custody document containing notations about 

the test results and procedures. The NMCCA, relying 

heavily on Magyari, found no error. That court reasoned 

that the lab report was not generated for court-martial use 

and as such, could not be testimonial in nature. Therefore, 

the court found the report admissible as a business record 

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using the reliability test from Ohio v. Roberts, 448 U.S. 56 

(1980). 

(c) Issues: Whether, in light of the U.S. Supreme Court’s 

ruling in Melendez-Diaz v. Massachusetts, the admission of 

the laboratory documents violated the appellant’s Sixth 

Amendment right to confrontation. Whether defense 

counsel’s objection to the laboratory report constituted a 

valid Crawford objection and, if not, whether the objection 

was waived or forfeited. If it was forfeited, did admission 

constitute plain error? 

(d) Holding: Admitting the cover memorandum was error 

(consistent with previous decisions); however, admitting 

the specimen custody document (DD Form 2426) without 

the testimony of the certifying/testing parties was plain and 

obvious error. Defense counsel had no “colorable 

objection” under the law at the time of this trial so he did 

not forfeit the Appellant’s rights. The NMCCA decision is 

reversed and remanded for a decision on whether the error 

was harmless beyond a reasonable doubt. 

(e) Discussion: The newest development in this line of 

cases is the specimen custody document. The court found 

it contained testimonial hearsay (notations) and violated the 

Confrontation clause being admitted and/or discussed by 

anyone other than the declarant. This ruling is seen by 

many as a long time coming and is consistent with the 

recent ruling in Bullcoming v. New Mexico, 564 U.S. ___ 

(2011). While the cover memorandum is understood as 

testimonial, prior decisions have never ruled out the 

possibility that other parts of the lab report could contain 

testimonial hearsay. In this case, it happens to be that 

notations were made on the specimen custody document 

certifying the results and quality of the procedures. 

(f) In taking on the second issue, the court again 

approached United States v. Magyari and declared it a dead 

letter. In Magyari, the court focused the testimonial 

determination on the initial purpose of the sample being 

collected for testing, the technicians having no reason to 

know which sample belonged to an accused, and the lab 

being under no pressure to reach a particular conclusion. 

Sweeney recognizes the error in this logic. Once an 

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accused’s sample tests positive in an initial screening, an 

analyst must “reasonably understand themselves to be 

assisting in the production of evidence when they perform 

re-screens . . . and subsequently make formal 

certifications.” Sweeney confirms that the testimonial 

determination should turn on the purpose for which the 

statements in the report are made. If not for use later as 

evidence, why make a certification at all? There would be 

no need for any type of formal verification; administrative 

proceedings require much less formality, due process and 

would not trigger Sixth Amendment Confrontation rights. 

Additionally, such formal certifications are requested after 

a decision to court-martial is made, leaving no question 

what the purpose is for. Finally, the lower court reliance on 

the business records exception is outdated. Crawford’s 

testimonial determination, not the Ohio v. Roberts 

reliability test, is the controlling law for Confrontation. 

(g) Dissent: The dissent, written by Judge Baker and 

joined by Judge Stucky, disagrees with the majority’s 

reasoning concerning the specimen custody document. The 

dissents focuses on the primary purpose behind the 

military’s testing program, arguing that it is not for courtmartial and is a command program for readiness and fitness 

for duty. For a follow up on this discussion, see United 

States v. Tearman, 72 M.J. 54 (2013) below. 

(h) Note: Practitioners should not read Sweeney as 

necessitating the testing official to prove every urinalysis 

case nor that nothing on the specimen custody document is 

every admissible (as we see one year later in Tearman); 

however, it should be read as requiring greater scrutiny in 

what documents and when they were created. Moreover, 

understanding the limitations of what your surrogate 

witness can testify about. What remains of your case may 

be a testifying expert that can’t give you the testimony you 

need about the quality of the procedures followed (See 

Bullcoming). That does not mean there won’t be cases 

where issues arise that require the actual declarant (see 

Bullcoming) because of issues with testing, etc. Upcoming 

cases may further define the limits of Blazier, Sweeney and 

Bullcoming. 

(11) United States v. Tearman, No. 12-0313 (CAAF March 19, 2013) 

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(a) Procedural History: Appellant stands convicted of one 

specification of Article 112a, UCMJ for wrongfully using 

marijuana; this case is the result of a positive UA from a 

random urinalysis. NMCCA affirmed and CAAF granted 

review. 

(b) Facts: At trial, the government admitted the certified 

results and official testing results contained on the DD 

2624 (specimen custody document). They admitted this 

both as a business record and through surrogate witness 

testimony. Further, the government admitted, as business 

records, the chain-of-custody documents and internal 

review worksheets, used by the lab to document procedures 

of handling and processing during testing. 

(c) Issues: Whether the chain-of-custody and internal 

review worksheets are testimonial and violate the 

confrontation clause and whether the results and 

certification on the DD Form 2624 violated the accused’s 

confrontation rights and if so, was the admission harmless 

beyond a reasonable doubt. 

(d) Holding: The chain-of-custody and internal review 

worksheets are non-testimonial and it was not error to 

admit them as business records. The blocks on the DD 

Form 2624 that contain the certification and the testing 

results are testimonial and it was error to admit them; 

however, that error was harmless in light of the opinion 

provided by the surrogate expert and other evidence in the 

case. 

(e) Discussion/Notes: Judge Baker’s concurrence provides 

a clear explanation of the case, where the majority often 

confuses the issues and the law prior to this case. Further, 

Judge Baker points out the many elephants in the room 

with this decision. There are many unanswered questions. 

How can Tearman exist in the same world with Sweeney? 

Notations about procedures in the lab made on the 

specimen custody document are testimonial there but 

notations on the internal worksheet and chain of custody 

are non-testimonial here-notations in both cases were made 

prior to any request by the command or government for a 

drug testing report as they had not been informed of a 

positive result in either case when those notations were 

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made. Further, Magyari is discussed in Tearman where its 

logic was put to rest in Sweeney last term. The court in 

Sweeney recognized that the analysis of statements is at the 

time they are made, not when a sample is provided. 

e) Casual Remarks / Statements to Family, Friends, Co-Workers, or Fellow 

Prisoners 

(1) Statements by child to parents. United States v. Coulter, 62 M.J. 

520 (N-M. Ct. Crim. App. 2005). Two-year old sex abuse victim tells 

parents that “he touched me here” pointing to vaginal area. Statement 

admitted under residual hearsay exception (with an alternative theory of 

present sense impression). Agreeing with trial court, the Navy-Marine 

Corps court found the statement was nontestimonial as there was no 

expectation that the statement would be used prosecutorially nor was 

there any government involvement. 

(2) Statements to co-workers. United States v. Scheurer, 62 M.J. 100 

(2005). The accused and his wife were charged with various drug related 

offenses. Prior to the charges and over a period of months, the accused’s 

wife engaged in a number of conversations in which she told her friend 

about the drug use of both herself and the accused. The friend eventually 

contacted OSI who in turn asked the friend to wear a wire and engage the 

wife in further conversations about the accused’s drug use. Several 

inculpatory statements were obtained, some of which implicated the 

wife, some the accused, and some both the accused and the wife. At the 

accused’s trial, the wife invoked spousal privilege and was thus declared 

unavailable. The trial court then admitted the statements of wife to her 

friend against the accused. Citing United States v. Hicks, 395 F.3d 173 

(3d Cir. 2005), the court first determined that the statements taken 

covertly were not “testimonial” in nature. Such statements, the court 

reasoned, did not implicate the specified definitions of testimonial as 

enumerated in Crawford. Further, the court found that such statements 

would be nontestimonial when the declarant did not contemplate the use 

of those statements at a later trial. 

f) Personnel Records. United States v. Rankin, 64 M.J. 348 (2007). The 

CAAF affirmed the lower court holding that service record entries for a period of 

unauthorized absences were not testimonial for the purposes of the Confrontation 

Clause. The CAAF found that three of the four documents introduced by the 

government were nontestimonial, and that although the fourth may have qualified 

as testimonial, the information it contained was cumulative with information in 

the other three. In analyzing the four documents, the CAAF conducted a three 

factor analysis, looking first at prosecution involvement in the making of the 

statement. Second, the court asked whether the reports merely catalogued 

unambiguous factual matters. And third, the court used a primary purpose 

analysis derived from Davis v. Washington. After using the three steps to find 

that three of the four documents were nontestimonial, the court went on to 

conduct the confrontation analysis in Roberts v. Ohio and conclude that the 

documents were properly admitted under the business records exception to the 

hearsay rules. 

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C. What Constitutes “Unavailability”? 

1. A witness who is present in the witness box and responds (provides responsive 

answers) to questions is available for Confrontation Clause purposes, regardless of the 

content of the witness’s answers. A witness will usually be considered “unavailable” for 

Confrontation Clause purposes if the witness is unavailable under M.R.E. 804(a), except 

regarding lack of memory (M.R.E. 804(a)(3)). See, e.g, United States v. Owens, 484 U.S. 

554 (1988), supra at II.A. 

2. United States v. Lyons, 36 M.J. 183 (C.M.A. 1992). Appellant convicted of raping the 

deaf, mute, mentally retarded, 17-year-old daughter of another service member. The 

victim appeared at trial, but her responses during her testimony were “largely 

substantively unintelligible” because of her infirmities. In light of her inability, the 

government moved to admit a videotaped re-enactment by the victim of the crime. The 

military judge admitted the videotape as residual hearsay over defense objection. 

Appellant asserted that his right to confrontation was denied because the daughter’s 

disabilities prevented him from effectively cross-examining her. The lead opinion 

assumed that the victim was unavailable and decided the case on the basis of the 

admission of a videotaped re-enactment. Chief Judge Sullivan, Judges Cox and Crawford 

did not perceive a confrontation clause issue because the victim testified. See also, United 

States v. Russell, 66 M.J. 597, 601-602 (Army Ct. Crim. App. 2008) (implicitly accepting 

trial judge’s ruling that a child victim who was “too young and too frightened to be 

subject to a thorough direct or cross-examination” was unavailable). 

3. The Government must first make a “good faith” effort to produce a witness in order 

for that witness to be “unavailable” for Sixth Amendment purposes. United States v. 

Cabrera-Frattini, 65 M.J. 241, 245-246 (C.A.A.F. 2007). See also, Ohio v. Roberts, 448 

U.S. 56, 74-75 (“The law does not require the doing of a futile act....[b]ut if there is a 

possibility, albeit remote, that affirmative measures might produce the declarant, the 

obligation of good faith may demand their effectuation.”); United States v. Crockett, 21 

M.J. 423 (C.M.A. 1986) (good faith does not extend to changing venue from Germany to 

Florida). 

D. Nontestimonial Statements and the Confrontation Clause 

1. Does the Confrontation Clause Apply to Nontestimonial Statements? 

a) Generally 

(1) It is uncertain whether military courts are required to apply a 

Confrontation Clause analysis to nontestimonial statements. Unless and 

until the CAAF clarifies the law in this regard, prudent practitioners 

should apply the Ohio v. Roberts test to nontestimonial statements. 

(2) The Crawford Court did not decide whether the Confrontation 

Clause was implicated by nontestimonial statements, stating “[w]here 

nontestimonial hearsay is at issue, it is wholly consistent with the 

Framers’ design to afford the States flexibility in their development of 

hearsay law—as does Roberts, and as would an approach that exempted 

such statements from Confrontation Clause scrutiny altogether.” 

Crawford, 541 U.S. at 68. [Note: Military courts are not necessarily 

bound by this Supreme Court precedent. See, H.F. “Sparky” Gierke, The 

Use of Article III Case Law in Military Jurisprudence, Army Lawyer, 

Aug. 2005.] 

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(3) It seems likely that military courts will align their holdings with the 

Supreme Court regarding nontestimonial statements. As a logical 

proposition, it does not make sense to apply the Confrontation Clause to 

nontestimonial statements given the Crawford Court’s explanation that 

the phrase “witnesses” in the Sixth Amendment only describes those who 

“bear testimony.” In other words, a person is only a witness if he makes a 

“testimonial” statement. 

b) Supreme Court Cases 

(1) Whorton v. Bockting, 127 S. Ct. 1173 (2007). “Under Roberts, an 

out-of-court nontestimonial statement not subject to prior crossexamination could not be admitted without a judicial determination 

regarding reliability. Under Crawford, on the other hand, the 

Confrontation Clause has no application to such statements and therefore 

permits their admission even if they lack indicia of reliability.” 

(2) Davis v. Washington, 547 U.S. 813, 823-824 (2006). “We must 

decide, therefore, whether the Confrontation Clause applies only to 

testimonial hearsay; and, if so, whether the recording of a 911 call 

qualifies. The answer to the first question was suggested in Crawford, 

even if not explicitly held: “The text of the Confrontation Clause reflects 

this focus [on testimonial hearsay]. It applies to ‘witnesses’ against the 

accused—in other words, those who ‘bear testimony.’ ‘Testimony,’ in 

turn, is typically ‘a solemn declaration or affirmation made for the 

purpose of establishing or proving some fact.’ An accuser who makes a 

formal statement to government officers bears testimony in a sense that a 

person who makes a casual remark to an acquaintance does not.” A 

limitation so clearly reflected in the text of the constitutional provision 

must fairly be said to mark out not merely its ‘core,’ but its perimeter.” 

c) Military Cases 

(1) United States v. Rankin, 64 M.J. 348 (2007). “The Ohio v. Roberts 

requirement for particularized guarantees of trustworthiness continues to 

govern confrontation analysis for nontestimonial statements.” (Citing 

United States v. Scheurer, 62 M.J. 100, 106 (2005)). But see, United 

States v. Czachorowski, 66 M.J. 432 at n.3 (C.A.A.F. 2008) (citing, in 

dicta, Whorton v. Bockting for the proposition that “...the Confrontation 

Clause has no application to [nontestimonial] statements and therefore 

permits their admission even if they lack indicia of reliability....”); 

United States v. Cucuzzella, 66 M.J. 57 (C.A.A.F. 2008) (the 

Confrontation Clause is not implicated by nontestimonial statements) 

(Stucky, J., concurring); United States v. Foerster, 65 M.J. 120 

(C.A.A.F. 2007) (Holding that admission of a nontestimonial statement 

did not violate the accused’s confrontation rights while neglecting, 

without explanation, to apply Ohio v. Roberts to the statement. One 

possible explanation for this decision is that the statement at issue 

qualified as a “firmly rooted” hearsay exception under Roberts, and the 

Confrontation Clause and evidentiary analyses are identical for such 

statements). 

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(2) United States v. Russell, 66 M.J. 597, 604 (Army Ct. Crim. App. 

2008). Held that the admission of nontestimonial statements do not 

violate a military accused’s confrontation rights. However, the court 

applied a constitutional standard for determining prejudice because of 

“the continuing uncertainty regarding the application of Ohio v. 

Roberts.”See also, United States v. Crudup, 65 M.J. 907, 909 (Army Ct. 

Crim. App. 2008); United States v. Diamond, 65 M.J. 876, 883 (Army 

Ct. Crim. App. 2007). 

2. Application of Ohio v. Roberts to Nontestimonial Statements 

a) Under Roberts, a nontestimonial hearsay statement can be admitted if the 

proponent can show that it possessed adequate indicia of reliability. Indicia of 

reliability can be shown in one of two ways. First, if the statement fits within a 

firmly rooted hearsay exception, it satisfies the Confrontation Clause. If it 

doesn’t fit within a firmly rooted hearsay exception, it can nevertheless satisfy 

the Confrontation Clause and be admitted if it possessed particularized 

guarantees of trustworthiness. 

b) Particularized guarantees of trustworthiness could be shown using a 

nonexclusive list of factors such as mental state or motive of the declarant, 

consistent repetition, or use of inappropriate terminology. See, e.g., Idaho v. 

Wright, 497 U.S. 805, 821 (1990) (providing factors for use in analyzing the 

reliability of hearsay statements made by child witnesses in child sexual abuse 

cases); United States v. Ureta, 44 M.J. 290, 296 (1996) (giving examples of 

factors to consider when looking at the circumstances surrounding the making of 

a hearsay statement when the declarant is unavailable). 

c) When analyzing particularized guarantees of trustworthiness, the proponent 

is limited to considering only the circumstances surrounding the making of the 

statement, i.e. extrinsic evidence was not permitted. Idaho v. Wright, 497 U.S. 

805, 819-24 (1990). This can be confusing, since this limit on extrinsic evidence 

only applied to the Confrontation Clause analysis. Once a statement meets the 

Confrontation Clause hurdle, extrinsic evidence is perfectly acceptable for 

analysis under the hearsay rules. Another source of confusion in military 

caselaw is the fact that the CAAF has stretched the meaning of circumstances 

surrounding the making of the statement to include statements made close in 

time, yet before the actual making of a particular statement in at least one case. 

See United States v. Ureta, 44 M.J. 290 (1996). 

d) Idaho v. Wright, 497 U.S. 805, 821 (1990). “Because evidence possessing 

‘particularized guarantees of trustworthiness’ must be at least as reliable as 

evidence admitted under a firmly rooted hearsay exception, . . . we think that 

evidence admitted under the former requirement must similarly be so trustworthy 

that adversarial testing would add little to its reliability.” 

e) The Confrontation Clause analysis chart at Part VI, below, provides a list of 

hearsay exceptions that are generally considered to be “firmly rooted”. 

V. APPELLATE REVIEW 

A. Standard of Review 

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1. Appellate courts review a military judge’s decision to admit or exclude evidence for 

an abuse of discretion. United States v. Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009). 

2. When an error is not objected to at trial, appellate courts apply a plain error analysis. 

If the accused meets his burden to show plain error, “the burden shifts to the Government 

to prove that any constitutional error was harmless beyond a reasonable doubt.” United 

States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006) 

3. Whether statements are testimonial under Crawford is a question of law that is 

reviewed de novo. United States v. Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009). 

4. Availability of witnesses and the “good faith” of government efforts to procure 

witnesses is reviewed for an abuse of discretion. United States v. Cabrera-Frattini, 65 

M.J. 241, 245 (C.A.A.F. 2007). 

5. Harmlessness analysis 

a) Any evidence admitted in violation of the Confrontation Clause is reversible 

unless it is harmless beyond a reasonable doubt. United States v. Gardinier, 67 

M.J. 304, 306 (C.A.A.F. 2009) 

b) “In assessing harmlessness in the constitutional context...[t]he question is 

whether there is a reasonable possibility that the evidence complained of might 

have contributed to the conviction.” United States v. Gardinier, 67 M.J. 304, 306 

(C.A.A.F. 2009) (citing Chapman v. California, 386 U.S. 18 (1967)). 

c) The C.A.A.F. “frequently looks to the factors set forth in Delaware v. Van 

Arsdall, 475 U.S. 673 (1986), to assess whether an error is harmless beyond a 

reasonable doubt.” United States v. Gardinier, 67 M.J. 304, 306 (C.A.A.F. 2009). 

d) The Van Arsdall factors include: “the importance of the witness’ testimony in 

the prosecution’s case, whether the testimony was cumulative, the presence or 

absence of evidence corroborating or contradicting the testimony of the witness 

on material points, the extent of cross-examination otherwise permitted, and...the 

overall strength of the prosecution’s case.” Delaware v. Van Arsdall, 475 U.S. 

673, 684 (1986) 

B. Retroactive Effect of Crawford v. Washington. 

1. Crawford is a “new rule of law” for the conduct of criminal prosecutions and must be 

applied retroactively for all cases that are still pending on direct review. United States v. 

Cabrera-Frattini, 65 M.J. 241, 245 (C.A.A.F. 2007). 

2. Whorton v. Bockting, 127 S. Ct. 1173 (2007). 

a) Issue: Whether the decision in Crawford is retroactive to cases already final 

on direct review (in other words, can Crawford be used to collaterally attack 

cases already final after direct review). 

b) Held: Crawford is not retroactive to cases already final on direct review 

because its impact on criminal procedure is equivocal. Crawford results in the 

admission of fewer testimonial statements, while exempting nontestimonial 

statements from confrontation analysis entirely. Thus, it is not clear that in the 

absence of Crawford the likelihood of an accurate conviction was seriously 

diminished under the Roberts analysis. Since the Crawford rule did not 

significantly alter the fundamental fairness of criminal proceedings, it is not a 

watershed rule requiring retroactive effect on cases already final on direct review. 

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APPENDIX A
 

Confrontation Clause Analysis Chart
 

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APPENDIX B
 

Confrontation – Nontestimonial Statements
 

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Chapter 26 

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CHAPTER 26 

SEARCH & SEIZURE 

I. Introduction 

II. Litigating Fourth Amendment in the Military 

III. Reasonable Expectation of Privacy 

IV. Authorization and Probable Cause 

V. Exceptions to Authorization Requirement 

VI. Exceptions to Probable Cause Requirement 

VII. Exclusionary Rule and Exceptions 

Appx A: Section III Disclosure 

Appx B: Guide to Articulating Probable Cause 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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I.	 INTRODUCTION 

A. The Fourth Amendment protects against unreasonable searches and seizures and requires 

warrants to be supported by probable cause. Although there is debate as to whether it applies to 

military members, military courts act as if it does. The Fourth Amendment, its requirements, and 

exceptions, are codified in military rules of evidence 311-317. 

B. Text: “The right of the people to be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and particularly describing the place to be 

searched, and the persons or things to be seized.” 

C.	 The Fourth Amendment in the Military. 

1.	 The Fourth Amendment applies to soldiers. United States v. Stuckey, 10 M.J. 347, 349 

(C.M.A. 1981). But see Lederer and Borch, Does the Fourth Amendment Apply to the Armed 

Forces? 144 Mil. L. Rev. 110 (1994) (this article points out that the Supreme Court has never 

expressly applied the Fourth Amendment to the military). 

2. The balancing of competing interests is different in military society. A soldier’s reasonable 

expectation of privacy must be balanced against: 

a) National security;
 

b) Military necessity (commander’s inherent authority to ensure the safety, security, fitness 

for duty, good order and discipline of his command);
 

c)	 Effective law enforcement 

3.	 The Military Rules of Evidence (Mil. R. Evid.) codify constitutional law. 

a) Military Rules of Evidence that codify Fourth Amendment principles:
 

(1) Mil. R. Evid. 311, Evidence Obtained From Unlawful Searches and Seizures. 

(2) Mil. R. Evid. 312, Body Views and Intrusions. 

(3) Mil. R. Evid. 313, Inspections and Inventories in the Armed Forces. 

(4) Mil. R. Evid. 314, Searches Not Requiring Probable Cause. 

(5) Mil. R. Evid. 315, Probable Cause Searches. 

(6) Mil. R. Evid. 316, Seizures. 

(7) Mil. R. Evid. 317, Interception of Wire and Oral Communications. 

b) Which law applies -- recent constitutional decisions or the Military Rules of Evidence? 

(1) General rule: the law more advantageous to the accused will apply. Mil. R. Evid. 

103(a) Drafters’ Analysis. MCM, App. 22. 

(2) Minority view: “These ‘constitutional rules’ of the Military Rules of Evidence were 

intended to keep pace with, and apply to the military, the burgeoning body of interpretive 

constitutional law . . . not to cast in legal or evidentiary concrete the Constitution as it 

was known in 1980.” United States v. Postle, 20 M.J. 632, 643 (N.M.C.M.R. 1985). 

(3) Some Military Rules of Evidence provide exceptions that permit application of recent 

constitutional decisions to the military. See Mil. R. Evid. 314(k) (searches of a type valid 

under the Constitution are valid in military practice, even if not covered by the Military 

Rules of Evidence). 

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II. LITIGATING FOURTH AMENDMENT VIOLATIONS. 

A. A person must claim that his own expectation of privacy was violated to assert a Fourth 

Amendment claim. The prosecution is required to disclose evidence seized from an accused prior to 

arraignment. The prosecution generally has the evidentiary burden (by a preponderance of evidence) 

that the search/seizure was proper. 

B. Standing or “Adequate Interest.” 

1. General rule. To raise a violation of the Fourth Amendment, the accused’s own 

constitutional rights must have been violated; he cannot vicariously claim Fourth Amendment 

violations of the rights of others. 

a) Rakas v. Illinois, 439 U.S. 128, 134 (1978). Police seized sawed-off shotgun and 

ammunition in illegal search of car. Only owner was allowed to challenge admissibility of 

evidence seized. Defendant passenger lacked standing to make same challenge. 

b) United States v. Padilla, 508 U.S. 77 (1993). Accused lacked standing to challenge 

search of auto containing drugs driven by a conspirator in furtherance of the conspiracy, 

despite accused’s supervisory control over auto. 

c) But see Brendlin v. California, 551 U.S. 249 (U.S. 2007). When police conduct a traffic 

stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and 

may challenge the stop’s constitutionality. 

2. Lack of standing is often analyzed as lack of a reasonable expectation of privacy. See United 

States v. Padilla, 508 U.S. 77 (1993) and United States v. Salazar, 44 M.J. 464 (C.A.A.F. 1996). 

C. Motions, Burdens of Proof, and Standards of Review. 

1. Disclosure by prosecution. Prior to arraignment, the prosecution must disclose to the defense 

all evidence seized from the person or property of the accused that it intends to offer at trial. Mil. 

R. Evid. 311(d)(1). See Appendix A for sample disclosure. 

2. Motion by the defense. The defense must raise any motion to suppress evidence based on an 

improper search or seizure prior to entering a plea. Absent such a motion, the defense may not 

raise the issue later, unless permitted to do so by the military judge for good cause. Mil. R. Evid. 

311(d)(2). 

3. Burden of proof. When a motion has been made by the defense, the prosecution has the 

burden of proving by a preponderance of the evidence that the evidence was not obtained as a 

result of an unlawful search or seizure or that some other exception applies. Mil. R. Evid. 

311(e)(1). 

a) Exception: Consent. Government must show by clear and convincing evidence that the 

consent to search was voluntary. Mil. R. Evid. 314(e)(5). 

b) Exception: “Subterfuge” Rule. If the rule is triggered, the prosecution must show by 

clear and convincing evidence that the primary purpose of the government’s intrusion was 

administrative and not a criminal search for evidence. Mil. R. Evid. 313(b). 

c) Exception: Eyewitness Identification. If military judge determines identification is result 

of lineup conducted w/o presence of counsel, or appropriate waiver, subsequent identification 

is unlawful unless Gov’t can establish by clear and convincing evidence that eyewitness 

identification is not tainted. Mil. R. Evid. 321(d)(1). 

4. Effect of guilty plea. 

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a) A plea of guilty waives all issues under the Fourth Amendment, whether or not raised 

prior to the plea. Mil. R. Evid. 311(i). 

b) Exception: conditional guilty plea approved by military judge with prior consent from 

the convening authority. R.C.M. 910(a)(2). 

5. Appellate Standard of Review. For Fourth Amendment issues, the standard of review for a 

military judge’s evidentiary ruling is an abuse of discretion standard. United States v. Owens, 51 

M.J. 204, 209 (C.A.A.F. 1999). Within this context, the abuse of discretion standard becomes a 

mixed question of fact and law. A military judge’s “[f]indings of fact will not be overturned 

unless they are clearly erroneous or unsupported by the record.” Id. A military judge’s 

conclusions of law are reviewed under the de novo standard. The appellate courts will reverse for 

an abuse of discretion only if “the military judge’s findings of fact are clearly erroneous or if his 

[or her] decision is influenced by an erroneous view of the law.” United States v. Sullivan, 42 

M.J. 360, 363 (C.A.A.F. 1995). 

III. REASONABLE EXPECTATION OF PRIVACY. 

A. Government Action. 

1. The Fourth Amendment does not apply unless there is a governmental invasion of privacy. 

Rakas v. Illinois, 439 U.S. 128, 140-49 (1978). 

2. Private searches are not covered by the Fourth Amendment. 

a) Searches by persons unrelated to the government are not covered by the Fourth 

Amendment. 

(1) United States v. Jacobsen, 466 U.S. 109 (1984). No government search occurred 

where Federal Express employees opened damaged package. 

(2) United States v. Hodges, 27 M.J. 754 (A.F.C.M.R. 1988). United Parcel Service 

employee opened package addressed to accused as part of random inspection. Held: this 

was not a government search. 

b) Searches by government officials not acting in official capacity are not covered by the 

Fourth Amendment. 

(1) United States v. Portt, 21 M.J. 333 (C.M.A. 1986). Search by military policeman 

acting in non-law enforcement role is not covered by the Fourth Amendment. 

(2) United States v. Daniels, 60 M.J. 69 (C.A.A.F. 2004). Whether a private actor serves 

as an agent of the gov’t hinges not on the motivation of the individual, but on the degree 

of the government’s participation/involvement. 

c) Searches by informants are covered by the Fourth Amendment. But see United States v. 

Aponte, 11 M.J. 917 (A.C.M.R. 1981). Soldier “checked” accused’s canvas bag and found 

drugs after commander asked soldier to keep his “eyes open.” Held: this was not a 

government search because soldier was not acting as agent of the commander. 

d) Searches by AAFES detectives are covered by Fourth Amendment. United States v. 

Baker, 30 M.J. 262 (C.M.A. 1990). Fourth Amendment extends to searches by AAFES store 

detectives; Baker overruled earlier case law that likened AAFES personnel to private security 

guards. 

3. Foreign searches are not covered by Fourth Amendment. 

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a) Searches by U.S. agents abroad. United States v. Verdugo-Urquidez, 494 U.S. 259 

(1990). Fourth Amendment does not apply to search by U.S. agents of foreigner’s property 

located in a foreign country. 

b) Searches by foreign officials. 

(1) The Fourth Amendment is inapplicable to searches by foreign officials unless U.S. 

agents “participated in” the search. Mil. R. Evid. 311(c) and 315(h)(3). 

(a) “Participation” by U.S. agents does not include: 

(i) Mere presence. 

(ii) Acting as interpreter. 

(b) United States v. Morrison, 12 M.J. 272 (C.M.A. 1982). Fourth Amendment did 

not apply to German search of off-post apartment, even though military police 

provided German police with information that led to search. 

(c) United States v. Porter, 36 M.J. 812 (A.C.M.R. 1993). Military police officer 

participated in Panamanian search by driving accused to Army hospital, requesting 

blood alcohol test, signing required forms and assisting in administering test. 

(2) A search by foreign officials is unlawful if the accused was subjected to “gross and 

brutal maltreatment.” Mil. R. Evid. 311(c)(3). 

B. Reasonable Expectation of Privacy (REP). 

1. The Fourth Amendment only applies if there is a reasonable expectation of privacy. In 

United States v. Jones, 2012 WL 171117 at 7 (U.S. Dist. Col.), the Court said there is not one 

“exclusive” test for reasonable expectation of privacy. The Court specifically acknowledged the 

historical trespass doctrine and the Katz expectation of privacy test. 

a) Traditional trespass doctrine. “[F]or most of our history the Fourth Amendment was 

understood to embody a particular concern for government trespass upon the areas (‘persons, 

houses, papers, and effects’) it in enumerates.” United States v. Jones, 2012 WL 171117 at 4 

(U.S. Dist. Col.). In Jones, the Court found an unlawful search when police placed a GPS 

device on a car without a proper warrant. “The Government physically occupied private 

property for the purpose of obtaining information. We have no doubt that such a physical 

intrusion would have been considered a ‘search’ within the meaning of the Fourth 

Amendment when it was adopted.” Jones at 3. 

b) The Katz test 

(1) In Katz, the Court added to the trespass doctrine by finding an expectation of 

privacy in a conversation in a phone booth. Even though the warrantless eavesdropping 

of the phone call did involve a physical trespass, Justice Brennan’s concurring opinion 

said the “Fourth Amendment protects people, not places.” Katz v. United States, 389 

U.S. 347, 351 (1967). In United States v. Jones, 2012 WL 171117 at 5 (U.S. Dist. Col.), 

the Court said “the Katz reasonable-expectation-of-privacy test has been added to, not 

substituted for, the common-law trespassory test.” 

(2) Katz created a two-part test to determine if an expectation of privacy is reasonable: 

(a) The person must have an actual subjective expectation of privacy; and, 

(b) Society must recognize the expectation as objectively reasonable. 

2. Deployed environment. 

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(a) The Fourth Amendment applies in a combat zone. “[T]here is no general 

exception for locations or living quarters in a combat zone.” See US v. Huntzinger, 

69 M.J. 1, 5 (C.A.A.F. 2010). 

3. Examples of areas with no REP 

a) “What a person knowingly exposes to the public, even in his own home or office, is not a 

subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351 (1967). 

(1) Open fields. The Fourth Amendment does not apply to open fields. Mil. R. Evid. 

314(j). 

(a) Hester v. United States, 265 U.S. 57 (1924). Open fields are not “persons, 

houses, papers, and effects” and thus are not protected by the Fourth Amendment. 

(b) United States v. Dunn, 480 U.S. 294 (1987). Police intrusion into open barn on 

198-acre ranch was not covered by the Fourth Amendment; barn was not within 

“curtilage.” Dunn articulates a 4-part test to define “curtilage.” 

(i) The proximity of the area to be curtilage to the home; 

(ii) Whether the area is included within an enclosure surrounding the home; 

(iii) The nature of the uses to which the area is put; AND 

(iv) The steps taken by the resident to protect the area from observation by people 

passing by. 

(2) Abandoned property. Mil. R. Evid. 316(d)(1). 

(a) Garbage. California v. Greenwood, 486 U.S. 35 (1988). There was no 

expectation of privacy in sealed trash bags left for collection at curbside. 

(b) Clearing quarters. United States v. Ayala, 26 M.J. 190 (C.M.A. 1988). There 

was no reasonable expectation of privacy in blood stains found in quarters accused 

was clearing when accused removed majority of belongings, lived elsewhere, 

surrendered keys to cleaning team, and took no action to protect remnants left behind. 

(c) Voluntarily abandoned property. United States v. Flores, 64 M.J. 451 (C.A.A.F. 

2007). An accused has no privacy interest in voluntarily abandoning his property 

prior to a search, and subsequently lacks standing to complain of the search or seizure 

of such property. 

(d) Lost computer. United States v. Michael, 66 M.J. 78 (C.A.A.F. 2008). A 

government interest in safeguarding property outweighs reduced expectation of 

privacy in laptop computer left in restroom by a student at an entry-level school. 

(3) Aerial observation. 

(a) California v. Ciraolo, 476 U.S. 207 (1986). Observation of a fenced-in 

marijuana plot from an airplane was not a search. 

(b) Florida v. Riley, 488 U.S. 445 (1989). Observation of a fenced-in marijuana 

greenhouse from a hovering helicopter was not a search. 

(4) Peering into Automobiles. United States v. Owens, 51 M.J. 204 (C.A.A.F. 1999). 

Peering into an open door or through a window of an automobile is not a search. See also 

United States v. Richter, 51 M.J. 213 (C.A.A.F. 1999). If the car is stopped by a law 

enforcement official and then peered into, the investigative stop must be lawful. 

(5) The “passerby.” 

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(a) United States v. Wisniewski, 21 M.J. 370 (C.M.A. 1986). Peeking through a 1/8 

inch by 3/8 inch crack in the venetian blinds from a walkway was not a search. 

(b) United States v. Kaliski, 37 M.J. 105 (C.M.A. 1993). Security police’s view 

through eight to ten inch gap in curtains in back patio door was unlawful search 

because patio was not open to public. 

(6) Private dwellings. Minnesota v. Carter, 525 U.S. 83 (1998). Cocaine distributors 

were utilizing another person’s apartment to bag cocaine. The distributors were in the 

apartment for two and a half hours and had no other purpose there than to bag the 

cocaine. Supreme Court held that even though the drug distributors were in private 

residence at consent of owner, they had no expectation of privacy in the apartment, and 

police discovery of their activity was not a Fourth Amendment search. 

b) Plain view. Mil. R. Evid. 316(d)(4)(c). 

(1) General rule. Coolidge v. New Hampshire, 403 U.S. 443 (1971); United States v. 

Fogg, 52 M.J. 144 (C.A.A.F. 1999). Property may be seized when: 

(a) The property is in plain view; 

(b) The person observing the property is lawfully present; and, 

(c) The person observing the property has probable cause to seize it. 

(2) “Inadvertence” is not required for plain view seizure. Horton v. California, 496 U.S. 

128 (1990). 

(3) The contraband character of the property must be readily apparent. Arizona v. Hicks, 

480 U.S. 321 (1987). Policeman lawfully in accused’s home moved stereo turntable to 

check serial number to identify whether it was stolen; seizure was unlawful because the 

serial number was not in plain view and the lifting of the turntable was illegal search. 

(4) Plain feel. Police may seize contraband detected through the sense of touch during a 

stop and frisk if its contraband nature is readily apparent. Minnesota v. Dickerson, 508 

U.S. 366 (1993). Police officer felt lump of cocaine in accused’s pocket during pat down 

search and seized it. Seizure was held unconstitutional because the contraband nature of 

the lump was not “readily apparent.” See also United States v. Bond, 529 U.S. 334 

(2000) (finding border agent’s squeeze of bus passenger’s bag unreasonable absent 

individualized suspicion). 

c) Plain view and electronic evidence. The Fourth Amendment’s application to the digital 

world is not always as simple as applying existing “brick and mortar” precedent to the digital 

world. For all areas involving digital evidence (REP, plain view, child pornography probable 

cause, etc.) be sure to check recent case law and the Department of Justice’s current 

electronic Search and Seizure Manual, located at 

https://www.justice.gov/sites/default/files/criminalccips/legacy/2015/01/14/ssmanual2009.pdf 

(1) United States v. Comprehensive Drug Testing (CDT), Inc., 621 F.3d 1162 (9th Cir. 

2010). In this opinion, the court revised its previous CDT opinion that said the 

government had to waive plain view in all digital evidence cases, as well use a taint team 

to segregate all non-responsive data in digital searches. This revised opinion moved 

those two major new requirements into a five judge concurring opinion. The 9th 

Circuit’s original restrictive position on plain view was not a majority view, but the 

concerns of the court about plain view turning digital searches into “general warrants” 

with no particularity requirement is shared by nearly all courts to address the issue. 

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(2) For a the current majority, and less restrictive, position on applying the plain view 

doctrine in electronic evidence cases, see U.S. v. Mann, 592 F.3d 779 (7th Cir. 

2010)(advocating an incremental, common law approach to adapting plain view to 

electronic evidence); U.S. v. Williams ̧ 592 F.3d 511, 522 (4th Cir. 2010) (“ Once it is 

accepted that a computer search must, by implication, authorize at least a cursory review 

of each file on the computer, then the criteria for applying the plain-view exception are 

readily satisfied.”). The only military case directly on point follows the Mann and 

Williams logic, but it is unpublished. See U.S. v. Washington, 2011 WL 498325 (A. Ct. 

Crim. App.). 

d) Bank records. 

(1) United States v. Wooten, 34 M.J. 141 (C.M.A. 1992). No reasonable expectation of 

privacy exists in bank records. Even though records were obtained in violation of 

financial privacy statute, exclusion of evidence was inappropriate, because statute did not 

create Fourth Amendment protection. 

(2) United States v. Dowty, 48 M.J. 102 (C.A.A.F. 1998). Servicemember may avail 

himself of the Right to Financial Privacy Act (RFPA), to include seeking federal district 

court judge to quash subpoena for bank records. However, Article 43, UCMJ, statute of 

limitations is tolled during such litigation. 

e) Enhanced senses. Use of “low-tech” devices to enhance senses during otherwise lawful 

search is permissible. 

(1) Dogs. 

(a) United States v. Place, 462 U.S. 696 (1983). There is no expectation of privacy 

to odors emanating from luggage in a public place. “Low-tech” dog sniff is not a 

search (no Fourth Amendment violation). 

(b) United States v. Alexander, 34 M.J. 121 (C.M.A. 1992). Dog sniff in common 

area does not trigger Fourth Amendment. 

(c) United States v. Middleton, 10 M.J. 123 (C.M.A. 1981). Use of drug dogs at 

health and welfare inspection is permissible. Dog is merely an extension of human 

sense of smell. 

(d) See AR 190-12 (4 Jun. 2007), Military Working Dog Program. Drug detector 

dogs are not to be used to inspect people. See AR 190-12 at para 4-9.c. 

(2) Flashlights. Texas v. Brown, 460 U.S. 730 (1983). Shining flashlight to illuminate 

interior of auto is not a search. 

(3) Binoculars. United States v. Lee, 274 U.S. 559 (1927). Use of field glasses or 

binoculars is not a search. 

(4) Cameras. Dow Chemical Co. v. United States, 476 U.S. 227 (1986). Aerial 

photography with “commercially available” camera was not a search, but use of satellite 

photos or parabolic microphones or other “high-tech devices” would be a search. 

(5) Thermal Imaging Devices. Kyllo v. United States, 533 U.S. 27 (2001). Supreme 

Court ruled that police use of thermal imaging device without a warrant was 

unreasonable. The thermal imaging device detected higher than normal heat radiating 

from house. Heat source was lamps used for growing marijuana in private dwelling. The 

Court found use of thermal imaging device during surveillance was a “search” and, 

absent a warrant, presumptively unreasonable. 

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f) Interception of wire and oral communications. Communications are protected by the 

Fourth Amendment. Katz v. United States, 389 U.S. 347 (1967). 

(1) One party may consent to monitoring a phone conversation. 

(a) United States v. Caceras, 440 U.S. 741 (1979). A person has no reasonable 

expectation that a person with whom she is conversing will not later reveal that 

conversation to police. 

(b) United States v. Parrillo, 34 M.J. 112 (C.M.A. 1992). There is no reasonable 

expectation of privacy as to contents of telephone conversation after it has reached 

other end of telephone line. 

(c) United States v. Guzman, 52 M.J. 218 (C.A.A.F. 2000). There are still regulatory 

requirements for (one-party) consensual wiretapping but exclusion of evidence is not 

proper remedy except in cases where violation of regulation implicates constitutional 

or statutory rights. 

(2) The “bugged” informant. United States v. Samora, 6 M.J. 360 (C.M.A. 1979). There 

is no reasonable expectation of privacy where a “wired” informant recorded 

conversations during drug transaction. 

(3) Special rules exist for the use of wiretaps, electronic and video surveillance, and pen 

registers/trap & trace devices. Rules for video surveillance apply if “communications” 

are recorded. 

(a) Federal statutes provide greater protections than the Fourth Amendment. See 18 

U.S.C. §§ 2510-22, 2701-11, and 3121-27 (2000). The statutory scheme is referred 

to as the Electronic Communications Privacy Act (ECPA). 

(i) The ECPA prohibits the unauthorized interception of wire and oral 

communications. 18 U.S.C. § 2511 (2000). 

(ii) The ECPA contains its own exclusionary rule in the event of violation. 18 

U.S.C. § 2515 (2000). 

(iii) The ECPA applies to private searches, even though such searches are not 

covered by the Fourth Amendment. People v. Otto, 831 P.2d 1178 (Cal. 1992). 

(b) Approval process requires coordination with HQ, USACIDC and final approval 

from DA Office of General Counsel. See Mil. R. Evid. 317; AR 190-53, Interception 

of Wire and Oral Communications for Law Enforcement Purposes (3 Nov. 1986). 

(c) An overheard telephone conversation is not an “interception” under the statute. 

United States v. Parillo, 34 M.J. 112 (C.M.A. 1992). 

(d) See Clark, Electronic Surveillance and Related Investigative Techniques, 128 

Mil. L. Rev. 155 (1990). 

(4) The USA PATRIOT ACT has enlarged the government’s ability to access electronic 

communications and stored information by providing extraterritorial jurisdiction over 

certain offenses. For details on the Act, see 

https://www.justice.gov/sites/default/files/criminalccips/legacy/2015/01/14/ssmanual2009.pdf. 

4. REP and government property 

a) MRE baseline on government property generally 

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(1) Mil. R. Evid. 314(d) and Mil. R. Evid. 316(d)(3) – Probable cause and warrants are 

not required to search government property that has no expectation of privacy. 

(2) Mil. R. Evid. 314(d) and analysis - There is a rebuttable presumption of no 

expectation of privacy in government property not issued for personal use. Wall and 

floor lockers are normally issued for personal use and have a rebuttable presumption of 

an expectation of privacy. Whether or not government property was issued for personal 

use “depends on the facts and circumstances at the time of the search.” 

(3) Normally a person does not have a reasonable expectation of privacy in government 

property that is not issued for personal use. United States v. Weshenfelder, 43 C.M.R. 256 

(1971). 

b) Federal case law on expectation of privacy in government workplace 

(1) O’Connor v. Ortega, 480 U.S. 709 (1987) (plurality opinion). Seminal case on 

balancing the role of government as employer and as law enforcement. A reasonable 

expectation of privacy in government workplace depends on the “operational realities” of 

the workplace. If there is an expectation of privacy, and the reason for the search is “for 

non-investigatory, work-related purposes, as well as for investigations of work-related 

misconduct, [the search] should be judged by the standard of reasonableness under all the 

circumstances.” This standard of reasonableness does not require probable cause or a 

warrant, but the search must be reasonable in its inception and scope. 

(2) City of Ontario v. Quon, 130 S. Ct. 2619 (2010). Court’s first case on reasonable 

expectation of privacy (REP) and electronic evidence/digital devices. Issue was a 

civilian police department search of an officer’s department issued pager transcripts. 

The 9th Circuit found a REP under the Ortega test because a supervisor’s actions 

changed the “operational realities” of the department’s policies. The Supreme Court 

cautioned “[a] broad holding concerning employees’ privacy expectations vis-à-vis 

employer-provided technological equipment might have implications for future cases that 

cannot be predicted. It is preferable to dispose of this case on narrower grounds.” The 

Court reviewed the 9th Circuit’s REP analysis, but did not decide that issue, but assumed 

there was a REP. The Court then found the search reasonable under the Ortega “noninvestigatory, work-related purpose” test). 

(3) United States v. Muniz, 23 M.J. 201 (C.M.A. 1987). No expectation of privacy 

existed in locked government credenza when commander performed search for an 

administrative purpose. 

(4) United States v. Craig, 32 M.J. 614 (A.C.M.R. 1991). No expectation of privacy 

existed in government desk at installation museum where search was conducted by 

sergeant major. 

c) Barracks rooms. 

(1) There generally is a reasonable expectation of privacy in items in a barracks room. 

See Mil. R. Evid. 314(d). 

(2) United States v. McCarthy, 38 M.J. 398 (C.M.A. 1993). Warrantless intrusion and 

apprehension in barracks upheld. Court rules there is no reasonable expectation of 

privacy in barracks. But see United States v. Curry, 46 M.J. 733 (N-M. Ct. Crim. App. 

1997) aff’d 48 M.J. 115 (C.A.A.F. 1998) (per curiam). No need to read McCarthy so 

broadly: according to Navy Court, there is, instead, a reduced expectation of privacy in a 

barracks room. 

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(3) United States v. Battles, 25 M.J. 58 (C.M.A. 1987). Drugs discovered during 0300 

hours “inspection” in ship’s berthing area and box near a common maintenance locker 

were admissible because there was no reasonable expectation of privacy in these areas. 

5. Electronic Evidence 

a) The Fourth Amendment’s application to the digital world is not always as simple as 

applying existing “brick and mortar” precedent to the digital world. For all areas involving 

digital evidence (REP, plain view, child pornography probable cause) be sure to check recent 

case and the Department of Justice’s current electronic Search and Seizure Manual, located at 

https://www.justice.gov/sites/default/files/criminalccips/legacy/2015/01/14/ssmanual2009.pdf. 

b) E-mail and servers 

(1) United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996). Accused had reasonable 

expectation of privacy in electronic mail transmissions sent, received and stored on the 

AOL computer server. Like a letter or phone conversation, a person sending e-mail 

enjoys a reasonable expectation of privacy that police will not intercept the transmission 

without probable cause and a warrant. 

(2) United States v. Monroe, 52 M.J. 326 (C.A.A.F. 2000). Accused did not have a 

reasonable expectation of privacy in e-mail mailbox on government server which was the 

e-mail host for all “personal” mailboxes and where users were notified that system was 

subject to monitoring. 

(3) United States v. Long, 64 M.J. 57 (C.A.A.F. 2006). Reasonable expectation of 

privacy found in e-mail communications regarding drug use on a government computer, 

over a government network, when investigation was conducted and ordered by law 

enforcement instead of originating with computer network administrator. (This is a 

narrow holding as USMC log-on banner described access to “monitor” the computer 

system –not to engage in law enforcement intrusions by examining the contents of 

particular e-mails in a manner unrelated to maintenance of the e-mail system). 

(4) United States v. Larson, 66 M.J. 212 (C.A.A.F. 2008). Accused had no Fourth 

Amendment expectation of privacy in his government computer (distinguishing Long 

based on facts of case). He failed to rebut presumption that he had no reasonable 

expectation of privacy in the government computer provided to him for official use. See 

Mil. R. Evid. 314(d). 

(5) City of Ontario v. Quon, 130 S. Ct. 2619 (2010). See infra, section on REP and 

government property. 

c) Subscriber Information 

(1) United States v. Ohnesorge, 60 M.J. 946 (N-M. Ct. Crim. App. 2005). There is no 

reasonable expectation of privacy in subscriber information provided to a commercial 

internet service provider. 

(2) United States v. Allen, 53 M.J. 402 (C.A.A.F. 2000). No warrant/authorization 

required for stored transactional records (distinguished from private communications). 

Inevitable discovery exception also applied to information sought by government 

investigators. 

d) Digital device 

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(1) United States v. Conklin, 63 M.J. 333 (C.A.A.F. 2006). While recognizing the limited 

expectation of privacy in a barracks room, CAAF acknowledges that a service member 

sharing a two-person dormitory room on a military base has a reasonable expectation of 

privacy in the files kept on a personally owned computer. 

(2) United States v. Tanksley, 54 M.J. 169 (C.A.A.F. 2000). No (or at least reduced) 

reasonable expectation of privacy in office and computer routinely designated for official 

government use. Seizure was lawful based on plain view. 

IV. AUTHORIZATION AND PROBABLE CAUSE. 

A. A search is valid if based upon probable cause and a proper search warrant. Probable cause is 

evaluated by looking at the “totality of the circumstances” to determine whether evidence is located at 

a particular place. In the military, the equivalent to a search warrant is called a search authorization, 

and may be issued by an appropriate neutral and detached commander, military judge, or military 

magistrate. Even if a search is based upon probable cause and is conducted pursuant to a proper 

search warrant/ authorization, it must be conducted in a reasonable manner. 

B. General Rule. A search is proper if conducted pursuant to a search warrant or authorization based 

on probable cause. Mil. R. Evid. 315. 

1. A search warrant is issued by a civilian judge; it must be in writing, under oath, and based on 

probable cause. 

2. A search authorization is granted by a military commander; it may be oral or written, need 

not be under oath, but must be based on probable cause. 

C. Probable Cause. 

1. Probable cause is a reasonable belief that the person, property, or evidence sought is located 

in the place or on the person to be searched. Mil. R. Evid. 315(f). It is a “fluid concept---turning 

on the assessment of probabilities in particular factual contexts---not readily, or even usefully, 

reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232 (1982). 

2. Probable cause is evaluated under the totality of the circumstances. Illinois v. Gates, 462 

U.S. 213 (1982). The Court rejected a lower court’s attempt to “overlay a categorical scheme” on 

the Gates TOC analysis, see United States v. Banks, 540 U.S. 31 (2003). See also, United States 

v. Leedy, 65 M.J. 208 (C.A.A.F. 2007) where CAAF emphasizes TOC as the key in any probable 

cause analysis. 

a) Probable cause will clearly be established if informant is reliable (i.e. believable) and has 

a factual basis for his or her information under the two-pronged test of Aguilar v. Texas, 378 

U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969). 

b) Probable cause may also be established even if the Aguilar-Spinelli test is not satisfied. 

Illinois v. Gates, 462 U.S. 213 (1982). But see United States v. Washington, 39 M.J. 1014 

(A.C.M.R. 1994). No probable cause existed to search accused’s barracks room because 

commander who authorized search lacked information concerning informant’s basis of 

knowledge and reliability. The Gates TOC test was re-articulated in United States v. Bethea, 

61 M.J. 184 (C.A.A.F. 2005) in which the CAAF held that there was sufficient probable 

cause to authorize a seizure of a hair sample to establish wrongful use of cocaine based on a 

prior positive urinalysis despite fact that hair sample would not necessarily indicate a prior 

one-time use of cocaine. Hair sample revealed that the accused had used cocaine multiple 

occasions. 

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c) United States v. Evans, 35 M.J. 306 (C.M.A. 1992). Evidence that accused manufactured 

crack cocaine in his house gave probable cause to search accused’s vehicle. Devenpeck v. 

Alford, 543 U.S. 146 (2004), the probable cause upon which investigation and arrest are 

based need not be the same or even closely related to the probable cause for the ultimate 

criminal conviction, so long as both are legitimate. 

d) United States v. Figueroa, 35 M.J. 54 (C.M.A. 1992). Probable cause existed to search 

accused’s quarters where commander was informed that contraband handguns had been 

delivered to the accused and the most logical place for him to store them was his quarters. 

e) Maryland v. Pringle, 540 U.S. 366 (2003). A police officer suspected that one, or all 

three, of a group in a vehicle possessed drugs and arrested them. The Court found it 

reasonable for the officer to infer a common enterprise, and ruled the arrest constitutional as 

to Pringle, even though the officer had no individualized PC regarding Pringle. 

f) United States v. Rogers, 67 M.J. 162 (C.A.A.F. 2009). Probable cause existed to test 

appellant’s hair for cocaine, even though his urinalysis was negative. 

g) Probable Cause and Child Pornography 

(1) United States v. Macomber, 67 M.J. 214 (C.A.A.F. 2009). Probable cause existed to 

search airman’s barracks room for child pornography under the totality of circumstances, 

even though there was no evidence the airman ever actually possessed child pornography, 

and the evidence that he registered with a child pornography website was fourteen 

months old. 

(2) United States v. Clayton, 68 M.J. 419 (C.A.A.F. 2010). Probable cause existed to 

search for child porn on computer in appellant’s quarters, based largely on appellant’s 

membership in a Google user group known to contain child pornography, even though 

there was no evidence appellant actually possessed child pornography. Strong two-judge 

dissent worries about a “de minimis” approach to Fourth Amendment requirements in 

child pornography cases. But see United States v. Hoffman, No. 15-0361 (C.A.A.F. 

2016) (finding accused’s attempt to entice minors into sexual activity not sufficient to 

establish probable cause to search accused’s computer.) 

3. Staleness. Probable cause will exist only if information establishes that evidence is currently 

located in area to be searched. PC may evaporate with passage of time. 

a) United States v. Henley, 53 M.J. 488 (C.A.A.F. 2000). Magistrate’s unknowing use of 

information over five years old was not dispositive. In addition, good faith exception applied 

to agents executing warrant. 

b) United States v. Queen, 26 M.J. 136 (C.M.A. 1988). Probable cause existed despite delay 

of two to six weeks between informant’s observation of evidence of crime (firearm) in 

accused’s car and commander’s search authorization; accused was living on ship and had not 

turned in firearm to ship’s armory. 

c) United States v. Agosto, 43 M.J. 745 (A.F. Ct. Crim. App. 1995). Probable cause existed 

for search of accused’s dormitory room even though 3 1/2 months elapsed between offense 

and search. Items sought (photos) were not consumable and were of a nature to be kept 

indefinitely. 

4. See Appendix B for a guide to articulating probable cause. 

D. Persons Who Can Authorize a Search. Mil. R. Evid. 315(d). 

1. Any commander of the person or place to be searched (“king-of-the-turf” standard). 

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a)	 The unit commander can authorize searches of: 

(1) Barracks under his control; 

(2) Vehicles within the unit area; and 

(3) Off-post quarters of soldiers in the unit if the unit is overseas. 

b) The installation commander can authorize searches of:
 

(1) All of the above; 

(2) Installation areas such as: 

(a) On-post quarters; 

(b) Post Exchange (PX); and, 

(c) On-post recreation centers. 

c) Delegation prohibited. Power to authorize searches is a function of command and may 

not be delegated to an executive officer. United States v. Kalscheur, 11 M.J. 378 (C.M.A. 

1981) 

d) Devolution authorized. United States v. Law, 17 M.J. 229 (C.M.A. 1983). An “acting 

commander” may authorize a search when commander is absent. See also United States v. 

Hall, 50 M.J. 247 (C.A.A.F. 1999). Commander may resume command at his discretion; no 

need not have written revocation of appointment of acting commander. 

e)	 More than one commander may have control over the area to be searched. United States 

v. Mix, 35 M.J. 283 (C.M.A. 1992). Three commanders whose battalions used common 

dining facility each had sufficient control over the parking lot surrounding facility to 

authorize search there. 

2. A military magistrate or military judge may authorize searches of all areas where a 

commander may authorize searches. See chapter 8, AR 27-10, Military Justice (3 Oct 2011), for 

information on the military magistrate program. 

3.	 In the United States a state civilian judge may issue search warrants for off-post areas. 

4.	 In the United States a federal civilian magistrate or judge may issue search warrants for: 

a) Off-post areas for evidence related to federal crimes; and, 

b) On-post areas. 

5.	 Overseas a civilian judge may authorize a search of off-post areas. 

E. Neutral and Detached Requirement. The official issuing a search authorization must be neutral 

and detached. See Mil. R. Evid. 315(d). See also United States v. Ezell, 6 M.J. 307 (C.M.A. 1979) 

(discusses four separate cases where commanders’ neutrality was attacked). 

1.	 A commander is not neutral and detached when he or she: 

a) Initiates or orchestrates the investigation (has personal involvement with informants,
 

dogs, and controlled buys); or,
 

b) Conducts the search.
 

2.	 A commander may be neutral and detached even though he or she:
 

a) Is present at the search;
 

b) Has personal knowledge of the suspect’s reputation;
 

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c) Makes public comments about crime in his or her command; or, 

d) Is aware of an on-going investigation. 

3. “The participation of a commander in investigative activities in furtherance of command 

responsibilities, without more, does not require a per se disqualification of a commander from 

authorizing a search under M.R.E. 315.” See U.S. v. Huntzinger, 69 M.J. 1, 6 (C.A.A.F. 2010). 

4. Alternatives: Avoid any potential “neutral and detached” problems by seeking search 

authorization from: 

a) A military magistrate; or, 

b) The next higher commander. 

F. Reasonableness. Even if based upon a warrant or authorization and probable cause, a search 

must be conducted in a reasonable manner. 

1. Wilson v. Arkansas, 514 U.S. 927 (1995). The common law requirement that police officers 

“knock and announce” their presence is part of the reasonableness clause of the Fourth 

Amendment. 

2. United States v. Banks, 540 U.S. 31 (2003). In a case involving easily disposable illegal 

drugs, police were justified in breaking through an apartment door after waiting 15-20 seconds 

following knocking and announcing their presence. This time was sufficient for the situation to 

ripen into an exigency. 

3. Richards v. Wisconsin, 520 U.S. 385 (1997). Every no-knock warrant request by police must 

be evaluated on a case-by-case basis. Test for no-knock warrant is whether there is reasonable 

suspicion that evidence will be destroyed or there is danger to police by knocking. United States 

v. Ramirez, 523 U.S. 65 (1998). Whether or not property is damaged during warrant execution, 

the same test applies -- reasonable suspicion. 

4. Hudson v. Michigan, 547 U.S. 586 (2006). Violation of the Fourth Amendment “knock and 

announce” rule, without more, will not result in suppression of evidence at trial. 

5. Depending on the circumstances, law enforcement officials may “seize” and handcuff 

occupants of a residence while they execute a search warrant of that residence. Muehler v. Mena, 

544 U.S. 93, 125 S.Ct. 1465 (2005). 

6. L.A. County v. Rettele, 127 S.Ct. 1989 (2007). When officers execute a valid warrant and act 

in a reasonable manner to protect themselves from harm, however, the Fourth Amendment is not 

violated. 

7. United States v. Osorio, 66 M.J. 632 (A.F. Ct. Crim. App. 2008). Forensic examination of a 

computer based on a search warrant must not exceed the scope of the warrant. Examiners must 

carefully analyze the terms of the warrant and adjust their examination methodology accordingly. 

Inevitable discovery did not apply to facts of this case. 

G. Reasonableness and Media “Ride-Alongs.” Violation of Fourth Amendment rights of 

homeowners for police to bring members of media or other third parties into homes during execution 

of warrants. Wilson v. Layne, 526 U.S. 603 (1999). 

H. Seizure of Property. 

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1. Probable cause to seize. Probable cause to seize property or evidence exists when there is a 

reasonable belief that the property or evidence is an unlawful weapon, contraband, evidence of 

crime, or might be used to resist apprehension or to escape. Mil. R. Evid. 316(b). United States 

v. Mons, 14 M.J. 575 (N.M.C.M.R. 1982). Probable cause existed to seize bloody clothing cut 

from accused’s body during emergency room treatment. 

2. Effects of unlawful seizure. If there is no probable cause the seizure is illegal and the 

evidence seized is suppressed under Mil. R. Evid. 311. 

I. External Impoundment. Reasonable to secure a room (“freeze the scene”) pending an authorized 

search to prevent the removal or destruction of evidence. United States v. Hall, 50 M.J. 247 

(C.A.A.F. 1999). But freezing the scene does not mean that investigators have unrestricted 

authorization to search crime scene without a proper warrant/authorization. See Flippo v. West 

Virginia, 528 U.S. 11 (1999) (holding that no general crime scene exception exists). 

J. Seizure (Apprehension) of Persons. 

1. Probable cause to apprehend. Probable cause to apprehend exists when there are reasonable 

grounds to believe that an offense has been or is being committed and the person to be 

apprehended committed or is committing it. RCM 302(c). See also Mil. R. Evid. 316(c). 

2. Effects of unlawful apprehension. If there is no probable cause the apprehension is illegal 

and evidence obtained as a result of the apprehension is suppressed under Mil. R. Evid. 311. See 

United States v. Dunaway, 442 U.S. 200 (1979) (holding that fruits of illegal apprehension are 

inadmissible). 

3. Situations amounting to apprehension. 

a) There is a seizure or apprehension of a person when a reasonable person, in view of all 

the circumstances, would not believe he or she was free to leave. 

b) In “cramped” settings (e.g. on a bus, in a room), there is an apprehension when a 

reasonable person, in view of all the circumstances, would not feel “free to decline to answer 

questions.” Florida v. Bostick, 501 U.S. 429 (1991). But see United States v. Drayton, 536 

U.S. 194 (2002) (finding that there was no requirement to inform bus passengers that they 

could refuse to cooperate with police). 

c) Armed Texas police rousting a 17-year old murder suspect from his bed at 0300, 

transporting him handcuffed, barefoot and in his underwear to the police station was an 

apprehension, despite suspect’s answer of “Okay”, in response to police saying “We have to 

talk.” Kaupp v. Texas, 536 U.S. 626 (2003). 

d) Asking for identification is not an apprehension. United States v. Mendenhall, 446 U.S. 

544 (1980). 

(1) Asking for identification and consent to search on a bus is not apprehension. Florida 

v. Bostick, 501 U.S. 429 (1991). See also United States v. Drayton, 536 U.S. 194 (2002) 

(finding no requirement to inform bus passengers they could refuse to cooperate with 

police); Muehler v. Mena, 544 U.S. 93 (2005) (asking person who had been handcuffed 

about immigration status did not constitute seizure). 

(2) State may prosecute for failure to answer if the ‘stop and ID’ statute is properly 

drawn. Thus, there was no Fourth Amendment violation in Hiibel v. Sixth Judicial 

District Court, 542 U.S. 177 (2004). 

e) A police chase is not an apprehension. 

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(1) Michigan v. Chestnut, 486 U.S. 567 (1988). Following a running accused in patrol 

car was not a seizure where police did not turn on lights or otherwise tell accused to stop. 

Consequently, drugs accused dropped were not illegally seized. 

(2) California v. Hodari D., 499 U.S. 621 (1991). Police officer needs neither probable 

cause nor reasonable suspicion to chase a person who flees after seeing him. A suspect 

who fails to obey an order to stop is not seized within meaning of the Fourth 

Amendment. 

f) Traffic Stops. 

(1) Brendlin v. California, 551 U.S. 249 (U.S. 2007). When police conduct a traffic stop, 

a passenger in the car, like the driver, is seized for Fourth Amendment purposes and so 

may challenge the stop’s constitutionality. 

g) An order to report to military police. 

(1) An order to report for non-custodial questioning is not apprehension. 

(2) An order to report for fingerprints is not apprehension. United States v. Fagan, 28 

M.J. 64 (C.M.A. 1989). Accused, who was ordered to report to military police for 

fingerprinting was not apprehended. Fingerprinting is a much less serious intrusion than 

interrogation, and may comply with the Fourth Amendment even if there is less than 

probable cause. 

(3) Transporting an accused to the military police station under guard is apprehension. 

United States v. Schneider, 14 M.J. 189 (C.M.A. 1982). When accused is ordered to go 

to military police station under guard, probable cause must exist or subsequent voluntary 

confession is inadmissible. 

4. Apprehension at home or in quarters: a military magistrate, military judge, or the commander 

who controls that dwelling (usually the installation commander) must authorize apprehension in 

private dwelling. R.C.M. 302(e); Payton v. New York, 445 U.S. 573 (1980). 

a) A private dwelling includes: 

(1) BOQ/BEQ rooms; 

(2) Guest quarters; 

(3) On-post quarters; or, 

(4) Off-post apartment or house. 

b) A private dwelling does not include:
 

(1) Tents. 

(2) Barracks rooms; see United States v. McCarthy, 38 M.J. 398 (C.M.A. 1993). 

Warrantless apprehension in barracks room was proper. 

(3) Vehicles. 

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c) Exigent circumstances may justify entering dwelling without warrant or authorization. 

See Mil. R. Evid. 315(g). United States v. Ayala, 26 M.J. 190 (C.M.A. 1988). Accused was 

properly apprehended, without authorization, in transient billets. Exigent circumstances 

justified apprehension. See also Kirk v. Louisiana, 536 U.S. 635 (2002) (absent exigent 

circumstances, police may not enter a private dwelling without a warrant supported by 

probable cause to search the premises or apprehend an individual); United States v. 

Khamsouk, 57 M.J. 282 (C.A.A.F. 2002) (finding that the DD Form 553 is not the equivalent 

of an arrest warrant issued by a civilian magistrate judge). 

d) Consent may justify entering dwelling without proper warrant or authorization. See Mil. 

R. Evid. 316(d)(2). United States v. Sager, 30 M.J. 777 (A.C.M.R. 1990), aff’d on other 

grounds, 36 M.J. 137 (C.M.A. 1992). Accused, awakened by military police at on-post 

quarters, in his underwear, and escorted to police station was not illegally apprehended, 

despite lack of proper authorization, where his wife “consented” to police entry. 

e) Probable cause may cure lack of proper authorization. New York v. Harris, 495 U.S. 14 

(1990). Where police had sufficient probable cause but did not get a warrant before arresting 

accused at home, statement accused made at home was suppressed as violation of Payton v. 

New York, but statement made at police station was held to be admissible. The statement at 

the police station was not the “fruit” of the illegal arrest at home. 

f) Exigent circumstances may also allow warrantless seizure of dwelling and/or occupants 

while waiting for search warrant to be issued. Illinois v. McArthur, 531 U.S. 326 (2001). 

V. EXCEPTIONS TO AUTHORIZATION REQUIREMENT. 

A. Not all searches require warrants or search authorizations, if there is probable cause that evidence 

is at a certain location. If there is probable cause that evidence will be destroyed, a law enforcement 

official may dispense with the warrant/authorization requirement. Searches of automobiles generally 

do not require warrants/authorizations. 

B. Exigent Circumstances. 

1. General rule. A search warrant or authorization is not required when there is probable cause 

but insufficient time to obtain the authorization because the delay to obtain authorization would 

result in the removal, destruction, or concealment of evidence. Mil. R. Evid. 315(g). 

a) Law enforcement created exigency – Warrantless search is lawful as long “police did not 

create the exigency by engaging or threatening to engage in conduct that violates the Fourth 

Amendment.” Kentucky v. King, 131 S. Ct. 1849 (2011). In King, the search was lawful 

when after a controlled buy, police knocked on a door they suspected target was in and heard 

movement that made them think evidence was being destroyed. The Court did not rule on the 

actual “exigency,” but assumed it existed, and held the police action of knocking on the door, 

which led to the suspicious movement and noises, did not invalidate the exigency. 

2. Burning marijuana. United States v. Lawless, 13 M.J. 943 (A.F.C.M.R. 1982). Police 

smelled marijuana coming from house, looked into a window and spotted drug activity. Police 

then entered and apprehended everyone in the house, and later obtained authorization to search. 

Held: this was a valid exigency. See also United States v. Dufour, 43 M.J. 772 

(N.M.Ct.Crim.App. 1995) (Observed use of drugs in home allowed search and seizure without 

obtaining warrant.) 

3. Following a controlled buy. 

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a) United States v. Murray, 12 M.J. 139 (C.M.A. 1981). Commander and police entered 

accused’s barracks room and searched it immediately after a controlled buy. Held: Search 

was valid based on exigent circumstances. 

b) But see United States v. Baker, 14 M.J. 602 (A.F.C.M.R. 1982). OSI agents and civilian 

police entered accused’s off-post apartment immediately after a controlled buy. Search was 

improper because there were no real exigencies, and there was time to seek authorization. 

4. Traffic Stops (Pretextual): 

a) Whren v. United States, 517 U.S. 806 (1996). A stop of a motorist, supported by 

probable cause to believe he committed a traffic violation, is reasonable under the Fourth 

Amendment regardless of the actual motivations of the officers making the stop. Officers 

who lack probable cause to stop a suspect for a serious crime may use the traffic offense as a 

pretext for making a stop, during which they may pursue their more serious suspicions by 

utilizing plain view or consent. See also Arkansas v. Sullivan, 532 U.S. 769 (2001) (holding 

state supreme court erred by considering subjective intent of arresting officer when there was 

a valid basis for a traffic stop and probable cause to subsequently arrest motorist for a 

speeding violation), and United States v. Moore, 128 U.S. (2008) (holding the police did not 

violate the Fourth Amendment when they made an arrest that was based on probable cause, 

but prohibited by state law, or when they performed a search incident to arrest). 

b) United States v. Rodriquez, 44 M.J. 766 (N.M.Ct.Crim.App. 1996). State Trooper had 

probable cause to believe that accused had violated Maryland traffic law by following too 

closely. Even though the violation was a pretext to investigate more serious charges, 

applying Whren, the stop was lawful. 

c) Seizure of drivers and passengers. 

(1) Pennsylvania v. Mimms, 434 U.S. 106 (1977). The police may, as a matter of course, 

order the driver of a lawfully stopped car to exit. See Maryland v. Wilson, 519 U.S. 407 

(1997) (holding that Mimms rule is extended to passengers). But cf. Wilson v. Florida, 

734 So. 2d 1107, 1113 (Fla. Dist. Ct. App. 1999) applying Mimms and Wilson in holding 

that a police officer conducting a lawful traffic stop may not order a passenger back in the 

stopped vehicle. 

(2) Brendlin v. California, 551 U.S. 249 (U.S. 2007). When police conduct a traffic 

stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and 

so may challenge the stop’s constitutionality. 

(3) Arizona v. Johnson, 129 US 781 (2009). Reads Mimms, Wilson, and Brendlin read 

together to hold that officers who conduct routine traffic stop[s] may perform a 

‘patdown’ of a driver and any passengers upon reasonable suspicion that they may be 

armed and dangerous. They do not have to have a Terry-like reasonable suspicion that 

the driver or passengers have committed, or are committing, a crime. 

5. Hot pursuit. Warden v. Hayden, 387 U.S. 294 (1967). Police, who chased armed robber into 

house, properly searched house. 

6. Drugs or alcohol in the body. 

a) Schmerber v. California, 384 U.S. 757 (1966). Warrantless blood alcohol test was 

justified by exigent circumstances. 

b) United States v. Porter, 36 M.J. 812 (A.C.M.R. 1993). Warrantless blood alcohol test 

was not justified by exigent circumstances where there was no evidence that time was of the 

essence or that commander could not be contacted. 

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c) United States v. Pond, 36 M.J. 1050 (A.F.C.M.R. 1993). Warrantless seizure of urine to 

determine methamphetamine use was not justified by exigent circumstances because 

methamphetamine does not dissipate quickly from the body. 

d) Nonconsensual extraction of body fluids without a warrant requires more than probable 

cause; there must be a “clear indication” that evidence of a crime will be found and that delay 

could lead to destruction of evidence. Mil. R. Evid. 312(d). See United States v. Carter, 54 

M.J. 414 (C.A.A.F. 2001). 

C. Automobile Exception. 

1. General rule. Movable vehicles may be searched based on probable cause alone; no warrant 

is required. Mil. R. Evid. 315(g)(3). 

a) Chambers v. Maroney, 399 U.S. 42 (1970). The word “automobile” is not a talisman, in 

whose presence the Fourth Amendment warrant requirement fades away. See also 

Pennsylvania v. Labron, 518 U.S. 938 (1996). The auto exception is not concerned with 

whether police have time to obtain a warrant. It is concerned solely with whether the vehicle 

is “readily mobile.” 

b) Ability to Obtain a Warrant Irrelevant. Maryland v. Dyson, 527 U.S. 465 (1999) (per 

curiam). Police in Maryland waited for 13 hours for suspect to return to state and did not 

attempt to obtain a warrant. Supreme Court reaffirmed that automobile exception does not 

require a “separate finding of exigency precluding the police from obtaining a warrant.” 

c) Rationale: 

(1) Automobiles are mobile; evidence could disappear by the time a warrant is obtained; 

and, 

(2) There is a lesser expectation of privacy in a car than in a home. 

2. Scope of the search: any part of the car, including the trunk, and any containers in the car 

may be searched. 

a) United States v. Ross, 456 U.S. 798 (1982). Police may search any part of the car and 

any containers in car if police have probable cause to believe they contain evidence of a 

crime. 

b) United States v. Evans, 35 M.J. 306 (C.M.A. 1992). Military police who had probable 

cause to search auto for drugs properly searched accused’s wallet found within vehicle. 

3. Automobile is broadly defined. California v. Carney, 471 U.S. 386 (1985). Recreational 

vehicle falls within auto exception unless it is clearly used solely as a residence. 

4. Timing of the search. United States v. Johns, 469 U.S. 478 (1985). Police had probable 

cause to seize truck but did not search it for three days. There is no requirement that search be 

contemporaneous with lawful seizure. 

5. Closed containers in vehicles may also be searched. California v. Acevedo, 500 U.S. 565 

(1991). Probable cause to believe closed container located in vehicle contains evidence of crime 

allows warrantless search of container. This case overruled United States v. Chadwick, 433 U.S. 

1 (1977), which required police to have warrant where probable cause relates solely to container 

within vehicle. Accord United States v. Schmitt, 33 M.J. 24 (C.M.A. 1991). 

6. No distinction between containers owned by suspect and passengers: both sorts of containers 

may be searched. Wyoming v. Houghton, 526 U.S. 295 (1999). 

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7. Applies to Seizure of Automobiles Themselves. Florida v. White, 526 U.S. 559 (1999). 

Automobile exception applies to seizure of vehicle for purposes of forfeiture and police do not 

need to get a warrant if they have probable cause to believe that car is subject to seizure. If 

seized, police are then allowed to conduct a warrantless inventory of the seized vehicle. 

VI. EXCEPTIONS TO PROBABLE CAUSE REQUIREMENT. 

A. Many searches require neither probable cause nor a search warrant/authorization. If a person 

voluntarily consents to a search, no probable cause or warrant is needed. Searches incident to 

apprehension/arrest need no other probable cause than the underlying PC for the arrest/apprehension. 

Certain brief detentions–called “stops” – require only “reasonable suspicion,” and pat-down 

searches–called “frisks”– require only reasonable suspicion that the person is armed and dangerous. 

Inspections are technically not searches at all, but are rather administrative in nature, not criminal 

searches for evidence. A variety of inspections are not affected by Fourth Amendment requirements. 

Finally, emergency searches are also not affected by Fourth Amendment requirements. 

B. Consent Searches. 

1. General rule. If a person voluntarily consents to a search of his person or property under his 

control, no probable cause or warrant is required. Mil. R. Evid. 314(e). 

2. Persons Who Can Give Consent. 

a) Anyone who exercises actual control over property may grant consent to search that
 

property. Mil. R. Evid. 314(e)(2). United States v. Reister, 44 M.J. 409 (C.A.A.F. 1996). 

House sitter had actual authority to consent to search apartment, books and nightstand. 

United States v. Clow, 26 M.J. 176 (C.M.A. 1988). When police requested consent to search 

family dwelling, wife consented to search, but husband who was also present refused consent. 

b) The Supreme Court held that consent is not constitutionally valid if one physically
 

present co-tenant grants consent, but another physically present co-tenant refuses consent.
 

Georgia v. Randolph, 547 U.S. 103 (2006). See United States v. Weston, 67 M.J. 390 

(C.A.A.F. 2009), where CID removed husband and wife from their home by bringing them to 

the CID office. Because they were no longer “physically present” at the home, the wife’s 

consent was valid over her husband’s lack of consent. 

(1) But see United States v. King, 604 F.3d 125 (3rd Cir. 2010) cert. denied (holding the 

Georgia v. Randolph rule applies only to realty but not personalty). In King, a physically 

present co-tenant’s consent refusal was not valid against a consenting co-tenant. 

c) Anyone with apparent authority may grant consent. 

(1) Illinois v. Rodriguez, 497 U.S. 177 (1990). Girlfriend with key let police into 

boyfriend’s apartment where drugs were found in plain view. Police may enter private 

premises without a warrant if they are relying on the consent of a third party that they 

reasonably, but mistakenly, believe has a common authority over the premises. 

(2) United States v. White, 40 M.J. 257 (C.M.A. 1994). Airman who shared off-base 

apartment with accused had apparent authority to consent to search of accused’s 

bedroom. The Airman told police that the apartment occupants frequently borrowed 

personal property from each other and went into each other’s rooms without asking 

permission. 

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(3) See also, United States. v. Rader, 65 M.J. 30 (C.A.A.F. 2007). Accused’s roommate 

had sufficient access to and control over accused’s computer to give valid consent to its 

search, where the computer was located in roommate’s bedroom, it was not password 

protected, accused never told roommate not to access his computer or any of its files, 

accused’s roommates used the computer to play computer games with accused’s consent, 

and the consenting roommate accessed the computer approximately every two weeks to 

perform maintenance. 

3. Voluntariness. Consent must be voluntary under the totality of the circumstances. Mil. R. 

Evid. 314(e)(4); United States v. Frazier, 34 M.J. 135 (C.M.A. 1992); see United States v. 

Wallace, 66 M.J. 5 (C.A.A.F. 2008) (adopting the six-factor Murphy test from an Air Force court 

to determine voluntariness). 

a) Traffic stop. Ohio v. Robinette, 519 U.S. 33 (1996). A request to search a detained 

motorist’s car following a lawful traffic stop does not require a bright line “you are free to 

go” warning for subsequent consent to be voluntary. Consent depends on the totality of the 

circumstances. 

b) Coerced consent is involuntary. But see United States v. Goudy, 32 M.J. 88 (C.M.A. 

1991). Accused’s consent was voluntary despite fact that he allegedly took commander’s 

request to be an implied order. 

c) It is OK to Trick. United States v. Vassar, 52 M.J. 9 (1999). Accused taken to hospital 

for head injury and told that a urinalysis was needed for treatment. CAAF held it is 

permissible to use trickery to obtain consent as long as it does not amount to coercion. 

Urinalysis was admissible, despite military judge applying wrong standard for resolving 

questions of fact. 

d) Right to counsel. Reading Article 31 rights is recommended but not required. United 

States v. Roa, 24 M.J. 297 (C.M.A. 1987). Request for consent after accused asked for 

lawyer was permissible. United States v. Burns, 33 M.J. 316 (C.M.A. 1991). Commander’s 

failure to give Article 31 warnings did not affect voluntariness of consent to urinalysis test. 

4. Scope. Consent may be limited to certain places, property and times. Mil. R. Evid. 

314(e)(3). Consent to search computer necessarily implicated consent to seize and remove 

computer even though standard consent form did not explicitly state that computer could be 

seized and removed. United States v. Rittenhouse, 62 M.J. 504 (A. Ct.Crim.App. 2005). See 

United States v. Gallagher, 65 M.J. 601 (N-M. Ct. Crim. App. 2007) affirmed, 66 M.J. 250 

(C.A.A.F. 2008) where the issue is whether the search of the accused’s closed briefcase, located in 

the garage of accused’s home, did not exceed the scope of his wife’s consent to search the areas 

of the home over which she had actual or apparent authority. 

5. Withdrawal. Consent may be withdrawn at any time. Mil. R. Evid. 314(e)(3). But see 

United States v. Roberts, 32 M.J. 681 (A.F.C.M.R. 1991). Search was lawful where accused 

initially consented, then withdrew consent, and then consented again. A search conducted after 

the accused withdrew consent is not lawful, unless independent authority for the search exists. 

See United States v. Hoffman, No. 15-0361 (C.A.A.F. 2016). 

6. Burden of proof. Consent must be shown by clear and convincing evidence. Mil. R. Evid. 

314(e)(5). 

7. Consent and closed containers. Florida v. Jimeno, 500 U.S. 248 (1991). General consent to 

search allows police to open closed containers. 

C. Searches Incident to Apprehension. 

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1. General rule. A person who has been apprehended may be searched for weapons or evidence 

within his “immediate control.” Mil. R. Evid. 314(g). 

a) Scope of search. A person’s immediate control includes his person, clothing, and the 

area within his wingspan (sometimes expansively defined to include “lunging distance”). 

b) Purpose of search: to protect police from nearby weapons and prevent destruction of 

evidence. Chimel v. California, 395 U.S. 752 (1969). 

c) Substantial delay between apprehension and seizure will not invalidate the search 

“incident.” United States v. Curtis, 44 M.J. 106 (C.A.A.F. 1996) (citing United States v. 

Edwards, 415 U.S. 800 (1974) (10 hours)). Curtis was later reversed on other grounds and the 

sentence was subsequently reduced by the Navy-Marine Corps Court of Criminal Appeals; 

this reduction to life imprisonment was upheld by the CAAF. United States v. Curtis, 52 M.J. 

166 (C.A.A.F. 1999). 

2. Search of automobiles incident to arrest. 

a) When a policeman has made a lawful arrest of an occupant of an automobile he may 

search the entire passenger compartment and any closed containers in passenger 

compartment, but not the trunk. Mil. R. Evid. 314(g)(2). 

b) Search may be conducted after the occupant has been removed from the automobile, as 

long as the search is “contemporaneous” with the apprehension. Mil. R. Evid. 314(g)(2); New 

York v. Belton, 453 U.S. 454 (1981) (search of zipped jacket pocket in back seat of car 

following removal and arrest of occupants upheld; new bright line rule established). 

c) Belton rule extended in Thornton v. United States, 541 U.S. 615 (2004), to include search 

of a vehicle if the arrestee was a “recent occupant” of the vehicle. 

d) Belton rule distinguished and substantially limited in Arizona v Gant, 129 S. Ct. 1710, 

1723 (2009). “Police may search a vehicle incident to a recent occupant's arrest only if the 

arrestee is within reaching distance of the passenger compartment at the time of the search or 

it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 

e) Arrest means arrest. A search incident to a traffic citation, as opposed to an arrest, is not 

constitutional. Knowles v. Iowa, 525 U.S. 113 (1999). But cf. Atwater v. City of Lago Vista, 

532 U.S. 318 (2001) (Petitioner was arrested for not wearing a seatbelt and then handcuffed, 

searched at the police station, and held in jail for an hour. The Court found that the arrest for 

this minor infraction was reasonable). 

3. The search of a cell phone incident to arrest is not constitutional. In Riley v. California, 134 

S. Ct. 2473 (2014), the Supreme Court unanimously held that the warrantless search of the digital 

contents of a cell phone violates the Fourth Amendment. 

D. Stop and Frisk. 

1. General rule. Fourth Amendment allows a limited government intrusion (“stop and frisk”) 

based on less than probable cause (“reasonable suspicion”) where important government interests 

outweigh the limited invasion of a suspect’s privacy. Terry v. Ohio, 392 U.S. 1 (1968); Mil. R. 

Evid. 314(f). 

2. Reasonable suspicion. 

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a) Reasonable suspicion is specific and articulable facts, together with rational inferences 

drawn from those facts, which reasonably suggest criminal activity. Terry v. Ohio, 392 U.S. 

1, 21 (1968); United States v. Bair, 32 M.J. 404 (C.M.A. 1991). See United States v. 

Robinson, 58 M.J. 429 (C.A.A.F. 2003), for an excellent framework for a reasonable 

suspicion analysis. 

(1) Reasonable suspicion is measured under the totality of the circumstances; and, 

(2) Reasonable suspicion is less than probable cause. 

b) Reasonable suspicion may be based on police officer’s own observations. United States 

v. Peterson, 30 M.J. 946 (A.C.M.R. 1990). Reasonable suspicion existed to stop soldier 

seated with companion in car parked in dead end alley in area known for drug activity at 

night; car license plate was from out-of-state. 

c) Reasonable suspicion may be based on collective knowledge of all police involved in 

investigation. United States v. Hensley, 469 U.S. 221, 229 (1985). Information in police 

department bulletin was sufficient reasonable suspicion to stop car driven by robbery suspect. 

d) Reasonable suspicion may be based on an anonymous tip. Alabama v. White, 496 U.S. 

325 (1990). Detailed anonymous tip was sufficient reasonable suspicion to stop automobile 

for investigative purposes. But see Florida v. J.L., 529 U.S. 266 (2000) (stating that 

anonymous tip needs to be reliable in “its assertion of illegality”). 

e) Reasonable suspicion may be based on drug courier “profile.” United States v. Sokolow, 

490 U.S. 1 (1988). “Innocent” non-criminal conduct amounted to reasonable suspicion to stop 

air traveler who paid $2,100.00 cash for two tickets, had about $4,000.00 in cash; was 

traveling to a source city (Miami); was taking 20 hour flight to stay only 2 days; was 

checking no luggage (only carry-on luggage); was wearing same black jumpsuit and gold 

jewelry on both flights; appeared nervous; and, was traveling under alias. Cocaine found in 

carry-on bag after dog alerted was admissible. 

f) Reasonable suspicion may be based on “headlong flight” coupled with other 

circumstances (like nervous and evasive behavior and high-crime area). Illinois v. Wardlow, 

528 U.S. 119 (2000). 

3. Nature of detention. A stop is a brief, warrantless investigatory detention based on 

reasonable suspicion accompanied by a limited search. 

a) Frisk for weapons. 

(1) The police may frisk the suspect for weapons when he or she is reasonably believed 

to be armed and dangerous. Mil. R. Evid. 314(f)(2). 

(2) Plain feel. Police may seize contraband items felt during frisk if its contraband 

nature of items is readily apparent. Minnesota v. Dickerson, 508 U.S. 366 (1993) 

(seizure of cocaine during frisk held unconstitutional because the contraband nature of 

cocaine was not readily apparent). But looking down the front of a suspect’s pants to 

determine if “bulges” were weapons was reasonable. United States v. Jackson, No. ACM 

33178, 2000 CCA LEXIS 57 (A.F. Ct. Crim. App. Feb. 28, 2000) (unpublished opinion). 

b) Length of the detention. 

(1) 15 minutes in small room is too long. Florida v. Royer, 460 U.S. 491 (1983). 

Suspect was questioned in a large storage closet by two DEA agents was unreasonable: 

“investigative detention must be temporary and last no longer than is necessary to 

effectuate the purpose of the stop.” 

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(2) 20 minutes may be sufficiently brief if police are hustling. United States v. Sharpe, 

470 U.S. 675 (1985). 20-minute detention by highway patrolman waiting for DEA agent 

to arrive was not unreasonable. 

c) Use of firearms. 

(1) United States v. Merritt, 695 F.2d 1263 (10th Cir. 1982). Pointing shotgun at murder 

suspect did not turn legitimate investigative stop into arrest requiring probable cause. 

(2) United States v. Sharpe, 470 U.S. 695 (1985); United States v. Hensley, 469 U.S. 221 

(1985). Merely displaying handgun did not turn an investigative detention into a seizure 

requiring probable cause. 

d) Use of dogs. Illinois v. Caballes, 543 U.S. 405 (2005) (holding that otherwise lawful 

traffic stop was not expanded into an illegal search or seizure for contraband when officer 

walked a drug detection dog around vehicle during a routine traffic stop). But see Rodriguez 

v. United States, 575 U.S. ____ (2015) (holding that extending a traffic stop “seven or eight 

minutes” so that a detection dog could respond to the scene violated the Fourth Amendment). 

(1) United States v. Alexander, 901 F.2d 272 (2d Cir. 1990). Approaching car with 

drawn guns and ordering driver out of car to frisk for possible weapons did not convert 

Terry stop into full-blown arrest requiring probable cause. 

4. Important government interests. 

a) Police officer safety. Terry v. Ohio, 392 U.S. 1 (1968). Frisk was justified when officer 

reasonably believed suspect was about to commit robbery and likely to have weapon. 

b) Illegal immigrants. I.N.S. v. Delgado, 466 U.S. 210 (1984); United States v. BrignoniPonce, 422 U.S. 873 (1975). But Border Patrol Agent’s squeezing of a canvas bag during a 

routine stop of bus at checkpoint violated Fourth Amendment. Bond v. United States, 529 

U.S. 334 (2000). 

c) Illegal drugs. United States v. De Hernandez, 473 U.S. 531 (1985). “[T]he veritable 

national crisis in law enforcement caused by smuggling of illicit narcotics . . . represents an 

important government interest.” United States v. Sharpe, 470 U.S. 675 (1985); United States 

v. Place, 462 U.S. 696 (1983); United States v. Mendenhall, 446 U.S. 544 (1980). But see 

Indianapolis v. Edmond, 531 U.S. 32 (2000) (finding that use of roadblock for general search 

of drugs violated the Fourth Amendment). 

d) Solving crimes and seeking justice. United States v. Hensley, 469 U.S. 221 (1985). 

There is an important government interest “in solving crime and bringing offenders to 

justice.” 

5. House frisk (“Protective Sweep”). Maryland v. Buie, 494 U.S. 325 (1990). Police may make 

protective sweep of home during lawful arrest if they have “reasonable belief based on specific 

and articulable facts” that a dangerous person may be hiding in area to be swept; evidence 

discovered during protective sweep is admissible. 

a) United States v. Billings, 58 M.J. 861 (A. Ct. Crim. App. 2003). Police may conduct a 

protective sweep of a house, even though the arrest takes place outside the house. 

E. Administrative Inspections. 

1. The military’s two-part test. Mil. R. Evid. 313(b). 

a) Primary purpose test. 

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(1) Inspection. The primary purpose of an inspection must be to ensure the security, 

military fitness, or good order and discipline of the unit (administrative purpose). 

(2) Criminal search. An examination made for the primary purpose of obtaining 

evidence for use in a court-martial or in other disciplinary proceedings (criminal purpose) 

is not an inspection. 

b) Subterfuge rule. If a purpose of an examination is to locate weapons and contraband and 

if the examination: 

(1) Was directed immediately following the report of a crime and not previously 

scheduled; or, 

(2) Specific persons were selected or targeted for examination; or, 

(3) Persons were subjected to substantially different intrusions; then, 

the prosecution must prove by clear and convincing evidence that the purpose of the 

examination was administrative, not a subterfuge for an illegal criminal search. 

2. The Supreme Court’s test. New York v. Burger, 482 U.S. 691 (1987) (warrantless 

“administrative” inspection of junkyard pursuant to state statute was proper). 

a)	 There are three requirements for a lawful administrative inspection: 

(1) There must be a substantial government interest in regulating the activity; 

(2) The regulation must be necessary to achieve this interest; and, 

(3) The statute must provide an adequate substitute for a warrant. 

(a) The statute must give notice that inspections will be held; 

(b) The statute must set out who has authority to inspect; and, 

(c) The statute must limit the scope and discretion of the inspection. 

b) A dual purpose is permissible. A state can address a major social problem both by way 

of an administrative scheme and through penal sanctions. 

3. Health and welfare inspections. United States v. Tena, 15 M.J. 728 (A.C.M.R. 1983). 

Commander’s unit inspection for substandard conditions is permissible. United States v. 

Thatcher, 28 M.J. 20 (C.M.A. 1989). Stolen toolbox was discovered in short-timer’s room. 

Government failed to show by clear and convincing evidence that examination was an 

“inspection” and not an “illegal search.” 

4.	 Unit urinalysis.
 

a) Invalid inspection. 

(1) United States v. Campbell, 41 M.J. 177 (C.M.A. 1994). Urinalysis inspection test 

results were improperly admitted where inspection was conducted because the first 

sergeant heard rumors of drug use in unit and prepared list of suspects, including accused, 

to be tested. The military judge erred in ruling the government proved by clear and 

convincing evidence that the inspection was not a subterfuge for an illegal criminal 

search. 

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(2) Commander must have jurisdiction and authority over accused to order urinalysis. 

See United States v. DiMuccio, 61 M.J. 588 (A.F. Ct. Crim. App. 2005) (Commander of 

162nd FW, a national guard unit, had no authority to order accused to submit to 

urinalysis because accused was at the time in “Title 10” status vice “Title 32” status even 

though accused was still part of 162nd FW). 

b) Valid inspection. 

(1) Knowledge of “Reports.” United States v. Brown, 52 M.J. 565 (A. Ct. Crim. App. 

1999). Commander directed random urinalysis after report that several soldiers were 

using drugs in the command. The court found that the urinalysis was a valid inspection 

with the primary purpose to protect the morale, safety and welfare of the unit, despite the 

recent report. In United States v. Taylor, 41 M.J. 168 (C.M.A. 1994), the accused’s 

urinalysis results were properly admitted, despite the fact that the test followed report to 

commander’s subordinate that accused had used drugs. Knowledge of a subordinate will 

not be imputed to the commander. 

(2) Primary Purpose. 

(a) United States v. Shover, 44 M.J. 119 (1996). The primary purpose for the 

inspection was to end “finger pointing, hard feelings,” and “tension.” The 

commander “wanted to get people either cleared or not cleared.” The primary 

purpose was to “resolve the questions raised by the incident, not to prosecute 

someone.” This was a proper administrative purpose. 

(b) United States v. Jackson, 48 M.J. 292 (1998). Commander stated primary 

purpose of inspection of barracks rooms, less than 2 hours of receiving anonymous 

tip about drugs in a soldier’s barracks room, was unit readiness. Court held 

inspection was proper. 

(c) United States v. Ayala, 69 M.J. 63 (C.A.A.F. 2010). Based on reasons stating in 

implementation memorandum, which cited Mil. R. Evid. 313(b), an inspection 

program that required a second follow-up inspection for all positive urinalysis results 

was found lawful. The court found the primary purpose of the program was 

administrative, despite the SJA’s proposal memorandum, which was clearly criminal 

in nature. 

5. Gate inspections. 

a) Procedures. See AR 210-10, Installations, Administration (12 Sep. 1977), para. 2-23c 

(summarizes the legal requirements for gate inspections) (the regulation has been rescinded 

but is being revised for future promulgation). 

(1) A gate search should be authorized by written memorandum or regulation signed by 

the installation commander defining the purpose, scope and means (time, locations, 

methods) of the search. 

(2) Notice. All persons must receive notice in advance that they are subject to inspection 

upon entry, while within the confines, and upon departure, either by a sign or a visitor’s 

pass. 

(3) Technological aids. Metal detectors and drug dogs may be used. See AR 190-12, 

Military Working Dog Program (4 Jun. 2007). 

(4) Civilian employees. Check labor agreement for impact on overtime and late arrivals. 

(5) Female pat-downs. Use female inspectors if possible. 

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(6) Entry inspections. 

(a) Civilians: must consent to inspection or their entry is denied; may not be 

inspected over their objection. 

(b) Military: may be ordered to comply with an inspection and may be inspected 

over their objection, using reasonable force, if necessary. 

(7) Exit inspections. 

(a) Civilians: may be inspected over objection, using reasonable force, if necessary. 

(b) Military: may be ordered to comply with an inspection and may be inspected 

over their objection, using reasonable force, if necessary. 

b) Discretion of inspectors. United States v. Jones, 24 M.J. 294 (C.M.A. 1987). Police may 

use some discretion, per written command guidance, to select which cars are stopped and 

searched. 

c) Scope of search. United States v. Burney, 66 M.J. 701 (A.F. Ct. Crim. App. 2008), 

AFCCA found that it was reasonable for security forces personnel conducting a lawful 

inspection of vehicles entering an Air Force base to look inside the closed glasses pouch 

found in the accused’s vehicle for contraband, considering that the intrusion was very 

minimal, the purpose of the inspection was to protect the base from contraband, and the 

search was conducted at a practical and completely logical location. 

F. Border Searches. 

1. Customs inspections. 

a) Customs inspections are constitutional border searches. United States v. Ramsey, 431 

U.S. 606 (1977) (finding a longstanding right of sovereign to protect itself). 

b) Customs inspections in the military. Border searches for customs or immigration 

purposes may be conducted when authorized by Congress. Mil. R. Evid. 314(b); United 

States v. Williamson, 28 M.J. 511 (A.C.M.R. 1989). Military police customs inspector’s 

warrantless search of household goods was reasonable since inspection was conducted 

pursuant to DOD Customs Regulations. 

2. Gate searches overseas. 

a) General rule. Installation commanders overseas may authorize searches of persons and 

property entering and exiting the installation to ensure security, military fitness, good order 

and discipline. Mil. R. Evid. 314(c). 

(1) Primary purpose test is applicable. 

(2) Subterfuge rule is inapplicable. 

b) United States v. Stringer, 37 M.J. 310 (C.M.A. 1993). Gate searches overseas are border 

searches; they need not be based on written authorization and broad discretion can be given to 

officials conducting the search. 

G. Inventories. 

1. General rule. Inventories conducted for an administrative purpose are constitutional; 

contraband and evidence of a crime discovered during an inventory may be seized. Mil. R. Evid. 

313(c). 

a) Primary purpose test is applicable. 

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b) Subterfuge rule is inapplicable. 

2. Purpose. Illinois v. Lafayette, 462 U.S. 640 (1983). Inventories of incarcerated persons or 

impounded property are justified for three main reasons: 

a) To protect the owner from loss; 

b) To protect the government from false claims; and, 

c) To protect the police and public from dangerous contents. 

3. Military inventories. Military inventories that are required by regulations serve lawful 

administrative purposes. Evidence obtained during an inventory is admissible. Inventories are 

required when soldiers are: 

a) Absent without leave (AWOL), AR 700-84, Issue and Sale of Personal Clothing (18 Nov. 

2004), para 12-14; 

b) Admitted to the hospital, AR 700-84, Issue and Sale of Personal Clothing (18 Nov. 

2004), para 12-15; and, 

c) Placed in pretrial or post-trial confinement, AR 190-47, The Army Corrections System 

(15 Jun. 2006). 

4. Discretion and Automobile Inventories. Florida v. Wells, 495 U.S. 1 (1990). When 

defendant was arrested for DWI and his car impounded and inventoried, the police improperly 

searched a locked suitcase in the trunk of car despite fact that there was no written inventory 

regulation. This search was insufficiently regulated to satisfy the Fourth Amendment. 

5. See Anderson, Inventory Searches, 110 Mil. L. Rev. 95 (1985) (examples and analysis of 

military inventories). 

6. Sobriety Checkpoints. 

a) General rule. The Fourth Amendment does not prohibit the brief stop and detention of all 

motorists passing through a highway roadblock set up to detect drunk driving; neither 

probable cause nor reasonable suspicion are required as the stop is constitutionally 

reasonable. Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). 

7. Crime Prevention Roadblocks. Indianapolis v. Edmond, 531 U.S. 32 (2000). Public 

checkpoints/roadblocks for the purpose of drug interdiction violate the Fourth Amendment. Stops 

for the purpose of general crime control are only justified when there is some quantum of 

individualized suspicion. 

8. Information Gathering Roadblocks. Lidster v. Illinois, 540 U.S. 419 (2004). A roadblock 

conducted in order to gather information regarding a crime committed one week earlier did not 

violate the Edmond rule, and was not unconstitutional. 

H. Emergency Searches. 

1. General rule. In emergencies, a search may be conducted to render medical aid or prevent 

personal injury. Mil. R. Evid. 314(i). See Brigham City, Utah v. Stuart et al., 547 U.S. 398 

(2006). Police may enter a home without a warrant when they have an objectively reasonable 

basis for believing that an occupant is seriously threatened with such injury. 

a) Michigan v. Fisher, 130 S. Ct. 546, 549 (2009). Officers “do not need ironclad proof of a 

‘likely serious, life-threatening’ injury to invoke the emergency aid exception.” 

b) Michigan v. Taylor, 436 U.S. 499 (1978). Entry into burning or recently burnt building is 

permissible. 

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c) United States v. Jacobs, 31 M.J. 138 (C.M.A. 1990). Warrantless entry into accused’s 

apartment by landlord was permissible because apartment was producing offensive odor 

because of spoiled food. 

d) United States v. Korda, 36 M.J. 578 (A.F.C.M.R. 1992). Warrantless entry into 

accused’s apartment was justified by emergency when supervisor thought accused had or was 

about to commit suicide. 

I. Searches for Medical Purposes. 

1. General rule. Evidence obtained from a search of an accused’s body for a valid medical 

purpose may be seized. Mil. R. Evid. 312(f). See United States v. Stevenson, 53 M.J. 257 

(C.A.A.F. 2000) (holding that the medical purpose exception applies to members of the 

Temporary Disability Retired List), cert. denied, 532 U.S. 919 (2001). 

2. United States v. Maxwell, 38 M.J. 148 (C.M.A. 1993). Blood alcohol test of accused 

involved in fatal traffic accident was medically necessary, despite the fact that the test result did 

not actually affect accused’s treatment. Test result was admissible. 

3. Drug Treatment Programs. Ferguson v. City of Charleston, 532 U.S. 67 (2001). The Court 

rejected “special needs” exception for warrantless (urinalysis) searches of pregnant women 

involved in a hospital drug treatment program. The ultimate purpose of the program was for law 

enforcement and not to get women in the program into substance abuse treatment. 

J. School Searches. New Jersey v. T.L.O., 469 U.S. 325 (1985). School officials may conduct 

searches of students based upon “reasonable grounds” as long as the search is not “excessively 

intrusive.” See also Board of Education v. Earls, 536 U.S. 822 (2002) (holding that a policy adopted 

by the school district to require all students to consent to urinalysis testing in order to compete in 

extracurricular activities did not violate the Fourth Amendment, but was reasonable). 

VII. EXCLUSIONARY RULE AND EXCEPTIONS. 

A. The exclusionary rule is the remedy for illegal searches and/or illegally seized evidence: such 

evidence is excluded from trial. However, there are exceptions to this rule. If evidence was obtained 

in good faith by law enforcement officials; was discovered independent of a “tainted” source; or, 

would have been inevitably discovered, despite a “tainted” source, the evidence may be admitted. 

Illegally obtained evidence may also be introduced for impeachment purposes by the government. 

B. The Exclusionary Rule. 

1. Judicially created rule. Evidence obtained directly or indirectly through illegal government 

conduct is inadmissible. Weeks v. United States, 232 U.S. 383 (1914); Nardone v. United States, 

308 U.S. 338 (1939); Mapp v. Ohio, 376 U.S. 643 (1961) (the exclusionary rule is a procedural 

rule that has no bearing on guilt, only on respect for “dignity” or “fairness”). 

2. Mil. R. Evid. 311(a). Evidence obtained as a result of an unlawful search or seizure made by 

a person acting in a government capacity is inadmissible against the accused. 

3. Violation of regulations does not mandate exclusion. 

a) Urinalysis regulations. 

(1) United States v. Pollard, 27 M.J. 376 (C.M.A. 1989). Deviation from Coast Guard 

urinalysis regulation did not make urine sample inadmissible. 

(2) But see United States v. Strozier, 31 M.J. 283 (C.M.A. 1990). Gross deviations from 

urinalysis regulation allow exclusion of positive test results. 

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b) Financial privacy regulations. United States v. Wooten, 34 M.J. 141 (C.M.A. 1992). 

Failure to comply with federal statute and regulation requiring notice before obtaining bank 

records did not mandate exclusion of records. 

C. Exception: Good Faith. 

1. General rule. Evidence is admissible when obtained by police relying in good faith on 

facially valid warrant that later is found to lacking probable cause or otherwise defective. 

a) United States v. Leon, 468 U.S. 897 (1984). Exclusionary rule was inapplicable even 

though magistrate erred and issued warrant based on anonymous tipster’s information which 

amounted to less than probable cause. 

b) Rationale. Primary purpose of exclusionary rule is to deter police misconduct; rule 

should not apply where there has been no police misconduct. There is no need to deter a 

magistrate’s conduct. 

2. Limitations. United States v. Leon, 468 U.S. 897 (1984). Good faith exception does not 

apply, even if there is a search warrant, where: 

a) Police or affiant provide deliberately or recklessly false information to the magistrate 

(bad faith by police); 

b) Magistrate abandons his judicial role and is not neutral and detached (rubber-stamp 

magistrate); 

c) Probable cause is so obviously lacking to make police belief in the warrant unreasonable 

(straight face test); or, 

d) The place or things to be searched are so clearly misidentified that police cannot presume 

them to be valid (glaring technical deficiencies). 

3. Mil. R. Evid. 311(b)(3): Evidence obtained from an unlawful search or seizure may be used 

if: 

a) “competent individual” authorized search or seizure; 

b) individual issuing authorization had “a substantial basis” to find probable cause; 

c) official executing authorization objectively relied in “good faith” on the authorization. 

4. What is a “substantial basis” under Mil. R. Evid. 311(b)(3)(B)? United States v. Carter, 54 

M.J. 414 (C.A.A.F. 2001). The rule is satisfied if the law enforcement officer has a reasonable 

belief that the magistrate had a “substantial basis” for determining probable cause. 

5. Good faith exception applies to searches authorized by a commander. United States v. Lopez, 

35 M.J. 35 (C.M.A. 1992). Good faith exception applied to allow admission of ration cards 

discovered during search authorized by accused’s commander. 

6. Good faith exception applies to searches authorized by military magistrate. United States v. 

Carter, 54 M.J. 414 (C.A.A.F. 2001). Regardless of whether the military magistrate had a 

substantial basis to issue an authorization for a blood sample, the CID SA acted in good faith in 

collecting the sample, and it was admissible. 

7. The good faith exception applies to more than just “probable cause” determinations; it may 

also save a search authorization where the commander who authorized the search did not have 

control over the area searched. 

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a) On-post searches. United States v. Mix, 35 M.J. 283 (C.M.A. 1992). The good faith 

exception applied where a commander had a good faith reasonable belief that he could 

authorize a search of an auto in a dining facility parking lot, even though the commander may 

not have had authority over the parking lot. 

b) Off-post searches overseas. United States v. Chapple, 36 M.J. 410 (C.M.A. 1993). The 

good faith exception applied to search of accused’s off-post apartment overseas even though 

commander did not have authority to authorize search because accused was not in his unit. 

8. The good faith exception may apply even when a warrant has been quashed. Arizona v. 

Evans, 514 U.S. 1 (1995). The exclusionary rule does not require suppression of evidence seized 

incident to an arrest based on an outstanding arrest warrant in a police computer, despite the fact 

the warrant was quashed 17 days earlier. Court personnel were responsible for the inaccurate 

computer record, because they failed to report that the warrant had been quashed. 

a) Arizona v. Evans rule expanded in Herring v. United States, 129 S. Ct 695 (2009). 

Exclusionary rule does not apply when police officers rely on arrest warrant from a different 

county that had been recalled, but never removed from a shared computer database due to 

negligence by other county’s police officers. Exclusionary rule has no deterrent value when 

police mistakes are the result of negligence, rather than deliberate violations or “systemic 

error or disregard of constitutional requirements.” 

9. But cf. United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996). Anticipatory search of e-mail 

by online company, at behest of government and prior to service of warrant shows “no reliance 

on the language of the warrant for the scope of the search.” Thus, good faith exception was not 

applicable. Evidence suppressed. 

D. Exception: Independent Source. 

1. General rule. Evidence discovered through a source independent of the illegality is
 

admissible.
 

a) Murray v. United States, 487 U.S. 533 (1988). Police illegally entered warehouse 

without warrant and saw marijuana. Police left warehouse without disturbing evidence and 

obtained warrant without telling judge about earlier illegal entry. Evidence was admissible 

because it was obtained with warrant untainted by initial illegality. 

b) Rationale. Police should not be put in worse position than they would have been in 

absent their improper conduct. 

2. Evidence obtained through independent and voluntary acts of third parties will render 

evidence admissible under independent-source doctrine. See United States v. Fogg, 52 M.J. 144, 

151 (C.A.A.F. 1999) (discussing independent-source doctrine as alternative basis for not invoking 

the exclusionary rule). 

3. Search based on both legally and illegally obtained evidence. United States v. Camanga, 38 

M.J. 249 (C.M.A. 1993). Independent source doctrine applied where affidavit supporting search 

authorization contained both legally and illegally obtained evidence. After excising illegal 

information, court found remaining information sufficient to establish probable cause. 

4. Mil. R. Evid. 311(e)(2). Evidence challenged as derived from an illegal search or seizure 

may be admitted if the military judge finds by a preponderance of evidence that it was not 

obtained as a result of the unlawful search or seizure. 

E. Exception: Inevitable Discovery. 

1. General rule. Illegally obtained evidence is admissible if it inevitably would have been 

discovered through independent, lawful means. See Mil. R. Evid. 311(b)(2). 

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a) Nix v. Williams, 467 U.S. 431 (1984). Accused directed police to murder victim’s body 

after illegal interrogation. Body was admissible because it would have inevitably been 

discovered; a systematic search of the area where the body was found was being conducted 

by 200 volunteers. 

b) Rationale. The police should not benefit from illegality, but should also not be put in 

worse position. 

2. Examples: 

a) United States v. Kozak, 12 M.J. 389 (C.M.A. 1982). Illegal search of train station locker 

and seizure of hashish, which exceeded authority to wait for accused to open locker and then 

apprehend him, did not so taint apprehension of accused as to make subsequent seizure of 

drugs after accused opened locker inadmissible. Drugs would have been inevitably 

discovered. 

b) United States v. Carrubba, 19 M.J. 896 (A.C.M.R. 1985). Evidence found in trunk of 

accused’s car admissible despite invalid consent to search. Evidence inevitably would have 

been discovered as police had probable cause and were in process of getting search 

authorization. 

c) United States v. Kaliski, 37 M.J. 105 (C.M.A. 1993). Inevitable discovery doctrine 

should be applied to witness testimony only if prosecution establishes witness is testifying of 

her own free will, independent of illegal search or seizure. Testimony of accused’s partner in 

sodomy should have been suppressed where she testified against accused only after police 

witnessed sodomy during illegal search. 

d) Computers – Inevitable discovery is a commonly argued exception in otherwise unlawful 

computer searches. See United States v. Wallace, 66 M.J. 5 (C.A.A.F. 2008) (finding results 

of unlawful search admissible, but with only three judges finding inevitable discovery as the 

basis for admissibility); United States v. Osorio, 66 M.J. 632 (A.F. Ct. Crim. App. 2008) 

(finding forensic examiner’s search of computer unlawful because it went beyond the scope 

of the warrant and refusing to allow inevitable discovery exception based on facts of the 

case); United States v. Hoffman, No. 15-0361 (C.A.A.F. 2015) (finding that record must 

demonstrate government was actively pursuing leads that would have led to the “inevitable 

discovery” at the time “when the illegality occurred.”) 

3. Distinguish between “independent source” and “inevitable discovery.” 

a) Independent source deals with facts. Did police in fact find the evidence independently 

of the illegality? 

b) Inevitable discovery deals with hypotheticals. Would the police have found the evidence 

independently of the illegal means? 

F. Exception: Attenuation of Taint. 

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1. General rule. Evidence that would not have been found but for official misconduct is 

admissible if the causal connection between the illegal act and the finding of the evidence is so 

attenuated as to purge that evidence of the primary taint. See Wong Sun v. United States, 371 

U.S. 471, 484-87 (1963) (holding that the unlawful arrest did not taint subsequent confession 

where it was made after his arraignment, release on own recognizance, and voluntary return to the 

police station several days later). See also U.S. v. Conklin, 63 M.J. 333 (C.A.A.F. 2006) which 

establishes three factors to determine whether an accused’s consent was an independent act of 

free will, breaking the causal chain between the consent and a prior unconstitutional search: (1) 

the temporal proximity of the illegal search and the consent; (2) the presence of intervening 

circumstances; and (3) the purpose and the flagrancy of the initial search. See also U.S. v. Jones, 

64 M.J. 596 (A. Ct. Crim. App., 2007). 

2. United States v. Rengel, 15 M.J. 1077 (N.M.C.M.R. 1983). Even if accused was illegally 

apprehended, later seizure of LSD from him was attenuated because he had left the area and was 

trying to get rid of drugs at the time of the seizure. 

3. But see Taylor v. Alabama, 457 U.S. 687, 691 (1982). Defendant was arrested without 

probable cause, repeatedly questioned by police who took fingerprints and put him in line-up 

without counsel present. Confession was obtained six hours after arrest was inadmissible. 

4. Mil. R. Evid. 311(e)(2). Evidence challenged as derived from an illegal search or seizure 

may be admitted if the military judge finds by a preponderance of evidence that it was not 

obtained as a result of the unlawful search or seizure. 

G. Exception: Impeachment. 

1. Illegally obtained evidence may be used to impeach accused’s in-court testimony on direct 

examination or to impeach answers to questions on cross-examination. United States v. Havens, 

44 U.S. 962 (1980). Defendant’s testimony on direct that he did not know his luggage had a Tshirt that was being used for smuggling cocaine allowed admissibility of illegally obtained T-shirt 

on cross-examination to impeach defendant’s credibility. See also Walder v. United States, 347 

U.S. 62 (1954). 

2. Mil. R. Evid. 311(b)(1). Evidence that was obtained as a result of an unlawful search or 

seizure may be used to impeach by contradiction the in-court testimony of the accused. 

VIII. APPENDIX A: SECTION III DISCLOSURE 

UNITED STATES ) 

) Fort Blank, Missouri 

v. ) 

) DISCLOSURE OF 

William Green ) SECTION III EVIDENCE 

Private (E-1), U.S. Army ) 

A Co., 1st Bn, 13th Inf. ) 22 July 200X 

8th Inf. Div. (Mech) ) 

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Pursuant to Section III of the Military Rules of Evidence, the defense is hereby notified: 

1. Rule 304(d)(1). There are (no) relevant statements, oral or written, by the accused in this case, 

presently known to the trial counsel (and they are appended hereto as enclosure ___). 

2. Rule 311(d)(1). There is (no) evidence seized from the person or property of the accused or 

believed to be owned by the accused that the prosecution intends to offer into evidence against the 

accused at trial (and it is described with particularity in enclosure ____) (and it is described as follows: 

_________________________________________________________________). 

3. Rule 321(d)(1). There is (no) evidence of a prior identification of the accused at a lineup or other 

identification process which the prosecution intends to offer against the accused at trial (and it is 

described with particularity in enclosure ____) (and it is described as follows: 

_____________________________________________________). 

A copy of this disclosure has been provided to the military judge. 

PETER MUSHMAN 

CPT, JA 

Trial Counsel 

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IX. APPENDIX B: GUIDE TO ARTICULATING PROBABLE CAUSE 

1. Probable cause to authorize a search exists if there is a reasonable belief, based on facts, that the 

person or evidence sought is at the place to be searched. Reasonable belief is more than mere suspicion. 

Witness or source should be asked three questions: 

A. What is where and when? Get the facts! 

1. Be specific: how much, size, color, etc. 

2. Is it still there (or is information stale)? 

a) If the witness saw a joint in barracks room two weeks ago, it is probably gone; the 

information is stale. 

b) If the witness saw a large quantity of marijuana in barracks room one day ago, probably 

some is still there; the information is not stale. 

B. How do you know? Which of these apply? 

1. “I saw it there.” Such personal observation is extremely reliable. 

2. “He [the suspect] told me.” Such an admission is reliable. 

3. “His [the suspect’s] roommate/wife/ friend told me.” This is hearsay. Get details and call in 

source if possible. 

4. “I heard it in the barracks.” Such rumor is unreliable unless there are specific corroborating 

and verifying details. 

C. Why should I believe you? Which of these apply? 

1. Witness is a good, honest soldier; you know him from personal knowledge or by reputation 

or opinion of chain of command. 

2. Witness has given reliable information before; he has a good track record (CID may have 

records). 

3. Witness has no reason to lie. 

4. Witness has truthful demeanor. 

5. Witness made statement under oath. (“Do you swear or affirm that any information you give 

is true to the best of your knowledge, so help you God?”) 

6. Other information corroborates or verifies details. 

7. Witness made admission against own interests. 

2. The determination that probable cause exists must be based on facts, not only on the conclusion 

of others. 

3. The determination should be a common sense appraisal of the totality of all the facts and 

circumstances presented. 

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CHAPTER 27
 

SELF-INCRIMINATION 

I. Background 

II. Fifth Amendment & Miranda 

III. Sixth Amendment 

IV. Article 31, UCMJ 

V. Rights Warnings Chart 

VI. Effects of Implementing of Rights 

VII. Waiver of Rights 

VIII. Voluntariness 

IX. Admitting Confessions Made After Improper Police Conduct 

X. The Exclusionary Rule 

XI. Mention of Invocation 

XII. Procedure 

XIII. Immunity 

XIV. Conclusion 

Open confession is good for the soul. 

- Old Scottish Proverb 

I. BACKGROUND 

A. Introduction. In the military, the law of self-incrimination embraces Article 31, UCMJ; the 

Fifth Amendment; the Sixth Amendment; and, the voluntariness doctrine. Each source of law 

provides unique protections, triggered by distinct events. When analyzing a self-incrimination issue, 

therefore, it is imperative to categorize the analysis. First, determine the relevant source or sources of 

law in issue. Next, evaluate the situation and decide if the protections afforded under each particular 

source of law have been triggered. If protections have been triggered, determine if there has been a 

violation of those protections. Typically, a challenge to a confession involves more than one source 

of self-incrimination law, and several steps of analysis. The confession or admission is admissible 

when the rights afforded under each source of applicable law have been observed. 

B. Sources of law. 

1. The Fifth Amendment. 

“No person . . . shall be compelled in any criminal case to be a witness against 

himself . . . .” 

2. Article 31(a), UCMJ. 

“No person subject to this chapter may compel any person to incriminate himself 

or to answer any question the answer to which may tend to incriminate him.” 

3. The Sixth Amendment. 

“In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of 

Counsel for his defence.” 

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4. The Voluntariness Doctrine. 

Looking at the totality of the circumstances, was the confession the product of an essentially free 

and unconstrained choice by its maker, or was the accused’s will overborne and his capacity for 

self-determination critically impaired. Culombe v. Connecticut, 367 U.S. 568, 602 (1961). 

5. The collected law of Privilege Against Self-Incrimination (PASI) principles, statutes, and 

decisions is embodied in the MCM at Mil. R. Evid. 301, 304-305. 

C. Definitions. Mil. R. Evid. 304(c). 

1. Confession: “A ‘confession’ is an acknowledgement of guilt.” 

2. Admission: “An ‘admission’ is a self-incriminating statement falling short of an 

acknowledgment of guilt, even if it was intended by its maker to be exculpatory.”
 

D. Scope of the protection. 

1. Standard for protection. 

Mil. R. Evid. 301(a): “. . . evidence of a testimonial or communicative nature.” 

“Article 31, like the Fifth Amendment, focuses on testimonial compulsion.” 

United States v. Williams, 23 M.J. 362, 366 (C.M.A. 1987). 

2. Applying the standard. 

a. Oral or written statements are generally protected. 

Pennsylvania v. Muniz, 496 U.S. 582 (1990). Drunk driving suspect’s 

slurred speech and other evidence showing his lack of muscular 

coordination constituted nontestimonial and, therefore, admissible 

aspects of his unwarned responses to police questioning. In contrast, the 

suspect’s answer to police questioning about the date of his sixth 

birthday was testimonial and should have been suppressed. “Whenever a 

suspect is asked for a response requiring him to communicate an express 

or implied assertion of fact or belief, the suspect confronts the ‘trilemma’ 

of truth, falsity, or silence and hence the response (whether based on 

truth or falsity) contains a testimonial component.” Id. at 597. 

b. Verbal acts (physical act which is the equivalent of speaking) are generally protected. 

(1) United States v. Whipple, 4 M.J. 773 (C.G.C.M.R. 1978). The accused’s verbal 

act of handing over drugs in response to officer’s request was found to be a protected 

“statement.” 

(2) Fisher v. United States, 425 U.S. 391 (1976). Accounting documents used to 

prepare tax returns were not protected because they were prepared voluntarily, long 

before any prosecution was being considered. Additionally, the act of turning over the 

documents was not testimonial because it conveyed no factual information that the 

government did not already have. 

(3) United States v. Hubbell, 530 U.S. 27 (2000). The Supreme Court held that the 

act of turning over documents in response to a subpoena duces tecum and a grant of 

immunity was a testimonial act because the prosecutor did not know of the location or 

even existence of the documents. The defendant had to use mental and physical steps to 

inventory the documents, and his production of the documents communicated their 

existence, possession, and authenticity. 

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(4) United States v. Swift, 53 M.J. 439 (C.A.A.F. 2000). A divorce decree turned 

over by the accused was not testimonial evidence because it was voluntarily prepared 

before he was ordered to produce it by his command. Additionally, the act of turning 

over the decree was not testimonial because the existence and location of the document 

was a “foregone conclusion” and added “little or nothing to the sum total of the 

Government’s information.” Finally, the Court stated that even if the act was testimonial, 

it fell under the “required records exception,” since the decree was maintained for 

“legitimate administrative purposes.” 

c. Physical characteristics are not protected. 

(1) Dental Impressions for bite mark comparisons not protected. United States v. 

Martin, 9 M.J. 731 (N.M.C.M.R. 1979), aff’d on other grounds, 13 M.J. 66 (C.M.A. 

1982). 

(2) Handwriting sample not protected; dicta on voice sample. United States v. 

Harden, 18 M.J. 81 (C.M.A. 1984). 

(3) Voice samples not protected. United States v. Akgun, 24 M.J. 434 (C.M.A. 

1987). 

(4) Body fluids not protected. 

(a) Blood sample is not testimonial. United States v. Armstrong, 9 M.J. 374 

(C.M.A. 1980). 

(b) Urine specimen not protected. Murray v. Haldeman, 16 M.J. 74 (C.M.A. 

1983). 

(c) Note however, that under Mil. R. Evid. 304(h)(4), if an accused refuses a 

lawful order to submit for chemical analysis a sample of his or her blood, breath, 

urine, or other body substance, evidence of such refusal may be admitted into 

evidence on: 

(i) A charge of violating an order to submit such a sample; or, 

(ii) Any other charge on which the results of the chemical analysis would 

have been admissible. 

d. Identification is generally not protected by PASI. Hiibel v. Sixth Judicial District 

Court of Nevada, Humboldt County, 542 U.S. 177 (2004). A request for identification during 

a Terry stop did not fall within the scope of protection afforded by the Fifth Amendment and 

Miranda. The Court held that to qualify as incriminating, the individual must reasonably 

believe that his communication could be used in a criminal prosecution against him or could 

provide a link to other evidence that might be so used. Providing personal identification is 

normally insignificant, and would be incriminating in only the most unusual circumstances. 

In this case, the defendant failed to show that his refusal to comply with the officer’s requests 

was based on a real fear that his identity would incriminate him or lead to evidence that could 

be used against him. However, the Court left open the possibility that there may be a 

circumstance where furnishing identification might lead to evidence needed to convict the 

witness of a separate offense, and therefore be protected by the Fifth Amendment. See also 

Pennsylvania v. Muniz, 496 U.S. 582 (1990); United States v. Tubbs, 34 M.J. 654 (A.C.M.R. 

1992) (questioning to identify a suspect during “booking” process does not require a 

testimonial response). 

e. Duty to report — partially protected. PASI is violated if a regulatory duty to report 

misconduct will directly lead to, or is, evidence of one’s own misconduct. 

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(1) United States v. Heyward, 22 M.J. 35 (C.M.A. 1986). Regulation requiring 

Airmen to report drug abuse of other Airmen is valid, but the PASI protects against 

conviction for dereliction of duty where “at the time the duty to report arises, the witness 

to drug abuse is already an accessory or principal to the illegal activity that he fails to 

report . . . .” 

(2) United States v. Sanchez, 51 M.J. 165 (C.A.A.F. 1999). Conviction for 

misprision of a serious offense upheld where accused failed to report an aggravated 

assault. Court said if accused had immediately reported the offense, he would not have 

committed misprision. 

(3) United States v. Medley, 33 M.J. 75 (C.M.A. 1991). Court declined to extend 

Heyward exception to cases where a social relationship between drug users is so 

interrelated that it would be impossible to reveal one incident without potentially 

incriminating the accused on a separate incident. See also United States v. Bland, 39 M.J. 

921 (N.M.C.M.R. 1994). 

(4) United States v. Hammond, 60 M.J. 512 (A. Ct. Crim. App. 2004). The Army 

court held that a conviction of fleeing the scene of an intentional collision does not 

violate the Fifth Amendment or Article 31, UCMJ. Balancing “the important 

governmental purpose in securing . . . information against the right of the servicemember 

to be protected from compulsory self-incrimination,” the service court found that 

“although staying at the scene may lead to inquiry that in turn leads to arrest and charge, 

those developments depend on different factors and independent evidence.” 

(5) United States v. Castillo, 74 M.J. 160 (C.A.A.F. 2015). The Court that the 

services could require servicemembers to report arrests by civilian authorities because the 

regulations requiring it is not punitive. In order to qualify for PASI, a communication 

must be testimonial, incriminating, and compelled). 

II. FIFTH AMENDMENT & MIRANDA

 “No person . . . shall be compelled in any criminal case to be a witness against himself . . .” U.S. 

Const. amend. V.

 In 1966, with the case Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that prior to 

any custodial interrogation, a subject must be warned that he has a right: (1) to remain silent, (2) to be 

informed that any statement made may be used as evidence against him, and (3) to the presence of an 

attorney. The goal of Miranda was to put in place a procedural safeguard that would counter the 

inherently coercive environment of a police-dominated, incommunicado interrogation. In 1967, the Court 

of Military Appeals applied Miranda to military interrogations in United States v. Tempia, 37 C.M.R. 249 

(C.M.A. 1967). In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court reaffirmed that 

Miranda is a constitutional decision that the Congress is not permitted to “overrule.” The Supreme Court 

also implicitly reaffirmed all of the exceptions to Miranda. 

The trigger for Miranda warnings is “custodial interrogation.” The test for custody is an objective 

examination, from the perspective of the subject, into whether there was a formal arrest or restraint or 

other deprivation of freedom of action in any significant way. The test for an interrogation is also an 

objective test, but from the perspective of the person asking the questions, i.e., the police officer. The test 

is whether the comments made are those reasonably likely to elicit an incriminating response. For both, 

the subjective views harbored by either the interrogating officer or the person being questioned are 

irrelevant. 

A. The Miranda Warnings. 

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Miranda v. Arizona, 384 U.S. 436 (1966). Prior to any custodial interrogation, a subject 

must be warned: 

1. That he/she has a right to remain silent; 

2. That any statement made may be used as evidence against him/her; and, 

3. That he/she has a right to the presence of an attorney, either retained or appointed. 

Florida v. Powell, 130 S.Ct. 1195 (2010). Miranda did not require specific language to be used. 

As long as the warnings reasonably convey the three warnings above, then the warnings will be 

held to comply with Miranda. 

B. Application to the Military. 

1. Mil. R. Evid. 305(b)(2). “When evidence of a testimonial or communicative nature . . . is 

sought or is a reasonable consequence of an interrogation, an accused or a person suspected of an 

offense is entitled to consult with counsel . . . .” 

2. United States v. Tempia, 37 C.M.R. 249 (C.M.A. 1967). Miranda applies to military 

interrogations. 

C. The Miranda Trigger. 

The requirement for Miranda warnings is triggered by initiation of custodial 

interrogation. 

1. What is the test for custody? 

a. A person is in custody if he is taken into custody, could reasonably believe himself to 

be in custody, or otherwise deprived of his freedom of action in any significant way. See Mil. 

R. Evid. 305(b)(3). 

b. Custody is evaluated based on an objective test from the perspective of a 

“reasonable” subject. 

c. Stansbury v. California, 511 U.S. 318 (1994). In 1994, the Supreme Court 

reaffirmed that the test for custody under Miranda is an objective examination of whether 

there was formal arrest or restraint on freedom of movement of the degree associated with a 

formal arrest. The subjective views harbored by either the interrogating officer or the person 

being questioned are irrelevant. 

Why? It was the coercive aspect of custodial interrogation, and not the strength or content of 

the government’s suspicions at the time of the questioning, which led to imposition of the 

Miranda requirements. 

d. United States v. Miller, 46 M.J. 80 (C.A.A.F. 1997). The CAAF applied the 

following “mixed question of law and fact” analysis in determining custody: 1) what were 

the circumstances surrounding the interrogation (question of fact); and, 2) given those 

circumstances, would a reasonable person have felt he or she was not at liberty to terminate 

the interrogation and leave (question of law). Applying this objective standard, the court 

found no custody where the accused (1) was not under formal arrest; (2) voluntarily accepted 

an invitation to talk with an officer about the alleged misconduct; (3) voluntarily participated 

in the interview; (4) was treated cordially by the officer; and, (5) was left alone in the station 

house for a short period of time. 

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e. United States v. Miller, 48 M.J. 49 (C.A.A.F. 1998). After receiving a report about a 

gang robbery, an MP detained the accused to ascertain his identity and whereabouts during 

the evening. The CAAF determined that Miranda warnings were not required because the 

accused was not in custody. [Note: This is a different Miller than the case above, 46 M.J. 

80.] 

f. United States v. Chatfield, 67 M.J. 432 (C.A.A.F. 2009). The CAAF cited Thompson 

v. Keohane, 516 U.S. 99 (1995), for the proposition that two inquiries are necessary to 

determine custody: 1) what are the circumstances surrounding the interrogation; and, 2) 

would a reasonable person in those circumstances have felt that he or she was not at liberty to 

terminate the interrogation. Despite the fact that questioning occurred in the station house, 

the CAAF held that appellant appeared there voluntarily, that the interrogation occurred in 

the detective’s office instead of an interrogation room, and the duration of the interrogation 

all point to the fact that a reasonable person would not find that the appellant was in custody. 

No Miranda warnings were required. 

2. Situation and location factors for determining custody. 

a. Roadside stops. 

Berkemer v. McCarty, 468 U.S. 420 (1984). Highway patrol stopped a 

car that was weaving and, without giving Miranda warnings, asked the 

driver if he had used intoxicants. Court found no custody for Miranda 

purposes because: (1) motorist expects detention will be brief; and, (2) 

stop is in “public” and less “police dominated.” “[T]he safeguards 

prescribed by Miranda become applicable as soon as a suspect’s freedom 

of action is curtailed to a ‘degree associated with formal arrest.’” The 

initially uncommunicated decision by the police to arrest the driver does 

not bear on whether the defendant is “in custody.” See also United 

States v. Rodriguez, 44 M.J. 766 (N-M. Ct. Crim. App. 1996) 

(questioning of suspect about illegal gun sales during roadside stop was 

noncustodial), aff’d, 60 M.J. 239 (C.A.A.F. 2004). 

b. In the bedroom. 

Orozco v. Texas, 394 U.S. 324 (1969). Suspect was “in custody” for 

Miranda purposes where he was questioned in his bedroom and an 

officer testified the suspect was not free to go, but was “under arrest.” 

c. Age is not a factor. 

Yarborough v. Alvarado, 541 U.S. 652 (2004). The Supreme Court 

overruled the 9th Circuit’s determination that Miranda required courts to 

consider a defendant’s age and his lack of a prior criminal history in 

determining custody. The Court noted that Miranda established an 

objective test for custody. Age and prior criminal experience are 

individual characteristics of a suspect, which if required for a custody 

determination, would create a subjective test. 

d. Military status as a factor in custody evaluation. 

United States v. Jordan, 44 C.M.R. 44 (C.M.A. 1971). Questioning by a 

superior is not per se custodial, but “questioning by a commanding 

officer or military police or investigators at which the accused is given an 

Article 31 warning, strongly suggests that an accused is also entitled to a 

right to counsel warning under Miranda and Tempia.” 

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e. Coercive environment. 

Illinois v. Perkins, 496 U.S. 292 (1990). “[A]n undercover law 

enforcement officer posing as a fellow inmate need not give Miranda 

warnings to an incarcerated suspect before asking questions that may 

elicit an incriminating response” about an uncharged offense. “Miranda 

forbids coercion, not strategic deception by taking advantage of a 

suspect’s misplaced trust in one he supposes to be a fellow prisoner.” 

3. Interrogation. 

Mil. R. Evid. 305(b)(2). “‘Interrogation’ includes any formal or informal 

questioning in which an incriminating response either is sought or is a reasonable 

consequence of such questioning.” Note: the term “interrogation” has the same 

meaning under the Fifth Amendment as it does for Article 31(b) (see infra Sec. 

IV. G. 3. [When must warnings be given?] of this outline). 

D. The “Public Safety” Exception. 

New York v. Quarles, 467 U.S. 649 (1984). After apprehending a suspect with an empty shoulder 

holster in a grocery store, officer did not read rights warnings, but asked where the gun was. The 

Court held that “overriding considerations of public safety justify the officer’s failure to provide 

Miranda warnings before he asked questions devoted to locating the abandoned weapon.” 

E. Who can invoke the Fifth Amendment Privilege? 

1. Ohio v. Reiner, 532 U.S. 17 (2001). The Supreme Court held that an individual could 

invoke his Fifth Amendment rights even if he believed he was innocent. All that is necessary for 

a valid invocation of the privilege against self-incrimination is that it be “evident from the 

implications of the question, in the setting in which it is asked, that a responsive answer to the 

question or an explanation of why it cannot be answered might be dangerous because injurious 

disclosure could result.” The Court further recognized “that truthful responses of an innocent 

witness, as well as those of a wrongdoer, may provide the government with incriminating 

evidence from the speaker’s own mouth.” 

2. Hoffman v. United States, 341 U.S. 479 (1951). Privilege not only extends to answers 

that would in themselves support a conviction, but also apply to those responses which “would 

furnish a link in the chain of evidence needed to prosecute the claimant.” 

3. McKune v. Lile, 536 U.S. 24 (2002). As part of a sexual abuse treatment program, 

qualifying inmates can be required to complete and sign an “Admission of Responsibility” form, 

in which they accept responsibility for the crimes for which they have been sentenced, and 

complete a sexual history form detailing all prior sexual activities, or face a reduction of their 

prison privileges for noncompliance. The Supreme Court held that the state had a legitimate 

penological interest in rehabilitating inmates, and the de minimus adjustment of prison restrictions 

served this proper prison goal. See also United States v. McDowell, 59 M.J. 662 (A.F. Ct. Crim. 

App. 2003) (holding that a naval brig’s policy of encouraging participation in its sex offender 

treatment program and conditioning relatively minor privileges on such participation does not 

violate a prisoner’s Fifth Amendment privilege against self-incrimination). 

III. SIXTH AMENDMENT 

“In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of 

Counsel for his defence.” U.S. Const. amend. VI. 

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The Miranda counsel warning requirement must be distinguished from the Sixth Amendment 

counsel warning.1 Whereas Miranda concerns assistance of counsel in determining whether to exercise 

the PASI, under the Sixth Amendment an individual has the right to assistance of counsel for his defense 

in all criminal prosecutions. Although an individual’s exercise of his Sixth Amendment right may have 

the ancillary effect of invoking the PASI, the trigger and scope of the rights are different. Under the Sixth 

Amendment, a right to counsel is triggered by initiation of the adversarial criminal justice process. In the 

civilian sector, the trigger point is reached upon indictment. In the military, it is triggered by the preferral 

of charges. 

A. Under Mil. R. Evid. 305(c)(3), the Sixth Amendment right to counsel warning is required for 

interrogations by a person subject to the code acting in a law enforcement capacity, conducted 

subsequent to preferral of charges (not the imposition of pretrial restraint under RCM 304), where the 

interrogation concerns the offenses or matters that were the subject of the preferral. 

B. Sixth Amendment provisions are limited to law enforcement activity. 

There was no violation of the Sixth Amendment where, following preferral, a state social 

services worker who had an independent duty under state law to investigate child abuse 

interviewed the accused. The social worker never contacted the government before or 

after the interview until subpoenaed. If a non-law enforcement official is not serving the 

“prosecution team,” he is not a member of the “prosecutorial forces of organized 

society,” and thus is not barred from contacting an accused based on a prior Sixth 

Amendment invocation. United States v. Moreno, 36 M.J. 107 (C.M.A. 1992). 

C. Neither custody nor “coercive influences” are required to trigger Sixth Amendment
 

protections.
 

1. Once formal proceedings begin, police may not “deliberately elicit” statements from an 

accused without an express waiver of the right to counsel. Mil. R. Evid. 305(g). This is true 

whether the questioning is in a custodial setting by persons known by the accused to be police, 

Brewer v. Williams, 430 U.S. 387 (1977); surreptitiously by a co-accused, Maine v. Moulton, 474 

U.S. 159 (1985); through police monitored radio transmissions, Massiah v. United States, 377 

U.S. 201 (1964); or, when police ask questions of an indictee about his drug use and affiliations, 

Fellers v. United States, 540 U.S. 519 (2004). 

2. Mere presence as a listening post does not violate Sixth Amendment rights. Kuhlmann v. 

Wilson, 477 U.S. 436 (1986) (defendant’s cellmate instructed only to listen and report). 

However, if an informant initiates contact and conversation after indictment for express purpose 

of gathering information about charged activities, statements made by defendant are obtained in 

violation of accused’s Sixth Amendment right to counsel and may not be used in government’s 

case-in-chief. United States v. Henry, 447 U.S. 264 (1980); Kansas v. Ventris, 556 U.S. 586 

(2009); United States v. Langer, 41 M.J. 780 (A.F. Ct. Crim. App. 1995). 

D.	 Questioning must relate to the charged offense. 

1 Issuing Miranda warnings has been found sufficient to satisfy the Sixth Amendment right to counsel warning 

requirement. Patterson v. Illinois, 487 U.S. 285 (1988). See also Montejo v. Louisiana, 556 U.S. 778 (2009). 

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Texas v. Cobb, 532 U.S. 162 (2001). Appellant’s Sixth Amendment right to counsel was not violated 

when police questioned him, without his counsel being present, about a murder that occurred during a 

burglary, after he had previously been arraigned for the underlying burglary offense. The Supreme 

Court stated that the Sixth Amendment right to counsel attaches only to charged offenses and to those 

offenses that would be “considered the same offense under the Blockburger2 test,” even if not 

formally charged. 

IV. ARTICLE 31, UCMJ 

While the plain meaning of the statute would appear to answer these questions, 25 years 

of litigation and judicial interpretation have made it clear that virtually nothing involving Article 

31 has a “plain meaning.”3 

-Fredric Lederer, 1976 

A. Introduction. 

In 1950, Congress enacted Article 31(b) to dispel a service member’s inherent compulsion to 

respond to questioning from a superior in either rank or position. As a result, the protections under 

Article 31(b) are triggered when a suspect or an accused is questioned (for law enforcement or 

disciplinary purposes) by a person subject to the UCMJ who is acting in an official capacity, and 

perceived as such by the suspect or accused. Questioning refers to any words or actions by the questioner 

that he should know are reasonably likely to elicit an incriminating response. A suspect is a person who 

the questioner believes, or reasonably should believe, committed an offense. An accused is a person 

against whom a charge has been preferred. 

B. Content of the warning. See also Mil. R. Evid. 305(c)(1). 

A person subject to the code who is required to give warnings under Article 31(b) may 

not interrogate or request any statement from an accused or suspect without first 

informing him/her: 

1. of the nature of the accusation; 

2. that he/she has the right to remain silent; and, 

3. that any statement he/she does make may be used as evidence against him/her. 

(Note: Unlike Miranda warnings, there is no right to counsel.) 

C. General notice requirement. 

Article 31(b) may be satisfied by a general recitation of the three elements described 

above. For example, Article 31(b) was satisfied when state child protective services 

social worker advised the accused: he was suspected of sexually abusing his daughter; he 

did not have to speak with her or answer any questions; and, anything he said could be 

repeated by her in court if subpoenaed. United States v. Kline, 35 M.J. 329 (C.M.A. 

1992). 

D. Nature of the accusation. 

2 Blockburger v. United States, 284 U.S. 299 (1932). “[W]here the same act or transaction constitutes a violation of 

two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is 

whether each provision requires proof of a fact which the other does not.” 

3 Captain Fredric I. Lederer, Rights Warnings in the Armed Services, 72 MIL. L. REV. 1, 11 (1976). 

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1. An individual must be provided a frame of reference for the impending interrogation by 

being told generally about all known offenses. “It is not necessary to spell out the details . . . with 

technical nicety.” Informing the accused that he was suspected of larceny of ship’s store funds 

was held sufficient to cover wrongful appropriation of store funds during an earlier period. 

United States v. Quintana, 5 M.J. 484 (C.M.A. 1978). See also United States v. Rogers, 47 M.J. 

135 (C.A.A.F. 1997) (informing of “sexual assault” of one victim held sufficient to orient the 

accused to the offense of rape of a separate victim that occurred 4 years earlier). 

2. United States v. Kelley, 48 M.J. 677 (A. Ct. Crim. App. 1998). Advising the accused that 

he was going to be questioned about rape implicitly included the offense of burglary. The ACCA 

determined that the burglary was a part of the accused’s plan to commit the rape. Therefore, by 

informing the accused that he was suspected of rape, he was sufficiently oriented to the particular 

incident, even though it involved several offenses. 

3. Whether the stated warning sufficiently provided notice of the accusation is tested on the 

basis of the totality of the circumstances. For example, in United States v. Erie, 29 M.J. 1008 

(A.C.M.R. 1990), a rights warning for suspected use of hashish was judged sufficient to cover 

distribution of hashish and cocaine. The court found that the rights warning oriented accused to 

that fact that the investigation was focused on controlled substances. See also United States v. 

Pipkin, 58 M.J. 358 (C.A.A.F. 2003) (warning covering distribution of a controlled substance was 

sufficient to cover conspiracy to distribute). 

4. The requirement to advise a suspect/accused concerning the nature of the accusation is a 

continuing responsibility. If, during the course of an interrogation, the questions will address 

offenses not described in the initial warning, an additional warning must be provided. For 

example, in United States v. Huelsman, 27 M.J. 511 (A.C.M.R. 1988), an initial warning that the 

accused was suspected of “larceny by uttering worthless checks” was not sufficient to cover 

offenses involving possession and distribution of marijuana. When the agent learned that the 

reason for writing the checks related to drugs, the accused became a suspect for drug offenses and 

was entitled to an additional Article 31(b) warning. But see United States v. Kelley, 48 M.J. 677 

(A. Ct. Crim. App. 1998) (investigators did not have to halt the interrogation and renew rights 

warnings when the accused stated that he had provided false information. The questioning 

centered on the rape and the burglary, and not the false statements). 

5. United States v. Simpson, 54 M.J. 281 (C.A.A.F. 2000). Advising the appellant that he 

was suspected of indecent acts or liberties with a child was held sufficient to focus him toward 

the circumstances surrounding the event and to inform him of the general nature of the 

allegations, to include rape, indecent assault, and sodomy of the same child. When determining 

whether the nature of the accusation requirement has been met, the court will examine: whether 

the conduct is part of a continuous sequence of events; whether the conduct was within the frame 

of reference supplied by the warnings; and, whether the interrogator had previous knowledge of 

an unwarned offense. 

E. Right to remain silent. 

1. The main PASI aspect of the Article 31(b) warning is practically the same as its Miranda 

warning counterpart. 

2. The most significant area of concern regarding this prong of the warning is the occasional 

improper qualification of the PASI when the investigator recites the warning. In United States v. 

Allen, 48 C.M.R. 474 (A.C.M.R. 1974), the accused was advised he could remain silent only if he 

was in fact involved in the suspected misconduct. He was also told that if he knew who was 

involved in the robbery under investigation and remained silent, he could be found guilty. Both 

of these statements were held improper. A suspect has an “absolute right to silence.” 

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F. Statements may be used as evidence. 

1. The “use” aspect of the Article 31 warning is identical to its Miranda warning 

counterpart. 

2. As with the right to silence provision described above, problems with the “use” provision 

generally arise when interrogators accompany the warning with provisos or disclaimers 

concerning the prospective use of the subject’s statements. It is well settled that such comments 

may negate the validity of the entire warning. United States v. Hanna, 2 M.J. 69 (C.M.A. 1976) 

(subsequent assurance of confidentiality negates the effectiveness of otherwise proper Article 31 

warning; “[B]etween you and me, did you do it?”). 

G. Triggering the warning requirement. 

1. Statutory requirement. 

a. “No person subject to this chapter may interrogate, or request any statement from an 

accused or a person suspected of an offense without first informing . . . .” Article 31(b). 

b. The phrasing of Article 31(b) supplies a framework for analyzing situations which 

may trigger the Article 31 warning requirement.4 Beyond consideration of the content of the 

warning, the following questions must be considered: 

(1) Who must warn? 

(2) When must the warning be provided? 

(3) Who must be warned? 

2. Who must warn? 

a. The literal language of Article 31(b) seems to require warnings during any criminal 

interrogation of a suspect/accused by a person subject to the UCMJ. However, judicial 

interpretations have both expanded and contracted the scope of the statute’s literal language 

to conform to the practicalities of the military as well as the courts’ various views of the 

drafter’s intent. 

b. In the years following the enactment of the UCMJ, military courts applied both an 

“official questioning” test and a “position of authority” test to narrow the broad “[p]erson 

subject to this chapter” language of Article 31. Key elements of these tests were merged by 

the CMA in United States v. Duga, 10 M.J. 206 (C.M.A. 1981).5 

c. Failure to provide warnings when required could result in a violation of Article 98, 

Noncompliance with Procedural Rules. 

d. The current standard: 

4 This type of analysis was first suggested by Professor Maguire in 1958. Major Robert F. Maguire, The Warning 

Requirement of Article 31(b): Who Must do What to Whom and When?, 2 MIL. L. REV. 1 (1958). The analysis was 

examined and explained in light of Miranda and ten years of its progeny by Professor (then Captain) Lederer in 

1976. Captain Fredric I. Lederer, Rights Warnings in the Armed Services, 72 MIL. L. REV. 1 (1976). 

5 The foundation for what we now know as “the Duga test” was laid twenty-seven years earlier in United States v. 

Gibson, 14 C.M.R. 164 (C.M.A. 1954). In Gibson, the court also provided a review of Article 31’s purpose and the 

legislative history. 

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(1) In Duga, the CMA held Article 31(b) applies only to situations in which, because 

of military rank, duty, or other similar relationship, there might be subtle pressure on a 

suspect to respond to an inquiry. Accordingly, the court set forth a two-pronged test to 

determine whether a person is “a person subject to this chapter” for the purposes of 

Article 31. The points of analysis are: 

(a) Was the questioner subject to the Code acting in an official capacity in the 

inquiry or was the questioning based on personal motivation?; and, 

(b) Did the person questioned perceive the inquiry as involving more than a 

casual conversation? 

(2) The Duga version of the official questioning standard was further defined by the 

court in United States v. Loukas, 29 M.J. 385 (C.M.A. 1990). The Loukas court held that 

Article 31(b) warnings were not required prior to an aircraft crew chief’s questioning of a 

crew member about drug use, where the questions were limited to those needed to “fulfill 

operational responsibilities, and there was no evidence suggesting his inquiries were 

designed to evade constitutional or codal rights.” Now Article 31 “requires warnings 

only when questioning is done during an official law-enforcement investigation or 

disciplinary inquiry.”6 

e. Law enforcement or disciplinary inquiry: the Primary Purpose Test. 

(1) United States v. Cohen, 63 M.J. 45 (C.A.A.F. 2006). Air Force IG’s 

conversations with a servicemember filing a complaint extended beyond the boundaries 

necessary to fulfill his administrative duties and should have been proceeded by an 

Article 31 rights warning. While the IG’s responsibilities were primarily administrative, 

they were not exclusively so under the applicable Air Force Instructions. Under the 

circumstances of the case the IG had disciplinary responsibilities and should have 

suspected the complainant of an offense and advised him of his Article 31 rights prior 

eliciting incriminating statements from him. 

(2) United States v. Pittman, 36 M.J. 404 (C.M.A. 1993). Accused’s section leader, 

and friend, was required to escort him off-post. Unaware of the child abuse allegations, 

the escort asked the accused what was going on. Accused admitted hitting his stepson. 

Trial court held this questioning was motivated out of personal curiosity and not 

interrogation or a request for a statement within the meaning of Article 31(b). The CMA 

affirmed, citing Duga. See also United States v. Jones, 24 M.J. 367 (C.M.A. 1987); 

United States v. Williams, 39 M.J. 758 (A.C.M.R. 1994). 

(3) United States v. Guron, 37 M.J. 942 (A.F.C.M.R. 1993). Interviews by 

accounting and finance personnel to determine eligibility for pay and allowances, but not 

for purposes of disciplinary action or criminal prosecution, do not require Article 31 

warnings be given. 

6 Analysis of whether questioning is part of an official law enforcement investigation or disciplinary inquiry is 

governed by an objective test. An investigation is law enforcement or disciplinary when, based on all the facts and 

circumstances at the time of the interview, “the military questioner was acting or could reasonably be considered as 

acting in an official law enforcement or disciplinary capacity.” United States v. Good, 32 M.J. 105 (C.M.A. 1991). 

Dicta in both Loukas and Good indicate that when a military supervisor in the subject’s chain of command conducts 

the questioning, there is a rebuttable presumption that the questioning was done for disciplinary purposes. 

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(4) United States v. Bowerman, 39 M.J. 219 (C.M.A. 1994). Army doctor was not 

required to inform accused of Article 31 rights when questioning him about child’s 

injuries even though doctor thought child abuse was a distinct possibility.7 

(5) United States v. Dudley, 42 M.J. 528 (N-M. Ct. Crim. App. 1995). Statement by 

accused to psychiatrist was admissible, even though psychiatrist had not given accused 

Article 31 warnings and knew of charges against accused. Accused was brought to 

psychiatrist by investigator who feared that accused might be suicidal and the psychiatrist 

asked questions for diagnostic purposes in order to determine whether accused was a 

suicide risk. 

(6) United States v. Bell, 44 M.J. 403 (C.A.A.F. 1996). Article 31 requirement for 

warnings does not apply at trial or Article 32 investigations because they are “judicial 

proceeding[s]; not disciplinary or law enforcement tools within the context of Article 

31.” However, RCM 405(f)(7) requires that warnings be given to the accused at an 

Article 32 hearing. See also Mil. R. Evid. 301(b)(2) regarding the military judge 

obligation to provide witnesses warnings. 

(7) United States v. Moses, 45 M.J. 132 (C.A.A.F. 1996). Naval Criminal 

Investigative Service (NCIS) agents engaged in an armed standoff with the accused were 

not engaged in a law enforcement or disciplinary inquiry when they asked the accused 

what weapons he had inside the house. Rather, the questioning was considered 

negotiations designed to bring criminal conduct to an end peacefully. 

(8) United States v. Payne, 47 M.J. 37 (C.A.A.F. 1997). Defense Investigative 

Service (DIS) agents conducting background investigation were not engaged in law 

enforcement activities, therefore, they did not have to warn the accused of his rights 

under Article 31. See also United States v. Tanksley, 50 M.J. 609 (N-M. Ct. Crim. App. 

1999) (NCIS agents conducting background investigation). 

(9) United States v. Bradley, 51 M.J. 437 (C.A.A.F. 1999). A commander, 

questioning his Soldier about whether the Soldier had been charged with criminal 

conduct in order to determine whether the accused’s security clearance should be 

terminated, was not required to give Article 31(b) warnings, since the purpose of the 

questioning was not for law enforcement of disciplinary purposes. The CAAF 

recognized an “administrative and operational exception” that may overcome the 

presumption that “a superior in the immediate chain of command is acting in an 

investigatory or disciplinary role” when questioning a subordinate about misconduct. 

(10) United States v. Norris, 55 M.J. 209 (C.A.A.F. 2001). The appellant was friends 

with the family of the victim. When the father (E-7) of the victim asked the appellant (E4) about the relationship, he admitted that he had kissed and performed oral sex on her. 

The conversation lasted two hours, during which neither man referred to each other by 

rank. The court concluded that the victim’s father was not asking questions for a 

disciplinary or law enforcement purpose, but rather sought out the appellant to clarify the 

matter. 

7 See also United States v. Brown, 38 M.J. 696 (A.F.C.M.R. 1993); United States v. Baker, 29 C.M.R. 129 (C.M.A. 

1960) (doctor not required to read rights before questioning appellant during a physical about needle marks on his 

arms). 

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(11) United States v. Guyton-Bhatt, 56 M.J. 484 (C.A.A.F. 2002). A legal assistance 

attorney was required to give Article 31 warnings to a debtor of his client, where the 

attorney suspected the debtor of committing forgery, planned to pursue criminal action 

against the debtor as a way to help his client, and used the authority of his position when 

he called the debtor to gather information. The CAAF concluded that the legal assistance 

attorney was “acting as an investigator in pursuing this criminal action.” 

(12) United States v. Benner, 57 M.J. 210 (C.A.A.F. 2002). A chaplain was required 

to give warnings when he abandoned his clerical role and was acting solely as an Army 

officer. He did this when he breached the “communications to clergy” privilege by 

informing the appellant that he would have to report the appellant’s child sexual abuse 

incident to authorities if the appellant did not. 

(13) United States v. Smith, 56 M.J. 653 (A. Ct. Crim. App. 2001). President of 

prison’s Unscheduled Reclassification Board was not required to read Article 31 rights to 

an inmate prior to asking him if he would like to make a statement about his recent 

escape, since the purpose of the board was to determine if the inmate’s custody 

classification should be tightened. 

(14) Defense counsel are not required to read Article 31 rights when conducting 

interviews of a witness on behalf of their clients, even if he suspects the witness 

committed a criminal offense. TJAG’s PRC Opinion 90-2; United States v. Howard, 17 

C.M.R. 186 (C.M.A. 1954); United States v. Marshall, 45 C.M.R. 802 (N.M.C.M.R. 

1972); but see United States v. Milburn, 8 M.J. 110 (C.M.R 1979). 

f. Civilian interrogations. 

(1) General Rule. The plain language of the statute seems to limit the class of people 

who must provide Article 31(b) warnings to those who are subject to the UCMJ 

themselves. Mil. R. Evid. 305(b)(1) provides, however, that a “[p]erson subject to the 

code . . . includes a person acting as a knowing agent . . . .” Additionally, the courts have 

rejected literal application of the statute and provide instead that in those cases where 

military and civilian agents are working in close cooperation with each other for law 

enforcement or disciplinary purposes, civilian interrogators are “persons subject to the 

chapter” for the purposes of Article 31. 

(2) Tests. Civilian agents may have to provide Article 31 warnings when, under the 

“totality of the circumstances” they are either acting as “instruments” of military 

investigators, or where the military and civilian investigations have “merged.” See 

R.C.M. 305(f)(1). 

(a) The merger test: (1) Are there different purposes or objectives to the 

investigations?; and (2) Are the investigations conducted separately? Additionally, 

the test to determine the second prong is: (a) Was the activity coordinated between 

military and civilian authorities?; (b) Did the military give guidance or advice?; and, 

(c) Did the military influence the civilian investigation? 

(b) The instrumentality test: (1) Is the civilian agent employed by, or otherwise 

subordinate to, military authority?; (2) Is the civilian under the control, direction, or 

supervision of military authority?; and, (3) Did the civilian acted at the behest of 

military authority or, instead, had an independent duty to investigate?8 

8 United States v. Grisham, 16 C.M.R. 268 (C.M.A. 1954). 

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(3) United States v. Lonetree, 35 M.J. 396 (C.M.A. 1992). Civilian intelligence 

agents were not required to read Article 31 warnings to Marine suspected of espionage 

because (1) their investigation had not merged into an “indivisible entity” with the 

military investigation, and (2) the civilian investigators were not acting in furtherance of 

any military investigation or as an instrument of the military.9 

(4) United States v. Quillen, 27 M.J. 312 (C.M.A. 1988). A civilian PX detective 

was required to advise a Soldier suspected of shoplifting of his Article 31 rights before 

questioning him. The detective was an “instrument of the military” whose conduct in 

questioning the suspect was “at the behest of military authorities and in furtherance of 

their duty to investigate crime.” Furthermore, the suspect perceived the detective’s 

questioning to be more than casual conversation. See also United States v. Ruiz, 54 M.J. 

138 (C.A.A.F. 2000). 

(5) United States v. Moreno, 36 M.J. 107 (C.M.A. 1992). State social services 

worker who had an independent duty under state law to investigate child abuse was not 

required to provide Article 31 or Miranda warnings prior to interviewing the accused. 

The court found no investigative merger or agency relationship. “[O]ne of the prime 

elements of an agency relationship is the existence of some degree of control by the 

principal over the conduct and activities of the agent.” 

(6) United States v. Raymond, 38 M.J. 136 (C.M.A. 1993). Social worker, subject to 

AR 608-18’s reporting requirements, was not acting as an investigative agent of law 

enforcement when he counseled the accused with full knowledge that the accused was 

pending charges for child sexual abuse. The CMA also ruled that health professionals 

engaged in treatment do not have a duty to provide Article 31(b) warnings.10 

(7) United States v. Brisbane, 63 M.J. 106 (C.A.A.F. 2006). Family Advocacy 

representative was acting as an “investigative agent of law enforcement” and should have 

provided the accused an Article 31 warning when she questioned him after a Family 

Advocacy committee meeting which included a legal officer and a military investigator. 

The CAAF found that the Family Advocacy representative worked in close coordination 

with law enforcement before and after her questioning of the accused, that she suspected 

the accused of an offense at their first meeting, and that evidence of her investigatory 

purpose could be seen in her first question (“Did you do it?”).11 

9 United States v. Oakley, Jr., 33 M.J. 27 (C.M.A. 1991). A military policeman was present when civilian police 

questioned appellant regarding civilian fraud charges. The military policeman, acting as a military liaison, advised 

the appellant that he should cooperate with the civilian police and even asked a few questions of appellant during the 

interrogation. The CMA denied appellant’s motion to suppress, holding that the civilian police investigation had not 

merged with a military investigation. 

10 Diagnostic questioning had been previously placed outside the scope of Article 31 in United States v. Fisher, 44 

C.M.R. 277 (C.M.A. 1972). Raymond is significant in that it upheld the concept of diagnostic questioning in spite 

of the regulatory reporting requirement. 

11 The CAAF noted that the “cooperative effort” between law enforcement and other members of the military 

community required by Air Force Regulations “does not render every member of the military community a criminal 

investigator or investigative agent,” but that this particular Family Advocacy representative’s actions were more 

akin to an investigative agent than a social worker. Brisbane, 63 M.J. at 112. 

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(8) United States v. Payne, 47 M.J. 37 (C.A.A.F. 1997). The CAAF held that 

Defense Investigative Service (DIS) agents conducting a background investigation per 

the request of the accused were not acting under the direction of military authorities and 

were not, therefore, subject to the UCMJ. Accordingly, the DIS agents did not have to 

warn the accused of his rights under Article 31. 

(9) United States v. Redd, 67 M.J. 581 (A. Ct. Crim. App. 2008). The ACCA held 

that where a CID agent actively participates in civilian law enforcement interview, 

Article 31 rights must be read to the accused. However, Miranda warnings given in this 

case, combined with notification that accused was under investigation for child sex 

offenses was sufficient to meet Article 31 requirements. 

(10) United States v. Garcia, 69 M.J. 658 (C.G. Ct. Crim. App. 2010). The CGCCA 

held that where CGIS and civilian investigations did not coordinate their activities and 

that the civilian investigators did not seek military guidance, Article 31, UCMJ rights 

were not required by the civilian investigators when questioning the appellant. The court 

did note that there were several coordinated joint witness interviews, but there was “no 

significant basis for questioning the independence of the two investigations.” 

g. Foreign police interrogations. 

(1) The rule for interrogations by foreign police agents is similar to that set forth for 

U.S. civilian police agents. Mil. R. Evid. 305(f)(2) provides that no warnings are 

required unless the foreign police interrogation is “conducted, instigated, or participated 

in by military personnel or their agents . . . .” An interrogation is not “participated in” 

merely because U.S. agents were “present,” “acted as interpreter,” or took steps to 

mitigate harm.12 

(2) United States v. Coleman, 25 M.J. 679 (A.C.M.R. 1987), aff’d, 26 M.J. 451 

(C.M.A. 1988). “Cooperative assistance” between CID and German police investigating 

a murder did not turn the German interrogation into a U.S. interrogation, since the 

German interrogation “was, in no way ‘conducted, instigated, or participated in’ by the 

CID” nor was there “subterfuge” or any violation of due process voluntariness. 

(3) United States v. French, 38 M.J. 420 (C.M.A. 1993). Accused was questioned 

by British police in presence of his First Sergeant and an OSI agent. Despite OSI’s 

knowledge of the investigation, their presence during the interview, an agent’s comment 

during interview that it would be better for accused to remain silent than to continue 

lying, and brief use of OSI agent’s handcuffs during arrest, “participation” of military 

agents did not reach level which would require Article 31 and Miranda rights. 

(4) United States v. Pinson III, 56 M.J. 489 (C.A.A.F. 2002). Icelandic police were 

not required to give appellant Article 31 warnings prior to questioning him as part of an 

investigation, where the Icelandic police did not ask NCIS agents for information or 

leads, NCIS did not ask Icelandic police to ask certain questions, and the two 

governments conducted separate investigations. The CAAF found that the interrogation 

was “purely for the benefit of the Icelandic” authorities. 

12 See United States v. Plante, 32 C.M.R. 266 (C.M.A. 1962) (holding that no Article 31(b) warnings required 

where MP accompanied service member to French police headquarters, but where MP did not take part in the 

interrogation); United States v. Jones, 6 M.J. 226 (C.M.A. 1979) (holding no Article 31(b) warnings required when 

German police interrogated accused in U.S. CID headquarters building solely for the benefit of the German 

authorities where no U.S. personnel were present). 

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3. When must warnings be given? 

a. Under Mil. R. Evid. 305(b)(2), action that triggers the requirement for Article 31 (or 

Miranda) warnings includes “any formal or informal questioning in which an incriminating 

response either is sought or is a reasonable consequence of such questioning.” This includes 

direct questioning or action that amounts to the functional equivalent of questioning, and is 

evaluated based on an objective test from the perspective of a reasonable police 

officer/investigator. 

b. Words or actions reasonably likely to elicit an incriminating response. 

(1) Brewer v. Williams, 430 U.S. 387 (1977). “Christian burial speech” was 

intended to elicit incriminating information and was tantamount to interrogation where 

police knew accused was “deeply religious,” and the speech was directed to him. 

(2) Rhode Island v. Innis, 446 U.S. 291 (1980). “‘Interrogation’ under Miranda 

refers . . . to express questioning, . . . [and] also to any words or actions on the part of the 

police (other than those normally attendant to arrest and custody) that the police should 

know are reasonably likely to elicit an incriminating response . . . .” Conversation 

between police while transporting suspect to station that children from nearby school for 

handicapped might find the shotgun and hurt themselves was held not an interrogation, 

since it was not directed to suspect and no reason to believe he was susceptible to such 

remarks. 

(3) United States v. Byers, 26 M.J. 132 (C.M.A. 1988). “Interrogate” for purposes of 

Article 31(b) corresponds with Supreme Court interpretation of “interrogation” in 

applying Miranda warning requirement. An OSI agent’s 20-40 minute pre-warning 

commentary was interrogation. The agent could tell the suspect that “the suspicion 

results from a positive drug test. To go further violates Article 31(b).” Taint attenuated, 

however, and statement admitted. 

(4) United States v. Guron, 37 M.J. 942 (A.F.C.M.R. 1993). A 9-minute prewarning conversation about a variety of subjects having nothing to do with the BAQ 

fraud investigation, the purpose of which was to relax the subject and get acquainted, was 

not the functional equivalent of interrogation. 

(5) United States v. Young, 49 M.J. 265 (C.A.A.F. 1998). Investigator’s comment: 

“I want you to remember me, and I want you to remember my face, and I want you to 

remember that I gave you a chance,” directed to the accused after the accused invoked his 

right to counsel may have been an interrogation. Judge Sullivan, in a concurring opinion, 

firmly believes that it was. The court affirmed the admissibility of the subsequent 

confession on other grounds. 

(6) United States v. Muldoon, 10 M.J. 254 (C.M.A 1981). The “time-honored 

technique to elicit a statement -- namely, informing the suspect that he has been 

implicated by someone else,” is interrogation. 

c. Not “interrogation.” 

(1) Subjects who begin a statement in a spontaneous fashion do not need to be 

stopped and warned. The appropriate rights warning, however, must precede any followup interrogation. 

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(2) United States v. Warren, 47 M.J. 649 (A. Ct. Crim. App. 1997). Asking the 

accused to put his spontaneous statement in writing was not an interrogation. An 

interrogation began, however, when the investigator asked the accused to elaborate and 

explain portions of the statement. 

(3) United States v. Turner, 48 M.J. 513 (A. Ct. Crim. App. 1998). Telling the 

accused that he was AWOL and would be turned over to a particular military law 

enforcement authority did not constitute an interrogation. The ACCA viewed these 

comments as statements regarding the nature of evidence against the accused and not an 

interrogation. 

(4) United States v. Vitale, 34 M.J. 210 (C.M.A. 1992). First Sergeant warned 

accused not to discuss the matter and to let OSI handle it because she did not want to get 

involved. Accused was previously interviewed by another NCO following an improper 

rights advice. Held: First Sergeant’s conduct was not the “functional equivalent of 

interrogation,” and accused’s subsequent unsolicited statements were uttered 

spontaneously, voluntarily, and without coercion. 

(5) United States v. Lichtenhan, 40 M.J. 466 (C.M.A. 1994). An investigator (Inv.) 

considered the accused a suspect in a series of thefts, and intended to question him 

regarding a related matter. The investigator approached the accused and initiated the 

following interchange: 

Inv.:	 “[Y]ou got a minute to talk?” 

Accused:	 “Sure, chief, but there’s something I need to talk 

to you about first.” 

Inv.:	 “Go ahead.” 

The accused proceeded to make a series of incriminating 

remarks. The CMA ruled the investigator’s approach and 

comments did not amount to questioning such that Article 31 

requirements were triggered. 

(6) United States v. Watkins, 34 M.J. 344 (C.M.A. 1992). Suspect invoked right to 

silence. Several hours later, suspect was re-approached by same CID agent and asked for 

a re-interview, whereupon the suspect made some incriminating statements. Held: 

Simply asking for a re-interview of an individual not in custody was not questioning 

designed “to elicit an incriminating” statement. 

(7) United States v. Ruiz, 54 M.J. 138 (C.A.A.F. 2000). A civilian store detective 

employed by AAFES, upon suspecting that the appellant had stolen store merchandise, 

stated to him, “[t]here seems to be some AAFES merchandise that hasn’t [sic] been paid 

for.” The appellant replied, “yes,” produced the merchandise from under his coat, and 

said “you got me.” The CAAF ruled that Article 31(b) warnings were not required 

because the detective did not “interrogate” the accused, but rather informed him of why 

he was stopped and why he was asked to accompany the detective back to the store’s 

office. 

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 Article 31(b) Miranda (Fifth Amendment) Sixth Amendment 

Purpose To dispel a service member's To provide protection against an To provide accused the 

inherent compulsion to respond to inherently intimidating and coercive assistance of counsel 

questioning from a superior in rank interrogation environment during critical stages of 

or position the criminal process. 

Who must 1) Person subject to the code Law enforcement officer Government agent 

warn? acting in law 2) Acting in official capacity enforcement capacity 

3) For law enforcement or 

disciplinary purposes 

Test: 1) Was the military questioner 

acting, or could reasonably be 

considered as acting, in an official 

law enforcement or disciplinary 

capacity, and 

2) Did the person questioned 

perceive it as official questioning? 

Who must Accused or suspect Person subject to custodial Accused 

be warned? interrogation 

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(8) United States v. Allen, 54 M.J. 854 (A.F. Ct. Crim. App. 2001). During the 

reading of his charges by his commander, the appellant appeared pale and shocked, and 

near the end of the reading stated, “the fourth one is true, or partially true.” The court 

concluded that the reading of the charges in this case was not the functional equivalent of 

an interrogation. The court placed special emphasis on the circumstances surrounding 

the reading of the charges. Specifically, that the appellant was not asked any questions 

before being read his charges, the accused was not in confinement, and he was a 

lieutenant colonel. 

(9) Consent to search. 

(a) United States v. Burns, 33 M.J. 316 (C.M.A. 1991). Requesting consent to 

search and also conducting a urine test did not violate the Fifth Amendment even 

though the accused previously requested counsel. Asking the accused questions 

during the search of his residence did violate the Fifth Amendment, but were nonprejudicial errors. 

(b) United States v. Vassar, 52 M.J. 9 (C.A.A.F. 1999). While in the hospital, 

the accused signed a written consent form and gave a urine sample, which tested 

positive for drugs. The CAAF held that the consent was voluntary and that there is 

no requirement to give Article 31(b) warnings before asking for consent to search. 

(c) United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2012). A request to consent 

to search does not infringe upon Article 31 or PASI because such requests are not 

interrogations and the consent given is ordinarily not a statement. 

V. RIGHTS WARNINGS CHART 

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Test: Did the questioner believe, or 

reasonably should have believed, 

that the person committed an 

offense? 

When are Questioning where an Custodial interrogation Questioning after the 

warnings incriminating response is either preferral of charges on 

required? sought or is a reasonable matters related to the 

consequence charged offense(s) 

Test: Would a reasonable interrogator Custodial – Would a reasonable Right to counsel attaches 

see the questions as ones likely to person in the subject’s position feel only to charged offenses 

elicit an incriminating response? that they were under arrest or and to those offenses 

significant restraint? that would be 

“considered the same Interrogation – Would a reasonable offense under the interrogator see the questions as Blockburger test,” even ones likely to elicit an incriminating if not formally charged response? 

Content of 1) Nature of offense 1) Right to silence Right to counsel 

warnings 2) Right to silence 2) Use of statement Note: Miranda 

warnings satisfy the 3) Use of statement 3) Right to counsel Sixth Amendment 

Effect of invocation: 

Right to Temporary respite from Temporary respite from Not applicable 

silence interrogation interrogation 

Right to Not applicable Questioning ceases until: Questioning about 

counsel charged offense ceases 1) Counsel made available (for until: continuous custody, counsel must 

be present; if break in custody, real 1) Counsel present, or 

opportunity to seek legal advice 2) Subject re-initiates required), or and valid waiver 

2) Subject re-initiates and valid obtained 

waiver obtained 

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VI. EFFECT OF IMPLEMENTING THE RIGHTS 

Whenever a subject invokes a right in response to an Article 31(b) or Fifth or Sixth Amendment 

warning, the first thing that must happen is the same: the interrogation must stop immediately. What 

may happen next is dependent on what source of self-incrimination law applies and what right has been 

invoked. 

If the subject invokes the right to remain silent under Article 31(b) or Miranda, he or she is 

entitled to a temporary respite from questioning that the government must scrupulously honor. Once 

honored, the government may re-approach the subject for further questioning. 

If the subject invokes the right to counsel under the Fifth Amendment, the subject cannot be 

questioned further unless: (1) counsel is made available; or (2) the subject re-initiates questioning. In a 

continuous custody setting, counsel is made available when counsel is present. When there is a break in 

custody, counsel is made available when the subject has had a real opportunity to seek legal advice. If the 

subject has not had a real opportunity to seek legal advice, then counsel must be present. If the subject reinitiates the questioning, the investigator must obtain a valid waiver of rights before continuing the 

interrogation. 

If the subject invokes the right to counsel under the Sixth Amendment, the subject cannot be 

questioned further unless: (1) counsel is present; or (2) the subject re-initiates questioning. For purposes 

of the Sixth Amendment, continuous custody or a break in custody is irrelevant. 

The questioner must clarify any ambiguous invocation of rights before questioning may begin. 

However, if the subject initially waives his rights and begins making a statement, any subsequent 

invocation of his rights must be unambiguous. Ambiguous requests do not have to be clarified by the 

questioner and the interrogation may proceed. 

A. The right to remain silent (Miranda or Article 31(b)). 

1. A subject may invoke any or all of his/her rights either prior to or during an interrogation. 

Whether invoked in response to an Article 31(b) or Miranda warnings, the right to remain silent 

entitles a subject to a temporary respite from interrogation. There is no per se prohibition against 

re-approaching a suspect following invocation of the right to remain silent. 

2. Factors to consider in determining if the PASI has been violated include: which right 

was invoked, who initiated communication, subject matter of the communication, when the 

communication took place, where the communication took place, and the time between 

invocation of the right and the second interview. See generally Michigan v. Mosley, 423 U.S. 96 

(1975) (suspect’s “right to cut off questioning” and remain silent was “scrupulously honored” 

when first officer stopped questioning on robbery after suspect invoked Miranda right to silence 

and second officer, after a lapse of over two hours, re-advised the suspect of his rights and 

questioned him on unrelated murder). 

3. United States v. Watkins, 34 M.J. 344 (C.M.A. 1992). CID “scrupulously honored” the 

accused’s Fifth Amendment “right to cut off questioning,” (i.e., right to silence) when the agent 

immediately ended the interview, permitted the accused to leave the CID office, and waited more 

than two hours before attempting to re-interview him. 

4. United States v. Doucet, 43 M.J. 656 (N-M. Ct. Crim. App. 1995). Under the 

circumstances of the case, appellant’s request to go home and refusal to sign a prepared written 

statement constituted an invocation of his right to remain silent, even though he had made prior 

oral admissions and had agreed to work on a written statement. 

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5. United States v. Rittenhouse, 62 M.J. 509 (A. Ct. Crim. App. 2005). Once a suspect 

waives the right to silence, interrogators may continue questioning unless and until the suspect 

unequivocally invokes the right to silence. If a suspect makes an ambiguous or equivocal 

invocation of his right to remain silent, law enforcement agents have no duty to clarify the 

suspect’s intent and may continue with questioning. See also Davis v. United States, 512 U.S. 

452 (1994). 

B. The Fifth Amendment (Miranda) Right to Counsel. 

1. Mil. R. Evid. 305(e)(1); 305(g)(2)(B); 205(c)(2); 305(e)(3) 

2. The per se rule of Edwards. 

a. When a subject has invoked his right to counsel in response to a Miranda warning, a 

valid waiver of that right cannot be established by showing only that he responded to further 

police-initiated custodial interrogation, even if he has been advised of his rights. “Having 

expressed his desire to deal with the police only through counsel, the subject is not subject to 

further interrogation . . . until counsel has been made available to him, unless the accused 

himself initiates further communication, exchanges, or conversations with the police.” 

Edwards v. Arizona, 451 U.S. 477 (1981); see also United States v. Harris, 19 M.J. 331 

(C.M.A. 1985) (Edwards applies to military interrogations). 

b. There is no exception to Edwards for police-initiated, custodial interrogations 

relating to a separate investigation once a suspect has invoked his right to counsel under the 

Fifth Amendment. “As a matter of law, the presumption raised by a suspect’s request for 

counsel - that he considers himself unable to deal with the pressures of custodial interrogation 

without legal assistance - does not disappear simply because the police have approached the 

suspect, still in custody, still without counsel, about a separate investigation.” Additionally, 

the fact that the officer conducting the second interrogation does not know of the request for 

counsel is of “no significance.” Knowledge of the suspect’s invocation is imputed to other 

officers. Arizona v. Roberson, 486 U.S. 675 (1988). 

c. The Edwards requirement that counsel be “made available” means more than an 

opportunity to consult with an attorney outside the interrogation room. In Minnick v. 

Mississippi, 498 U.S. 146 (1990), the Supreme Court held “that when counsel is requested, 

interrogation must cease, and officials may not reinitiate interrogation without counsel 

present, whether or not the accused has consulted with his attorney.” 13 But see McNeil v. 

Wisconsin, 501 U.S. 171 (1991) (limiting Minnick holding regarding Edwards rule to periods 

of continuous custody). 

d. United States v. Mitchell, 51 M.J. 234 (C.A.A.F. 1999). After a clear invocation of 

his Fifth Amendment right to counsel, the accused was asked by his work supervisor during a 

brig visit if it was worth committing the alleged misconduct. Even though the accused’s 

supervisor was not a law enforcement official, the CAAF held that the questioning of the 

accused in custody, after invocation of his Fifth Amendment right to counsel, violated the 

protections of Edwards v. Arizona, 451 U.S. 477 (1981). 

13 See Mil. R. Evid. 305(c)(2). In 1994, this subdivision was amended to conform military practice with the 

Supreme Court’s decision in Minnick. 

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e. United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999). At trial, the prosecutor introduced 

the accused’s statements that were made as part of a separate state plea agreement. Prior to 

making the statements, the accused unambiguously invoked his right to counsel, however, 

since counsel was present during the interview, the CAAF held that there was no violation of 

the Fifth Amendment. 

f. United States v. Thompson, 67 M.J. 106 (C.A.A.F. 2009). After accused was placed 

in pretrial confinement and given defense counsel, a CID agent questioned accused without 

defense counsel notified or present, but after a rights waiver was signed. The CAAF 

presumed that the confession was obtained in violation of his Fifth Amendment right to 

counsel, but found the error harmless beyond a reasonable doubt. The confession was not 

ultimately admitted, except in redacted form by the defense. The confession only contained 

statements regarding the offenses for which he was acquitted or pled guilty. 

3. Limits of the Edwards rule. 

a. Counsel “made available.” 

(1) United States v. Schake, 30 M.J. 314 (C.M.A. 1990). Accused who requested 

counsel during police interrogation could be re-interrogated following a six-day break in 

continuous custody and a complete rights advisement where accused had a “real 

opportunity to seek legal advice” during his release. See also United States v. Vaughters, 

44 M.J. 377 (C.A.A.F. 1996) (re-interrogating accused who had been released from 

custody for nineteen days provided meaningful opportunity to consult with counsel). 

(2) United States v. Faisca, 46 M.J. 276 (C.A.A.F. 1997). During a CID custodial 

interrogation concerning the theft of government property, the accused invoked his right 

to counsel. The CID agents conducting the interrogation immediately ceased their 

questioning. Six months later, a CID agent initiated contact with the accused and 

arranged for another interrogation. During the later interrogation, the accused 

affirmatively waived his self-incrimination rights and made a statement. The court found 

no Edwards violation. 

(3) United States v. Young, 49 M.J. 265 (C.A.A.F. 1998). A two-day release from 

custody after the accused invoked his right to counsel was a sufficient break to overcome 

the Edwards barrier. As such, it was not improper for the government investigator to reinterrogate the accused. The court stated that the two-day break afforded the accused the 

opportunity “to speak to his family and friends.” 

(4) United States v. Mosley, 52 M.J. 679 (A. Ct. Crim. App. 2000). A twenty-hour 

release from custody after the accused invoked his right to counsel was a sufficient break 

to overcome the Edwards barrier. Once the government demonstrates by a 

preponderance of the evidence that the accused had a reasonable break in custody, a 

presumption exists that during the break the accused had a meaningful opportunity to 

consult with counsel. The defense then has the burden to overcome the presumption. 

(5) Maryland v. Shatzer, 130 S.Ct. 1213 (2010). The Supreme Court held that a 

fourteen-day period of time is sufficient to overcome the Edwards barrier, regardless of 

the availability of counsel. The Court also held that post-trial incarceration for an 

unrelated offense does not trigger “custody” for Miranda/Edwards purposes. 

b. Re-initiation by the accused. 

(1) Edwards does not foreclose finding a waiver of Fifth Amendment protection 

after counsel has been requested, provided the accused has initiated the conversation or 

discussions with the authorities. Minnick v. Mississippi, 498 U.S. 146 (1990). 

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(2) Oregon v. Bradshaw, 462 U.S. 1039 (1983). Accused reinitiated communication 

with police “relating generally to the investigation” by asking, “What is going to happen 

to me now?” But routine requests for a drink of water or to use a telephone “cannot be 

fairly said to represent a desire [for] a more generalized discussion relating directly or 

indirectly to the investigation.” 

(3) United States v. Bonilla, 66 M.J. 654 (C.G. Ct. Crim. App. 2008) (en banc). 

While in custody the accused invoked his Fifth Amendment right to counsel and to 

remain silent. Coast Guard Investigative Service (CGIS) agents later entered the 

interview room and discussed the case between themselves hoping that the accused 

would re-initiate conversations about the case. This tactic was successful. The CGCCA 

ruled this was not an interrogation or functional equivalent of an interrogation. No 

threats were made, there were no compelling pressure put on the appellant beyond 

custody, pleas to conscience, or other ploys the agents knew or were reasonably likely to 

elicit an incriminating response. [Note: Opinion was a 3-1-2 decision with the three 

dissenting judges finding that the accused did not re-initiate further communications. 

The majority opinion plus one dissenting judge agree that the agents’ actions were not an 

interrogation.] 

(4) United States v. Watkins, 32 M.J. 1054 (A.C.M.R. 1991), aff’d, 34 M.J. 344 

(C.M.A. 1992). Accused reinitiated conversation by asking CID if he should get a 

civilian attorney and how much time the agent thought the accused might get. 

(5) United States v. McDavid, 37 M.J. 861 (A.F.C.M.R. 1993). Despite previous 

invocation of his right to counsel, accused initiated the conversation with OSI agents by 

asking if he could explain something. 

c. Waiver after re-initiation by the accused. 

(1) Oregon v. Bradshaw, 462 U.S. 1039 (1983). If initiation by the accused is found, 

then a separate inquiry must be made whether, on the totality of the circumstances, the 

accused voluntarily waived his rights. 

(2) United States v. McLaren, 38 M.J. 112 (C.M.A. 1993). In reinitiating 

conversation with interrogators by answering a question asked before his rights 

invocation, accused impliedly waived previously invoked Fifth Amendment right to 

counsel. 

d. Foreign Police Exception. 

(1) Edwards protections are not triggered by request for counsel to a foreign official 

because there is an overseas exception to Edwards rule. In review of cases in this area, 

the CAAF has focused on the suspect’s state of mind, just as the Supreme Court did in 

Roberson. A suspect may be willing to cooperate without counsel during a U.S. 

interview, while added intimidation in a foreign interview may make him unwilling to do 

so. 

(2) United States v. Coleman, 26 M.J. 451 (C.M.A. 1988). U.S. investigators had 

actual knowledge that Coleman had requested counsel during questioning by the German 

police, but Edwards bar did not apply to initial interrogation by U.S. authorities. 

However, there must be a complete rights advisement and waiver before the U.S. 

interrogation.14 

14 See also United States v. Dock, 40 M.J. 112 (C.M.A. 1994) (accused’s pretrial statements to U.S. military 

investigators were admissible after he requested U.S. counsel while under German custody even though U.S. 

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4. When are requests for counsel effective? 

a. Premature invocations. 

(1) The right to counsel arises upon initiation of custodial interrogation. 

(2) But, where a suspect is in custody and requests counsel from a person in apparent 

authority shortly before initiation of the interrogation, “it is artificial to draw a distinction 

between the formal interview . . . and these events which led up to it.”15 

(3) McNeil v. Wisconsin, 501 U.S. 171 (1991). In dicta, Justice Scalia opines that 

peremptory counsel elections are invalid. “We have never held that a person can invoke 

his Miranda rights ‘anticipatorily’ in a context other than custodial interrogation.” 

(4) United States v. Schroeder, 39 M.J. 471 (C.M.A. 1994). Even though under 

arrest (civilian law enforcement agents), accused’s request to speak to an attorney before 

non-consensual urinalysis was “too little and too early” to qualify as invocation of his 

Miranda right to counsel. Accused had not been read his Miranda warnings or subjected 

to custodial interrogation. 

(5) United States v. Kendig, 36 M.J. 291 (C.M.A. 1993). Electing to consult counsel 

during Article 15 proceeding: 1) does not constitute invoking Fifth Amendment right to 

counsel; 2) does not invoke a Sixth Amendment right to counsel; and, 3) does not require 

notice to counsel under Mil. R. Evid. 305(e), since subsequent interview concerned 

unrelated offenses. See also United States v. Thomas, 39 M.J. 1094 (A.C.M.R. 1994) 

(advising interrogator of representation by civilian attorney on unrelated matter does not 

trigger Edwards requirements). 

(6) Montejo v. Louisiana, 556 U.S. 778 (2009). The majority, written by Justice 

Scalia, again asserts that “[w]e have in fact never held that a person can invoke his 

Miranda rights anticipatorily, in a context other than ‘custodial interrogation.’” McNeil, 

501 U.S. at 182, n.3. 

b. Ambiguous request = equivocal request = no Edwards protection. 

(1) Once a suspect initially waives his Miranda rights and agrees to submit to 

custodial interrogation without the assistance of counsel, only an unambiguous request 

for counsel will trigger the Edwards requirements. 

investigators were present when accused requested counsel during German interrogations); United States v. 

Hinojosa, 33 M.J. 353 (C.M.A. 1991). 

15 United States v. Goodson, 18 M.J. 243 (C.M.A. 1984), vacated, 471 U.S. 1063 (1985) (remanded “for further 

consideration in light of Smith v. Illinois, 469 U.S. 91 (1984)”), rev’d per curiam, 22 M.J. 22 (C.M.A. 1986), 

modified, 22 M.J. 247 (C.M.A. 1986), on remand, 22 M.J. 947 (A.C.M.R. 1986). 

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(2) United States v. Davis, 36 M.J. 337 (C.M.A. 1993), aff’d, 512 U.S. 452 (1994). 

Following an initial waiver, Davis stated to Naval Investigative Service (NIS) agents: 

“Maybe I should talk to a lawyer.” The CMA ruled this ambiguous comment failed to 

invoke Fifth Amendment right to counsel, and NIS agent properly clarified ambiguous 

comment before continuing. The Supreme Court ruled that clarification of ambiguous 

counsel requests is not legally required. The invocation of the Miranda right to counsel 

requires, at a minimum, some statement that can reasonably be construed as an 

expression of a desire for the assistance of an attorney. If a suspect makes a reference to 

an attorney that is ambiguous or equivocal, questioning need not be terminated. A 

request is ambiguous if a reasonable officer in light of the circumstances would have 

understood only that the suspect might be invoking the right to counsel.16 

(3) United States v. Morgan, 40 M.J. 389 (C.M.A. 1994). Following initial waiver 

of Article 31 and counsel rights, accused made statement, but then asked “[c]an I still 

have a lawyer or is it too late for that?” The CMA rules that the accused’s statement was 

an equivocal or ambiguous request for counsel. 

(4) United States v. Vandewoestyne, 41 M.J. 587 (A.F. Ct. Crim. App. 1994). 

Evidence established under a totality of the circumstances, that accused made a knowing 

and intelligent waiver of his right to counsel and the right to remain silent at the initiation 

of the interview. Accused asking investigators if they thought he needed a lawyer was 

not a sufficiently clear statement that could have been understood as a request for 

counsel. Investigators nevertheless clarified the request, and accused then waived his 

right to counsel. 

(5) United States v. Nadel, 46 M.J. 682 (N-M. Ct. Crim. App. 1997). CID 

interrogated the accused about indecent acts he allegedly committed. After an initial 

valid waiver of Article 31(b) and Miranda counsel rights, the accused told CID agents 

that he would not like to discuss oral sodomy without first receiving advice from a 

lawyer, but would be willing to answer questions concerning anything else without 

assistance of counsel. CID did not question Nadel about sodomy but did question him 

about indecent assault. Thereafter, Nadel made a written confession of the indecent 

assault. The NMCCA found that the request for a lawyer was “not a clear assertion of the 

right to have counsel present during the interview.” The court, citing Davis v. United 

States, 512 U.S. 452 (1994), held that because it was an ambiguous request for counsel, 

the CID agent had no duty to stop the interrogation or clarify Nadel’s equivocal request. 

16 A statement either is an assertion of the right to counsel, or it is not. In Smith v. Illinois, 469 U.S. 91 (1984), the 

Court found that the following interchange contained a request for counsel, stating that “[a]n accused’s post-request 

responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request 

itself.” 

Q: 

A: 

Q: 

A: 

You have a right to a lawyer. 

Uh, yeah, I’d like to do that. 

If unable to pay, one will be appointed. Do you want a lawyer? 

Yeah and no, uh, I don’t know what’s, really. 

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(6) United States v. Henderson, 52 M.J. 14 (C.A.A.F. 1999). German police 

apprehended the accused as a suspect in a stabbing incident. While in custody, the 

German police advised the accused of his rights (under both German law and Article 

31(b)), obtained a waiver, and interrogated the accused. The accused denied involvement 

in the stabbing and eventually asked to continue the interview in the morning. The 

German police immediately stopped the questioning. Shortly thereafter, while the 

accused remained in custody, the CID observer, who was present during the initial 

interview, spoke to the accused in private. He emphasized the importance of telling the 

truth and that the accused had “nothing to worry about.” The accused indicated he 

wanted to “tell the truth,” but wanted to talk to a lawyer. Eventually, the accused agreed 

to make a statement and talk to a lawyer the morning. During the interview, the accused 

admitted to stabbing one of the victims. Citing Davis, the CAAF held that the accused’s 

request to talk to a lawyer in the morning was an ambiguous request for counsel and did 

not invoke the protections of Miranda and Edwards. 

(7) United States v. Ford, 51 M.J. 445 (C.A.A.F. 1999). An explosive device was 

found in the accused’s barracks room during an inspection. Without giving warnings, an 

investigator questioned the accused at the barracks. When the accused “asked to have a 

lawyer present, or to talk to a lawyer,” the investigator stopped the questioning. The 

investigator transported the accused to the CID office and, after obtaining a waiver of 

rights, questioned the accused again. The accused eventually gave a written confession. 

During the interview, however, the accused said that he didn’t want to talk and thought 

he should get a lawyer. The investigator sought clarification and the accused responded 

that he wanted a lawyer if the investigator continued accusing him of lying. After further 

clarification, the accused agreed to continue with the questioning. The CAAF found that 

the accused did not invoke his Fifth Amendment right to counsel during the barracks’ 

questioning. Further, the court held that accused’s comment about a lawyer during the 

CID office interrogation was an ambiguous request for a lawyer and did not invoke the 

Miranda or Edwards protections. 

(8) United States v. Delarosa, 67 M.J. 318 (C.A.A.F. 2009). Accused was 

questioned by civilian law enforcement for homicide charges related to the death of his 

infant son. After repeatedly telling investigators that he wanted to talk to them, he signed 

“no” on the form next to the block that read, “I further state that I waive these rights and 

desire to make a statement.” After investigators attempted to clarify, accused asked for a 

command representative. Investigators denied this request and left accused alone. 

Several hours later, accused asked to talk. He was re-advised of his rights and waived 

them. The CAAF found the first invocation to be ambiguous, but held that officers could 

continue to attempt clarify his initial ambiguous invocation and resume questioning at 

any time. 

(9) Practice tip: Clarification of ambiguous requests is probably still a good idea. 

Clarification will preclude later disputes over whether request was ambiguous as a matter 

of law. 

C. Sixth Amendment Counsel Rights. Montejo v. Louisiana, 556 U.S. 778 (2009). The Court 

ruled that Edwards applies to the Sixth Amendment right to counsel. 

1. Mil. R. Evid. 305(c)(3); 305(e)(3)(B). 

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2. McNeil v. Wisconsin, 501 U.S. 171 (1991). Sixth Amendment right to counsel is offense 

specific. Therefore, police may approach a suspect, who has counsel for a charged offense, about 

a different uncharged offense. Invocation of the Fifth Amendment right to counsel cannot be 

inferred from the invocation of the Sixth Amendment right in light of the differing purposes and 

effects of the two rights. 

3. United States v. Sager, 36 M.J. 137 (C.M.A. 1992). Representation by civilian counsel 

on child sex abuse charges pending in civilian court did not constitute invocation of right to 

counsel with respect to later questioning by CID concerning unrelated child sex abuse offenses on 

a military installation. 

4. United States v. Kendig, 36 M.J. 291 (C.M.A. 1993). Court held that exercising option to 

consult counsel during Article 15 proceeding: 1) did not constitute invoking Fifth Amendment 

right to counsel; 2) did not create a Sixth Amendment right to counsel; and, 3) did not require 

notice to counsel under Mil. R. Evid. 305(e) since subsequent interview concerned unrelated 

offenses. 

5. United States v. Hanes, 34 M.J. 1168 (N.M.C.M.R. 1992). “[A] request for counsel at an 

RCM 305(i) hearing before charges have been preferred neither invokes a Sixth Amendment right 

to counsel because the hearing is not an adversarial proceeding nor invokes a Fifth Amendment 

right to counsel because the hearing is not the functional equivalent of a custodial interrogation.” 

VII. WAIVER OF RIGHTS 

Before the government can introduce statements of the accused in its case in chief, it must prove a 

knowing, intelligent, and voluntary waiver of the accused’s applicable rights. 

A. Mil. R. Evid. 305(e). 

B. Implied Waiver. 

1. Although an express waiver is not required, courts generally will not presume a waiver 

from a subject’s silence or subsequent confession alone. Implied waiver scenarios are rare and 

limited to the facts of the case. 

2. If the right to counsel is not declined affirmatively, the “prosecution must demonstrate by 

a preponderance . . . that the individual waived the right to counsel.” Mil. R. Evid. 305(e)(2). 

3. North Carolina v. Butler, 441 U.S. 369 (1979). An express statement of waiver of the 

Miranda right to counsel is not invariably necessary. Waiver was established where accused was 

advised of rights, said he understood them, refused to sign waiver, but agreed to talk.17 

4. United States v. Vangelisti, 30 M.J. 234 (C.M.A. 1990). “Mil. R. Evid. 305(g)(2) does 

not create an exception to the requirement that an accused must intentionally relinquish his right 

to counsel, rather it permits proof of the waiver by evidence other than the accused’s own 

expression that he knows of his right to counsel, understands his right, and intentionally elects to 

relinquish that right.” Id. at 241 (Cox. J., concurring). 

5. Berghuis v. Thompkins, 130 S.Ct. 2250 (2010). The Supreme Court held that “a suspect 

who has received and understood the Miranda warnings, and has not invoked his Miranda rights, 

waives the right to remain silent by making an uncoerced statement to the police.” 

17 In Butler, the Court made a distinction between an express written or oral statement of waiver and a waiver 

clearly inferred from the actions and words of the person interrogated. However, both types of waiver were deemed 

sufficient for purposes of waiver of the right to counsel after appropriate advice. 

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C. “Intelligent” and “knowing” waiver. 

1. Moran v. Burbine, 475 U.S. 412 (1986). Neither the police failure to inform a suspect of 

an attorney’s efforts to reach him, nor the police misinforming the attorney of their plans to 

interrogate the suspect undercuts an otherwise valid waiver by the suspect of his Miranda rights. 

2. Colorado v. Spring, 479 U.S. 564 (1987). Accused was arrested for selling stolen 

firearms, was advised of his rights, which he waived, and questioned on the sales and also about a 

prior murder the police had not previously mentioned. “We hold that a suspect’s awareness of all 

the possible subjects of questioning in advance of interrogation is not relevant to determining 

whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment 

privilege.” “Spring’s decision to waive his . . . privilege was voluntary. He alleges no ‘coercion 

. . . by physical violence or other deliberate means calculated to break [his] will.’” His waiver 

was “knowingly and intelligently made: that is, that Spring understood that he had the right to 

remain silent and that anything he said could be used as evidence against him.” 

3. Connecticut v. Barrett, 479 U.S. 523 (1987). In response to rights warnings, accused 

stated he would not give a written statement unless his attorney was present, but he would give an 

oral statement. Held: waiver was effective; “[t]he fact that some might find Barrett’s decision 

illogical is irrelevant, for we have never ‘embraced the theory that a defendant’s ignorance of the 

full consequences of his decisions vitiates their voluntariness.’” 

4. United States v. Thornton, 22 M.J. 574 (A.C.M.R. 1986). Accused’s consumption of 6 to 

18 beers prior to interrogation did not invalidate otherwise proper rights waiver. 

D. Voluntariness of waiver. 

1. The government must prove by a preponderance of the evidence that a suspect waived his 

applicable rights. In order to prove a valid waiver, the government must show: 

a. that the relinquishment of the defendant’s rights was voluntary; and 

b. that the defendant had a full awareness of the right being waived and of the 

consequences of waiving that right. See Moran v. Burbine, 475 U.S. 412 (1986). 

E. Presence of Counsel as a Predicate to Waiver. 

1. Custodial Interrogation [Mil. R. Evid. 305(b)(3)].18 Absent a valid waiver of counsel 

under Mil. R. Evid. 305(e),19 when an accused or person suspected of an offense is subjected to 

custodial interrogation under circumstances described under Mil. R. Evid. 305(d)(1)(A)20 of this 

rule, and the accused or suspect requests counsel, counsel must be present before any subsequent 

custodial interrogation may proceed. 

18 If an accused or suspect is interrogated by a person required to give Article 31 warnings and the accused or 

suspect is in custody, or reasonably believes himself to be in custody, or is otherwise deprived of his freedom of 

action in any way, and requests counsel, any subsequent waiver of the right to counsel obtained during custodial 

interrogation concerning the same or different offense is invalid unless the prosecution can demonstrate by a 

preponderance of the evidence that: (1) the accused or suspect initiated the communication leading to waiver; or (2) 

the accused or suspect has not continuously had his or her freedom restricted by confinement, or other means, during 

the period between the request for counsel and the subsequent waiver. 

19 Id. 

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United States v. Finch, 64 M.J. 118 (C.A.A.F. 2006). The McOmber rule requiring 

notification of counsel prior to questioning a suspect who has previously asserted his right to 

counsel under the Fifth Amendment is overruled. Mil. R. Evid. 305(c) provides for only two 

situations where counsel must be present, absent waiver: (1) custodial interrogations (e.g., 

Edwards rule); and (2) post-preferral interrogation (where the suspect’s Sixth Amendment 

right to counsel has been invoked and the questions concern the offense(s) charged). 

2. Post-preferral interrogation. Mil. R. Evid. 305(g)(2)(c) provides that if a person makes a 

valid request for counsel subsequent to the preferral of charges (e.g., Sixth Amendment request 

for counsel), any subsequent waiver of that right is invalid unless the prosecution can show that 

the accused initiated the communication leading to the waiver. But see Montejo v. Louisiana, 556 

U.S. 778 (2009). 

a. The rules concerning invocation of the Sixth Amendment right to counsel set limits 

on subsequent interrogation concerning the charged offense or offenses. 

b. However, the Sixth Amendment right to counsel is “offense specific.” Law 

enforcement may question a suspect on an offense that has not been preferred/indicted. The 

test to determine whether there are two different offenses is whether each provision requires 

proof of a fact that the other does not (i.e., the Blockburger test). Texas v. Cobb, 532 U.S. 

162 (2001). 

F. Waiver of PASI at trial. 

1. “When an accused testifies voluntarily as a witness, the accused thereby waives the 

privilege against self-incrimination with respect to the matters concerning which he or she so 

testifies.” Mil. R. Evid. 301(e). 

2. By testifying on direct examination about an offense for which he is being tried, an 

accused does not, however, waive his privilege against self-incrimination with respect to 

uncharged misconduct at an entirely different time and place. United States v. Castillo, 29 M.J. 

145 (C.M.A. 1989). 

3. Claiming the privilege during cross-examination. 

a. Mil. R. Evid. 301(f)(2): “If a witness asserts the privilege against self-incrimination 

on cross-examination, the military judge, upon motion, may strike the direct . . . , in whole or 

in part, unless the matters to which the witness refuses to testify are purely collateral.”21 

b. If matters to which the witness refuses to testify during cross-examination are purely 

collateral, there is no right to have the witness’s direct testimony stricken. United States v. 

Evans, 33 M.J. 309 (C.M.A. 1991). 

c. United States v. Moore, 36 M.J. 329 (C.M.A. 1993). Military judge was within his 

discretion to strike the entire direct testimony of a defense witness following assertion of 

right against self-incrimination on cross-examination. 

d. United States v. Lawless, 13 M.J. 943 (A.F.C.M.R. 1982). A government witness 

testified he had assisted accused in weighing and packing marijuana but refused to testify 

about who had supplied the baggies and other packaging equipment. The military judge 

properly refused to strike the direct testimony since the information about the source of the 

equipment was collateral to the core of the direct. 

20 The Analysis to the rule describes collateral matters as “evidence of minimal importance” (“usually dealing with 

a rather distant fact solicited for impeachment”). 

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4. Confessional stipulations. United States v. Craig, 48 M.J. 77 (C.A.A.F. 1998). Entering 

into a confessional stipulation does not waive the accused’s constitutional rights against selfincrimination, to a trial of the facts, and to confront and cross-examine the witnesses against her. 

5. The impact of a guilty plea on PASI. 

a. Trial counsel are permitted to use a guilty plea to a lesser-included offense to 

establish elements common to both the greater and lesser crimes of a single specification. 

United States v. Rivera, 23 M.J. 89 (C.M.A. 1986); see also RCM 920(e). They may not, 

however, reach back to the providency inquiry to find evidence to condemn the accused from 

his own mouth on a separate offense. United States v. Craig, 63 M.J. 611 (A.F. Ct. Crim. 

App. 2006). 

b. Mitchell v. United States, 526 U.S. 314 (1999). The Supreme Court held that in the 

federal criminal system, a guilty plea does not waive the self-incrimination privilege at 

sentencing. The Court found that the protection of the Fifth Amendment privilege applies 

equally to the sentencing phase of trial as it does to the guilt phase, and that negative 

inferences cannot be drawn by the accused’s election to remain silent during the sentencing 

phase. 

VIII. VOLUNTARINESS 

The concept of voluntariness entails elements of the voluntariness doctrine, due process, and 

compliance with Article 31(d).22 Whether or not Miranda is implicated, a confession must be voluntary 

to be valid. Thus, a confession deemed coerced must be suppressed despite a validly obtained waiver in 

the first instance. In determining whether a confession is voluntary, it is necessary to look at the totality 

of the circumstances concerning whether the accused’s will was overborne and whether the confession 

was the product of an essentially free and unconstrained choice by its maker. Some factors to consider in 

assessing the totality of the circumstances include the age, education, and intelligence of the accused, 

whether the accused has been informed of his constitutional rights, the repeated and prolonged nature of 

the questioning, and the use of physical punishment, such as the deprivation of food or sleep. 

A. The Test. 

1. “The principles for determining whether a pretrial statement was [involuntary] is 

essentially the same whether the challenge is based on the Constitution, Article 31(d), or Mil. R. 

Evid. 304.” United States v. Bubonics, 45 M.J. 93 (C.A.A.F. 1996). 

21 See generally Captain Fredric I. Lederer, The Law of Confessions — the Voluntariness Doctrine, 74 Mil. L. Rev. 

67 (1976). 

Article 31(d) provides: 

No statement obtained from any person in violation of this article, or through the use of coercion, unlawful 

influence, or unlawful inducement may be received in evidence against him in a trial by court-martial. 

The Analysis to Mil. R. Evid. 304(c)(2) lists examples of involuntary statements as those resulting from: coercion, 

unlawful influence, and unlawful inducement, to include infliction of bodily harm, deprivation of food, sleep, or 

adequate clothing; threats of bodily harm; confinement or deprivation of privileges because a statement was not 

made, or threats thereof; promises of immunity or clemency; promises of reward or benefit, or threats of 

disadvantage. 

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2. “The necessary inquiry is whether the confession is the product of an essentially free and 

unconstrained choice by its maker. If, instead, the maker’s will was overborne and his capacity 

for self-determination critically impaired, use of the confession would offend due process.”23 

3. In applying a totality of the circumstances test to determine if the government has shown 

by a preponderance of the evidence that the accused will was not overborne in the making of a 

confession, the court will consider: (1) the characteristics of the accused, (2) conditions of the 

interrogation, and (3) conduct of the law enforcement officials.24 

4. United States v. Freeman, 65 M.J. 451 (C.A.A.F. 2008). Despite AFOSI agent conduct 

that included a ten-hour interview, two polygraphs, lies about the existence of the suspect’s 

fingerprints at the crime scene and threats to turn the suspect over to civilian law enforcement if 

he did not confess, the subsequent confession was not involuntary under the totality of the 

circumstances. 

5. United States v. Lichtenhan, 40 M.J. 466 (C.M.A. 1994). While a cleansing warning is 

not a requirement for admissibility, an earlier unwarned statement coupled with the lack of a 

cleansing warning before a subsequent statement are all part of the “totality of the circumstances” 

in determining if the subsequent statement was made voluntarily. 

6. United States v. Griffin, 50 M.J. 278 (C.A.A.F. 1999). At trial, the prosecutor introduced 

a confession the accused made to Defense Investigative Service (DIS) agents during a security 

clearance update interview. The CAAF upheld the military judge’s decision to admit the 

confession. In doing so, the court stated that “the voluntariness of a confession is determined by 

examining the totality of the surrounding circumstances—both the characteristics of the accused 

and the details of the interrogation.” The court also determined that the military judge’s decision 

to exclude defense expert testimony about false confessions was proper. 

7. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). In determining whether a confession 

has been elicited by means that are unconstitutional, it is necessary to look at the totality of the 

circumstances concerning “whether the defendant’s will was overborne in a particular case.” 

Factors to consider in assessing the totality of the circumstances include the age, education, and 

intelligence of the accused; whether the accused has been informed of his constitutional rights; 

the length of the questioning; the repeated and prolonged nature of the questioning; and the use of 

physical punishment, such as the deprivation of food or sleep. 

22 Bubonics, 45 M.J. at 95. In Bubonics, the court found that while “Mutt and Jeff” techniques and threat of civilian 

prosecution interrogation techniques do not amount to per se coercion, based on the facts of the case, the 

interrogators improperly coerced Bubonics’ statement. See also Ledbetter v. Edwards, 35 F.3d 1062 (6th Cir. 1994) 

(finding that the accused’s confession was voluntary, the court considered the following factors: 1) no physical 

punishment or threats had been used; 2) no deprivation of physical necessities, such as food and drink or bathroom 

privileges; 3) short interrogation (3 hours); 4) informed of his Miranda warnings three different times; 5) clear 

indication Ledbetter understood his rights and did not appear under the influence of drugs or alcohol or otherwise 

unable to comprehend those rights; 6) did not express a reluctance to talk; and, 7) no request for the presence of an 

attorney). 

23 United States v. Vandewoestyne, 41 M.J. 587 (A.F. Ct. Crim. App. 1994) (totality of the circumstances 

established accused’s confession was knowing and voluntary, even though he was ultimately persuaded to confess 

because of fear that a failure to cooperate might lead to deportation of his wife if her complicity in offenses was ever 

known to the INS); see also United States v. Wheeler, 22 M.J. 76 (C.M.A. 1986); United States v. Norfleet, 36 M.J. 

129 (C.M.A. 1992); United States v. Doucet, 43 M.J. 656 (N-M. Ct. Crim. App. 1995); United States v. Briggs, 39 

M.J. 600 (A.C.M.R. 1994); United States v. Gill, 37 M.J. 501 (A.F.C.M.R. 1993). 

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8. United States v. Henderson, 52 M.J. 14 (C.A.A.F. 1999). In deciding that the confession 

was voluntary, the court gave significant weight to the fact that the accused couched his 

admissions in an exculpatory manner in the hopes of avoiding trouble. 

9. United States v. Ford, 51 M.J. 445 (C.A.A.F. 1999). Based on the totality of the 

circumstances, the CAAF held that the accused’s written confession was voluntary, and was not 

tainted by an earlier unwarned, yet not coerced, interrogation. 

B. Use of Deception. 

1. Miranda v. Arizona, 384 U.S. 436 (1966). Any evidence that the accused was threatened, 

tricked, or cajoled into a waiver will show that the defendant did not voluntarily waive his 

privilege. 

2. United States v. Davis, 6 M.J. 874 (A.C.M.R. 1979). After a proper waiver, deception is 

permissible in the interrogation process as long as the artifice is not likely to produce an untrue 

confession. 

3. United States v. Jones, 34 M.J. 899 (N.M.C.M.R. 1992). NIS agent falsely stated that coaccused had “fingered” the accused as the sole perpetrator. This misrepresentation, though 

relevant to a determination of voluntariness, does not render an otherwise voluntary statement 

involuntary. 

4. United States v. Thrower, 36 M.J. 613 (A.F.C.M.R. 1992). When accused continued to 

deny involvement in ATM card theft, another OSI agent was introduced as “Dr. Paul,” a 

psychologist/psychic with a special power to know when he was being told a lie by looking into 

his crystal ball. Accused eventually made admissions to “Dr. Paul.” The court considered the 

“cornball ruse” as nothing more than an adjuration to the accused to tell the truth and did not 

render confession involuntary. 

5. United States v. Sojfer, 47 M.J. 425 (C.A.A.F. 1998). During an interrogation, the NCIS 

agent stated a proposition that he knew was false. In response, the accused corrected the agent 

with incriminating information. Applying a totality of the circumstance analysis, the CAAF 

denied the accused’s claim that the statement was involuntary, i.e., the product of “fraud and 

trickery.” 

C. Due process/unlawful inducements. 

1. Colorado v. Connelly, 479 U.S. 157 (1986). Official coercion is a necessary element in 

showing a violation of due process. In Connelly, the defendant, who was later diagnosed as 

mentally ill, approached a police officer and confessed to a murder. Despite testimony that his 

mental illness interfered with his free will, the Court found the confession was voluntary because 

there was no evidence of coercion by the police. The Court noted that the defendant’s mental 

condition would be an important consideration when police use subtle psychological methods of 

coercion, but rejected the idea “that a defendant’s mental condition, by itself and apart from it’s 

relation to official coercion, should ever dispose of the inquiry into constitutional 

‘voluntariness.’” 

2. United States v. Lonetree, 35 M.J. 396 (C.M.A. 1992). To render an inducement 

unlawful under Article 31(d), “[the] inducement must be made by someone acting in a law 

enforcement capacity or in a position superior to the person making the confession.” A promise 

of confidentiality from U.S. Intelligence agent (non-police agent) did not constitute unlawful 

inducement; therefore, the accused’s confession was voluntary. 

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3. United States v. Campos, 48 M.J. 203 (C.A.A.F. 1998). Five weeks after a serious car 

accident, while the accused was medicated and in the hospital recovering from injuries, NCIS 

agents questioned him about wrongful use and distribution of methamphetamine. Prior to the 

questioning, the accused was advised of his rights under Article 31(b) and Miranda. The court 

held that the actions of the NCIS agents did not rise to “government overreaching,” and that the 

accused’s mental state was not such as to render the confessions involuntary. The court stated 

that the accused’s mental state is just a factor in determining the voluntariness of a confession and 

is only considered if there is a governmental due process violation due to overreaching. 

4. United States v. Morris, 49 M.J. 227 (C.A.A.F. 1998). An investigator telling the 

accused during an interrogation that “[i]f you help us, we will help you,” did not amount to 

unlawful inducement. 

5. United States v. Oakley, 33 M.J. 27 (C.M.A. 1991). Senior law enforcement 

noncommissioned officer’s admonishments to cooperate did not overbear the suspect’s freely 

drawn conclusion that it was in his own best interest to cooperate. 

6. United States v. Murphy, 18 M.J. 220 (C.M.A. 1984). Trial counsel’s advice that 

cooperation with Japanese police could result in a more lenient sentence merely provided the 

accused information with which to make an informed, tactical judgment as to his making a 

statement. 

D. Coercion/Threats. 

1. Mil. R. Evid. 304(a)(1)(A) defines inadmissible involuntary statements as those obtained 

in violation of the self-incrimination privilege or due process clause of the Fifth Amendment or 

Article 31 or though use of coercion, unlawful influence, or unlawful inducement. The drafters’ 

analysis for this provision states: 

The language governing statements obtained through the use of “coercion, 

unlawful influence, and unlawful inducement,” found in Article 31(d) makes it 

clear that a statement obtained by any person, regardless of status, that is the 

product of such conduct is involuntary. Although it is unlikely that a private 

citizen may run afoul of the prohibition of unlawful influence or inducement, 

such a person clearly may coerce a statement and such coercion will yield an 

involuntary statement.25 

24 Although written well before Connelly, the drafters’ analysis is probably still a correct interpretation of the law. 

From the perspective of a due process analysis, statements are excluded as the result of governmental misconduct. 

The Supreme Court observed in Connelly, however, that even if a confession is constitutionally voluntary, due to the 

absence of government misconduct, it might still be proved unreliable as a matter of law. In this regard, the 

admissibility of a statement is governed by the evidentiary laws of the forum, and not by the Due Process Clause. 

As implemented by Mil. R. Evid. 304, the statutory protection of servicemembers under Article 31 clearly 

contemplates not only an analysis of due process voluntariness, but also consideration of voluntariness as a matter of 

fundamental reliability. Accordingly, statements coerced by private citizens may still be held inadmissible under 

Mil. R. Evid. 304. 

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2. United States v. Ellis, 57 M.J. 375 (C.A.A.F. 2002). The appellant was subjected to 

several hours of interrogation during which he was accused of killing his two-year-old child. 

During the interrogation, the appellant was told that there was enough evidence to arrest him and 

his wife (who was also being subjected to interrogation). He was also told that his children would 

be taken away and put in foster care if he and his wife were arrested. The appellant and his wife 

met for fifteen minutes; after the meeting the appellant confessed to slamming his son’s head on 

the ground on two different occasions. The court concluded that although the detective’s 

statement regarding the possible removal of appellant’s children may have contributed to his 

confession, the statement was still the product of an essentially free and unconstrained choice by 

the appellant, and thus was voluntary. See also United States v. Bresnahan, 62 M.J. 137 

(C.A.A.F. 2005). 

3. Arizona v. Fulminante, 499 U.S. 279 (1991). The accused was befriended by another 

inmate, an FBI informant, who promised to protect the accused from other inmates if he would 

tell what happened concerning the murder of the accused’s 11-year-old daughter. Under “totality 

of the circumstances” the subsequent confession was involuntary. The Court found that a 

credible threat of physical violence existed unless the accused confessed. “Coercion can be 

mental as well as physical, and . . . the blood of the accused is not the only hallmark of an 

unconstitutional inquisition.” Other factors that may have been relevant in determining whether 

the accused’s will has been overborne include: accused’s intelligence, physical stature, prior 

prison experiences, and relationship with the informant. 

4. United States v. Martinez, 38 M.J. 82 (C.M.A. 1993). Confession during polygraph 

examination could be found involuntary as result of psychological coercion, even though accused 

had waived his rights and was free to leave motel room. Accused testified that his will was 

overborne. Coercive factors considered included duration of interrogation, the nature of the 

interrogation techniques, and the accused’s frustrated attempts to obtain assistance of counsel 

during the investigation. 

5. United States v. Benner, 57 M.J. 210 (C.A.A.F. 2002). Appellant’s confession to CID 

was involuntary, since the appellant was faced with the “Hobson’s choice” of either confessing 

on his own, or having the chaplain inform CID of his earlier admissions to child sexual abuse 

while seeking counseling from the chaplain. 

6. Haynes v. Washington, 373 U.S. 503 (1963). Petitioner’s written confession violated due 

process because it was obtained through the use of threats and isolation techniques by police. 

Failure to inform petitioner of his rights was another relevant factor in determining whether the 

confession was voluntary. The court further observed that the refusal to allow petitioner to 

communicate with his attorney or his wife was a misdemeanor under state law. 

7. United States v. O’Such, 37 C.M.R. 157 (C.M.A. 1967). The fact that appellant was 

deprived of sleep, had threats made against his family during the interrogation, and was 

threatened with being charged with misprision of a felony if he continued to remain silent led to 

his coerced oral admissions. 

8. Ashcraft v. Tennessee, 322 U.S. 143 (1944). A thirty-six hour interrogation was 

determined to be so “inherently coercive” as to render a resulting confession automatically 

involuntary. The Court seems to further indicate that the longer the interrogation, the less 

important the other factors become when evaluating the totality of the circumstances. 

E. Military Self-Reporting Requirements 

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1. United States v. Castillo, 74 M.J. 160 (C.A.A.F. 2015). The Navy changed their Navy’s 

Standard Organization and Regulation Manual to include a self-reporting requirement that “Any 

person arrested or criminally charged by civil authorities shall immediately advise their 

immediate commander of the fact that they were arrested or charged.” Appellant was arrested for 

DUI off-base, but failed to report the arrest to her command. Her command learned of the arrest 

during an unrelated visit to the local courthouse. Appellant was charged with violating a lawful 

order under Article 92 of the UCMJ. 

2. 

IX. ADMITTING CONFESSIONS MADE AFTER IMPROPER POLICE CONDUCT 

Generally, a confession obtained after an illegal search, arrest, or prior confession is inadmissible, 

unless the government can show sufficient attenuation of the taint. If the prior illegality is a result of 

procedural defects, it will be easier for the government to show attenuation of the taint. If, however, the 

prior illegality resulted from a constitutional violation (i.e., coercion) then it is unlikely the government 

will prevail. 

A. After an illegal arrest or search. 

1. Brown v. Illinois, 422 U.S. 590 (1975). Miranda warnings alone are insufficient to cure 

taint of arrest made without probable cause or warrant. Factors to consider on attenuation of the 

taint: (1) Miranda warnings; (2) “temporal proximity” of the illegal arrest and the confession; (3) 

“intervening circumstances”; and, (4) “purpose and flagrancy of the official misconduct”. 

2. Wong Sun v. United States, 371 U.S. 471 (1963). Statements made by appellant in his 

bedroom at the time of his unlawful arrest were the fruits of the agents’ unlawful action, and they 

should have been excluded from evidence. However, since the appellant was later lawfully 

arraigned and released on his own recognizance and had returned voluntarily several days later 

when he made his unsigned statement, the connection between his unlawful arrest and the making 

of this later statement was so attenuated that the unsigned statement was not the fruit of the 

unlawful arrest and, therefore, it was properly admitted in evidence. 

3. United States v. Washington, 39 M.J. 1014 (A.C.M.R. 1994). Unlawful search tainted 

statements made by accused where first statement was taken immediately after search and 

discussed items found during search. While a rights warning is a relevant factor in attenuating a 

statement from prior official misconduct, a warning alone cannot always break the casual 

connection. See also New York v. Harris, 495 U.S. 14 (1990) (where the police have probable 

cause to arrest a suspect, the exclusionary rule does not bar the use of a statement made by the 

defendant outside of his home, even though the statement is taken after an illegal warrantless 

arrest made in the home); United States v. Khamsouk, 57 M.J. 282 (C.A.A.F. 2002) (although 

appellant was seized during an illegal search, his continued custody at the police station was 

based on probable cause, therefore, his subsequent warned statement to police was properly 

admitted). 

4. United States v. Mitchell, 31 M.J. 914 (A.F.C.M.R. 1990). Harris applied. Statement 

made to police who entered accused’s motel room based on probable cause, but without a warrant 

or his consent should have been suppressed, but written statement given three days later was 

admissible. 

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5. United States v. Campbell, 41 M.J. 177 (C.M.A. 1994). Illegality of urinalysis precluded 

admission of accused’s statements, where urinalysis results were delivered to accused on day he 

made his initial confession, accused was directed to bring form notifying him of positive results 

to the criminal investigative division office, and positive results of the challenged urinalysis were 

the sole basis for the accused’s questioning by the military police. However, no cleansing 

warning was given. 

B. After an inadmissible confession. 

1. Question first tactic. Missouri v. Seibert, 542 U.S. 600 (2004). Police engaged in a 

common interrogation tactic of questioning the suspect. Once they obtained the confession, they 

would read the suspect her rights, get a waiver, and then obtain a second confession. The 

Supreme Court held that the warned confession was inadmissible, since the police’s deliberate 

tactic of withholding Miranda warnings elicited an initial confession that was used to undermine 

the “comprehensibility and efficacy” of the subsequent Miranda warnings. Under the 

circumstances of the case, the Court concluded that it would have been reasonable for the suspect 

to regard the two phases of the interrogation as a continuum, especially since the officer referred 

back to the earlier admissions. The mere recital of Miranda warnings in the middle of this 

continuous interrogation was not sufficient to separate the two phases in suspect’s mind. 

Therefore, she would have concluded that it would be unnatural for her not to repeat the same 

information she had just given. She would not have understood that she had a choice about 

continuing to talk. 

2. Oregon v. Elstad, 470 U.S. 298 (1985). “A suspect who has once responded to unwarned 

yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he 

has been given the requisite Miranda warnings.” “Administration of Miranda warnings serves to 

cure the condition that rendered the unwarned statement inadmissible.” However, no cleansing 

warning required. See also United States v. Lichtenhan, 40 M.J. 466 (C.M.A. 1994). 

3. United States v. Phillips, 32 M.J. 76 (C.M.A. 1991). An unwarned statement obtained 

without actual coercion does not presumptively taint a subsequent, warned statement. 

Government must prove by a preponderance of the evidence, however, that the warned statement 

was voluntary and was not obtained by using the earlier statement. If the initial statement is the 

product of actual coercion, duress, or inducement, it presumptively taints subsequent warned 

statements. Cleansing warnings, although not legally required, will help show voluntariness. Cf. 

United States v. Torres, 60 M.J. 559 (A.F. Ct. Crim. App. 2004). 

4. United States v. Steward, 31 M.J. 259 (C.M.A. 1990). Mere “technical violations of 

Article 31(b)” do not presumptively taint subsequent warned statements. The appropriate legal 

inquiry in these types of cases is whether his subsequent confession was voluntary considering all 

the facts and circumstances of the case, including the earlier technical violation of Article 31(b). 

5. United States v. Brisbane, 63 M.J. 106 (C.A.A.F. 2006). Where an earlier statement is 

“involuntary” only because the accused has not been properly warned of his Article 31(b) rights, 

the voluntariness of the second statement is determined by the totality of the circumstances. The 

earlier unwarned statement is a factor in this total picture, but it does not presumptively taint the 

subsequent statement. If a “cleansing warning” has been given — where the accused is advised 

that a previous statement cannot be used against him — that statement should be taken into 

consideration. If a cleansing statement is not given, however, its absence is not fatal to a finding 

of voluntariness. 

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6. United States v. Gardinier, 65 M.J. 60 (C.A.A.F. 2007), rev’d on other grounds, 67 M.J. 

304 (C.A.A.F. 2009). Suspect provided two incriminating statements to civilian investigators 

following a proper Miranda rights warning. Immediately after making these statements, a CID 

agent entered the interview room, identified himself, and obtain a third incriminating statement 

without advising the suspect of his Article 31 rights. Four days later, the suspect was called to the 

CID office and advised that his prior statement was given with what “may not have been a proper 

rights advisement.” The suspect was then asked whether he would be willing to make another 

statement. He did. While the court suppressed the first (unwarned) statement to CID, the second 

statement was found to be voluntary under the totality of the circumstances despite the fact the 

accused had not been specifically informed that his first statement to CID might be inadmissible. 

7. United States v. Young, 49 M.J. 265 (C.A.A.F. 1998). A two-day period was enough to 

purge the taint from the previous inadmissible confession. See also United States v. Ford, 51 

M.J. 445 (C.A.A.F. 1999); United States v. Allen, 59 M.J. 478 (C.A.A.F. 2004); United States v. 

Cuento, 60 M.J. 106 (C.A.A.F. 2004). 

8. Michigan v. Tucker, 417 U.S. 433 (1974). Police failure to advise appellant of his right 

to appointed counsel did not require that the testimony of a witness identified in appellant’s 

statement be suppressed. 

X. THE EXCLUSIONARY RULE 

No statement obtained in violation of Article 31,26 Miranda,27 Sixth Amendment,28 or due 

process may be received in evidence in the case in chief in a trial by court-martial against the subject of 

the violation. Evidence resulting from “mere” procedural violations may be allowed to impeach the 

testimony of the accused. Rationale for allowing impeachment use is that in an impeachment situation, 

the search for the truth in a criminal case outweighs the deterrence value of the exclusionary rule. 

Coerced statements are inadmissible for all purposes, to include impeachment of the accused. Otherwise 

inadmissible statements may also be admissible in a later prosecution against the accused for perjury, 

false swearing, or making of a false official statement. 

A. The general rule: Mil. R. Evid. 304(a). 

25 Mil. R. Evid. 304(b)(1): “Where the statement is involuntary only in terms of noncompliance with the 

requirements of Mil. R. Evid. 305(c) or (f), or the requirements concerning counsel under Mil. R. Evid. 305(d), 

305(e), or 305(g), this rule does not prohibit use of the statement to impeach by contradiction the in-court testimony 

of the accused . . . .” 

26 Harris v. New York, 401 U.S. 222 (1971); accord Oregon v. Hass, 420 U.S. 714 (1975). 

27 Kansas v. Ventris, 556 U.S. 586 (2009) (statement to informant, admittedly elicited in violation of the Sixth 

Amendment, was admissible to impeach defendant’s inconsistent testimony at trial); Michigan v. Harvey, 494 U.S. 

344 (1990) (statement given in response to police-initiated interrogation following attachment of accused’s Sixth 

Amendment right to counsel, although not admissible in the prosecution’s case-in-chief, may be used to impeach the 

defendant's testimony, at least when the defendant gives a knowing and voluntary waiver of his right to counsel); 

United States v. Langer, 41 M.J. 780 (A.F. Ct. Crim. App. 1995) (statements made by accused after preferral of drug 

charges against him to person recruited as drug informant by government agents were obtained in violation of 

accused’s Sixth Amendment right to counsel and could not be used in government’s case-on-chief. Although 

informant may have been intended to act as a passive listening post, person in fact initiated contact and 

conversations with accused for the express purpose of gathering information about illegal drug activity. Statements 

could be used in rebuttal if such information became relevant to impeach accused’s testimony). 

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“[A]n involuntary statement or any derivative evidence therefrom may not be received in 

evidence against an accused who made the statement if the accused makes a timely 

motion to suppress or an objection to the evidence under this rule.” 

B. The inevitable discovery exception. 

1. Mil. R. Evid. 304(b)(2) and (3) provide that: 

a. Evidence that was obtained as a result of an involuntary statement may be used when 

the evidence would have been obtained even if the involuntary statement had not been made. 

b. Evidence challenged as derivative evidence may be admitted against the accused if 

the military judge finds by a preponderance of the evidence that the statement was made 

voluntarily, that the evidence was not obtained by use of the statement, or that the evidence 

would have been obtained even if the statement had not been made. 

2. United States v. Kline, 35 M.J. 329 (C.M.A. 1992). Accused, on his own initiative, 

contacted his commander and stated, “I have just turned myself in for sexually molesting my 

daughter.” The court found admission was not inadmissible involuntary derivative evidence, 

despite suppression of a similar admission made to a military social worker hours earlier. 

C. Statements incriminating others. 

1. Exclusionary rule does not apply to coerced or unadvised witness statements that 

incriminate someone else. Instead, evidence of coercive or illegal investigatory tactics employed 

by the government to secure such evidence or subsequent testimony based thereon may be 

presented to the fact-finder for purposes of determining the weight to be afforded this evidence. 

2. United States v. McCoy, 31 M.J. 323 (C.M.A. 1990). No due process violation where 

trial counsel deliberately advised CID agents not to advise suspects of their Article 31 rights, 

suspects later gave immunized testimony against accused, and accused had a full opportunity to 

present this improper conduct to the members through cross-examination, witnesses, and 

argument. 

D. False Official Statement charge. 

United States v. Swift, 53 M.J. 439 (C.A.A.F. 2000). The government may only use a statement taken 

in violation of Article 31 in a later prosecution for false official statement, where the accused has 

taken the stand in an earlier prosecution, thereby “open[ing] the door to consideration of the 

unwarned statement by his or her in-court testimony.” 

E. Derivative physical evidence (difference between Military Rules of Evidence and Supreme 

Court jurisprudence). 

1. Mil. R. Evid. 304(a) states that “[A]n involuntary statement from the accused, or any 

evidence derived therefrom may not is inadmissible at trial . . . .” Therefore, in the military, the 

fruit of the poisonous tree doctrine applies to evidence derived from inadmissible statements. 

2. But see United States v. Patane, 542 U.S. 630 (2004). After arresting the defendant at his 

house and before completely giving him Miranda warnings, the police asked him where his pistol 

was. The defendant told the officers the location of the pistol, and then, per their request, gave 

the officers permission to enter and seize it. The Supreme Court held that the pistol was 

admissible. A plurality of the Court concluded that the Self-Incrimination Clause of the Fifth 

Amendment protects individuals from being compelled to testify against themselves in a criminal 

proceeding. Thus, the Clause cannot be violated by admitting nontestimonial evidence obtained 

through the use of unwarned, yet voluntary statements. Creating a blanket suppression rule for 

such evidence does not serve the Fifth Amendment’s goals of “assuring trustworthy evidence” or 

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deterring police misconduct. Additionally, the protections of Miranda are not violated when 

officers fail to give warnings, regardless of whether the failure is negligent or intentional. 

Instead, Miranda’s protections are violated when unwarned statements are admitted against the 

declarant at trial. Suppression of unwarned statements is a complete remedy to protect this 

fundamental “trial right.” Therefore, the “fruit of the poisonous tree” doctrine does not apply to 

evidence derived from Miranda violations. 

XI. MENTION OF INVOCATION AT TRIAL 

A. Silence at trial.29 

1. Griffin v. California, 380 U.S. 609 (1965). Comment by the prosecutor on the accused 

not testifying violates the Fifth Amendment and due process. 

2. Portuondo v. Agard, 529 U.S. 61 (2000). A prosecutor’s comments about the 

defendant’s opportunity to watch other witnesses testify before he took the stand and to tailor his 

testimony accordingly, did not amount to a constitutional violation, but were instead a fair 

comment on factors effecting the defendant’s credibility. The Supreme Court held that “when [a 

defendant] assumes the role of a witness, the rules that generally apply to other witness — rules 

that serve the truth-seeking function of the trial — are generally applicable to him as well.” 

3. United States v. Robinson, 485 U.S. 25 (1988). Where the prosecutor on his own 

initiative asks the jury to draw an adverse inference from a defendant’s silence, Griffin, holds that 

the privilege against compulsory self-incrimination is violated. But where the prosecutor’s 

reference to the defendant’s opportunity to testify is a fair response to a claim made by defendant 

or his counsel, there is no violation of the privilege. 

4. United States v. Cook, 48 M.J. 64 (C.A.A.F. 1998). During closing argument, trial 

counsel asked the members to consider the accused’s yawning during trial as being indicative of 

his guilt. The CAAF held that it was improper for the trial counsel to comment about the 

courtroom demeanor of the accused, but found the error to be harmless. The Court determined 

that the accused’s acts were non-testimonial and therefore not protected by the Fifth Amendment. 

Regardless, the acts were not relevant to the issue of guilt or innocence. See also United States v. 

Gray, 51 M.J. 1 (C.A.A.F. 1999). 

5. United States v. Mobley, 34 M.J. 527 (A.F.C.M.R. 1991), aff’d, 36 M.J. 34 (C.M.A. 

1992) (summary disposition). Trial counsel asked rhetorical questions directed to accused during 

argument on findings, and then answered them himself in manner calculated to bring the 

accused’s silence to the members’ attention. “[A] trial counsel may not comment directly, 

indirectly, or by innuendo, on the fact that an accused did not testify in his defense.” Harmless 

error despite legally inappropriate comments. 

28 Mil. R. Evid. 301(f) sets forth the general rule: 

(1) “fact that a witness has asserted the privilege against self-incrimination in refusing to answer a question cannot 

be considered as raising any inference unfavorable to either the accused or the government.” 

* * * 

(3) “fact that the accused during official questioning and in exercise of rights . . . remained silent, refused to 

answer . . . , requested counsel, or requested that the questioning be terminated is inadmissible against the accused.” 

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6. United States v. Kirks, 34 M.J. 646 (A.C.M.R. 1992). Trial counsel improperly described 

non-testifying accused’s demeanor as “[t]he iceman.” Comments on a non-testifying accused’s 

demeanor are objectionable on three grounds: 1) argues facts not in evidence; 2) violates Mil. R. 

Evid. 404(a) by using character evidence solely to prove guilt; and, 3) violates the Fifth 

Amendment. Defense counsel only objected on third ground, which was cured by an instruction. 

Other grounds were waived and not plain error. See also United States v. Jackson, 40 M.J. 820 

(N.M.C.M.R. 1994) (trial counsel’s argument on findings that accused’s tears in court were tears 

of remorse and guilt was harmless error even though the accused’s courtroom behavior off of the 

witness stand was legally irrelevant to the question of guilt). 

7. United States v. Carter, 61 M.J. 30 (C.A.A.F. 2005). The CAAF held that the trial 

counsel’s repeated comments about the “uncontroverted” and “uncontradicted” evidence during 

findings argument constituted an impermissible reference to the accused’s exercise of his Fifth 

Amendment right not to testify. The trial counsel’s comments on the defense’s failure to present 

contradicting evidence were not tailored to address any weaknesses in the defense’s crossexamination of the victim or the defense’s efforts to impeach her; rather, since only the accused 

could controvert the victim, the trial counsel’s comments in effect repeatedly drew the members’ 

attention to the accused’s failure to testify. 

8. United States v. Paige, 67 M.J. 442 (C.A.A.F. 2009). The trial counsel, during closing 

arguments, argued that the evidence of the victim’s condition was “uncontradicted.” The trial 

counsel also incorrectly argued that Paige had to assert that his mistake was honest in order to 

qualify for the mistake of fact as to consent defense. The CAAF held that as to the 

uncontradicted comment, this was neither plain nor obvious error. Paige was not the only one 

with the information that could contradict the victim’s condition because other witnesses saw her 

immediately before and during the rape. As to the mistake of fact defense comment, the error 

was plain and obvious, but it was harmless beyond a reasonable doubt. 

9. United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009). During opening statements, the 

trial counsel told the members that Ashby never told anyone about the videotape of the incident. 

The trial counsel also told the members that when Ashby met with the Italian prosecutor, he was 

told that he had a right to remain silent, similar to American law, and that he invoked that right. 

The defense moved for a mistrial, which was denied. The trial counsel was required to redact her 

statement to the members. The defense was allowed to voir dire the members, which was 

declined. A curative instruction was given by the military judge. The CAAF found the 

comments made by the trial counsel were error, but that they were harmless beyond a reasonable 

doubt due to the curative efforts made by the military judge. 

B. Silence after warnings. 

1. Doyle v. Ohio, 426 U.S. 610 (1976). Use of accused’s silence after Miranda warning to 

impeach later trial testimony as a fabrication violates due process. 

2. United States v. Riley, 47 M.J. 276 (C.A.A.F. 1997). Under the circumstances of the case 

(no defense objection, no instruction to members regarding improper introduction of evidence, 

and weak evidence), admission of testimony by an investigator regarding the accused’s 

invocation of the privilege against self-incrimination during questioning constituted plain error. 

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3. United States v. Sidwell, 51 M.J. 262 (C.A.A.F. 1999). When asked by the trial counsel 

what statements the accused made, the witness testified that the accused invoked “his rights.” 

Defense counsel immediately objected and moved for a mistrial. Although the military judge 

denied the defense motion, he did strike the witnesses testimony, gave several curative 

instructions, and questioned the members to ensure they understood the instructions. The CAAF 

determined that error occurred, but considering the corrective action taken by the military judge 

and the facts of the case, the error was harmless. Cf. United States v. Riley, 47 M.J. 276 

(C.A.A.F. 1997). 

4. United States v. Miller, 48 M.J. 811 (N-M. Ct. Crim. App. 1998). Relying on Riley, the 

NMCCA held that the admission of the investigator’s testimony that the accused terminated the 

interrogation materially prejudiced the substantial rights of the accused. The court also noted that 

the military judge failed to take the necessary steps to remedy the prejudice. 

C. Silence before warnings. 

1. Mil. R. Evid. 304(a)(2). 

“Failure to deny an accusation of wrongdoing is not an admission of the truth of the accusation if, 

at the time of the alleged failure, the person was under investigation or was in confinement, 

arrest, or custody for the alleged wrongdoing. “ 

2. United States v. Cook, 48 M.J. 236 (C.A.A.F. 1998). After being arrested and questioned 

by OSI investigators about a rape allegation, the accused went to a friend’s house. The friend 

asked the accused if he committed the rape. The accused did not respond. At trial, the 

prosecution introduced this evidence and argued that the accused’s failure to deny the allegation 

indicated guilt. The CAAF held that this evidence was irrelevant under Mil. R. Evid. 304, even 

when the one asking the questions was a friend who was inquiring out of personal curiosity. The 

CAAF also held that the start of the OSI investigation was the triggering event for the Mil. R. 

Evid. 304 protections. 

3. United States v. Alameda, 57 M.J. 190 (C.A.A.F. 2002). Appellant’s silence upon being 

informed that he was being apprehended for an “alleged assault” was not relevant since appellant 

had a history of domestic violence, including an incident two weeks prior to the attempted murder 

incident, therefore his failure to deny one or more of the “alleged assaults” to the arresting officer 

does not support an inference of guilt and is therefore not relevant. Since the military judge’s 

admission into evidence of the appellant’s silence was error, trial counsel’s use of it in his closing 

argument was also error. Additionally, the military judge’s instructions to the panel were “off the 

mark,” since they only dealt with the appellant’s silence at trial, and may have actually 

exacerbated the problem by indicating to panel members, by omission, that they could draw an 

adverse inference from appellant’s silence during his apprehension. 

4. United States v. Ruiz, 50 M.J. 518 (A.F. Ct. Crim. App. 1999), aff’d, 54 M.J. 138 

(C.A.A.F. 2000). During cross-examination of the accused, the trial counsel questioned him 

about his failure to proclaim his innocence when confronted by investigators. The AFCCA held 

that under the circumstances, the questioning by trial counsel did not violate Mil. R. Evid. 304(h), 

because it was designed to highlight the differences between the testimonies of the prosecution 

witnesses and of the accused. 

5. Use of accused’s pre-arrest, pre-Miranda warning silence to impeach later trial testimony 

on self-defense is permissible.30 

29 Jenkins v. Anderson, 447 U.S. 231 (1980) (accused failed to inform police about his self-defense claim for at least 

two weeks after murder. Prosecutor used this silence in his cross-examination of the defendant and in his closing 

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6. Use of accused’s post-arrest, pre-Miranda warning silence to impeach trial testimony on 

self-defense is permissible; rules of evidence may address. See Fletcher v. Weir, 455 U.S. 603 

(1982). 

D. Invoking the right to counsel. 

United States v. Gilley, 56 M.J. 113 (C.A.A.F. 2001). The standard for determining whether 

mentioning an accused’s invocation of his right to counsel is improper is the same standard used 

for mentioning an accused’s invocation of his right to remain silent. Here, no reversible error 

where: 1) defense counsel first elicited evidence of his client’s invocation on cross-examination 

and did not object to the witness’s response; 2) defense’s theory “invited response” from trial 

counsel about accused’s invocation; and, 3) invocation was not used as substantive evidence 

against accused. 

E. Remedy for impermissible comments at trial. 

1. United States v. Garrett, 24 M.J. 413 (C.M.A. 1987). Trial counsel erred by eliciting 

testimony from CID agent that accused had terminated their interview and asked for an attorney, 

but a mistrial was properly denied and the error cured by the judge’s instructions.31 

2. United States v. Palumbo, 27 M.J. 565 (A.C.M.R. 1988). CID agent revealed to the court 

that accused asserted rights and declined to be interviewed. The military judge properly denied a 

mistrial and corrected the error by (1) immediately instructing members to disregard evidence and 

that accused had properly invoked rights; (2) obtaining affirmative response from court members 

that they understood and could follow instructions; (3) having defense counsel participate in 

drafting curative instruction; and, (4) finding trial counsel inadvertently introduced evidence.32 

F. The right extends through sentencing. 

1. Estelle v. Smith, 451 U.S. 454 (1981). “We can discern no basis to distinguish between 

the guilt and penalty phases . . . so far as the protection of the Fifth Amendment privilege is 

concerned.” 

2. United States v. Edwards, 35 M.J. 351 (C.M.A. 1992). “We must emphasize that trial 

counsel can only argue that an accused lacks remorse when that inference can be fairly derived 

from evidence before the court-martial. It cannot arise solely from an accused’s exercise of his or 

her rights.” 

XII. PROCEDURE 

A. Discovery. 

argument); Brecht v. Abrahamson, 507 U.S. 619 (1993) (defendant failed to tell anyone that the victim's shooting 

was an accident prior to receipt of the warnings). See also State v. Easter, 922 P.2d 1285 (Wash. 1996) (finding that 

the accused’s pre-arrest silence cannot be used against him). In Easter, the accused was questioned at the accident 

scene, but he refused to answer any questions (not a custodial interrogation). During trial, the prosecutor argued that 

the accused’s silence indicated he was being evasive to avoid alcohol detection. The Washington Supreme Court 

held that an accused’s pre-arrest silence cannot be used against him/her. The court found that the right to silence is 

derived from the Fifth Amendment and not Miranda, and applies before an accused is in custody or is the subject of 

an investigation. 

30 A good example of a curative instruction is contained in United States v. Mobley, 34 M.J. 527 (A.F.C.M.R. 

1991). 

31 When defense does not request it, there is no need to reiterate instruction during final instructions. See also 

United States v. Zaccheus, 31 M.J. 766 (A.C.M.R. 1990). 

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Mil. R. Evid. 304(d)(1): “Disclosure. Prior to arraignment, the prosecution shall disclose 

to the defense the contents of all statements, oral or written, made by the accused that are 

relevant to the case, known to the trial counsel, and within the control of the armed 

forces.” 

Mil. R. Evid. 305(f)(2): If not disclosed, judge may make such orders as required in the 

“interests of justice.” 

B. Litigating the issues. 

1. General Procedure. 

a. Motions and objections. Defense must raise the motion prior to the plea or the 

motion is waived; good cause must be shown for an exception. Mil. R. Evid. 304(f)(1). 

b. Specificity. Judge may require defense to specify the grounds. Mil. R. Evid. 

304(f)(4) 

c. Evidence. The defense may present evidence to support its motion, including the 

testimony of the accused for the limited purpose of the motion. The accused may be crossexamined only on the matter to which he testified. Nothing said by the accused, either in 

direct or cross-examination, may be used against him for any purpose other than in a 

prosecution for perjury, false swearing, or false official statement. Mil. R. Evid. 304(f)(3). 

d. Burden. Once a motion or objection is raised by the defense, the prosecution has the 

burden of proving that the statement was voluntary by a preponderance of the evidence. Mil. 

R. Evid. 304(f)(6). 

e. If a statement is admitted into evidence, the defense shall be allowed to present 

evidence as to the voluntariness of the statement in an attempt to reduce the weight that the 

fact finder will give to it. Mil. R. Evid. 304(f)(3). 

f. Rulings. Shall be ruled on prior to plea, unless good cause. Judge shall state 

essential findings of fact.32 

g. Guilty plea waives all objections to the admission of the statements. 

2. Standing to challenge self-incrimination issues. United States v. Jones, 52 M.J. 60 

(C.A.A.F. 1999). To perfect its case against the accused, the government negotiated with three 

“minor offenders” to testify against the accused. These witnesses did not have a formal grant of 

immunity. The unwritten agreement was that the government would not prosecute them if they 

accepted Article 15 punishment, paid restitution, and testified against the accused. On appeal, the 

accused argued that the government violated the witness’s self-incrimination rights, and 

therefore, their testimony should not have been admissible. The CAAF held that the accused did 

not have standing to challenge procedural violations of the self-incrimination rights of the 

witnesses, but may challenge statements that are involuntary due to “coercion and unlawful 

influence.” The court further determined that the even though the government’s actions “smelled 

bad” and resulted in de facto immunity, they did not constitute the requisite showing of prejudice. 

3. Warnings and waivers at trial. 

a. Mil. R. Evid. 301(b)(2): The military judge should advise a witness of the right to 

decline to make an answer if the witness appears likely to incriminate himself. 

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b. Right against self-incrimination is a “fundamental constitutionally-mandated 

procedural right that can be waived only by an accused on the record.” Waiver will not be 

presumed by a silent or inadequate record.33 

4. Burden of proof. 

Mil. R. Evid. 304(f)(7): The burden of proof is on the prosecution by a 

preponderance of the evidence. It extends only to grounds raised. 

5. Defense evidence on motions. 

Mil. R. Evid. 304(f)(3): Accused may testify for limited purpose. 

6. Corroboration. 

a. Mil. R. Evid. 304(c): “An admission or a confession of the accused may be 

considered as evidence against the accused on the question of guilt or innocence only if 

independent evidence, either direct or circumstantial, has been admitted into evidence that 

would tend to establish the trustworthiness of the admission or confession.” essential facts 

admitted sufficiently to justify an inference of their truth. . . .” 

b. Procedure. 

The military judge alone is to determine when adequate evidence of corroboration has 

been received. Corroborating evidence must be introduced before the admission or 

confession is introduced unless the military judge allows submission of such evidence to 

later corroboration. See Mil. R. Evid. 304(c)(5). 

c. United States v. Rounds, 30 M.J. 76 (C.M.A. 1990). Independent evidence of each 

and every element of the confessed offense is not required as a matter of military law. 

Generally speaking, it must “establish the trustworthiness of the” confession. Confession was 

sufficiently corroborated without independent evidence of ingestion of drugs when 

independent evidence showed accused had access and opportunity to ingest drugs at time and 

place where he confessed to using drugs.34 

d. United States v. Duvall, 47 M.J 189 (C.A.A.F. 1997). A conviction cannot be based 

solely on a confession. Rather, some corroborative evidence must be introduced to the trier 

of fact pursuant to Mil. R. Evid. 304(g). 

e. United States v. Hall, 50 M.J. 247 (C.A.A.F. 1999). In a military judge alone trial, 

the trial counsel did not offer the same corroborating evidence on the merits that he did 

during proceedings on a defense motion to suppress the accused’s confession. In affirming 

its holding in Duvall (corroborating evidence must be submitted to the trier-of-fact), the 

CAAF found that the government satisfied Mil. R. Evid. 304 and the confession was 

sufficiently corroborated, since the judge acknowledged that he considered the corroborating 

evidence for both the motion and the merits. 

32 United States v. Adams, 28 M.J. 576 (A.C.M.R. 1989) (judge’s failure to advise accused of his constitutional 

rights rendered guilty plea improvident). 

33 See also United States v. Lawrence, 43 M.J. 677 (A.F. Ct. Crim. App. 1995) (confession to cocaine use of four 

occasions sufficiently corroborated by recent urinalysis); United States v. Maio, 34 M.J. 215 (C.M.A. 1992); United 

States v. Williams, 36 M.J. 785 (A.C.M.R. 1993). 

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f. United States v. Swenson, 51 M.J. 522 (A.F. Ct. Crim. App. 1999). Members 

convicted the accused of attempting to use LSD. The conviction was based upon a 

confession that was corroborated by a previous admission of LSD use. The AFCCA held that 

corroborating the accused’s confession with a prior admission was proper so long as the prior 

admission was a statement of anticipated future conduct and not an admission of past 

criminal conduct. A statement of future criminal misconduct does not need to be 

corroborated; it can be used to corroborate a confession. 

g. United States v. Cottrill, 45 M.J. 485 (C.A.A.F. 1997). The corroborating evidence 

must raise only an inference of truth as to the essential facts admitted, which must be shown 

by a preponderance of the evidence. In Cottrill, there was sufficient independent physical 

evidence to corroborate the accused’s pretrial admissions that he sexually assaulted his 

daughter. See also United States v. O’Rourke, 57 M.J. 636 (A. Ct. Crim. App. 2002) 

h. United States v. Howe, 37 M.J. 1062 (N.M.C.M.R. 1993), overruled on other 

grounds, United States v. Driver, 57 M.J. 760 (N-M. Ct. Crim. App. 2002). Trial counsel has 

a duty to withdraw charge based on uncorroborated admission or else inform military judge 

there is insufficient evidence to support it. 

i. United States v. McCastle, 40 M.J. 763 (A.F.C.M.R. 1994), aff’d, 43 M.J. 438 

(C.A.A.F. 1996), as modified on reconsideration, 44 M.J. 77 (C.A.A.F. 1996). Corroboration 

was enough where the place the accused admitted to purchasing drugs was a well-known 

trafficking location, accused’s description of the dealer matched the description of a known 

dealer at that location, and the dealer was frequently observed by authorities using the 

described vehicle to conduct drug sales. 

j. United States v. Baldwin, 54 M.J. 464 (C.A.A.F. 2001). In the confession, the 

appellant stated that his wife had walked in on him while he was assaulting his daughter 

(although she did not see anything) and that he immediately sought professional help through 

the chaplain and a therapist. In finding adequate corroboration, the court relied on the 

following facts: the appellant’s wife saw the appellant in their daughter’s room on the night 

he confessed to sexually assaulting her; the appellant gave his wife “a strange look that she 

had never seen before;” the appellant left the bedroom and went in the living room where he 

began crying and talking about his own history of being sexually abused; and, two days after 

being caught, the appellant went to the chaplain and then to a therapist. It was not necessary 

to provide independent evidence of all the elements of the offense. The court also 

emphasized that the government only had to establish an inference of truth as to the essential 

facts by a preponderance of the evidence. 

k. United States v. Adams, 74 M.J. 137 (C.A.AF. 2015). CAAF reversed the appellant’s 

conviction after determining that the government offered no evidence to corroborate the 

appellant’s opportunity or motive to commit the crime, his access, his intent, ant the 

accomplices involved, the subject of the larceny (cocaine), the time of the crime, or the act of 

larceny itself. CAAF held that there is no "tipping point" of corroboration which would 

allow admission of the entire confession if a certain percentage of essential facts are found to 

be corroborated. For instance, if four of five essential facts were corroborated, the entire 

confession is not admissible. Only the four corroborated facts are admissible and the military 

judge is required to excise the uncorroborated essential fact, Mil. R. Evid. 304(c). 

7. Defense Evidence on Voluntariness. 

a. Crane v. Kentucky, 476 U.S. 683 (1986). Due process and Sixth Amendment 

concerns require that the accused be permitted to challenge the reliability of a statement 

before the fact-finder, even though the judge may have found the statement “voluntary.” 

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b. United States v. Miller, 31 M.J. 247 (C.M.A. 1990). Mil. R. Evid. 304(e) adopts the 

orthodox rule for determining the voluntariness of confessions. The judge alone determines 

the admissibility of confessions and that ruling is final. Although the members must consider 

the confession in determining guilt or innocence, the accused is free to argue the confession 

was involuntary in order to reduce the weight the members give it. Judge must hold a hearing 

and make findings as to voluntariness only if the defense raises the issue by a motion to 

suppress or a timely objection at trial. The Constitution does not require a voluntariness 

hearing unless use of the confession is challenged. 

8. Joint trials: redaction of confessions. 

Gray v. Maryland, 523 U.S. 185 (1998). A co-defendant’s confession that 

substituted either a blank space or the word “deleted” in place of the accused’s 

name was inadmissible in a joint trial. As redacted, the Court held that the jury 

would clearly infer the confession refers to the accused. The Court opined that 

there were other acceptable ways to redact the accused’s name from the 

confession. See also Bruton v. United States, 391 U.S. 123 (1968); Mil. R. Evid. 

306. 

XIII. IMMUNITY 

A grant of immunity overcomes the privilege against self-incrimination by removing the 

consequences of a criminal penalty. If a servicemember is given immunity, the government can compel 

him to make a statement, but cannot use that compelled statement against him in trial. The statement can, 

however, be used if the servicemember commits perjury, false statement, or false swearing. Only the 

General Court-Martial Convening Authority (GCMCA) can grant immunity. There are circumstances in 

which immunity may be implied (de facto immunity), even though the GCMCA did not grant immunity. 

A. Types of immunity. 

1. Transactional. Immunity from trial by court-martial for one or more offenses under the 

code. 

2. Testimonial. “Use immunity” for testimony and any derivative evidence. Mil. R. Evid. 

301(c)(1) and Kastigar v. United States, 406 U.S. 441 (1972). 

3. RCM 704 & Mil. R. Evid. 301. 

B. Authority to grant immunity. 

1. General rule: only the GCMCA can grant immunity. 

2. To whom: 

a. Persons subject to the UCMJ. 

(1) Must relate to court-martial, not federal district court prosecution. RCM 

704(c)(1). 

(2) Insure DOJ has no interest in the case. AR 27-10, para. 2-4. 

b. Persons not subject to the UCMJ. 

(1) GCMCA can grant only with approval of U.S. Attorney General. RCM 

704(c)(2). 

(2) Procedures. AR 27-10, para. 2-4. 

c. Delegation of authority not permitted. RCM 704(c)(3). 

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C. Procedure. 

1. Decision to grant immunity. 

a. Unless limited by superior competent authority, the decision to grant immunity is a 

matter within the sole discretion of the GCMCA. 

b. If a defense request to grant immunity has been improperly denied, the military judge 

may, upon motion by the defense, grant appropriate relief by directing that the proceedings 

against the accused be abated. 

c. RCM 704(e): The military judge may grant such a motion upon findings that: 

(1) The witness intends to invoke the right against self-incrimination . . . if called to 

testify; and 

(2) The government has engaged in discriminatory use of immunity to obtain a 

tactical advantage, or the government through its own overreaching, has forced the 

witness to invoke the privilege . . .; and, 

(3) The witness’ testimony is material, clearly exculpatory, not cumulative, not 

obtainable from any other source, and does more than merely affect the credibility of 

other witnesses. 

d. United States v. Richter, 51 M.J. 213 (C.A.A.F. 1999). The accused was one of 

many actors in a larceny scheme. Prior to trial, the defense asked the convening authority to 

grant immunity to a defense witness. The convening authority denied the defense request, but 

granted immunity to five prosecution witnesses. The CAAF held that the military judge did 

not abuse his discretion when he denied the defense motion to abate the court-martial. The 

court relied on the three-prong test under RCM 704(e) in reaching its decision. Specifically, 

the court stated that the three prongs must be read in the conjunctive. Since the defense 

witness was a prosecution target, the second prong of the rule was not met. 

2. Order to testify/grant of immunity. 

a. RCM 704(d). 

b. AR 27-10, Military Justice, Chapter 2 (Investigation and Prosecution of Crimes With 

Concurrent Jurisdiction). 

D. Notice to the accused. 

1. Mil. R. Evid. 301(d)(2). Written grant shall be served on accused prior to arraignment or 

within a reasonable time before witness testifies. 

2. Remedy: continuance, prohibit or strike testimony, or other order as required. 

3. United States v. Tuscan, 67 M.J. 592 (C.G. Ct. Crim. App. 2009). Trial counsel notified 

defense of government witness immunized testimony the morning of trial. Witness did not testify 

until after lunch on the second day of trial. Defense did not ask for a continuance. The CGCCA 

held that this was a reasonable time before the witness testified and therefore the testimony was 

properly allowed. However, the CGCCA expresses concern that the government was potentially 

“hiding the ball.” Id. at 595. 

E. Scope of the immunity. 

1. Prosecution after testimonial immunity. 

a. Independent evidence. 

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(1) Government must show that evidence used to prosecute accused is completely 

independent of immunized testimony. Tips to avoid problems: (1) screen all immunized 

data from the trial team; (2) catalogue or seal all data to provide a paper trail; and, (3) 

personnel who had access to the immunized testimony should have no contact with the 

prosecution team. See United States v. England, 30 M.J. 1030 (A.F.C.M.R. 1990), aff’d, 

33 M.J. 37 (C.M.A. 1991). 

(2) Government can use neither the immunized testimony nor its fruits, to include 

any investigatory leads. It is a question of fact whether the government has a legitimate, 

independent source for its evidence. In United States v. Boyd, 27 M.J. 82 (C.M.A. 1988), 

the findings and sentence were set aside and charges dismissed because testimony of a 

witness (Wills) against the accused was derived from the prior immunized testimony of 

the accused against Wills. government did not meet its burden of showing that the 

accused’s testimony did not contribute to Wills’ decision to make a statement against the 

accused. See also United States v. Mapes, 59 M.J. 60 (C.A.A.F. 2003); but see United 

States v. McGeeney, 44 M.J. 418 (C.A.A.F. 1996). 

b. Non-evidentiary use of immunized statements. 

(1) United States v. Kastigar, 406 U.S. 441 (1972). The Supreme Court held that 

prosecutorial authorities are prohibited from using testimony that is compelled by grants 

of immunity. In United States v. Kimble, 33 M.J. 284 (C.M.A. 1991), the CMA held that 

immunity protection described in Kastigar also extend to “non-evidentiary uses” of 

immunized statements, such as the decision to prosecute. See also United States v. 

Mapes, 59 M.J. 60 (C.A.A.F. 2003). 

(2) Accordingly, the impact of testimonial immunity goes beyond the admissibility 

of certain statements. The government must show by preponderance of the evidence that 

the decision to prosecute was untainted by evidence received as a result of immunity 

grant. See United States v. McGeeney, 41 M.J. 544 (N-M. Ct. Crim. App. 1994); see also 

Cunningham v. Gilevich, 36 M.J. 94 (C.M.A. 1992). 

(3) If the government cannot show that the decision to prosecute the accused was 

made before immunized statements were provided by accused, the government may not 

prosecute unless it can show, by a preponderance of the evidence, that the prosecutorial 

decision was untainted by the immunized testimony. See United States v. Olivero, 39 

M.J. 264 (C.M.A. 1994). 

(4) United States v. Olivero, 39 M.J. 246 (C.M.A. 1994). The convening authority 

gave appellant testimonial immunity regarding his knowledge of other airman’s (TSgt S) 

drug use. Government did not certify, seal, or memorialize any evidence of appellant’s 

own drug use prior to this grant. Contrary to his oral, unsworn statement initially 

provided after immunity grant, the appellant testified at TSgt S’s Article 32 hearing that 

he had never used drugs with TSgt S. Four days later, Olivero was charged with drug use 

and perjury. At trial, Olivero moved to dismiss claiming the decision to prosecute was 

wrongly based on his immunized statements. The CMA agreed. Conviction set aside. 

Two practice points should be taken from Olivero: 

(a) If possible, prior to providing a grant of immunity, any evidence that will be 

used in a subsequent prosecution of the grantee should be segregated and sealed to 

foreclose later issues regarding improper non-evidentiary use of immunized 

statements; and, 

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(b) Trial and defense counsel and military judges should make distinctions in 

their arguments, motions, and rulings between evidentiary and non-evidentiary uses 

of disputed immunized statements. 

(5) Olivero is consistent with Cunningham v. Gilevich, 36 M.J. 94 (C.M.A. 1992), 

where the CMA ruled that prosecutions may not “result from” statements taken in 

violation of Article 31(d). 

(6) United States v. Youngman, 48 M.J. 123 (C.A.A.F. 1998). In response to a 

defense motion, the military judge dismissed only those charges derived directly from the 

accused’s immunized statement. The CAAF held that the military judge abused his 

discretion by not determining if the accused’s immunized statement and evidence derived 

therefrom played “any role” in the decision to prosecute all of the offenses. 

2. Immunity does not supplant the attorney-client privilege. A witness, testifying under a 

grant of immunity can still assert an attorney-client privilege. Further, disclosure of attorneyclient confidences while testifying under a grant of immunity does not constitute a voluntary 

waiver of the attorney-client privilege. See United States v. Romano, 46 M.J. 269 (C.A.A.F. 

1997). 

F. Use of immunized testimony “against” the witness. 

1. Impeachment. Immunized testimony from prior court-martial cannot be used to impeach 

an accused in later court-martial. United States v. Daley, 3 M.J. 541 (A.C.M.R. 1977). 

2. Post-Trial Matters. Immunized testimony can be used by an SJA to refute claims in a 

clemency petition that the terms of the immunity agreement were breached. The CMA termed 

these “matters . . . collateral to a criminal trial.” United States v. Vith, 34 M.J. 277 (C.M.A. 1992) 

(Judge Gierke, concurring in the result, disagreed, finding this limited use violated the Fifth 

Amendment). 

3. Subsequent Prosecutions. Neither type of immunity bars prosecution for perjury, false 

swearing, false official statement, or failure to comply with an order to testify. RCM 704(b); Mil. 

R. Evid. 301(d)(1). 

G. Standing to object to immunity grants. 

United States v. Martinez, 19 M.J. 744 (A.C.M.R. 1984). Unless the accused is denied 

due process or a fair trial, he is without standing to challenge a grant of immunity to those 

who testify against him. 

H. Inadvertent immunity. 

1. De facto immunity. 

a. A person other than GCMCA may create a situation of de facto immunity when he or 

she: 

(1) manifests apparent authority to grant immunity; 

(2) makes a representation that causes the accused to honestly and reasonably 

believe that he will not be prosecuted if he fulfills a certain condition; 

(3) has at least the tacit approval of the GCMCA; and, 

(4) the accused relies to his or her detriment on the representations. An accused may 

complete the creation of a de facto grant of immunity when he relies on the 

representation to his detriment by actually fulfilling the condition suggested by the 

government. 

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b. Analysis. 

(1) Where an accused honestly and reasonably believes that an official has promised 

him transactional immunity and that official has the lawful authority to do so, then the 

promise is the functional equivalent of a grant of immunity.35 

(2) However, statements by an official will not provide a foundation for a claim of 

de facto immunity absent some measure of detrimental reliance by the accused.36 

(3) Despite a showing of detrimental reliance, remedial measures by the military 

judge at trial may still permit prosecution. 37 

2. Unlawful inducement - Article 31(d). 

34 Samples v. Vest, 38 M.J. 482, 487 (C.M.A. 1994); see also Cooke v. Orser, 12 M.J. 335 (C.M.A. 1982) (SJA oral 

promise of immunity to officer suspected of espionage enforced on grounds of due process); United States v. 

Wagner, 35 M.J. 721 (A.F.C.M.R. 1992) (unit commander’s agreement not to prosecute accused if he refrained from 

further child sex abuse and got treatment created de facto immunity that was not breached even though accused 

discontinued counseling after 15 months); United States v. Jones, 52 M.J. 60 (C.A.A.F. 1999) (de facto transactional 

immunity resulted when the Chief of Military Justice and DSJA entered into an unwritten agreement with three coaccused that the government would not court-martial them if they accepted Article 15 punishment, paid restitution, 

and testified against the accused.) 

An early discussion of de facto immunity was set forth in United States v. Churnovic, 22 M.J. 401 (C.M.A. 1986). 

Representations by a ship’s senior NCO that ship’s XO had promised no adverse action would be taken against 

person who gave information about or turned in drugs was an unlawful inducement that rendered the accused's 

statements and all derivative evidence inadmissible under Article 31(d). In dicta, Chief Judge Everett’s lead opinion 

stated that “No reason exists why a promise of immunity cannot be enforced if it was made with express or tacit 

authorization from the ship’s captain, who would convene special court-martial to try members of his crew.” The 

defense in Churnovic failed to meet burden of showing immunity was in fact promised. Note: RCM 704(c) 

discussion indicates “equitable immunity” is possible. 

35 United States v. Conklan, 41 M.J. 800 (A. Ct. Crim. App. 1995). Representations by a battalion commander, 

indicating that the Army would not prosecute accused for carnal knowledge offense, did not constitute offer of de 

facto transactional immunity, in light of commander’s failure to call upon accused to fulfill any condition in 

exchange for whatever benefit was conferred. Representation was merely gratuitous statement of present intent 

subject to change in sole discretion of the convening authority. The accused’s reenlistment after commander’s 

statement was not sufficient detrimental reliance to give rise to de facto immunity; reenlistment was not bargained 

for or otherwise contemplated as a condition of government's initial decision not to prosecute. 

36 United States v. McKeel, 63 M.J. 81 (C.A.A.F. 2006). Accused admitted to a military investigator that he 

engaged in sexual intercourse with a female shipmate when she was too intoxicated to consent. When the 

investigative report was forwarded to the chief petty officer who served as the ship’s senior enlisted person 

responsible for military justice matters he promised the accused that if he accepted nonjudicial punishment and 

waived his right to an administrative discharge board there would no court-martial and the accused would be 

administratively separated from the military. The accused agreed and pled guilty to various charges, including rape, 

during a nonjudicial punishment proceeding. He was then processed for administrative separation and he waived his 

right to a separation board. When the administrative separation packet was received by the GCMCA, who had no 

prior knowledge of the charges against the accused, the GCMCA declined to approve the separation, and initiated 

proceedings that resulted in the accused’s GCM. 

At trial, the defense moved to dismiss the charges based upon a promise of immunity. The trial judge denied the 

motion, but ruled that (1) the statements made by the accused during the NJP proceeding could not be admitted, (2) 

the prosecution could not introduce evidence of the accused’s decision to waive his right to a board or other matters 

related to his administrative separation, and (3) that the accused would receive full sentence credit under Pierce for 

punishment received as a result of the earlier NJP proceedings. The CAAF upheld the conviction because the 

accused had not demonstrated detrimental reliance in the face of the remedial actions taken at trial. 

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a. A situation akin to equitable testimonial immunity arises following violations of 

Article 31(d). 

b. To be an unlawful inducement under Article 31(d), the improper action must be 

undertaken by someone acting in a law enforcement capacity or in a position superior to the 

person making the confession.38 

3. Regulatory Immunity. DoD and DA Family advocacy regulations generally do not create 

a bar to prosecution against self-referred child abusers. Further, consideration and adherence to 

regulatory policies and criteria set out in these regulations are not conditions precedent to 

disposition by courts-martial. Although DoD and DA policy may be internally inconsistent in 

that they both encourage and deter self-referral, they do not infringe on any rights recognized by 

the Constitution, the UCMJ, or the CAAF decision.39 

37 United States v. Lonetree, 35 M.J. 396 (C.M.A. 1992) (civilian U.S. government intelligence agents interviewed 

the accused. Their interviews were not subject to an unlawful inducement analysis under Article 31(d)). 

On the other hand, a USMC Commander’s (O-6) assurances to two accused that “they had done nothing wrong and 

should provide testimony before an investigative board” did amount to unlawful inducement in Cunningham v. 

Gilevich, 36 M.J. 94 (C.M.A. 1992). The accused’s subsequent waivers were found to be without effect. The action 

by the Colonel rendered the accused’s statements, and all evidence derived therefrom, inadmissible. 

38 United States v. Corcoran, 40 M.J. 478 (C.M.A. 1994); see also United States v. Martindale, 40 M.J. 348 

(C.M.A. 1994) (evidence of accused incriminating statements not barred by SecNavInst 1752.3, The Family 

Advocacy Program); but see United States v. Bell, 30 M.J. 168 (C.M.A. 1990) (directive language of USMC policy 

regarding rehabilitation and retention of sexual offenders necessitated documented pretrial diversion consideration). 

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CHAPTER 28
 

POST-TRIAL PROCESSES
 

I. References 

II. Summary of the Process 

III. Duties of Counsel 

IV. Notice Concerning Post-Trial & Appellate Rights 

V. Report of Result of Trial; Deferment and Waiver 

VI. Post-Trial Sessions 

VII. Preparation of the Record of Trial 

VIII. Authenticating and Serving the Record of Trial 

IX. Matters Submitted by the Accused 

X. Matters Submitted by a Victim 

XI. SJA’s Recommendation and Addendum 

XII. Action by the Convening Authority 

XIII. Post-Trial Processing Time 

XIV. Suspension of a Sentence 

XV. Waiver of Appellate Review 

XVI. Review by a Judge Advocate 

XVII. Execution of Sentence 

XVIII. Promulgating Orders 

XIX. Finality of a Court-Martial 

XX. Ineffective Assistance of Counsel 

XXI. Disposition of Record of Trial
 

Appx. Post-trial Chart
 

I. REFERENCES. 

A. UCMJ, Articles 55-76a. 

B. Manual for Courts-Martial (2016 Edition). 

C. 2014 & 2015 National Defense Authorization Act (NDAA) 

D. Executive Order (EO) 1396, dated 17 June 2015. 

E. U.S. Dep’t of Army, Reg. 27-10, Military Justice ch. 5 (11 May 2016) [hereinafter AR 27-10]. 

F. Francis Gilligan & Frederic I. Lederer, Court-Martial Procedure, 2015 (vol. 2), Chapter 24. 

G. United States Army Court of Criminal Appeals, Office of the Clerk of Court, Post Trial 

Handbook (3 Jan. 2012). 

II. SUMMARY OF THE PROCESS. 

“It is at the level of the convening authority that an accused has his best opportunity for relief.” United 

States v. Boatner, 43 C.M.R. 216, 217 (C.M.A. 1971). 

“The essence of post-trial practice is basic fair play – notice and an opportunity to respond.” United 

States v. Leal, 44 M.J. 235, 237 (C.A.A.F. 1996). 

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“[T]he following is [the] process for resolving claims of error connected with a convening authority’s 

post-trial review. First, an appellant must allege the error. . . . Second, an appellant must allege 

prejudice. . . . Third, an appellant must show what he would do to resolve the error if given such an 

opportunity.” United States v. Wheelus, 49 M.J. 283, 288 (C.A.A.F. 1998). 

“All this court can do to ensure that the law is being followed and that military members are not being 

prejudiced is to send these cases back for someone TO GET THEM RIGHT.” United States v. Johnston, 

51 M.J. 227, 230 (C.A.A.F. 1999). 

A. Sentence is announced and the court is adjourned. 

B. Trial counsel prepares report of result of trial, confinement order. 

C. Post-trial sessions, if any. 

D. Exhibits accounted for and reproduced. 

E. Request for deferment of confinement, if any. 

F. Request for deferment of reduction, if any. 

G. Request for deferment and/or waiver of forfeitures, if any. 

H. Record of trial (ROT) created, reproduced. 

I. Trial counsel / defense counsel (DC) review ROT for errata. 

J. Military judge (MJ) authenticates ROT (or substitute authentication if required). 

K. Staff Judge Advocate (SJA) signs the Staff Judge Advocate’s Recommendation (SJAR). 

L. SJAR and authenticated ROT served on accused / DC and, if required, the victim. 

M. Victim submits matters through SJA to CA. 

N. Accused / DC submits clemency petition (RCM 1105 matters) and response to SJAR (RCM 1106 

matters) – often done simultaneously. 

O. SJA signs addendum. 

P. Addendum served on DC and accused if contains “new matter.” 

Q. CA considers DC / accused submissions, takes initial action. 

R. Promulgating order signed. 

S. Record reproduced and mailed. 

T. Appellate review. 

U. Final action. 

III. DUTIES OF COUNSEL. ARTICLE 38, UCMJ; RCM 502(D)(5)-(6); 

RCM 1103(B)(1). 

A. RCM 502(d)(5), discussion, para. (F), addresses the trial counsel’s (TC’s) post-trial duties. 

1. Prepare Report of Result of Trial. “[P]romptly provide written notice of the findings and 

sentence adjudged to the convening authority or a designee, the accused’s immediate commander, 

and (if applicable) the officer in charge of the confinement facility.” 

2. Supervise preparation, authentication and distribution of the ROT. RCM 1103(b)(1). 

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3. Review ROT for errata. United States v. Ayers, 54 M.J. 85 (C.A.A.F. 2000). On appeal, 

appellant alleged that the ROT was not truly authenticated since the assistant trial counsel (ATC) 

executed the authentication. The ATC signed the authentication document that stated, “I have 

examined the record of trial in the forgoing case.” The ATC also made several corrections to the 

ROT. The defense claimed that for the authentication to be proper, the authenticating individual 

must state the ROT accurately reports the proceedings. Also, defense claimed that an ATC 

cannot authenticate a ROT unless he is under the supervision of the TC (as required by RCM 

502(d)(2)). The court disagreed, holding that by signing the authentication document, the ATC 

was stating that the ROT was correct. Also, since the defense did not allege any error in the 

ROT, or prejudice from having the ATC authenticate the ROT, no relief was appropriate. 

4. Ensure the record of trial is served on the accused and counsel, as appropriate. RCM 

1104(b)(1), 1106(f)(3). See generally RCM 502(d)(5), discussion, para. (F).
 

B. RCM 502(d)(6), discussion, para. (E) addresses the defense counsel’s (DC’s) post-trial duties. 

1. Advise the accused of post-trial and appellate rights (not technically post-trial – RCM 1010). 

2. Deferment of confinement / reduction / forfeitures. RCM 1101(c). 

3. Examination of the record of trial. RCM 1103(i)(1)(B). 

4. Submission of matters: RCM 1105; 1106(f)(4), (7); and, 1112(d)(2). See also UCMJ, Article 

38(c). 

5. Right to appellate review and waiver thereof, in writing, within specified time period. RCM 

1110. 

6. Examine Staff Judge Advocate’s Recommendation (SJAR). RCM 1106(f). 

7. See also United States v. Palenius, 2 M.J. 86, 93 (C.M.A. 1977). “The trial defense attorney . 

. . should maintain the attorney-client relationship with his client subsequent to the [trial] . . . until 

substitute trial [defense] counsel or appellate counsel have been properly designated and have 

commenced the performance of their duties . . . .” 

a) Raising appellate issues. United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 

b) Act in accused’s interest. See United States v. Martinez, 31 M.J. 524 (A.C.M.R. 1990). 

c) Maintain an attorney-client relationship. RCM 1106(f)(2) (for substitute counsel); United 

States v. Schreck, 10 M.J. 226 (C.M.A. 1981), supplemented by, 10 M.J. 374 (C.M.A. 1981); 

United States v. Titsworth, 13 M.J. 147 (C.M.A. 1982); United States v. Jackson, 34 M.J. 783 

(A.C.M.R. 1992) (some responsibility placed on the SJA). 

C. Effectiveness of counsel in the post-trial area is governed by Strickland v. Washington, 466 U.S. 

668 (1984), and United States v. Lewis, 42 M.J. 1 (C.A.A.F. 1995). See also United States v. 

MacCulloch, 40 M.J. 236 (C.M.A. 1994); United States v. Brownfield, 52 M.J. 40 (C.A.A.F. 1999); 

and, United States v. Lee, 52 M.J. 51 (C.A.A.F. 1999). See also Section XXVIII infra. 

1. United States v. Gilley, 56 M.J. 113 (C.A.A.F. 2001). Defense counsel ineffective by 

submitting, as part of the accused’s clemency matters, a letter from the accused’s mother that 

“undercut [his] plea for clemency,” a separate letter from the father that was “acerbic” and a 

“scathing diatribe directed toward trial counsel, trial defense counsel, the members, the judge, and 

the convening authority,” and an e-mail from the accused’s brother that “echoed the theme of 

appellant’s father.” Id. at 124. Returned for a new clemency submission, PTR, and action. 

2. United States v. Key, 57 M.J. 246 (C.A.A.F. 2002). The CAAF, without ruling, hints that 

defense counsel might be ineffective if counsel fails to advise the client on waiver of forfeitures 

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and the right to request waiver. The CAAF avoids the issue in Key because appellant could not 

recall if his counsel advised him. Appellant’s equivocal statement re: his recollection was 

insufficient to overcome the presumption that counsel’s performance was competent. 

3. United States v. Gunderman, 67 M.J. 683 (A.C.C.A. 2009). The appellant claimed that his 

defense counsel did not inform him that he could request disapproval of the adjudged forfeitures, 

deferral under Article 57, and waiver of automatic forfeitures under Article 58b. Based upon the 

facts, the court finds that there was sufficient advice given about forfeitures and the ability to 

request waiver and deferral after trial. Three factors weighed in favor of the decision: 1) the 

appellant signed a post-trial advice form that informed him of his ability to request waiver and 

deferral; 2) the appellant agreed on the record that he had been properly informed of his post-trial 

rights; and, 3) the appellant submitted a letter to the convening authority pursuant to RCM 1105 

void of any indication that he wanted deferral or waiver. 

4. United States v. Fordyce, 69 M.J. 501 (A.C.C.A. 2010) (en banc). The ACCA did not reach 

the issue of whether defense counsel was ineffective for submitting clemency matters to the 

convening authority without the input from appellant and for failing to submit a request to defer 

and waive forfeitures for the benefit of the accused’s wife and five children. However, the 

ACCA held that appellant made the requisite showing of prejudice because defense counsel 

admitted she did not cover waiver since the standardized post-trial and appellate rights form she 

had used did not include that provision. Case remanded for new SJAR and action. The ACCA 

also recommends two things: 

a) Defense counsel should have an accused co-sign RCM 1105/1106 submissions, or sign 

an acknowledgement that the matters submitted are all that the accused wishes to submit; and, 

b) A practice that would demonstrate on the record that the appellant received both proper 

written advice on post-trial rights and the opportunity to submit post-trial matters to the 

convening authority. The ACCA notes with approval the amendments to the Military Judges’ 

Benchbook, DA Pam 27-9, paras. 2-4-2 and 2-6-14 (1 Jan. 2010), which includes in inquiry 

into the accused’s knowledge of what he can submit to the convening authority. 

IV. NOTICE CONCERNING POST-TRIAL AND APPELLATE RIGHTS. 

RCM 1010. 

A. Before adjournment of any general and special court-martial, the MJ shall ensure that the DC has 

informed the accused orally and in writing of: 

1. The right to submit post-trial matters to the CA; 

2. The right to appellate review, as applicable, and the effect of waiver or withdrawal of such 

rights; 

3. The right to apply for relief from TJAG if the case is neither reviewed by a Court of Criminal 

Appeals nor reviewed by TJAG under RCM 1201(b)(1); and, 

4. The right to the advice and assistance of counsel in the exercise or waiver of the foregoing 

rights. 

B. The written advice to the accused concerning post-trial and appellate rights shall be signed by the 

accused and DC and inserted in the record as an appellate exhibit. Absent a post-trial Article 39(a) 

session, the written advice will usually be the last Appellate Exhibit (AE) in the record of trial. 

C. The Military Judge should: 

1. Examine the form submitted by the defense counsel and used to advise the client. 

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2. Confirm on whom the record of trial is to be served – the accused or counsel. If more than 

one defense counsel is on the case, she should determine, on the record, who is responsible for 

post-trial matters. 

D. See also amendments to the Military Judges’ Benchbook, DA Pam 27-9, paras. 2-4-1 and 2-6-13 

(10 Sept. 2014). 

V. REPORT OF RESULT OF TRIAL; DEFERMENT AND WAIVER. 

ARTICLES 57, 57A, 58, 58A, 58B, AND 60, UCMJ; RCM 1101. 

A. Result of Trial and Post-Trial Restraint. 

1. TC notifies accused’s immediate commander, CA or designee, and confinement facility of 

results (DA Form 4430, Department of the Army Report of Result of Trial). See RCM 502(d)(5). 

See also AR 27-10, para. 5-30. 

2. The accused’s commander may order the accused into post-trial confinement. The accused’s 

commander may delegate to TC authority to order accused into post-trial confinement. RCM 

1101(b)(2). Note: Summary Court Martial Officer (SCMO) may NOT order a servicemember 

into post-trial confinement. 

B. Deferment of confinement. 

1. Accused may request, in writing, deferment of confinement. 

2. Accused burden to show “the interests of the accused and the community in deferral 

outweigh the community’s interest in imposition of the punishment on its effective date.” 

3. Factors CA may consider include, “where applicable: the probability of the accused’s flight; 

the probability of the accused’s commission of other offenses, intimidation of witnesses, or 

interference with the administration of justice; the nature of the offenses (including the effect on 

the victim) of which the accused was convicted; the sentence adjudged; the command’s 

immediate need for the accused; the effect of deferment on good order and discipline in the 

command; [and] the accused’s character, mental condition, family situation, and service record.” 

RCM 1101(c)(3). 

4. CA’s action on deferment request MUST be in writing and a copy provided to the accused. 

5. CA’s written action on deferment request is subject to judicial review for abuse of discretion. 

The request and action thereon MUST be attached to the record of trial. RCM 1103(b)(3)(D). 

6. CA must specify why confinement is not deferred. 

a) United States v. Schneider, 38 M.J. 387 (C.M.A. 1993). The CA refused to defer 

confinement “based on seriousness of the offenses of which accused stands convicted, 

amount of confinement imposed by the court-martial and the attendant risk of flight, and the 

adverse effect which such deferment would have on good order and discipline in the 

command.” Accused alleged abuse of discretion in refusing to defer confinement. Held – 

even though explanation was conclusory, it was sufficient. The court noted other matters of 

record supporting decision to deny deferment. 

b) United States v. Dunlap, 39 M.J. 1120 (A.C.M.R. 1994). Remedy for failure to state 

reasons for denying deferment request is petition for extraordinary relief. The court reviewed 

facts and determined that deferment was not appropriate. 

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c) United States v. Edwards, 39 M.J. 528 (A.F.C.M.R. 1994). Accused not entitled to relief 

where deferment would have expired before appellate review. The court recommended that 

the DC ask for “statement of reasons” or petition for redress under Article 138. 

d) United States v. Sebastian, 55 M.J. 661 (A.C.C.A. 2001). One week prior to his trial, 

accused submitted a deferment request requesting that any confinement be deferred until after 

the upcoming Easter holiday. He also asked for deferral and waiver of forfeitures. The CA 

never acted on first request. One week after trial (which included confinement as part of the 

adjudged sentence), the accused submitted a second request regarding forfeitures. 

Approximately six weeks later (five weeks after the forfeitures went into effect), the SJA 

responded recommending disapproval. Contrary to the SJA’s advice, the CA granted the 

forfeitures request. “While there is no requirement for a convening authority to act 

‘instantaneously’ on a deferment request, there is also no authority for a convening authority 

to fail to act at all when a deferment request is submitted in a timely manner.” Id. at 663. 

The court found prejudice both in the failure to respond to the first deferment request and in 

the untimely response to the second request. The court reduced the accused’s confinement 

from nine months to five months and set aside the adjudged forfeitures. 

e) United States v. McClary, 68 M.J. 606 (C.G.C.C.A. 2010). At the end of trial, the 

appellant submitted a request to the convening authority requesting deferment of confinement 

“until at least” four days after trial. The convening authority responded the same day by 

writing, “Considered and denied.” Forty days later, the convening authority signed a 

memorandum to the appellant providing his reasons for the denial. The appellant alleged 

error for failure to provide the rationale at the time of denial. The CGCCA agreed, and held 

that “[c]ertainly there was error at the time of denial.” However, even though the court found 

error, the court was not able to provide relief since the rationale had eventually been 

provided. The court denied relief. 

C. Deferment of forfeitures. 

1. Accused may request, in writing, deferment of forfeitures. RCM 1101(c)(2). 

2. Accused burden to show “the interests of the accused and the community in deferral 

outweigh the community’s interest in imposition of the punishment on its effective date [e.g., 

forfeitures].” RCM 1101(c)(3). 

3. Applies to adjudged forfeitures (Article 57(a)(2), UCMJ; RCM 1101(c)) AND automatic 

forfeitures (Article 58b(a)(1), UCMJ)). United States v. Lundy, 60 M.J. 52 (C.A.A.F. 2004); 

United States v. Adney, 61 M.J. 554 (A.C.C.A. 2005). 

4. Factors CA may consider include, “where applicable: the probability of the accused’s flight; 

the probability of the accused’s commission of other offenses, intimidation of witnesses, or 

interference with the administration of justice; the nature of the offenses (including the effect on 

the victim) of which the accused was convicted; the sentence adjudged; the command’s 

immediate need for the accused; the effect of deferment on good order and discipline in the 

command; [and] the accused’s character, mental condition, family situation, and service record.” 

RCM 1101(c)(3). 

5. CA’s action on deferment request MUST be in writing and a copy provided to the accused. 

RCM 1101(c)(3). 

6. CA’s written action on deferment request is subject to judicial review for abuse of discretion. 

The request and action thereon MUST be attached to the record of trial. RCM 1103(b)(3)(D). 

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7. CA must specify why forfeitures are not deferred. United States v. Zimmer, 56 M.J. 869 

(A.C.C.A. 2002). Error for the CA to deny the defense deferment request in a one-sentence 

action without providing reasons for the denial. Four months of confinement and the adjudged 

forfeitures were set aside. See also United States v. Sloan, 35 M.J. 4 (C.M.A. 1992). 

8. United States v. Brown, 54 M.J. 289 (C.A.A.F. 2000). CA denied accused’s deferment 

request. The SJA memorandum to CA recommending denial was never served on the accused 

who argued prejudice because he was not afforded the opportunity to rebut the memorandum. 

The CAAF found no prejudice; however, they strongly suggested that new rules be created 

regarding deferment and waiver requests – rules could require an SJA recommendation with 

deferment and waiver requests with a corresponding notice and opportunity to respond provision. 

9. United States v. Key, 55 M.J. 537 (A.F.C.C.A. 2001), aff’d, 57 M.J. 246 (C.A.A.F. 2002). 

Nine days after being sentenced, the accused submitted a request asking for deferment of 

forfeitures and reduction. The SJA’s written response recommended disapproval, advice the CA 

followed. The SJA’s advice was never served on the accused. He argued prejudice claiming 

deferment requests should be processed like a clemency request. Although the Air Force requires 

that waiver requests be treated like clemency requests (United States v. Spears, 48 M.J. 768 

(A.F.C.C.A. 1998) (overruled in part on other grounds)) subject to the requirements of Article 60, 

deferment of forfeitures and reductions in rank do not have to be treated similarly. No 

requirement that an SJA recommendation regarding deferment be served on defense. Note: the 

CAAF affirmed without reaching the issue of whether service of the SJA’s memo is a per se 

requirement. The court noted the absence of “new matter” and the non-inflammatory nature of 

the SJA’s memo in affirming. 

10. United States v. Moralez, 65 M.J. 665 (A.C.C.A. 2007). Forfeitures were adjudged at trial. 

After trial, the accused submitted request to the CA to (1) defer adjudged and automatic 

forfeitures until action, and (2) disapprove adjudged forfeitures and waive automatic forfeitures at 

action. The SJA advised the CA to grant the deferrals, but postpone any decision on disapproval 

or waiver until action. The SJAR, the defense clemency submission, and the addendum were 

silent to the requested disapproval/waiver request. At action, the CA approved the adjudged 

sentence (including forfeitures). The ACCA held that SJA should have further advised the CA on 

his options regarding the disapproval of adjudged and waiver of automatic forfeitures at action. 

11. United States v. Dean 74 M.J. 608 (A.C.C.A. 2015) Accused sentenced to BCD and 7 

months confinement on 15 Jan 2014; ETS date was 11 Feb 2014. Request for deferral submitted 

on 5 Mar 2014. Addendum was silent on deferral advice, no other advice submitted. ACCA says 

this is error, requires rationale from CA for both adjudged and automatic sentences. 

D. Waiver of forfeitures. 

1. Accused may request waiver of automatic forfeitures (Article 58b, UCMJ) or the CA may 

waive sua sponte. The accused’s request should be in writing. 

2. Waiver is allowed for a period not to exceed six months and is for the purpose of providing 

support to the accused’s dependents, as defined in 37 U.S.C. § 401. 

3. Factors CA may consider include: “the length of the accused’s confinement, the number and 

age(s) of the accused’s family members, whether the accused requested waiver, any debts owed 

by the accused, the ability of the accused’s family members to find employment, and the 

availability of transitional compensation for abused dependents permitted under 10 U.S.C. 1059.” 

RCM 1101(d)(2). 

4. Unlike the CA’s action on a deferral of forfeitures, there is no requirement that a similar 

decision on waiver of forfeitures be in writing or that it be served on the accused. United States 

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v. Zimmer, 56 M.J. 869, 872 n.4 (A.C.C.A. 2002). According to Zimmer, such a decision is also 

not subject to judicial review. Id. 

5. Waiver of forfeitures is authorized as soon as they become effective; need not wait until 

action. 

6. United States v. Nicholson, 55 M.J. 551 (A.C.C.A. 2001). SJA advice stating that waiver 

request prior to action is premature and must be submitted as part of the RCM 1105 submissions 

was incorrect. The convening authority may waive and direct payment of any automatic 

forfeitures when they become effective by operation of Article 57(a) – the earlier of fourteen days 

after sentence is adjudged or date the sentence is approved by the CA. See also United States v. 

Kolodjay, 53 M.J. 732 (A.C.C.A. 1999) (noting that the CA’s action apparently would not 

achieve his objective of a six month waiver because the waiver dated back to the date the 

sentence was adjudged rather than fourteen days thereafter; a waiver is valid only when there are 

forfeitures to waive). 

E. Deferment of reduction in rank. Processed like a request for deferment of confinement or 

forfeitures. See supra Sections VI.B. and VI.C. 

VI. POST-TRIAL SESSIONS. ARTICLE 39, UCMJ; RCM 905, 1102. 

A. Types of post-trial sessions. 

1. Proceedings in revision. “[T]o correct an apparent error, omission, or improper or 

inconsistent action by the court-martial which can be rectified by reopening the proceeding 

without material prejudice to the accused.” RCM 1102(b)(1). 

2. Article 39(a) sessions. “[To inquire] into, and, when appropriate, [resolve] any matter which 

arises after trial and which substantially affects the legal sufficiency of any findings of guilty or 

the sentence. The military judge may also call an Article 39(a) session, upon motion of either 

party or sua sponte, to reconsider any trial ruling that substantially affects the legal sufficiency of 

any findings of guilty or the sentence.” RCM 1102(b)(2). “The military judge shall take such 

action as may be appropriate, including appropriate instructions when members are present. The 

members may deliberate in closed session, if necessary, to determine what corrective action, if 

any, to take.” RCM 1102(e)(2); United States v. Jackson, 34 M.J. 1145 (A.C.M.R. 1992). 

B. Timing. 

1. The MJ may call a post-trial session before the record is authenticated. The CA may direct a 

post-trial session any time before taking initial action or at such later time as the convening 

authority is authorized to do so by a reviewing authority, except that no proceeding in revision 

may be held when any part of the sentence has been ordered executed. RCM 1102(d). 

2. United States v. Scaff, 29 M.J. 60, 65 (C.M.A. 1989). Until MJ authenticates the ROT, MJ 

may conduct a post-trial session to consider newly discovered evidence, and in proper cases, may 

set aside findings of guilty and the sentence. 

3. MJ need not wait for guidance or directive from reviewing authority or CA. “The military 

judge may also call an Article 39(a) session, upon motion of either party or sua sponte, to 

reconsider any trial ruling that substantially affects the legal sufficiency of any findings of guilty 

or the sentence.” RCM 1102(b)(2). 

C. Format. Rule essentially adopts the DuBay “hearing” concept but it expands the jurisdiction of 

the MJ into post-trial proceedings. Article 39(a) requires that “these proceedings shall be conducted 

in the presence of the accused.” See also United States v. Caruth, 6 M.J. 184 (C.M.A. 1979) (holding 

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that a post-action hearing held in accused’s absence found “improper and . . . not a part of the record 

of trial”). 

D. Limitations. RCM 1102(c). See United States v. Boland, 22 M.J. 886 (A.C.M.R. 1986). Posttrial sessions cannot: 

1. Reconsider a finding of not guilty as to a specification, or a ruling which amounts to a finding 

of not guilty. 

2. Reconsider a finding of not guilty as to a charge unless a finding of guilty to some other 

Article is supported by a finding as to a specification. 

3. Increase the severity of a sentence unless the sentence is mandatory. 

E. Cases. 

1. United States v. Webb, 66 M.J. 89 (C.A.A.F. 2008). Prior to authentication of the record of 

trial the defense moved for a new trial based upon the government’s failure to disclose 

impeachment evidence of one of the government’s key witness. The judge granted a new trial 

and on appeal, the government argued that Article 73 and RCM 1210 only allowed new trial 

petitions after the CA’s action. The CAAF agreed that Article 73 does not allow a military judge 

to order a new trial – but Article 39(a) does. The CAAF declared unequivocally that military 

judges have authority under Article 39(a) to convene post-trial sessions to consider newly 

discovered evidence and to take whatever remedial action the military judge finds appropriate (to 

include a new trial). 

2. United States v. Meghdadi, 60 M.J. 438 (C.A.A.F. 2005). After trial, appellant requested an 

Article 39(a) session seeking to inquiry into alleged witness misconduct, or, alternatively, a 

mistrial or a new trial. A different military judge than who presided over the trial heard evidence 

at the post-trial session and denied the motion. The defense based its motion on allegations that 

the primary CID investigator lied at trial when he testified that: he had not promised the 

informant who testified against the appellant that the informant would not go to jail if he helped 

CID; that he had not told the informant that CID would assist him with his case if the informant 

went to work for CID; and, that he had not met with the informant after CID terminated the 

informant as a registered source. An audio tape surreptitiously recorded by the informant in a 

conversation with the agent shed light on each of these allegations. The CAAF noted that the MJ 

failed to recognize the purpose of the requested inquiry, which was to examine the request for a 

mistrial or a new trial, rather than to establish a basis for correction or discipline of the witnesses 

themselves. The CAAF also criticized the findings made by the MJ. With respect to the 

evidentiary value of the tape, which the MJ discounted, the CAAF held that the appellant “firmly 

established” the potential impeachment value of the tape. The CAAF noted that the MJ denied 

himself the opportunity for meaningful assessment of whether the investigator’s trial testimony 

was perjured, and if so, whether the effect of the perjury substantially contributed to the sentence. 

3. United States v. Humpherys, 57 M.J. 83 (C.A.A.F. 2002). Post-trial 39(a) session held by MJ 

to question two panel members about a rater-ratee relationship that they failed to disclose during 

voir dire. After making extensive findings of facts and conclusions of law, the MJ indicated he 

would not have granted a challenge for cause based on the relationship had it been disclosed. 

Petition for a new trial denied. The CAAF noted the following regarding the MJ’s post-trial 

responsibilities: 

The post-trial process empowers the military judge to investigate and resolve 

allegations, such as those in this case, by interviewing the challenged panel 

members. It allows the judge to accomplish this task while the details of trial 

are still fresh in the minds of all participants. The judge is able to assess 

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firsthand the demeanor of the panel members as they respond to questioning 

from the bench and counsel. 

Id. at 96. 

4. United States v. Jones, 46 M.J. 815 (N-M.C.C.A. 1997). In mixed-plea case, MJ failed to 

announce findings of guilty of offenses to which accused had pled guilty, and as to which MJ had 

conducted providence inquiry. Upon realizing failure to enter findings, MJ convened post-trial 

Article 39(a) hearing and entered findings consistent with pleas of accused. Though technically a 

violation of RCM 922(a), MJ commended for using post-trial session to remedy oversight. 

5. United States v. Perkins, 56 M.J. 825 (A.C.C.A. 2001). MJ’s failure to properly announce 

guilty finding as to Spec 3 of Charge II (MJ announced Guilty to Spec 3 of Charge III) did not 

require court to set aside appellant’s conviction of Specification 3 of Charge II when it was 

apparent from the record that the MJ merely misspoke and appellant had actually plead guilty to 

Specification 3 of Charge II. The court notes that a proceeding in revision UP of RCM 1102 

would have been an appropriate course of action had the MJ or SJA caught the mistake. 

6. United States v. Kulathungam, 54 M.J. 386 (C.A.A.F. 2001). Proceeding in revision to 

correct erroneous omission of findings from the record and to formally announce findings was 

appropriate. Omission was the only procedural deviation by the MJ during the court-martial. 

Note: upon discovery of the omission, the TC and court reporter “inserted” the findings in the 

record. DC was aware of the omission during trial but for tactical reasons chose to remain silent. 

On appeal, the CAAF advised counsel, in the future, to seek the advice of the MJ or a more senior 

counsel to avoid the “train wreck” that occurred in that case. 

7. United States v. Mayfield, 45 M.J. 176 (C.A.A.F. 1996). Accused’s written judge alone (JA) 

request never signed by parties and made part of the record. Additionally, no timely oral request 

for judge alone was made on the record. Before authentication, MJ realized omission and called a 

post-trial Article 39(a), during which accused acknowledged he had made request in writing and 

that JA trial had been his intent all along. The CAAF reversed the NMCCA, which had found the 

failure to formally request JA to be a jurisdictional error. 

8. United States v. Avery, No. 9500062 (A.C.C.A. May 17, 1996) (unpublished). Post-trial 

39(a) session held to inquire into allegations that a sergeant major (SGM) slept through part of the 

trial. Testimony of MAJ H, panel president, about “SGM A’s participation during deliberations . 

. . was relevant and admissible.” MJ “properly stopped appellant’s trial defense counsel from 

asking MAJ H about any opinions expressed by SGM A during deliberations.” 

9. United States v. Gleason, 43 M.J. 69 (C.A.A.F. 1995). Proceeding in revision is 

inappropriate to correct erroneous sentencing instruction. Proper procedure is a rehearing. 

Article 63 prohibits members who sat in original proceeding from sitting on a rehearing. No such 

prohibition exists for a proceeding in revision. There is no problem in having the same members 

for a proceeding in revision. See also United States v. Roman, 46 C.M.R 78, 81 (C.M.A. 1972). 

10. United States v. Crowell, 21 M.J. 760 (N.M.C.M.R. 1985). Post-trial 39(a) appropriate 

procedure to repeat proceedings to reconstruct portions of a record of trial resulting from loss of 

recordings. 

11. United States v. Jordan, 32 M.J. 672 (A.F.C.M.R. 1991). MJ erred in entering findings of 

guilty on two specifications. After authentication he noticed error and notified SJA, who advised 

CA to only approve proper findings, but to approve sentence as adjudged. “If the error were 

detected before authentication, the better method of handling this type of error would have been 

for the military judge to direct a post-trial session under RCM 1102(d).” Such a post-trial session 

could have been used to reconsider the erroneous findings of guilty and re-determine the 

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sentence. See RCM 1102(b), (c), and (e). As requested by the trial defense counsel, the CA 

could have also ordered a rehearing on sentence and avoided this issue. See RCM 1107(e)(1).” 

Id. at 673-4 n.1. 

12. United States v. Wallace, 28 M.J. 640 (A.F.C.M.R. 1989). MJ became aware of possible 

extraneous information received by the panel on the “ease of converting a BCD to a general 

discharge.” MJ had an obligation to sua sponte convene a post-trial Article 39(a) session to 

assess facts and determine any possible prejudice. Findings affirmed; sentence set aside and 

rehearing authorized. 

13. United States v. Wilson, 27 M.J. 555 (C.M.A. 1988). TC failed to administer oath to two 

enlisted panel members. MJ held a proceeding in revision to correct the “substantial omission, to 

wit: a sentence and a sentencing proceeding.” Ministerial act of swearing court members is 

essential to legal efficacy of proceedings but not a matter affecting jurisdiction. 

14. United States v. Baker, 32 M.J. 290 (C.M.A. 1991). MJ held a post-trial Article 39(a) session 

to correct the omission in sentence announcement (the president of the panel failed to announce 

the adjudged DD). Held – Error; presents the appearance of UCI. See also United States v. 

Dodd, 46 M.J. 864 (A.C.C.A. 1997) (holding that it was error for court to re-convene two minutes 

after adjourned to state they had also adjudged a bad-conduct discharge). 

15. United States v. Jones, 34 M.J. 270 (C.M.A. 1992). MJ held proceeding in revision two 

months after adjournment to correct “erroneous announcement of sentence” (failure to announce 

confinement). Held – Error. “Article 69(e)(2)(c) disallows such corrective action, to assure the 

integrity of the military justice system.” Id. at 271. 

16. United States v. Jackson, 34 M.J. 1145 (A.C.M.R. 1992). MJ held post-trial Article 39(a) 

session one month after adjournment, declared mistrial as to sentence based on procedural error 

(court members used improper voting procedures), and ordered new session with same members. 

Held – post-trial session was actually a proceeding in revision, and since the error was 

substantive, was inappropriate; even if not error, inappropriate to use same sentencing authority. 

See also United States v. Roman, 46 C.M.R 78, 81 (C.M.A. 1972). 

17. United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997). MJ abused his discretion when he 

denied the accused’s request for delay of a post-trial Article 39(a) session in order to obtain 

civilian defense counsel. MJ was more concerned with expediency and convenience to 

government than protecting rights of the accused. 

18. United States v. Carr, 18 M.J. 297 (C.M.A. 1984). Unlawful command control for president 

to order a re-vote after a finding of not guilty had been reached. MJ should build a factual record 

at a post-trial Article 39(a) session. 

19. United States v. Steck, 10 M.J. 412 (C.M.A. 1981). Proceeding in revision, directed by CA, 

appropriate to conduct a more thorough inquiry into the terms of the pretrial agreement and 

accused’s understanding thereof. 

20. United States v. LePage, 59 M.J. 659 (N-M.C.C.A. 2003). MJ erroneously admitted NJP 

record and considered evidence in arriving at a punitive discharge. At a post-trial Article 39(a) 

session, the MJ held that he erred and that the error prejudiced appellant. He further held, 

erroneously, that he lacked authority to correct the defect, citing to RCM 1009, which addresses 

reconsideration of sentences. Held – MJ could have corrected the error under RCM 1102 at a 

post-trial Article 39(a) session since the erroneous admission of the evidence “substantially 

affect[ed] the sufficiency of the sentence.” 

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21. United States v. Lofton, 69 M.J. 386 (C.A.A.F. 2011). A convening authority abused his 

discretion in denying a request for a post-trial Article 39(a) session after an email surfaced from 

an Air Force victim advocate claiming witnesses were texting each other the contents of 

testimony from the courtroom. However, the court addressed the testimony of the witnesses and 

found that there was no “basis for concluding that shaping of testimony or collusion occurred,” 

and that the appellant was not prejudiced as a result. 

22. MJ may, any time until authentication, “reconsider any ruling other than one amounting to a 

finding of not guilty.” RCM 905(f). 

VII. PREPARATION OF RECORD OF TRIAL. ARTICLE 54, UCMJ; 

RCM 1103; MCM, APPENDIX 13 AND 14. 

A. Requires every court-martial to keep a record of proceedings. 

B. RCM 1103(b)(2)(B). In a GCM, TC shall, under the direction of the MJ, cause the ROT to be 

prepared and the reporters’ notes, however compiled, to be retained. The ROT must be verbatim if: 

1. Any part of the sentence exceeds six months confinement, forfeiture of pay greater than twothirds pay per month, any forfeiture of pay for more than six months, or other punishments which 

may be adjudged by a SPCM; or a punitive discharge was adjudged. 

2. United States v. Embry, 60 M.J. 976 (A.C.C.A. 2005). Appellant spoke with social work 

assistant prior to trial. The intake notes of that assistant were litigated before trial. The intake 

notes were not marked or attached to the record as an appellate exhibit. The notes could not be 

located when asked for by the ACCA. The court determined that the MJ erred in not marking and 

attaching the intake notes to the record. Because the MJ considered them, the notes must be 

included in the ROT to effect appellate review of a ruling affecting the rights of the accused at 

trial. The court found that the government failed to rebut the presumption of prejudice arising 

from the incomplete ROT. 

3. United States v. Madigan, 54 M.J. 518 (N-M.C.C.A. 2000). Appellant asserted (among other 

allegations of error) that the ROT was incomplete because the Article 32 investigation was not 

included and the Article 34 SJA advice was also missing. Both allegations were without merit. 

The appellant waived his allegation of error regarding the Article 34 advice because no objection 

had been made, before, during or after trial. Also, the appellant alleged no prejudice from this 

error. The Article 32 was missing because the appellant had pled guilty and waived the Article 

32 investigation. 

4. United States v. Gaskins, 69 M.J. 569 (A.C.C.A. 2010) (en banc). During sentencing, the 

appellant admitted into evidence his “Good Soldier Book,” which allegedly contained “a 

compilation of . . . awards, certificates, letters of commendation and character letters from family 

and friends, as well as a number of photographs.” The exhibit was not included in the record of 

trial. The trial defense counsel noted this omission in the post-trial submissions. The SJAR 

addendum responded to this by stating that the exhibit “could not be located.” The SJA provided 

a memorandum describing the exhibit, written by the senior court reporter (not the court reporter 

that sat in on appellant’s trial). The SJA also provided the appellant’s Official Military Personnel 

File (OMPF) for the convening authority to review. The post-trial submissions from the defense 

included twenty-one letters of support. The adjudged sentence was approved. In this case, the 

ACCA held that, despite the efforts to include a substitute memorandum, there is still an omission 

from the record of trial. However, the court was unable to determine whether or not this omission 

is substantial or not. The description provided by the government did not include “adequate 

detail” for the court to analyze whether or not it was a substantial omission. The court then 

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turned to the three options available and found that approving a sentence below the threshold for 

a verbatim record (like the dissent encourages), would be a particularly harsh remedy “[i]n light 

of the seriousness of appellant’s offenses, the substantial sentence he received, and the fact that 

the omission in this case relates only to sentencing” rather than guilt. Over a rigorous dissent, the 

court sent the case back for a DuBay hearing to determine the contents of the exhibit, and any 

prejudice. The CAAF granted an extraordinary writ of prohibition to prevent this DuBay hearing 

and sent the case back to the ACCA. See Gaskins v. Hoffman, Conn, Johnson, Cook, Baime, and 

United States Army, Misc. No. 11-8004, 69 M.J. 452 (C.A.A.F. Dec. 9, 2010). 

a) United States v. Gaskins, No. 20080132, 2011 WL 498371 (A.C.C.A. Feb. 10, 2011) 

(unpublished) (en banc). On remand, the majority opinion at the ACCA affirmed the findings 

and remanded the case for a sentencing rehearing. The opinion is terse, less than a page of 

text. Six judges were in the majority opinion (J. Hoffman, S.J. Conn, S.J. Johnson, J. 

Gallagher, J. Baime, and J. Burton). Four of the judges from the original opinion are still in 

the majority, while Judge Cook has since left the court. Two new judges, J. Gallagher and J. 

Burton, joined the majority for this opinion. There were two separate opinions that concurred 

in part and dissented in part. Both of these opinions agreed with the majority that the 

findings were unaffected by the missing sentencing exhibit. However, both would approve a 

nonverbatim record of trial punishment. J. Gifford also wrote to state that a rehearing is 

inappropriate because it “unfairly places the onus on appellant to present a sentencing case.” 

b) The CAAF granted a petition to stay this rehearing. See Gaskins v. Hoffman, Conn, 

Johnson, Gallagher, Baime, and Burton, Misc. No. 11-8017, 70 M.J. 37 (C.A.A.F. Mar. 31, 

2011). 

c) Two months later, the CAAF reversed their decision and denied the petition, paving the 

way for the sentencing rehearing to take place. See Gaskins v. Colonel John B. Hoffman, 

USA, et al., Misc. No. 11-8017, 70 M.J. 207 (C.A.A.F. June 1, 2011). 

d) ACCA then affirmed the sentence adjudged at the rehearing of 9 years confinement 

which the CA had approved. 2012 CCA LEXIS 255 (July 12, 2012). 

e) CAAF granted relief on a separate issue in 2013 and returned the case to ACCA which 

approved a sentence of 8.5 years. 2013 CCA LEXIS 564 (July 22, 2013). 

C. RCM 1103 and the discussion list what must be included in or attached to the ROT. The rule is 

supplemented by AR 27-10. 

D. For a special court-martial, a verbatim transcript is required if a BCD is adjudged, confinement is 

greater than six months, or any forfeiture is for more than six months. 

E. Summary court-martial records are governed by RCM 1305. See Appendix 15, MCM, and DD 

Form 2329. 

F. Acquittals still need a ROT (summarized). 

G. If an Article 39(a) session is called to order by the court a ROT is required. See RCM 1103(e). 

For example, accused is arraigned and subsequent to arraignment, the charges are withdrawn and 

dismissed – prepare a summarized ROT. 

H. What if a verbatim ROT cannot be prepared? See RCM 1103(f). But see United States v. 

Crowell, 21 M.J. 760 (N.M.C.M.R. 1985) (can reconstruct the record of trial to make it “verbatim”). 

I. How verbatim is verbatim? No substantial omissions. 

1. Verbatim does not mean word-for-word. See United States v. Gray, 7 M.J. 296 (C.M.A. 

1979); United States v. Behling, 37 M.J. 637 (A.C.M.R. 1993). Insubstantial omissions do not 

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make a record non-verbatim, but substantial omissions create a rebuttable presumption of 

prejudice that the government must rebut. United States v. McCullah, 11 M.J. 234 (C.M.A. 

1981). 

2. The government can reconstruct the record of trial to rebut the presumption of prejudice. 

United States v. Lashley, 14 M.J. 7 (C.M.A. 1982); United States v. Eichenlaub, 11 M.J. 239 

(C.M.A. 1981); United States v. Crowell, 21 M.J. 760 (N.M.C.M.R. 1985). 

3. United States v. Cudini, 36 M.J. 572 (A.C.M.R. 1992). Failure to attach copy of charges and 

specifications as appellate exhibit not substantial omission; where omission is insubstantial, 

accused must show specific prejudice. 

4. United States v. Washington, 35 M.J. 774 (A.C.M.R. 1992). Pretrial conferences under RCM 

802 need not be recorded; matters agreed upon, however, must be made a part of the record. 

5. United States v. Marsh, 35 M.J. 505 (A.F.C.M.R. 1992). Off-the-record discussion of 

administrative discharge not a substantial omission where issue had been raised on the record and 

military judge ruled on the record that trial would proceed. 

6. United States v. Clemons, 35 M.J. 767 (A.C.M.R. 1992). ROT qualified as verbatim record 

although it included three off-the-record pauses; sessions involved purely administrative matters, 

what took place was not essential substance of trial, and sessions were not recorded for legitimate 

purposes. 

7. United States v. Kyle, 32 M.J. 724 (A.F.C.M.R. 1991). After reviewing documents in 

camera, MJ must seal the documents and attach them to the ROT. See RCM 702(g)(2) and 

Article 54(c)(1). “A military judge must make a record of every significant in camera activity 

(other than his legal research) adequate to assure that his decisions are reviewable on appeal.” Id. 

at 726. 

8. United States v. Harmon, 29 M.J. 732 (A.F.C.M.R. 1989). Tape recorder failed. MJ 

attempted to reconstruct. Because of substantial omission, burden on government to rebut 

presumption of prejudice. In this case, an almost impossible task. 

9. United States v. Sneed, 32 M.J. 537 (A.F.C.M.R. 1990). DC argued ex parte motion 

telephonically to MJ. Defense complained that record was not verbatim because the ex parte 

telephone conversation was not recorded and was not made a part of the required verbatim ROT. 

Held: “Although the omission may have sufficient ‘quantitative’ substance to raise the 

presumption of prejudice . . . we have no hesitancy in finding that presumption effectively 

rebutted, not so much by affirmative government action (e.g., reconstruction of the record) as by 

the totality of circumstances.” Id. at 540. 

10. United States v. Alston, 30 M.J. 969 (N.M.C.M.R. 1990). Omission of testimony relating to 

offenses of which accused was acquitted was a substantial omission. 

11. United States v. Chollet, 30 M.J. 1079 (C.G.C.M.R. 1990). Several bench conferences had 

“inaudible” sections. “We believe that these inaudible portions were substantial omissions which, 

along with other non-transcriptions, render the record non-verbatim.” BCD disapproved. 

12. United States v. Seal, 38 M.J. 659 (A.C.M.R. 1993). Omission of videotape viewed by MJ 

before imposing sentence renders ROT “incomplete,” resulting in reversal. 

13. United States v. Maxwell, 2 M.J. 1155 (N.M.C.M.R. 1975). Two audiotapes were 

inadvertently destroyed, resulting in loss of counsel’s arguments, a brief Article 39(a) session on 

instructions, and announcement of findings. All but DC argument reconstructed. “We do not 

view the absence of defense counsel’s argument as a substantial omission to raise the 

presumption of prejudice . . . [and] no prejudice has been asserted.” Id. at 1156. 

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14. United States v. Sylvester, 47 M.J. 390 (C.A.A.F. 1998). ROT did not contain RCM 

1105/1106 submissions from CDC and request for deferment or the CA’s action thereon. Held: 

No error for failing to include the RCM 1105/1106 submissions (CDC did not submit written 

matters, but made an oral presentation to the CA). The CAAF refused to create a requirement 

that all such discussions be recorded or memorialized in the ROT, but made it clear they prefer 

written post-trial submissions. The CAAF did find error, although harmless, for not including the 

deferment request and action in the ROT (the accused was released six days after the request). 

15. United States v. Simmons, 54 M.J. 883 (N-M.C.C.A. 2001). During appellant’s trial, there 

were two gaps in which the government had technical difficulty with its recording devices. An 

Article 39(a) session had to be reconstructed due to a tape malfunction and approximately fifty 

minutes of testimony were lost due to the volume being too low. Article 54(a) requires the 

preparation of a complete ROT in a general court-martial where the accused receives a discharge. 

A complete ROT should include a verbatim transcript. If the government cannot provide a 

verbatim ROT, it can either establish the accused suffered no prejudice or only approve the 

sentence that could be adjudged if the accused had been tried by a straight special court-martial. 

The court did a line-by-line analysis of the portions of the ROT that were missing and concluded 

that no prejudice occurred. The court agreed that the ROT was not verbatim, but the government 

had overcome the presumption of prejudice applied by the court. 

16. United States v. Henthorn, Jr., 58 M.J. 556 (N-M.C.C.A. 2003). ROT omitted 

approximately twenty-four pornographic images considered by the MJ on sentencing. Held: 

“such presumed prejudice [was] adequately rebutted” and any error stemming from the omission 

was harmless beyond a reasonable doubt. Id. at 559. Factors considered by the court: the case 

was a guilty plea; the omitted evidence did not go to guilt or innocence; the appellant did not 

question the validity of his plea; the images were adequately described in the ROT; the DC was 

aware of the MJ’s proposed handling of the images (i.e., ordered sealed in NCIS case file); and 

neither DC or appellate DC questioned the nature of the omitted documents. 

17. United States v. Usry, 68 M.J. 501 (C.G.C.C.A. 2009). There was a fifty-second gap during 

the inquiry into the appellant’s competence. The CGCCA holds that this was not a substantial 

omission. Even though that fifty-second gap occurred when the military judge was inquiring into 

the appellant’s competence to stand trial, which is an important issue, the court holds that a 

decision on competence is “unlikely to turn on the precise words being spoken during a fiftysecond period.” The military judge had an opportunity to observe the appellant’s behavior during 

trial, which was more probative of the appellant’s competence than his answers to a few 

questions. 

18. United States v. Miller, No. 20090826, 2010 WL 3620471 (A.C.C.A. May 20, 2010) 

(unpublished). The ROT did not include a DVD showing the accused at work that was played at 

trial during sentencing. The ACCA, finding prejudice, approved non-verbatim ROT punishment 

(six months confinement and a reduction to E-1). 

19. United States v. Davenport, 73 M.J. 373 (C.A.A.F. 2014) Notwithstanding the military 

judge's and trial counsel's review, the record was authenticated on June 2, 2009; missing from the 

record was the entire testimony on the merits of SGT MS, a Government witness. The record 

indicates only that the Government called SGT MS as a witness. “The omission of the testimony 

of an entire merits witness is almost necessarily substantial where, as here, the content of the 

testimony is equivocal even after attempts to reconstruct it at a DuBay hearing. . . . On balance, 

the omission of SGT MS's testimony was substantial and, therefore, the transcript here was 

nonverbatim.” Since it was nonverbatim and cannot be reconstructed, R.C.M. 1103(f) limits the 

approved sentence to six months confinement and no discharge. 

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J. Trial counsel shall review 150 pages per day and unless unreasonable delay will result, DC will 

be given the same opportunity to examine the ROT before authentication. RCM 1103(i)(1)(B). See 

also, U.S. Army Judiciary Rules of Court, R. 28.5 (dated Nov. 1, 2013); United States v. Bryant, 37 

M.J. 668 (A.C.M.R. 1993). Review by DC before authentication is preferred, but will not result in 

return of record for new authentication absent showing of prejudice. See also United States v. Smith, 

56 M.J. 711 (A.F.C.C.A. 2001). 

K. Military Judges Duties / Responsibilities. United States v. Chisholm, 58 M.J. 733 (A.C.C.A. 

2003), aff’d, 59 M.J. 151 (C.A.A.F. 2003) (holding that lower court’s decision was not “advisory” in 

nature; issue of whether a Trial Judge has the authority noted by the lower court not reached by the 

court). Both Article 38(a), UCMJ, and RCM 1103(b)(1)(A) make the military judge responsible for 

overseeing and ensuring that the record of trial is prepared. The court, after noting that preparation of 

the record of trial is a “shared responsibility” between the SJA and military judge, found that military 

judges “have both a duty and responsibility to take active roles in ‘directing’ the timely and accurate 

completion of court-martial proceedings.” 58 M.J. at 737. The court highlighted a military judge’s 

“inherent authority to issue such reasonable orders as may be necessary to enforce that legal duty,” 

noting that the manner in which he or she directs completion of the record is a matter within his or her 

“broad discretion.” Having said that, the court suggested several “remedial actions” available to a 

military judge: 

The exact nature of the remedial action is within the sound judgment and broad 

discretion of the military judge, but could include, among other things: (1) directing a 

date certain for completion of the record with confinement credit or other progressive 

sentence relief for each day the record completion is late; (2) ordering the accused’s 

release from confinement until the record of trial is completed and authenticated; or, 

(3) if all else fails, and the accused has been prejudiced by the delay, setting aside the 

findings and the sentence with or without prejudice as to a rehearing. 

Id. at 737-38. Jurisdictions that choose to ignore a military judge’s order regarding preparation of 

the record of trial “do so at their peril.” Id. Note: although the CAAF found that the lower court 

decision was NOT advisory, the CAAF also noted that “the parties in a subsequent case are free 

to argue that specific aspects of an opinion . . . should be treated as non-binding dicta.” 59 M.J. at 

152. 

VIII. AUTHENTICATING AND SERVING RECORDS OF TRIAL. 

ARTICLE 54, UCMJ; RCM 1104. 

A. Authentication by MJ or judges in GCM or SPCM with adjudged BCD. Authentication IAW 

service regulations for SPCM (same as GCM in AR 27-10). Substitute authentication rules provided 

(Cruz-Rijos standard). 

1. Dead, disabled or absent: only exceptions to MJ authentication requirement. Article 54(a). 

United States v. Cruz-Rijos, 1 M.J. 429 (C.M.A. 1976). 

2. TC may authenticate the ROT only if the military judge is genuinely unavailable for a lengthy 

period of time. 

a) PCS to distant place may qualify as absence. United States v. Lott, 9 M.J. 70 (C.M.A. 

1980). Reduced precedential value in light of spread of technology (facsimiles, overnight 

delivery, etc.). Also justification for substitute authentication is less given the demise of the 

90-day post-trial/confinement Dunlap rule. See United States v. Banks, 7 M.J. 92 (C.M.A. 

1979). 

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b) An extended leave may be sufficient. United States v. Walker, 20 M.J. 971 (N.M.C.M.R. 

1985) (leave of thirty days is prolonged absence). But see United States v. Batiste, 35 M.J. 

742 (A.C.M.R. 1992) (fifteen day leave does not equal prolonged absence); RCM 

1104(a)(2)(B), discussion (substitute authentication only for emergencies; the brief, 

temporary absence of the MJ is not enough). 

c) Military judge’s release from active duty authorizes substitute authentication UP of RCM 

1104(a)(2)(B). See United States v. Garman, 59 M.J. 677 (A.C.C.A. 2003); United States v. 

Gibson, 50 M.J. 575, 576 (N-M.C.C.A. 1999). 

d) A statement of the reasons for substitute authentication should be included in the ROT. 

United States v. Lott, 9 M.J. 70 (C.M.A. 1980). 

e) United States v. Allende, 66 M.J. 142 (C.A.A.F. 2008). Trial counsel made corrections to 

the record of trial, authenticated the record of trial “because of absence of the military judge,” 

and served it on the defense counsel. Absent objection from the defense counsel, the CAAF 

held that this was insubstantial or non-prejudicial. 

B. If more than one MJ, each must authenticate his portion. United States v. Martinez, 27 M.J. 730 

(A.C.M.R. 1988). 

C. TC shall cause a copy of ROT to be served on the accused after authentication. Substitute service 

rules provided. RCM 1104(b). 

1. UCMJ, Article 54(c) requires such service as soon as the ROT is authenticated. 

2. In United States v. Cruz-Rijos, 1 M.J. 429 (C.M.A. 1976), the CMA added the requirement 

that this be done well before CA takes action. 

3. Substitute service on the DC is a permissible alternative. See United States v. Derksen, 24 

M.J. 818 (A.C.M.R. 1987). 

D. Service on the victim. IAW RCM 1103(g)(3), a victim is entitled to a free copy of the ROT. A 

victim is defined here as one who has suffered direct physical, emotional or pecuniary harm as a 

result of a specification or charge and is named in a specification of 120, 120b, 120c or 125 or any 

attempt to commit the same. 

E. What to do if the authenticated ROT is lost? Produce a new ROT for authentication. 

1. United States v. Garcia, 37 M.J. 621 (A.C.M.R. 1993). Holding that SJA-prepared 

certification that all allied documents were true copies of originals was sufficient substitute for 

original documents. 

2. United States v. Godbee, 67 M.J. 532 (N-M.C.C.A. 2008). The original ROT was lost. The 

copy of the ROT submitted for appellate review was internally consistent and contained all 

numbered pages and exhibits. The ROT also contained a copy of the authentication page signed 

by the military judge. As a result, the NMCCA applies a presumption of regularity to its creation, 

authentication, and distribution. Harmless error. 

F. Rules for correcting an authenticated ROT. Certificate of correction process. Correction to 

make the ROT conform to the actual proceedings. RCM 1104(d). 

G. The authenticated ROT will be forwarded to the CA for action or referred to the SJA for a 

recommendation before such action. SJA recommendation required prior to taking action in a GCM 

or SPCM in which a punitive discharge or confinement for one year was adjudged. RCM 1106(a). 

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H. United States v. Ruh, 2014 CCA LEXIS 710 (A.Ct. Crim. App. 22 Sept 2014) ROT sent to MJ in 

Aug 2012; MJ failed to authenticate because he was on terminal leave. TC finally authenticated on 

14 Nov. 2012. 

I. If defense time for errata is unreasonable, MJ can authenticate without errata. RCM
 

1103(i)(1)(B). 

IX. MATTERS SUBMITTED BY THE ACCUSED. ARTICLE 60, UCMJ; 

RCM 1105. 

A. After being sentenced, the accused has the right to submit matters for the CA’s consideration. 

1. See United States v. Davis, 20 M.J. 1015 (A.C.M.R. 1985) (holding that DC’s failure to 

submit matters under RCM 1105 and failure to mention under RCM 1106(f) that MJ strongly 

recommended suspension of the BCD was ineffective assistance). See RCM 1106(d)(3)(B) that 

now requires the SJA to bring to the CA’s attention recommendations for clemency made on the 

record by the sentencing authority. See also United States v. Gilley, 56 M.J. 113 (C.A.A.F. 2001) 

(holding that DC’s submission of three enclosures which reduced the accused’s chances for 

clemency was ineffective). 

2. United States v. Harris, 30 M.J. 580 (A.C.M.R. 1990). DC is responsible for determining 

and gathering appropriate post-trial defense submissions. 

3. United States v. Martinez, 31 M.J. 524 (A.C.M.R. 1990). DC sent the accused one proposed 

RCM 1105 submission. When the defense counsel received no response (accused alleged he 

never received it), DC submitted nothing; ineffective assistance found. 

4. United States v. Tyson, 44 M.J. 588 (N-M.C.C.A. 1996). Substitute counsel, appointed 

during 15-month lapse between end of the SPCM and service of the PTR, failed to generate any 

post-trial matters (in part because accused failed to keep defense informed of his address). No 

government error, but action set aside because of possible IAC. 

5. United States v. Sylvester, 47 M.J. 390 (C.A.A.F. 1998). Written submissions are preferred, 

even if only to document an oral presentation. 

B. Accused can submit anything, but the CA need only consider written submissions. See RCM 

1105. 

1. The material may be anything that may reasonably tend to affect the CA’s action, including 

legal issues, excluded evidence, previously unavailable mitigation evidence, and clemency 

recommendations. See United States v. Davis, 33 M.J. 13 (C.M.A. 1991). 

2. Query: How much must he “consider” it? Read it entirely? Trust SJA’s (realistically COJ’s 

or TC’s) summary? As DCs, what are your options here? DC should provide a complete 

summary of the accused’s RCM 1105 matters – highlight for the CA the key 

documents/submissions. 

C. Time periods. 

1. GCM or SPCM – due on later of ten days after service of SJAR on BOTH DC and the 

accused and service of authenticated ROT on the accused. 

2. SCM – within seven days of sentencing. 

3. The failure to provide these time periods is error; however, the accused must make some 

showing that he would have submitted matters. United States v. DeGrocco, 23 M.J. 146 (C.M.A. 

1987). See also United States v. Sosebee, 35 M.J. 892 (A.C.M.R. 1992). “A staff judge advocate 

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who discourages submissions to the convening authority after the thirty-day time limit but prior to 

action creates needless litigation and risks a remand from this Court.” Id. at 894. 

4. United States v. Borden, 74 M.J. 754 (A.C.C.A. 2015) The accused’s 10-day deadline to 

submit matters now begins to run the day the ROT arrives at his address. This policy shift (under 

the old rule the clock did not run until receipt by the accused) ends the practice of an accused 

rejecting service and brings military case law into line with federal court practice and its rules on 

service. The gov’t must insure the ROT and SJAR are shipped to the correct address (either 

confinement or the address given by the accused). 

D. Waiver rules. The accused may waive the right to make a submission under RCM 1105 by: 

1. Failing to make a timely submission. 

a) United States v. Maners, 37 M.J. 966 (A.C.M.R. 1993). CA not required to consider late 

submission, but may do so with view toward recalling and modifying earlier action. 

b) But see United States v. Carmack, 37 M.J. 765 (A.C.M.R. 1993). Government “stuck 

and left holding the bag” when defense makes weak or tardy submission, even though no 

error or haste on part of the government. 

c) United States v. Doughman, 57 M.J. 653 (N-M.C.C.A. 2002). Failure to submit matters 

in a timely manner constitutes a waiver of the right to submit matters. 

Article 60, UCMJ, 10 U.S.C. § 860, affords an accused the right to submit matters 

for the convening authority’s consideration, prior to the convening authority 

taking action on the case . . . . With this statutory right . . . also comes a 

responsibility: to submit matters in a timely fashion. Both Article 60, UCMJ, and 

RCM 1105 clearly require that matters in clemency be submitted within 10 days of 

the service of the record of trial or the staff judge advocate’s recommendation 

(SJAR), whichever is later, unless an extension is sought or granted. Id. at 654. 

Held: absent evidence of an approved extension, the appellant waived the right to 

submit matters. Despite finding waiver, a review of the record revealed no 

prejudice since the appellant’s submissions were in the proper place in the record 

and the action post-dated the appellant’s submission. Citing United States v. 

Stephens, 56 M.J. 391 (C.A.A.F. 2002), the court noted that nothing requires the 

CA to list everything considered prior to taking action; in the absence of evidence 

to the contrary, the presumption is that the CA considered clemency matters 

submitted by the appellant prior to taking action. 

2. By making a partial submission without expressly reserving in writing the right to submit 

additional matters. United States v. Scott, 39 M.J. 769 (A.C.M.R. 1994). 

3. Filing an express, written waiver. 

4. United States v. Travis, 66 M.J. 301 (C.A.A.F. 2008). Defense requested two short delays 

after the initial ten day response period to gather a letter from LtGen Mattis (now Gen Mattis, 

Commander, USCENTCOM). Addendum served and three days later, CA took action. Defense 

submitted letter from LtGen Mattis; filed writ to NMCCA claiming prejudice because no 

clemency matters were considered by CA. Denied. The CAAF held that there was no material 

prejudice to the appellant because CA purported to withdraw his action later, and approve the 

sentence as adjudged after considering the letter from LtGen Mattis. Note: CA had no authority 

to withdraw his first action because case had been forwarded to NMCCA. Also, because SJA 

was in Iraq and defense counsel was at Camp Pendleton, much of this was communication 

related. Take affirmative action to ensure matters are received before action taken. 

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5. United States v. Rosenthal, 62 M.J. 261 (C.A.A.F. 2005). Waiver of submission of matters in 

first post-trial process does not automatically mean appellant waives submission of matters in 

second or subsequent post-trial process. Appellant must be afforded the opportunity to submit 

matters. 

E. Submission of matters contrary to client’s directive. United States v. Williams, 57 M.J. 581 (NM.C.C.A. 2002). Error for the defense counsel to submit a Memorandum for Record that 

documented his advice to his client and his client’s decision not to submit clemency matters; 

however, the appellant suffered no harm as a result of the error. See also United States v. Blunk, 37 

C.M.R. 422 (C.M.A. 1967). 

F. Claims of post-trial cruel and unusual punishment. 

1. United States v. Roth, 57 M.J. 740 (A.C.C.A. 2002), aff’d, 58 M.J. 239 (C.A.A.F. 2003) 

(summary disposition). Claims of post-trial cruel and unusual punishment in violation of the 

Eighth Amendment or Article 55, UCMJ, are within a CCA’s Article 66, UCMJ, review 

authority. In order to succeed on his claim of injury to his testicle while at the DB, injury 

resulting from improper frisks without “penological justification,” the appellant must satisfy both 

an objective and subjective test regarding the alleged injury. Objectively, the appellant must 

show that the “alleged deprivation or injury was ‘sufficiently serious’ to warrant relief.” Id. at 

742. Second, the appellant must show that the person causing the injury had a “culpable state of 

mind and subjectively intended to maliciously or sadistically harm [him] through the use of 

wanton or unnecessary force, and that the injury was not caused by a good faith effort to maintain 

or restore discipline.” Id. Held: although appellant satisfied the objective test, he failed to 

present any subjective evidence of culpability or use of wanton or unnecessary force. 

2. United States v. Brennan, 58 M.J. 351 (C.A.A.F. 2003), aff’d after remand, 60 M.J. 119 

(C.A.A.F. 2004) (summary disposition). The test for post-trial claims of cruel and unusual 

punishment is two pronged with an objective component and subjective component: “whether 

there is a sufficiently serious act or omission that has produced a denial of necessities . . . [and] 

whether the state of mind of the prison official demonstrates deliberate indifference to inmate 

health or safety,” respectively. Id. at 353. Additionally, “to sustain an Eighth Amendment 

violation, there must be a showing that the misconduct by prison officials produced injury 

accompanied by physical or psychological pain.” Id. at 354. During the post-trial processing of 

the appellant’s case, the appellant’s counsel requested clemency based on seven separate grounds, 

one of which was an allegation that while confined at the USACFE, Mannheim, Germany, she 

was subjected to cruel and unusual punishment in violation of the Eighth Amendment and Article 

55, UCMJ (i.e., sexual harassment and assaults by an E-6 cadre member over a two-month 

period). In responding to the allegations, the government argued that the appellant failed to 

establish harm and additionally, relief was not warranted because the CA already granted 

clemency. The CAAF disagreed with both assertions. First, the court found that it was clear that 

the appellant suffered harm at the hands of the cadre member. Next, although the CA granted 

some clemency (reducing confinement by three months), the CA’s action was unclear as to why 

he granted the clemency. The appellant’s counsel raised seven separate bases for relief and the 

SJAR was silent regarding the allegation of cruel and unusual punishment. Held: the decision of 

the service court was affirmed as to findings and set aside as to sentence. The case was remanded 

to the service court with the option of either granting relief at their level for the Article 55, 

UCMJ, violation (i.e., Eighth Amendment) or to remand back to the CA for remedial action. 

3. United States v. Ney, 68 M.J. 613 (A.C.C.A. 2010). The appellant asserted that the command 

failed to follow AR 190-47 by not transferring him to a military confinement facility within seven 

working days after trial (it took thirty-four days). This Eighth Amendment and Article 55, 

UCMJ, claim was denied because: 1) administrative remedies, such as an Article 138 complaint, 

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must be exhausted first; and, 2) regulatory violations alone are normally not enough for an Eighth 

Amendment or Article 55 violation. 

G. Appellate counsel access to defense files. United States v. Dorman, 58 M.J. 295 (C.A.A.F. 

2003). Error for military defense counsel and the CCA to deny civilian defense counsel access to the 

appellant’s case file after civilian defense counsel obtained a signed release from the client. “[T]rial 

defense counsel must, upon request, supply appellate defense counsel with the case file, but only after 

receiving the client’s written release.” Id. at 298. 

X. MATTERS SUBMITTED BY A VICTIM. RCM 1105A 

A. A crime victim has the right to submit matters for consideration by the CA after the sentence is 

adjudged. 

B. A victim is defined as one who has suffered direct physical, emotional or pecuniary harm as a 

result of an offense on which the accused was convicted and on which the CA is now acting. 

C. The statement shall be submitted submitted within ten days of receiving the later of the SJA’s 

recommendation or (if entitled to receive a copy) the record of trial. 

XI. RECOMMENDATION OF THE SJA OR LEGAL OFFICER. 

ARTICLE 60, UCMJ; RCM 1106. 

A. RCM 1106 requires a written SJA recommendation (SJAR) before the CA takes action on a GCM 

with any findings of guilty or a SPCM with an adjudged BCD or confinement for a year. 

B. Disqualification of persons who have previously participated in the case. 

1. Who is disqualified? The accuser, investigating officer, court members, MJ, any TC, DC, or 

anyone who “has otherwise acted on behalf of the prosecution or defense.” Article 46, UCMJ. 

a) United States v. Taylor, 60 M.J. 190 (C.A.A.F. 2004). SJA of TC who authored article in 

base newspaper stating that the interests of justice were not met in a recent court-martial 

because of administrative errors resulting in the inadmissibility of counseling documents was 

disqualified from participating in the post-trial process. The SJA could have disclaimed the 

article, but instead said that the article could be imputed to him. His failure to disqualify 

himself was error. 

b) United States v. Gutierrez, 57 M.J. 148 (C.A.A.F. 2002). Chief of Justice who testified 

on the merits in opposition to a defense motion to dismiss for lack of speedy trial and who 

later became the SJA, is disqualified from participating in the post-trial process. Therefore, it 

was error for that officer to prepare the SJAR and the subsequent addendum. The court 

noted, “Having actively participated in the preparation of the case against appellant, [that 

officer] was not in a position objectively to evaluate the fruits of her efforts.” Id. at 149. 

c) United States v. Johnson-Saunders, 48 M.J. 74 (C.A.A.F. 1998). The Assistant TC, as 

the Acting Chief of Military Justice, prepared the SJAR. The SJA added only one line, 

indicating he had reviewed and concurred with the SJAR. The DC did not object when served 

with the SJAR. The court held that the ATC was disqualified to prepare the SJAR. The court 

went on to hold that there was no waiver and there was plain error. The court returned the 

case for a new SJAR and action. The court created the test for non-statutory disqualification: 

whether the trial participation of the person preparing the SJAR “would cause a disinterested 

observer to doubt the fairness of the post-trial proceedings.” 

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d) United States v. Sorrell, 47 M.J. 432 (C.A.A.F. 1998). CoJ wrote the SJAR. Dispute 

developed between the accused and the CoJ over whether the CoJ promised the accused he 

would recommend clemency if the accused testified against other soldiers (which he did). 

The court avoided the issue; if there was error, it was harmless because the PTR 

recommended six months clemency, which the CA approved. 

e) United States v. Stefan, No. 20081097 (A.C.C.A. Jan. 29, 2010) (unpublished), review 

granted, 69 M.J. 171 (C.A.A.F. 2010). This case was submitted on its merits. The majority 

affirmed the findings and the sentence without comment. The dissent found that a 

disqualified officer advised the convening authority. The officer at issue first appeared in the 

record of trial as “Chief, Military Justice,” by signing the referral of both the charges and 

additional charges. Next, she appeared as trial counsel and served the referred charges and 

additional charges on appellant. Third, she acted again as “Chief, Military Justice” by 

granting the defense request for extension of time to submit post-trial matters. Next, she 

signed the promulgating order and the chronology sheet as “Acting Staff Judge Advocate.” 

Then, on the same day, she signed the court-martial data sheet as three separate persons: 

“Trial Counsel,” “Convening Authority or His/Her Representative,” and “Staff Judge 

Advocate of General Court-Martial Convening Authority or Reviewing Staff Judge 

Advocate.” Finally, on that same day, she signed the addendum to the SJAR as “Acting 

SJA.” The dissent spent time discussing the roles of the chief of military justice and the fact 

that the “modern chief of military justice in the Army is in no way, shape, or form—not in 

concept or execution—‘neutral,’ and has no business advising the convening authority in the 

post-trial process.” As a result, the dissent would have found prejudice by the numerous roles 

played by the chief of military justice in this case, and granted relief. 

f) United States v. Stefan, 69 M.J. 256 (C.A.A.F. 2010). The CAAF agreed with the dissent 

from the court below and found that the Chief of Justice was statutorily disqualified under 

Article 6(c), UCMJ, primarily because she served the referred charges and the additional 

charges on the accused, a “task traditionally reserved for detailed trial counsel, see R.C.M. 

602.” However, the CAAF held that the appellant was not prejudiced and granted no relief. 

Of particular note to the CAAF was the fact that anyone who acts as a trial counsel is 

disqualified under the plain reading of Article 6(c), UCMJ, and not just those who are 

specifically detailed as trial counsel under Article 27, UCMJ. 

g) United States v. Ramos, No. 20090099, 2010 WL 3946329 (A.C.C.A. July 19, 2010) 

(unpublished), aff’d, 69 M.J. 475 (C.A.A.F. Jan. 11, 2011) (summary disposition). This case 

was submitted on its merits. The majority affirmed the findings and the sentence without 

comment. The dissent found that a disqualified officer advised the convening authority. The 

facts here are very similar to the Stefan case above, because the same office of the staff judge 

advocate and the same officer were involved. The dissent held that this case is very similar to 

the Stefan case above, except for the fact that the main document at issue in this case was the 

SJAR. In Stefan, the main document at issue was the addendum. As a result, the defense 

counsel had an opportunity to object to the disqualified officer acting in this case, whereas in 

Stefan, the defense counsel had no opportunity to object to the disqualified officer acting on 

the addendum. As a result, the dissent would have remanded the case for at least “a new 

review and action.” 

2. Also disqualified is the SJA who must review his own prior work (United States v. Engle, 1 

M.J. 387 (C.M.A. 1976)); or his own testimony in some cases (United States v. Rice, 33 M.J. 451 

(C.M.A. 1991)); United States v. Choice, 49 C.M.R. 663 (C.M.A. 1975). United States v. 

McCormick, 34 M.J. 752 (N.M.C.M.R. 1992) (holding that PTR insufficient if prepared by a 

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disqualified person, even if filtered through and adopted by the SJA). See RCM 1106(b) 

discussion. 

3. “Material factual dispute” or “legitimate factual controversy” required. United States v. 

Lynch, 39 M.J. 223, 228 (C.M.A. 1994). See United States v. Bygrave, 40 M.J. 839 (N.M.C.M.R. 

1994) (holding that PTR must come from one free from any connection with a controversy); 

United States v. Edwards, 45 M.J. 114 (C.A.A.F. 1996). Legal officer (non-judge advocate) 

disqualified from preparing PTR because he preferred the charges, interrogated the accused, and 

acted as evidence custodian in case. Mere prior participation does not disqualify, but involvement 

“far beyond that of a nominal accuser” did so here. 

4. Who is not disqualified? 

a) The SJA who has participated in obtaining immunity or clemency for a witness in the 

case. United States v. Decker, 15 M.J. 416 (C.M.A. 1983). 

b) Preparation of pretrial advice challenged at trial not automatically disqualifying; factual 

determination. United States v. Caritativo, 37 M.J. 175 (C.M.A. 1993). 

c) United States v. McDowell, 59 M.J. 662 (A.F.C.C.A. 2003). SJA whose initial SJAR was 

deemed defective on appeal is not per se disqualified when the error is a result of a change in 

the law as opposed to bad or erroneous advice. Changes in the law affecting the validity of 

an SJAR do not create a “personal interest” in the case; however, erroneous or bad advice in 

an SJAR, returned to the same SJA for a second review and action may disqualify that SJA if 

it is shown he or she has an other than official interest in the case. 

5. How do you test for disqualification outside the scope of the rules? Do the officer’s actions 

before or during trial create, or appear to create, a risk that the officer will be unable to evaluate 

the evidence objectively and impartially? United States v. Newman, 14 M.J. 474 (C.M.A. 1983). 

See United States v. Kamyal, 19 M.J. 802 (A.C.M.R. 1984) (“a substantial risk of prejudgment”). 

United States v. Johnson-Saunders, 48 M.J. 74 (C.A.A.F. 1998) (whether the involvement by a 

disqualified person in the PTR preparation “would cause a disinterested observer to doubt the 

fairness of the post-trial proceedings”) 

6. RCM 1106(c). When the CA has no SJA or SJA is disqualified (unable to evaluate 

objectively and impartially), CA must request assignment of another SJA, or forward record to 

another GCMCA. Make sure documentation is included in the record. 

a) Informal agreement between SJAs is not sufficient. United States v. Gavitt, 37 M.J. 761 

(A.C.M.R. 1993). 

b) United States v. Hall, 39 M.J. 593 (A.C.M.R. 1994). SJA used incorrect procedure to 

obtain another SJA to perform post-trial functions. Court holds that failure to follow 

procedures can be waived. 

c) Deputies cannot sign SJARs. United States v. Crenshaw, No. 9501222 (A.C.C.A. 1996) 

(unpublished). Fact that Deputy Staff Judge Advocate (DSJA) improperly signed PTR as 

“Deputy SJA” rather than “Acting SJA” did not require corrective action where PTR 

“contained nothing controversial” and where SJA signed addendum that adhered to DSJA’s 

recommendation. 

d) Who should author the SJAR? The SJA. United States v. Finster, 51 M.J. 185 (C.A.A.F. 

1999), where a non-qualified individual signed the SJAR, the court concluded there was 

manifest prejudice. United States v. Gatlin, 60 M.J. 804 (N-M.C.C.A. 2004) (refusing to 

apply a presumption of regularity to a PTR signed by a LT Stampher (not the SJA) when 

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there was no explanation in the record as to why he prepared and signed the PTR; holding, 

however, that appellant did not make a showing of any prejudice). 

C. Form and content: “The staff judge advocate or legal advisor shall provide the [CA] with a copy 

of the report of results of trial, setting forth the findings, sentence, and confinement credit to be 

applied, a copy or summary of the pretrial agreement, if any, any recommendation for clemency by 

the sentencing authority, made in conjunction with the announced sentence, and the staff judge 

advocate’s recommendation.” RCM 1106(d)(3). EFFECTIVE: 23 AUGUST 2008. 

1. Findings and sentence. United States v. Russett, 40 M.J. 184 (C.M.A. 1994). Requirement for 

the SJA to comment on multiplicity question arises when DC first raises the issue as part of the 

defense submission to the CA. 

a) Accuracy most critical on charges and specs. United States v. Diaz, 40 M.J. 335 (C.M.A. 

1994) (the CMA disapproved findings on two specs omitted from PTR). See also United 

States v. Sanchez, 54 M.J. 874 (A.C.C.A. 2001) (error in PTR alleging a finding of guilty to 

larceny as opposed to wrongful appropriation, however, no prejudice – finding of guilty to 

larceny set aside and replaced with a finding of guilty to wrongful appropriation and sentence 

affirmed after reassessment). United States v. Lindsey, 56 M.J. 850 (A.C.C.A. 2002). 

Finding of not guilty to specification reported in PTR as guilty. DC failed to comment on the 

error. Applying a waiver and plain error analysis, court held plain error; therefore, waiver did 

not apply. Unsure on the issue of prejudice, the court reduced the sentence by two months. 

“We are unsure of the impact of the error on appellant’s request for clemency. To moot any 

possible claim of prejudice . . . and for the sake of judicial economy, we will take appropriate 

remedial action.” Id. at 851. But see United States v. Ross, 44 M.J. 534, 536 (A.F.C.C.A. 

1996) (improper dates for offense in PTR – July vs. Sept. – not fatal when CA action 

reflected original, correct date of charge sheet; “we are reluctant to elevate ‘typos’ in dates to 

‘plain error’” especially when waived). 

b) Some errors indulged, especially when defense does not notice or point them out. See, 

e.g., United States v. Royster, No. 9400201 (A.C.C.A. 1995) (unpublished); United States v. 

Bernier, 42 M.J. 521 (C.G.C.C.A. 1995); United States v. Zaptin, 41 M.J. 877 (N-M.C.C.A. 

1995). United States v. Gunkle, 55 M.J. 26 (C.A.A.F. 2001). The PTR failed to reflect that 

the judge granted motions for a finding of not guilty and/or modification of charges. Defense 

failed to mention these errors in their RCM 1105/6 submissions, but did mention the judge’s 

favorable rulings. The court found no error. 

c) Maximum punishment. Not a required element; if done, ensure accuracy. See United 

States v. Hammond, 60 M.J. 512 (A.C.C.A. 2004) (reducing confinement by thirty days when 

the PTR misstated the maximum punishment (life w/o possibility for parole when maximum 

was only six years)). 

2. Any clemency recommendations by the MJ or panel. RCM 1106(d)(3) [2008 change]. 

a) United States v. Paz-Medina, 56 M.J. 501 (A.C.C.A. 2001). Plain error for the SJA to 

omit member’s clemency recommendation regarding waiver of forfeitures from the PTR. CA 

action set aside; returned for new PTR and action. Court also commented on the slow posttrial processing stating, “[b]ecause we are already returning the case for a new SJAR and 

action, the new SJA and convening authority will also be provided a discretionary 

opportunity to fashion an appropriate remedy for the untimely processing.” Id. at 505. 

b) United States v. Williams, 57 M.J. 1 (C.A.A.F. 2002). Error found where government 

failed to serve DC with PTR prior to action when PTR omitted clemency recommendation 

from sentencing authority. 

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3. Summary of accused’s service record. Required by the old, pre-23 August 2008, R.C.M. 

1106(d)(3)(C), but not the new R.C.M. 1106. Under the new R.C.M. 1106(d)(1), the SJA “shall 

use the record of trial in preparation of the recommendation, and may also use the personnel 

records of the accused or other matters in advising the [CA] whether clemency is warranted.” 

(emphasis added). 

a) United States v. Parker, 73 M.J. 914 (A.F.C.C.A. 2014) The USAF version of an 

ORB/ERB submitted at trial was incorrect in that it did not list the accused’s combat and 

overseas time. Air Force Instruction 51-201, states the personal data sheet should list an 

accused’s overseas service and combat time. Court notes while not required under the current 

RCM, if a service summary is given it must be accurate. No prejudice here though because 

the specification and other materials stated offense occurred in Qatar. 

b) United States v. Sanchez, 69 M.J. 679 (C.G.C.C.A. 2010). The SJAR contained the fact 

that the appellant had no previous convictions, information about a prior nonjudicial 

punishment, and a list of four negative administrative remarks. There was no mention of the 

appellant’s awards and decorations or positive marks. The court found this to be prejudicial 

error and remanded the case for a new SJAR and action. Even though there is no requirement 

to summarize the accused’s service records under the amendment to R.C.M. 1106(d), any 

summary must be “balanced” and “a fair portrayal.” 

4. Nature and duration of any pretrial restraint. 

a) “The accused was under no restraint;” or 

b) “The accused served 67 days of pretrial confinement, which should be credited against 

his sentence to 8 years confinement.” 

5. United States v. Scalo, 60 M.J. 435 (C.A.A.F. 2005). SJAR erroneously advised the CA that 

there had been no pretrial restraint in appellant’s case. In fact, the appellant had been restricted to 

the limits of Fort Stewart, Georgia for forty-four days until his court-martial. The court 

determined that the SJA’s failure to advise the CA regarding appellant’s pretrial restraint was not 

inherently prejudicial and that appellant failed to make a colorable showing of possible prejudice. 

The appellant failed to make a reference, direct or indirect, in his clemency petition. Further, the 

length alone of the restraint, was not of an unusual length to attract the convening authority’s 

attention for clemency purposes. 

a) United States v. Weber, 56 M.J. 736 (C.G.C.C.A. 2002). Error for SJA to omit from PTR 

that accused was subject to over three months of pretrial restriction; however, applying 

United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998), accused failed to “make some 

colorable showing of possible prejudice” that would warrant relief. 

b) United States v. Miller, 56 M.J. 764 (A.F.C.C.A. 2002). SJAR failed to mention three 

days of pretrial confinement. Held: attachments to SJAR (e.g., Report of Result of Trial and 

Personal Data Sheet) both stated three days of PTC; therefore, no error. Even if error, 

applying United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998), accused failed to make a 

“colorable showing of prejudice” that would warrant relief. Finally, court noted that accused 

waived the issue by failing to raise a timely objection in the absence of plain error. 

6. CA’s obligation under any pretrial agreement. See United States v. Green, 58 M.J. 855 

(A.C.C.A. 2003); United States v. Sheffield, 60 M.J. 591 (A.F.C.C.A. 2004) (failure of the SJAR 

to notify the CA of his obligations regarding waiving automatic forfeitures was error). The 2008 

amendment to RCM 1106(d)(3) requires a “copy or summary of the pretrial agreement.” 

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7. Additional appropriate matters may be included in the recommendation even if taken from 

outside the record. RCM 1106(d)(5). See United States v. Due, 21 M.J. 431 (C.M.A. 1986). See 

also United States v. Drayton, 40 M.J. 447 (C.M.A. 1994). Key – service on accused and counsel 

and opportunity to comment! 

D. Two additional tips. 

1. Use a certificate of service when providing the defense with the SJAR. United States v. 

McClelland, 25 M.J. 903 (A.C.M.R. 1988). This logic should be extended to service of the 

accused’s copy of the SJAR. See RCM 1106(f). 

2. List each enclosure (petitions for clemency, etc.) that goes to the CA on the SJAR/addendum 

and/or have the convening authority initial and date all documents. United States v. Hallums, 26 

M.J. 838 (A.C.M.R. 1988); United States v. Craig, 28 M.J. 321 (C.M.A. 1989). 

a) Query: What if the CA forgets to initial one written submission, but initials all the 

others? Have you just given the DC evidence to argue that the CA “failed to consider” a 

written defense submission? 

b) United States v. Blanch, 29 M.J. 672 (A.F.C.M.R. 1989) (government entitled to enhance 

“paper trail” and establish that accused’s RCM 1105 matters were forwarded to and 

considered by the CA); United States v. Joseph, 36 M.J. 846 (A.C.M.R. 1993) (SJA’s 

affidavit established that matters submitted were considered by CA before action). 

c) United States v. Briscoe, 56 M.J. 903 (A.F.C.C.A. 2002). Failure of SJA to prepare 

addendum to PTR advising CA to consider all matters (i.e., written maters) submitted by 

accused cured through post-trial affidavit from CA and SJA swearing that all clemency 

matters were considered by CA prior to action. 

d) United States v. Stephens, 56 M.J. 391 (C.A.A.F. 2002). CA’s action stated that he 

“‘specifically considered the results of trial, the record of trial, and the recommendation of 

the [SJA]’.” Id. at 392. The CA’s action did not list the accused’s clemency matters. Held: 

no error since the evidence revealed the CA considered the addendum which included the 

accused’s clemency materials. “We decline to hold that a document embodying the [CA’s] 

final action is defective simply because it refers to the SJA’s recommendation without also 

referring to the attachments, such as an addendum or clemency materials.” Id. 

e) United States v. Gaddy, 54 M.J. 769 (A.F.C.C.A. 2001). The appellant submitted a single 

letter from his pastor in his RCM 1105 matters. The SJA did not do an addendum accounting 

for the letter nor did the PTR advise the CA he had to consider all written submissions made 

by the appellant. According to the court, it can assume the CA considered all defense 

submissions when the SJA prepares an addendum which includes mention of the defense 

submissions, advises the CA that he must consider the matters submitted, and the addendum 

actually lists the matters submitted. If no addendum is prepared, the record must reflect that 

the CA was advised of his obligation to consider all written submissions from defense and 

there must be some evidence that the defense matters were actually considered. The AFCCA 

found prejudice and reduced the appellant’s sentence by two months. 

f) United States v. Baker, 54 M.J. 774 (A.F.C.C.A. 2001). There was no evidence in the 

record that the CA had considered the defense RCM 1105 matters. SJA did not do an 

addendum to his PTR despite lengthy letter from accused requesting clemency. Affidavits 

obtained to establish that the CA considered the appellant’s letter. Although the court found 

no prejudicial error, they decry the waste of appellate assets caused by the SJA failing to 

follow standard Air Force post-trial process. The court stated that they will be sending 

information to their TJAG about SJAs who commit egregious post-trial errors. 

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E. Errors in the recommendation. 

1. Corrected on appeal without return to CA for action. 

2. Returned for new recommendation and new action. See United States v. Craig, 28 M.J. 321 

(C.M.A. 1989). “Since it is very difficult to determine how a convening authority would have 

exercised his broad discretion if the staff judge advocate had complied with RCM 1106, a remand 

will usually be in order.” Id. at 325 (quoting United States v. Hill, 27 M.J. 293, 296 (C.M.A. 

1988)). See also United States v. Reed, 33 M.J. 98 (C.M.A. 1991); United States v. Hamilton, 47 

M.J. 32 (C.A.A.F. 1997). “This court has often observed that the convening authority is an 

accused’s last best hope for clemency [citation omitted]. Clemency is the heart of the convening 

authority’s responsibility at that stage of a case. If an SJA gives faulty advice in this regard, the 

impact is particularly serious because no subsequent authority can adequately fix that mistake.” 

Id. at 35. See also United States v. Ord, 63 M.J. 279 (C.A.A.F. 2006). When the CA did not act 

expressly on the findings and the SJAR omitted a finding of guilty adjudged by the court-martial, 

the ACCA could not presume that the CA approved the omitted findings, but could return the 

record for a new SJAR and action. 

a) United States v. Pate, 54 M.J. 501 (A.C.C.A. 2000). Accused was convicted at trial of 

several charges which were the basis of a prior Article 15. The SJA advised the CA of the 

Article 15 in his PTR and erroneously stated the Article 15 was set aside. Defense noted the 

error in the RCM 1105/6 submissions and the SJA agreed with the defense in an addendum, 

which advised the CA he could not consider the Article 15 for any purpose other than 

granting Pierce credit to the appellant. Defense claimed that under Pierce, an Article 15 of 

this nature cannot be used for any purpose, administrative or otherwise, and thus it was error 

for the SJA to mention it in the PTR. The court disagreed, stating that Pierce does not 

require withholding this information from the CA. The court went on to state that even if it 

did, the defense had failed to make a colorable showing of possible prejudice. 

b) United States v. Williams, 54 M.J. 626 (A.F.C.C.A. 2000). SJA signed the PTR three 

days before the military judge authenticated the ROT. Defense claimed PTR was invalid 

because it was based on an unauthenticated record of trial (ROT) thus invalidating the CA’s 

action. The court disagreed – ROT had only received minor, non-substantive errata from the 

military judge and defense failed to raise any objection in the RCM 1105/6 submissions. 

Court found no prejudice to the accused and noted that the issue was waived. See also United 

States v. Smith, 54 M.J. 783 (A.F.C.C.A. 2001) (cautioning that when PTR dated nine days 

before authentication of the ROT, “this sort of inattention to detail far too often creates 

unnecessary issues on appeal.”). Id. at 788. 

c) United States v. Farence, 57 M.J. 674 (C.G.C.C.A. 2002). Despite erroneous SJAR that 

advised the CA that the appellant was convicted of two offenses dismissed for sentencing 

purposes by the MJ, no corrective action was required when the appellant failed to make 

“some colorable showing of possible prejudice.” 

3. Waived absent plain error. RCM 1106(f)(6) provides that “[f]ailure of counsel for the 

accused to comment on any matter in the recommendation or matters attached to the 

recommendation in a timely manner shall waive later claim of error with regard to such matter in 

the absence of plain error.” 

a) In cases where neither the appellant nor his counsel raises any error in the SJAR either as 

an RCM 1106(f)(4) matter or on appeal, the reviewing court will apply a United States v. 

Powell, 49 M.J. 460, 463 (C.A.A.F. 1998), plain error analysis: (1) was there an error; (2) 

was the error plain and obvious; and, (3) did the error materially prejudice a substantial right. 

United States v. Scalo, 59 M.J. 646 (A.C.C.A. 2003) (en banc), aff’d, 60 M.J. 435 (C.A.A.F. 

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2005). The reviewing court will not apply the lesser Wheelus standard of “some colorable 

showing of possible prejudice” to establish plain error in cases where the issues is not raised 

by the appellant either at or before action or on appeal. Id. at 650. 

b) In cases where neither the appellant nor his counsel raises an allegation of error in the 

SJAR as an RCM 1106(f)(4) matter, but raises the error on appeal, the reviewing court will 

apply a Powell-Wheelus analysis (appellant need only show a “colorable showing of possible 

prejudice”). United States v. Hartfield, 53 M.J. 719, 720 (A.C.C.A. 2000). 

F. No recommendation is needed for total acquittals or other final terminations without findings. 

This now includes findings of not guilty only by reason of lack of mental responsibility. See RCM 

1106(e). 

G. Service of SJAR on DC and the accused. RCM 1106(f)(1). 

1. Before forwarding the recommendation and the ROT to the CA for action, the SJA or legal 

officer shall cause a copy of the SJAR to be served on counsel for the accused. A separate copy 

will be served on the accused. 

a) United States v. Hickok, 45 M.J. 142 (C.A.A.F. 1996). Failure to serve PTR on counsel 

is prejudicial error, even though counsel submitted matters before authentication of record 

and service of PTR. Original counsel PCS’d, new counsel never appointed, and OSJA never 

tried to serve PTR. The CAAF found accused “was unrepresented in law and in fact” during 

this stage. Fact that RCM 1105 clemency package was submitted at an early stage (and, all 

conceded, considered by CA at action) cannot compensate for the separate post-trial right to 

respond to the PTR under RCM 1106. United States v. Williams, 57 M.J. 1 (C.A.A.F. 2002) 

(finding error for failing to serve DC with PTR prior to action when PTR omitted clemency 

recommendation from sentencing authority). 

b) United States v. Siler, 60 M.J. 772 (N-M.C.C.A. 2004). When the SJA served the PTR 

on appellant, the substitute DC put the SJA on notice that the DC did not have an attorneyclient relationship with the appellant. The CA took action without any comment by appellant 

or his substitute DC. Once on notice of a potential problem concerning post-trial 

representation, the government has the responsibility to ensure adequate representation. 

c) United States v. Cornelious, 41 M.J. 397 (C.A.A.F. 1995). The SJA should have realized 

that service of the PTR was inadequate because it was not served “on counsel for the 

accused” as required by RCM 1106(f)(1). In this case the court held that service was 

tantamount to no service at all and ordered a new PTR and CA action. The court took pains 

to explain that because the SJA affirmatively inquired into the existence of the attorney-client 

relationship, he could not ignore the results of his inquiry. 

d) United States v. Klein, 55 M.J. 752 (N-M.C.C.A. 2001). Failure to serve PTR on DC until 

five days after CA’s action constituted error, but accused failed to make “some colorable 

showing of possible prejudice.” However, relief was granted on another basis. 

e) United States v. Williams, 57 M.J. 1 (C.A.A.F. 2002). Action set aside because PTR 

which omitted required clemency recommendation from the MJ at sentencing served on DC 

day after action in the case. 

f) United States v. Smith, 59 M.J. 604 (N-M.C.C.A. 2003). Failure to produce evidence of 

service of the SJAR on the appellant prior to action does not preclude approval of a punitive 

discharge despite language to the contrary in RCM 1107(d)(4) and 1103(c)(1). The court, 

after noting that RCM 1107(d)(4) was “inartfully drafted,” applied a “‘whole statute’ 

principle of statutory interpretation . . . considering the drafter’s intent . . . and [considering] 

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case law,” rejected a literal reading of RCM 1107(d)(4) and 1103(c)(1) that would require 

disapproval of a punitive discharge. Finally, the court noted that the appellant failed to make 

a colorable showing of possible prejudice from the alleged error. 

2. Although normally submitted simultaneously, RCM 1105 and RCM 1106 submissions serve 

different purposes. RCM 1105 submissions are the accused’s submissions where RCM 1106 

focuses on submission by the accused’s counsel. 

3. RCM 1106(f)(1). “If it is impracticable to serve the recommendation on the accused for 

reasons including but not limited to the transfer of the accused to a distant place, the unauthorized 

absence of the accused, or military exigency, or if the accused so requests on the record at court 

or in writing, the accused’s copy shall be forwarded to the accused’s defense counsel. A 

statement shall be attached to the record explaining why the accused was not served personally.” 

a) United States v. Ayala, 38 M.J. 633 (A.C.M.R. 1993). Substitute service of ROT and 

PTR on DC authorized where accused is confined some distance away. 

b) United States v. Smith, 37 M.J. 583 (N.M.C.M.R. 1993). Mailing of recommendation is 

not impracticable where all parties are located in CONUS and the accused has provided a 

current mailing address. 

c) United States v. Lowery, 37 M.J. 1038 (A.C.M.R. 1993). Real issue in this area is 

whether accused and defense counsel have had an opportunity to submit post-trial matters. 

d) United States v. Ray, 37 M.J. 1052 (N.M.C.M.R. 1993). Mere failure to serve does not 

warrant relief; accused did not offer evidence to rebut presumption that SJA had properly 

executed duties, did not submit matters that would have been submitted to CA, and did not 

assert any inaccuracies in the recommendation. 

e) United States v. Ybarra, 57 M.J. 807 (N-M.C.C.A. 2002). Failure to serve ROT and 

SJAR on appellant as specifically requested by appellant does not warrant relief (i.e., no 

prejudice) when the appellant submitted a waiver of clemency and he failed, under United 

States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998), to cite to any errors or omissions in the 

SJAR that he would have brought to the CA’s attention had he been given the opportunity to 

do so. 

4. RCM 1106(f)(2). The accused may designate at trial which counsel shall be served with the 

SJAR or may designate such counsel in writing to the SJA before the SJAR is served. Absent 

such a designation, the priority for service is: civilian counsel, individual military counsel, and 

then detailed counsel. But see United States v. Johnson, 26 M.J. 509 (A.C.M.R. 1988) (holding 

that service on detailed defense counsel, even when accused was represented by civilian counsel, 

was sufficient. Accused “must have acquiesced” in the response filed by detailed defense counsel 

because his letter to the CA was included in the detailed defense counsel’s response to the SJAR). 

5. RCM 1106(f)(2). If no civilian counsel exists and all military counsel have been relieved or 

are not reasonably available, substitute counsel shall be detailed by an appropriate authority. AR 

27-10, para. 6-9, says the Chief, USATDS, or his delegee will detail defense counsel. 

a) Substitution of counsel problems. RCM 1106(f)(2). 

(1) United States v. Iverson, 5 M.J. 440 (C.M.A. 1978). Substituted counsel must form 

attorney-client relationship with the accused; absent extraordinary circumstances, only 

the accused may terminate an existing relationship. See also United States v. Miller, 45 

M.J. 149 (C.A.A.F. 1996). Substitute defense counsel’s failure to formally establish 

attorney-client relationship with accused found harmless, despite substitute counsel’s 

failure to consult accused or submit clemency package. Detailed counsel (who later 

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ETS’d) had submitted clemency materials before service of PTR, and government was 

not on any reasonable notice that substitute counsel and accused failed to enter attorneyclient relationship. In such circumstances, the test is for prejudice. 

(2) United States v. Howard, 47 M.J. 104 (C.A.A.F. 1997). Rejecting an invitation to 

overrule Miller, the CAAF restated that failure of the substitute DC to contact the client 

post-trial will be tested for prejudice. “Prejudice” does not require the accused to show 

that such contact and the resulting submission would have resulted in clemency; it only 

requires a showing that the accused would have been able to submit something to counter 

the SJA’s PTR. 

(3) United States v. Antonio, 20 M.J. 828 (A.C.M.R. 1985). Accused may waive the 

right to his former counsel by his acceptance of substitute counsel and his assent to 

representation. 

(4) United States v. Hood, 47 M.J. 95 (C.A.A.F. 1997). Even if the substitute counsel 

does form the required attorney-client relationship, failure to discuss the accused’s 

clemency packet with him prior to submission is deficient performance under the first 

prong of the Strickland analysis. 

(5) United States v. Johnston, 51 M.J. 227 (C.A.A.F. 1999). The convening authority 

must ensure that the accused is represented during post-trial. Submission of RCM 1105 

and 1106 matters is considered to be a critical point in the criminal proceedings against 

an accused. 

b) If the accused alleges ineffective assistance of counsel (IAC) after trial, that counsel 

cannot be the one who is served with the SJAR. 

(1) United States v. Cornelious, 41 M.J. 397 (C.A.A.F. 1995). Government on notice of 

likely IAC. Court remanded to determine whether accused substantially prejudiced. 

(2) United States v. Carter, 40 M.J. 102 (C.M.A. 1994). No conflict exists where DC is 

unaware of allegations. 

(3) United States v. Alomarestrada, 39 M.J. 1068 (A.C.M.R. 1994). Dissatisfaction with 

outcome of trial does not always equal attack on competence of counsel requiring 

appointment of substitute counsel. 

(4) United States v. Sombolay, 37 M.J. 647 (A.C.M.R. 1993). Substitute counsel not 

required where allegations of ineffective assistance are made after submission of 

response to PTR. 

6. RCM 1106(f)(3). Upon request, a copy of the ROT shall be provided for use by DC. DC 

should include this boilerplate language in the Post-Trial and Appellate Rights Forms. 

H. Defense Counsel Submissions. RCM 1106(f)(4). “Counsel for the accused may submit, in 

writing, corrections or rebuttal to any matter in the recommendation believed to be erroneous, 

inadequate, or misleading, and may comment on any other matter.” 

1. United States v. Goode, 1 M.J. 3 (C.M.A. 1975). Service of PTR on the DC is required 

before the CA can take action. DC’s failure to object to errors in PTR response normally waives 

such errors. See also United States v. Narine, 14 M.J. 55 (C.M.A. 1982). 

2. Response due within 10 days of SJAR arriving to both DC and accused and service of 

authenticated ROT on accused, whichever is later. U.S. v. Borden 74 M.J. 754. 

3. SJA may approve delay for RCM 1105 (not RCM 1106) matters for up to 20 days; only CA 

may disapprove. Note the distinction between the timelines and approval and/or disapproval 

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authority when dealing with RCM 1105 vs. RCM 1106 matters. See RCM 1105(c)(1) and RCM 

1106(f)(3). Key: serve accused and counsel the authenticated ROT and SJAR at the same time. 

I. Staff Judge Advocate’s Addendum. RCM 1106(f)(7). “The staff judge advocate or legal officer 

may supplement the recommendation after the accused and counsel for the accused have been served 

with the recommendation and given an opportunity to respond.” 

1. Must address allegations of legal error. Rationale not required; “I have considered the 

defense allegation of legal error regarding _________. I disagree that this was legal error. In my 

opinion, no corrective action is necessary.” See also United States v. McKinley, 48 M.J. 280, 281 

(C.A.A.F. 1998) (Judge Cox’s interpretation of RCM 1106(d)(4) and how to respond to an 

allegation of legal error). 

a) See United States v. Keck, 22 M.J. 755 (N.M.C.M.R. 1986). See also United States v. 

Broussard, 35 M.J. 665 (A.C.M.R. 1992) (addendum stating “I have carefully considered the 

enclosed matters and, in my opinion, corrective action with respect to the findings and 

sentence is not warranted” was an adequate statement of disagreement with the assertions of 

accused). Need not give rationale or analysis – mere disagreement and comment on the need 

for corrective action sufficient. 

b) United States v. Welker, 44 M.J. 85 (C.A.A.F. 1996). Although error for SJA not to respond 

to defense assertions of legal errors made in post-trial submissions, the CAAF looked to record 

and determined there was no merit to the allegation of error raised by the defense in the RCM 

1105/6 submissions. Consequently, the court held that there was no prejudice to the accused by 

the SJA’s failure to comment on the allegation of error raised by the defense. The court also 

reaffirmed the principle that a statement of agreement or disagreement, without statement of 

rationale, is OK. Court will test for prejudice. When (as here) the court finds no trial error, it 

will find no prejudice. See also United States v. Jones, 44 M.J. 242 (C.A.A.F. 1996) 

(comments on preparation of ROT were “trivial”); United States v. Hutchison, 56 M.J. 756 

(A.C.C.A. 2002). 

c) United States v. Sojfer, 44 M.J. 603 (N-M.C.C.A. 1996). Seven page addendum recited 

alleged errors and said, “‘My recommendation remains unchanged: I recommend that you 

take action to approve the sentence as adjudged’ . . . He [SJA] made no other comment 

regarding the merit of the assigned errors.” Id. at 611. Government argued that “only 

inference . . . is that the [SJA] disagreed with all of the errors that were raised. We agree.” 

Id. 

d) United States v. Zimmer, 56 M.J. 869 (A.C.C.A. 2002). It was error for SJA not to 

respond to allegation of error regarding improper deferment denial. 

2. Ambiguous, unclear defense submission. If the submission arguably alleges a legal error in 

the trial, the SJA must respond under RCM 1106 and state whether corrective action is needed. 

a) United States v. Williams-Oatman, 38 M.J. 602 (A.C.M.R. 1993). “Consideration of 

inadmissible evidence” is sufficient allegation of legal error. 

b) United States v. Hutchison, 56 M.J. 756 (A.C.C.A. 2002). Unsupported claim of onerous 

and illegal pretrial punishment which was not raised at trial after specific Article 13 inquiry 

by MJ and raised for the first time in clemency submission does NOT allege legal error 

requiring comment by the SJA. Likewise, alleged undue, non-prejudicial post-trial delay 

does not raise an allegation of legal error requiring comment by the SJA. 

3. RCM 1106(f)(7). Addenda containing “new matter” must be served on the defense. 

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a) United States v. Valencia, ___ M.J. ___ (A.Ct. Crim. App. Oct. 23, 2015) Victim initially 

declined to submit matters to the convening authority, IAW R.C.M. 1105A; however once 

she was served the ROT she wrote a statement on a form returned to the OSJA and sent to the 

CA. The statement was a view on what action the CA should take on the sentence and was 

never served on defense counsel. ACCA ruled it was new matter that should have been 

served, but no prejudice because CA had already approved adjudged sentence without 

knowing of the victim submission. CA signed a supplemental action after seeing the 

submission and ratified his earlier decision. 

b) United States v. Leal, 44 M.J. 235 (C.A.A.F. 1996). If the additional information is not 

part of the record, i.e., transcript, consider it to be new matter. Not enough that the 

information is contained “between the blue covers,” because that would permit government to 

highlight and smuggle to CA evidence offered but not admitted. Here, the addendum referred 

to a letter of reprimand; the failure to serve the addendum required a new PTR and action by 

a new CA. But see United States v. Brown, 54 M.J. 289 (C.A.A.F. 2000). New action not 

required where defense, on appeal, fails to proffer a possible response to the un-served 

addendum that “could have produced a different result.” Id. at 293. 

c) United States v. Cook, 43 M.J. 829 (A.F.C.C.A. 1996), aff’d, 46 M.J. 37 (C.A.A.F. 1997). 

In two post-trial memos, the SJA advised the CA about the MJ’s qualifications and 

experience, the likelihood of the accused waiving an administrative separation board, and 

minimizing effects of BCD. The AFCCA disapproved the BCD because all of this was 

obviously outside the record and should have been served on accused with opportunity to 

comment. 

d) United States v. Harris, 43 M.J. 652 (A.C.C.A. 1995). Addendum mentioned for the first 

time that the accused had received three prior Article 15s; new review and action required. 

e) United States v. Sliney, No. 9400011 (A.C.C.A. 1995) (unpublished). The inclusion of 

letters from victim and victim-witness liaison required re-service; new action required. 

Accord United States v. Haire, 40 M.J. 530 (C.G.C.M.R. 1994). 

f) United States v. McCrimmons, 39 M.J. 867 (N.M.C.M.R. 1994). Reference in addendum 

to three thefts that formed basis for court-martial (“demonstrated by his past behavior that he 

is not trustworthy”), not “new matter.” 

g) United States v. Heirs, 29 M.J. 68 (C.M.A. 1989). The SJA erred by erroneously 

advising the CA in the addendum that Heirs’ admissions during the rejected providence 

inquiry could be used to support the findings of guilty once the accused challenged the 

sufficiency of the evidence post-trial. 

h) United States v. Jones, 44 M.J. 242 (C.A.A.F. 1996). Addendum explained post-trial 

delays and an Air Force Regulation on the Return to Duty Program (RDP). The CAAF held 

this information to be new matter under R.C.M. 1106(f)(7). However, error was harmless 

since many of the reasons for the delay were in the Record of Trial, and the contents of the 

regulation were clearly known to the defense since the defense asked for entry into the RDP. 

i) United States v. Catalani, 46 M.J. 325 (C.A.A.F. 1997). The addendum stated, “All of 

the matters submitted for your consideration in extenuation and mitigation were offered by 

the defense at trial; and the seniormost military judge in the Pacific imposed a sentence that, 

in my opinion, was both fair and proportionate to the offense committed.” This was held to 

be new matter under R.C.M. 1106(f)(7). The case was returned for submission to a different 

convening authority for action. 

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j) United States v. Trosper, 47 M.J. 728 (N-M.C.C.A. 1997). The Division Sergeant Major 

attached a memorandum to the addendum that stated that “taking responsibility means he 

accepts the punishment awarded. . . . He has earned his brig time and his BCD.” The court 

found this to be unremarkable because commanders “seek the counsel of his or her trusted 

advisors in such a weighty matter.” Even if this was new matter, the appellant did not state 

how he would respond to the memorandum, so there was no prejudice. 

k) United States v. Cornwell, 49 M.J. 491 (C.A.A.F. 1998). CG asked the SJA whether the 

command supports the accused’s request for clemency. The SJA called the accused’s 

commanders, then verbally relayed their recommendations against clemency for the accused 

to the CG. The SJA then signed an MFR to that effect, and attached it to the ROT. The 

CAAF held the SJA’s advice to the CG is not new matter in the addendum under R.C.M 

1106(f)(7), but may be new matter under RCM 1107(b)(3)(B)(iii) of which the accused’s is 

not charged with the knowledge thereof. However, even if such, the CAAF says the defense 

did not indicate what they would have done in response, so no relief. 

l) United States v. Anderson, 53 M.J. 374 (C.A.A.F. 2000). A paper-clipped, small (3 x 3 

1⁄2), hand-written note attached to the last page of the SJAR from the chief of staff to the 

convening authority that stated, “Lucky he didn’t kill the SSgt. He’s a thug, Sir.” was new 

matter requiring service on the accused and an opportunity to respond. 

m) United States v. Gilbreath, 57 M.J. 57 (C.A.A.F. 2002). Error for SJA, after a Judge 

Alone trial, not to serve addendum on defense which stated in part, “After hearing all matters, 

the jury determined a bad conduct discharge was appropriate and as such, I recommend you 

approve the sentence as adjudged.” Id. at 59. Defense could have pointed out that: (1) the 

trial was judge alone, and (2) the sentencing authority did NOT consider the clemency 

submissions. Note – the court also questioned whether the statement by the SJA was 

improper. “She [DC] also could have made a persuasive argument that the SJA’s 

recommendation that the CA defer to the judgment of the members was also legally 

improper.” Id. at 62. 

n) United States v. Gilbreath, 58 M.J. 661 (A.F.C.C.A. 2003), aff’d, 59 M.J. 400 (C.A.A.F. 

2004) (summary disposition). After remand from the case above, the insertion in the SJA’s 

addendum of a statement of inability to locate appellant to serve her with post-trial 

documents constituted “new matter” requiring service on the appellant’s defense counsel and 

an opportunity to respond. The government could have avoided this issue by complying with 

the substitute service provisions of RCM 1106(f)(1), which simply require a statement in the 

record of trial explaining “why the accused was not served personally.” Applying the 

standard for relief enunciated in United States v. Chatman, 46 M.J. 321 (C.A.A.F. 1997) 

(appellant must “demonstrate prejudice by stating what, if anything, would have been 

submitted to ‘deny, counter, or explain’ the new matter.”), the AFCCA noted that the 

inability to locate appellant could be perceived by the CA as evidence of appellant’s 

disobedience of orders because she failed to provide a valid leave address while on appellate 

leave. Additionally, the CA could view the comment as an indication of how little she cared 

about her case because she failed to provide a proper mailing address for issues associated 

with her case. In light of the potential adverse impact of the SJA’s comments, the AFCCA 

found prejudice and determined that its charter to “do justice” mandated a new SJAR and 

action in the case. Id. at 665. 

o) United States v. Scott, 66 M.J. 1 (C.A.A.F. 2008). SJA’s lengthy rebuttal to defense 

assertions that the accused’s sentence was overly harsh was not a new matter. Unlike 

Catalani and Gilbreath, the SJA’s comments did not misinform the CA as to the matters 

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contained in the accused’s clemency submissions or misstate the sentencing authority in the 

accused’s case. 

p) United States v. Frederickson, 63 M.J. 55 (C.A.A.F. 2006). The DSJA prepared the 

addendum, which was endorsed by the SJA. It was not served on the defense, despite all of 

the DSJA’s observations about the defense submissions. The CAAF held that the addendum 

constituted new matter, and should have been served on the defense. However, in this case, 

they held that the defense counsel could not demonstrate prejudice since the proferred 

defense response was the same. 

q) United States v. Tuscan, 67 M.J. 592 (C.G.C.C.A. 2008). Addendum contained the 

following: “I also disagree with the defense counsel’s statement that the accused is 

‘remorseful for the events that transpired.’ . . . As you may recall, the pretrial offers, taken as 

a whole were unreasonable and on their face did not reflect a willingness on the part of the 

accused to fully accept responsibility.” The CGCCA finds that this comment, while not a 

complete picture of the pretrial negotiations, was not error. The CGCCA warns against doing 

this in the future, since the SJAR Addendum is not intended to be a “document of advocacy 

for the government. An SJA should not only be objective, as noted above, but also should 

maintain the appearance of objectivity.” 

4. Addendum should remind CA of the requirement to review the accused’s post-trial 

submissions. United States v. Pelletier, 31 M.J. 501 (A.F.C.M.R. 1990); United States v. 

Ericson, 37 M.J. 1011 (A.C.M.R. 1993). 

a) United States v. Foy, 30 M.J. 664 (A.F.C.M.R. 1990). Appellate courts will presume 

post-trial regularity if the SJA prepares an addendum that: 

(1) Informs the CA that the accused submitted matters and that they are attached; 

(2) Informs the CA that he must consider the accused’s submissions; and, 

(3) Lists the attachments. 

b) United States v. Taylor, 67 M.J. 578 (A.F.C.C.A. 2008). In her clemency submissions to 

the convening authority, the appellant asked to enter the Return-To-Duty Program (RTDP). 

The addendum made no mention of this request, nor did it advise the convening authority of 

his options regarding the RTDP. The addendum did specifically list the appellant’s 

submissions and advised the convening authority that he had to consider them prior to taking 

action. No error. 

5. Who should sign the addendum? The SJA. 

a) United States v. Hudgins, 69 M.J. 630 (A.C.C.A. 2010). If the Deputy Staff Judge 

Advocate signs the addendum, then he or she should sign it as the Acting SJA. Signing it as 

the Deputy Staff Judge Advocate or “for” the SJA is improper under Article 60(d), UCMJ, 

and RCM 1106(a). No prejudice in this case because “the Deputy Staff Judge Advocate was 

an officer and experienced judge advocate who was statutorily qualified to sign the addendum 

as the Acting SJA in the SJA’s absence.” 

J. What if the accused submitted matters but there is no addendum? 

1. United States v. Godreau, 31 M.J. 809 (A.F.C.M.R. 1990). Two conditions for a 

presumption of post-trial regularity: 

a) There must be a statement in the SJAR informing the CA that he must consider the 

accused’s submissions. 

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b) There must be some means of determining that the CA in fact considered all post-trial 

materials submitted by the accused. Ideal: (1) list all attachments; (2) have the CA initials 

and dates all submissions in a “clearly indicated location.” 

2. If United States v. Foy, 30 M.J. 664 (A.F.C.M.R. 1990), requirements are not met, or if no 

addendum and the two Godreau conditions are not met, the government must submit an affidavit 

from the CA. See United States v. Joseph, 36 M.J. 846 (A.C.M.R. 1993). 

3. “The best way to avoid a Craig [28 M.J. 321 (C.M.A. 1989)] problem is to prepare an 

addendum using the guidance in Foy and Pelletier to ensure compliance with Craig and UCMJ, 

Article 60(c). If this method is used, there will be no need to have the convening authority initial 

submissions or prepare an affidavit.” Godreau, 31 M.J. at 812. 

4. United States v. Buller, 46 M.J. 467 (C.A.A.F. 1997). “[L]itigation can be avoided through 

the relatively simple process of serving the addendum on the accused in all cases, regardless 

whether it contains ‘new matter’.” Id. at 469 n.4. 

5. United States v. Briscoe, 56 M.J. 903 (A.F.C.C.A. 2002). Failure of SJA to prepare 

addendum to PTR advising CA to consider all matters (i.e., written matters) submitted by accused 

cured through post-trial affidavit from CA and SJA swearing that all clemency matters were 

considered by CA prior to action. 

K. Common SJAR and addendum errors: 

1. Inaccurately reflect charges and specifications (especially dismissals, consolidations). 

2. Inaccurately reflect the maximum punishment. 

3. Omit, misapply pretrial confinement (Allen, RCM 305(k) credit). 

4. Omit, misapply Article 15 (Pierce) credit. 

5. Recommend approval of greater than 2/3 forfeitures for periods of no confinement. 

6. Recommend approval (in special courts-martial) forfeitures and fines (cumulatively) in 

excess of the court-martial’s jurisdictional limit. 

7. Add extraneous (and often erroneous) information. 

XII. ACTION BY CONVENING AUTHORITY. ARTICLE 60, UCMJ; 

RCM 1107. 

A. Who may act: the CA. See United States v. Delp, 31 M.J. 645 (A.F.C.M.R. 1990) (the person 

who convened the court). 

1. United States v. Fernandez, 24 M.J. 77 (C.M.A. 1987). CA wrote a drug-abuse policy 

memorandum that characterized illegal drugs as a “threat to combat readiness,” among other 

things. This strongly worded memo did not suggest an inelastic attitude that would prohibit the 

convening authority from taking action under Article 60, UCMJ. 

2. United States v. Solnick, 39 M.J. 930 (N.M.C.M.R. 1994). Rule requiring CA to take action 

unless impractical requires that there be practical reason for transferring case from control of 

officer who convened court to superior after trial, and precludes superior from plucking case out 

of hand of CA for improper reason. 

3. United States v. Rivera-Cintron, 29 M.J. 757 (A.C.M.R. 1989). Acting Commander not 

disqualified from taking action in case even though he had been initially detailed to sit on 

accused’s panel. 

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4. United States v. Cortes, 29 M.J. 946 (A.C.M.R. 1990). After considering the Assistant 

Division Commander’s affidavit, the court determined that the acting CA, who approved 

accused’s sentence as adjudged, was not affected by the editorial written by the CA about the 

“slime that lives among us.” 

5. United States v. Vith, 34 M.J. 277 (C.M.A. 1992). Commander did not lose impartiality by 

being exposed to three pages of accused’s immunized testimony in companion case; commander 

had no personal interest in the case and there was no appearance of vindictiveness. 

6. United States v. Mack, 56 M.J. 786 (A.C.C.A. 2002). Installation Chaplain and staff officer 

to the CA stole over $73,000 from the Consolidated Chaplains’ Fund (CCF). Although CA had a 

personal and professional relationship with accused, he was not disqualified from acting as CA 

absent evidence that he had a “personal interest in the outcome of the [accused’s] case.” Id. at 

794. The ACCA found that the CA was not an “accuser” as alleged by the accused and there was 

no error, plain or otherwise, by the CA taking action. Additionally, the ACCA found accused 

waived the issue of CA as accuser absent plain (clear and obvious) error. 

7. United States v. Walker, 56 M.J. 617 (A.F.C.C.A. 2001). CA’s comments during visit to 

confinement facility established an “arbitrary and inflexible refusal to consider clemency,” thus 

disqualifying him from acting in accused’s case. According to accused, CA, during a 

confinement visit, stated the following: “I have no sympathy for you guys, you made your own 

decisions and you put yourself in this situation. I’m not sympathetic, and I show no mercy for 

you. I hope you guys learn from this, but half of you will go on and try to cheat civilian laws and 

end up in a worst [sic] place than this.” Id. at 618. Allegation by appellant went uncontested by 

the CA. Relief – action of CA set aside and returned to another SJA and CA for a new PTR and 

action. Court noted that its opinion did not mean that the CA in question was forever disqualified 

from taking action in other cases. See also United States v. Jeter, 35 M.J. 442 (C.M.A. 1992); 

United States v. Voorhees, 50 M.J. 494 (C.A.A.F. 1999). 

8. United States v. Barry, 57 M.J. 799 (A.C.C.A. 2002). Absent a proper transfer of authority 

from one GCMCA to another, a transfer based on impracticability, a commander who did not 

convene the court lacks authority to act on the case. The appellant, assigned to the 10th Mountain 

Division (Light Infantry) at all times relevant, was convicted at a GCM convened by the 

Commander, 10th Mountain Division (Light Infantry); however, action in his case was taken by 

the Commander, 10th Mountain Division (Light Infantry) (Rear), who signed as Commander, 

10th Mountain Division (Light Infantry). Because of the action by an improper convening 

authority, as well as concerns whether the SJA in the case was disqualified from providing legal 

advice, the case was returned for a new SJAR and action. See also United States v. Newlove, 59 

M.J. 540 (A.C.C.A. 2003). 

9. United States v. Gudmundson, 57 M.J. 493 (C.A.A.F. 2002). CA who testified on a 

controverted matter in a case was NOT per se disqualified from acting on the case. BG Fletcher, 

the CA, authorized “Operation Nighthawk,” the “inspection” that resulted in appellant’s positive 

urinalysis result, and testified on the motion to suppress. Testimony by a CA indicating a 

“personal connection with the case” may result in disqualification whereas testimony of “an 

official or disinterested nature only” is not disqualifying. Where an appellant is aware of 

potential grounds for disqualification and fails to raise them, the issue is waived on appeal. Id at 

495. In the case at bar, the appellant’s clemency submissions, while reminding the CA of the fact 

that he previously testified in the appellant’s court-martial, did not ask the CA to disqualify 

himself. 

10. United States v. Davis, 58 M.J. 100 (C.A.A.F. 2003). CA disqualification falls into two 

categories: (1) involves cases where the CA is an accuser, has a personal interest in the outcome 

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of the case, or has a personal bias toward the accused; and (2) involves instances where the CA 

exhibits or displays an inelastic attitude toward the performance of his or her post-trial duties or 

responsibilities. Comments by the CA in the appellant’s drug case that “people caught using 

illegal drugs would be prosecuted to the fullest extent, and if they were convicted, they should not 

come crying to him about their situations or their families[’], or words to that effect” fall into 

category 2. Although CAs “need not appear indifferent to crime,” they must maintain a “flexible 

mind” and a “balanced approach” when dealing with it. Id. at 103. The CA’s comments reflected 

an inelastic or “inflexible” attitude toward his post-trial duties when dealing with drug cases and 

as such, he was disqualified from acting on the appellant’s case. The decision of the lower court 

was reversed, the action set aside and the case remanded for a new review and action by a 

different CA. United States v. Taylor, 60 M.J. 190 (C.A.A.F. 2004) involved an allegation in 

category 1. The DC requested the CA’s disqualification because an article authored by a TC and 

imputed to SJA amounted to a prejudgment as to clemency. The CA signed an affidavit stating 

that he was not aware of the article until the DC pointed it out and that he had no role in the 

article’s preparation or publication. He also stated that the article did not influence his decision to 

not grant clemency. The CAAF held that the record established that the article could not be 

imputed to the CA, so disqualification was not appropriate. 

11. United States v. Brown, 57 M.J. 623 (N-M.C.C.A. 2002). Error for one SPCMCA to act on a 

case convened by another SPCMCA. Held – although Article 60, UCMJ, and RCM 1107(a) 

allow for a different CA than that who convened a case to act on a case, this is the exception 

rather than the rule, and is allowed in situations where it is impracticable for the convening 

authority to act. Furthermore, in situations of impracticability, the transfer of the case should be 

to an officer exercising general court-martial jurisdiction (OEGCMJ), not to another special 

court-martial convening authority. In the case at bar, there was no showing of impracticability, 

the record of trial failed to contain any statement of impracticability as required by RCM 1107, 

and the transfer of the case was not to an OEGCMJ; therefore, the action was set aside and the 

case remanded for a new action by a proper convening authority. 

B. CA not automatically disqualified simply because prior action set aside. United States v. 

Ralbovsky, 32 M.J. 921 (A.F.C.M.R. 1991). Test: Does CA have other than an official interest or 

was he a member of the court-martial? 

C. When to Act? 

1. Cannot act before RCM 1105(c) time periods have expired or submissions have been waived. 

2. United States v. Lowe, 58 M.J. 261 (C.A.A.F. 2003). Prejudicial error for the CA to act on 

the case prior to service of the SJAR on the appellant’s defense counsel as required by RCM 

1106(f)(1). The plain language of RCM 1106(f)(1) as well as Article 60, UCMJ establish, as a 

matter of right, the requirement for service of the SJAR prior to action. The court noted: 

The opportunity to be heard before or after the convening authority 

considers his action on the case is simply not qualitatively the same as 

being heard at the time a convening authority takes action, anymore than 

the right to seek reconsideration of an appellate opinion is qualitatively the 

same as being heard on the initial appeal. “The essence of post-trial 

practice is basic fair play – notice and an opportunity to respond.” United 

States v. Leal, 44 M.J. 235, 237 (C.A.A.F. 1996). 

Id. at 263. The appellant established some “colorable showing of possible prejudice” by 

showing that he was denied the opportunity to advise the CA of his gunshot wound and 

his future prognosis. Finally, the court provided some common sense guidance to 

military practitioners: 

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Where there is a failure to comply with RCM 1106(f), a more expeditious 

course would be to recall and modify the action rather than resort to three 

years of appellate litigation. The former would appear to be more in 

keeping with principles of judicial economy and military economy of 

force. 

Id. at 264. 

D. General considerations. 

1. Not required to review for legal correctness or factual sufficiency. Action is within sole 

discretion of CA as a command prerogative. 

2. RCM 1107(b)(3)(A). Must consider: 

a) Result of trial; 

b) SJA recommendation; 

c) Accused’s written submissions; 

d) Victim’s written submission 

e) United States v. Davis, 33 M.J. 13 (C.M.A. 1991). How “detailed” must the 

consideration be? “Congress intended to rely on the good faith of the convening authority in 

deciding how detailed his ‘consideration’ must be.” 

f) United States v. Dvonch, 44 M.J. 531 (A.F.C.C.A. 1996). Failure to consider two letters 

submitted by DC requires new review and action. 

g) United States v. Osuna, 56 M.J. 620 (C.G.C.C.A. 2001). Record of trial returned to CA 

where there was no evidence that the CA considered clemency letter by DC. 

h) United States v. Mooney, No. 9500238 (A.C.C.A. June 10, 1996) (unpublished). Court 

determined that fax received “in sufficient time to forward it . . . through the Staff Judge 

Advocate to the convening authority.” “[A]ppellant’s articulate and well-reasoned RCM 

1105 clemency letter through no fault of his own was not submitted to the convening 

authority on time. We do not have sufficient information to determine [whose fault it was] . . 

. as our function is . . . not to allocate blame. The quality of the clemency letter . . . gives rise 

to the reasonable possibility that a [CA] would grant clemency based upon it. Thus . . . the 

appellant has been prejudiced . . .” (emphasis in original). Action set aside and returned to 

CA for new PTR and action. 

Practice Pointer: Even if the government is not at fault, accused may get new SJAR and 

action. Send back to CA if record not yet forwarded for appeal. 

i) United States v. Roemhildt, 37 M.J. 608 (A.C.M.R. 1993). CA and SJA not required to 

affirmatively state they considered recommendation of Family Advocacy Case Management 

Team (FACMT). Accord United States v. Corcoran, 40 M.J. 478 (C.M.A. 1994). 

j) United States v. Ericson, 37 M.J. 1011 (A.C.M.R. 1993). There must be some tangible 

proof that CA saw and considered clemency materials before taking action. United States v. 

Briscoe, 56 M.J. 903 (A.F.C.C.A. 2002) (post-trial affidavits from SJA and CA suffice, 

although not the preferred method – use an addendum). 

3. RCM 1107(b)(3)(B). May consider: 

a) Record of trial, personnel records of accused, and anything deemed appropriate, but if 

adverse to accused and from outside the record, then accused must be given an opportunity to 

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rebut. See United States v. Mann, 22 M.J. 279 (C.M.A. 1986); United States v. Carr, 18 M.J. 

297 (C.M.A. 1984). 

b) United States v. Harris, 56 M.J. 480 (C.A.A.F. 2002). CA properly considered accused’s 

pre-enlistment criminal history, some of which occurred while the accused was a juvenile, 

history documented in the accused’s enlistment waiver document contained within his 

Service Record Book (SRB), a personnel record of the accused which he had access to and 

could review during the clemency process. No requirement to provide the accused with prior 

notice that the CA would consider the document since the SRB was part of the accused’s 

personnel records and not “other matters.” 

4. CA need not meet with accused – or anyone else. United States v. Haire, 44 M.J. 520 

(C.G.C.C.A. 1996). CA not required to give a personal appearance appointment to the accused. 

Even truer now, as this case relied on Davis, in which court had held that CA must consider 

videotape (no longer good law in light of 1998 statutory change). Requirement to “consider” 

only pertains to “‘inanimate’ matter that can be appended to a clemency request. We specifically 

reject the contention that a petitioner for clemency has a non-discretionary right to personally 

appear before the convening authority.” Id. at 526. 

5. RCM 1107(b)(4). No action on not guilty findings. 

6. RCM 1107(b)(5). No action approving a sentence of an accused that lacks the capacity to 

understand or cooperate in post-trial proceedings. 

E. SPECIAL NOTE: If all the offenses on which the convening authority is acting occurred on or 

after 24 June 2014, R.C.M. 1107 applies as it currently exists. However, if at least one of the offenses 

the CA is acting on occurred before 24 June 2014, the prior version of R.C.M. 1107 applies, except 

that mandatory minimum sentencing under Article 56(b) still applies to appropriate offenses. See, 

R.C.M. 1107 preamble. (June 2015 ed.) Under R.C.M. 1107 for the older offenses, the CA may give 

generally unfettered clemency for both findings and sentence. 

F. Action on findings not required is not required for any offenses regardless of the date of the 

offense, but is permissible. R.C.M. 1107(c). 

1. For offenses pre-24 June 2014: The CA may continue to set aside convictions or approve 

lesser-included offenses without any further legal discussion, rational or reasoning. 

2. For offenses occurring on or after 24 June 2014 : The CA may not dismiss a finding or 

approve an LIO unless the offense is a qualifying offense. A “qualifying offense” is one where 

(i) the maximum punishment under the MCM does not exceed two years confinement; and (ii) the 

sentence adjudged at trial does not include a punitive discharge or confinement for more than six 

months. Additionally, offenses under Article 120, 120b, and 125 are never qualifying offenses 

and those convictions may never be set aside. A rehearing may be ordered under R.C.M. 

1107(e). Finally, if the CA does in fact act to dismiss or change any finding of guilty, the CA 

must provide a written explanation for their reasons for such action. See, R.C.M. 1107(c). 

3. United States v. Diaz, 40 M.J. 335 (C.M.A. 1994). “In the absence of contrary evidence, a 

convening authority who does not expressly address findings in the action impliedly acts in 

reliance on the statutorily required recommendation of the SJA, see Article 60(d) (1983), and thus 

effectively purports to approve implicitly the findings as reported to the convening authority by 

the SJA.” Id. at 337. See also United States v. Henderson, 56 M.J. 911 (A.C.C.A. 2002) (when 

faced with ambiguous or erroneous findings not expressly addressed by CA in his action, the 

court can either return the case to the CA for clarification (i.e., new PTR and action) or affirm 

only those findings of guilty that are correct and unambiguous in the PTR). 

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4. United States v. Lindsey, 56 M.J. 850 (A.C.C.A. 2002). SJAR erroneously stated findings 

and CA implicitly approved the findings as reported by the SJA. SJAR reported a guilty finding 

to Specification 4 of the Charge when in fact the accused was found not guilty of this offense. 

The court only affirmed the proper findings and reduced the accused’s period of confinement 

from twelve months to ten months. The court commented on the lack of attention to detail in the 

post-trial processing: 

This case presents the court with yet another incident in which an SJA has 

failed to provide complete and accurate information to the convening 

authority, as required by RCM 1106. The regularity of these post-trial 

processing errors is alarming and occurs in many jurisdictions. Most SJAR 

errors are the direct result of sloppiness and a lack of attention to detail 

exhibited by the SJA, Deputy SJA, and the Chief of Criminal Law. Likewise, 

diligent trial defense counsel should identify and correct such errors whenever 

possible. See RCM 1106(f)(4), (f)(6). These errors reflect poorly on our 

military justice system and on those individuals who implement that system. 

They should not occur! 

Id. at 851. In a footnote in the above-quoted language, the court referred to thirty-five 

cases out of nineteen jurisdictions, covering a 15-month period, with erroneous SJARs. 

5. United States v. Saunders, 56 M.J. 930 (A.C.C.A. 2002). The SJAR erroneously advised the 

CA that the appellant was convicted of six specifications of violating a no-contact order, as 

opposed to five, and adultery (i.e., Specification 1 of Charge I and Specification 2 of Additional 

Charge I respectively). Applying United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998), the 

court found that despite the erroneous SJAR, the appellant failed to make a “colorable showing of 

possible prejudice to his substantial rights concerning the approved sentence.” Id. at 936. The 

erroneous findings of guilty were set aside and the affected specifications dismissed; the sentence 

was affirmed. 

6. United States v. Ord, 63 M.J. 279 (C.A.A.F. 2006). Appellant was convicted of seven 

different offenses. However, the SJAR omitted one of the seven. The CA approved the SJA’s 

recommendation on the sentence. The ROT was then forwarded to ACCA for appellate review. 

Subsequently, the command issued a “corrected” promulgating order that included the missing 

findings. The ACCA set aside the CA’s action and returned the record for a new SJAR and CA’s 

action. The ACCA then affirmed the findings and sentence as approved in the new CA’s action, 

including the forgery offense. The CAAF held that, when the CA did not act expressly on the 

findings, and the SJAR omitted a finding of guilty adjudged by the court-martial, the ACCA 

could not presume that the CA approved the omitted findings, but could return the record for a 

new SJAR and action. 

7. United States v. Alexander; United States v. Vanderschaaf, 63 M.J. 269 (C.A.A.F. 2006) 

(joint case). The ACCA found that action taken by the CA in separate, unrelated cases did not 

approve findings reached by a GCM, and in both cases it ordered that language which appeared in 

the CMO be deleted. The Judge Advocate General of the Army sought review. The CAAF 

found that the ACCA erred. Although the UCMJ and the MCM require the CA to take express 

action when he disapproved a finding, neither the UCMJ nor the MCM required a CA to take 

express action to approve findings. The record in both cases was consistent with the presumption 

that the CA approved the findings adjudged at trial. 

G. Action on sentence must: 

1. Explicitly state approval or disapproval. 

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a) United States v. Wilson, 65 M.J. 140 (C.A.A.F. 2007). The Court will not look for 

ambiguity where there is none. Action said: 

“In the case of . . . that part of the sentence extending to confinement 

in excess of 3 years and 3 months is disapproved. The remainder of 

the sentence, with the exception of the Dishonorable Discharge, is 

approved and will be executed.” 

SJAR and addendum recommended approval of the adjudged DD and that is 

what the CA intended to do, but CAAF found the language of the action 

unambiguous in its disapproval of the DD. The court refused to look at 

surrounding documents to find an ambiguity where the action appeared clear on 

its face. 

b) United States v. Schiaffo, 43 M.J. 835 (A.C.C.A. 1996). Action did not expressly approve 

the BCD, though it referred to it in “except for” executing language. Sent back to CA for 

new action. Action said: 

“In the case of . . . only so much of the sentence as provides for 

reduction to Private E1, forfeiture of $569.00 pay per month for six 

months, and confinement for four months is approved and, except for the 

part of the sentencing extending to bad-conduct discharge, will be 

executed.” 

See also United States v. Reilly, No. 9701756 (A.C.C.A. June 12, 1998) 

(unpublished); United States v. Scott, No. 9601465 (A.C.C.A. June 12, 1998) 

(unpublished); United States v. Politte, 63 M.J. 24 (C.A.A.F. 2006); and, United 

States v. Gosser, 64 M.J. 93 (C.A.A.F. 2006). 

c) United States v. Klein, 55 M.J. 752 (N-M.C.C.A. 2001). Action by CA stated: “In the 

case of . . . the sentence is approved, but the execution of that part of the sentence extending 

to confinement in excess of 28 days was suspended for a period of 4 months from the date of 

trial . . . The part of the sentence extending to the bad conduct (sic) discharge will be 

suspended for a period of 12 months from the date of trial, at which time, unless the 

suspension is sooner vacated, it will be remitted without further action.” After the appellate 

court acquired jurisdiction, CA attempted to withdraw the first action and replace a second 

wherein the punitive discharge was not suspended, stating he never intended to suspend the 

discharge. Held: “administrative oversight” as opposed to “clerical error” in CA’s action 

does not warrant return to the CA for a corrected action. Additionally, any purported action 

by the CA after an appellate court acquires jurisdiction is a nullity. The NMCCA 

distinguishes this case from United States v. Smith, 44 M.J. 788 (N-M.C.C.A. 1996), stating 

“[u]nlike Smith, there is nothing ‘illegal, erroneous, incomplete or ambiguous’ in the original 

action.” Id. at 756. 

d) United States v. Mendoza, 67 M.J. 53 (C.A.A.F. 2008). Lower court (NMCCA) had sent 

the case back for a new Action because the language was ambiguous and not susceptible to 

interpretation. First Action stated: “only such part of the sentence as provides for a reduction 

to the grade of pay E-1, confinement for 90 days, is approved and except for the part of the 

sentence extending to a bad conduct [sic] will be executed.” CA who signed original action 

had moved on. His successor in command took a new action that approved the BCD. No 

new SJAR was prepared, and there was no evidence the CA consulted with the original CA 

before action. The CAAF holds that a “new, as opposed to a corrected” action requires a new 

SJAR and the opportunity for the accused to submit additional matters under RCM 1105. 

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2. For offenses pre-24 June 2014: The CA may continue to give clemency in any amount 

without any further legal discussion, rational or reasoning. 

3. For offenses occurring on or after 24 June 2014 : The CA may not disapprove, commute, 

or suspend in whole or in part any portion of an adjudged sentence of (A) confinement for more 

than six months or (B) a punitive discharge. If the CA does act to disapprove, suspend, or 

commute any part of a sentence, the CA must provide a written explanation for their reasons for 

such action. See, R.C.M. 1107(d)(1)(F). The CA may still give clemency on other parts of the 

sentence (i.e. reprimands, forfeitures, rank reduction), although the reasoning for such action 

must be in writing and attached to the record. RCM 1107(d)(1)(C). 

4. CA action cannot increase adjudged sentence. 

a) United States v. Jennings, 44 M.J. 658 (C.G.C.C.A. 1996). MJ announced five month 

sentence, but did not expressly include pretrial confinement (PTC) credit. After issue raised, 

MJ said on record that he had “considered” the eight days PTC before announcing the 

sentence, and the SJA recommended that the CA approve the sentence as adjudged (he did). 

“Further clarification by the judge was needed to dispel the ambiguity 

. . . created by his remarks.” SJA “should have returned the record to 

the judge for clarification pursuant to RCM 1009(d), rather than 

attempt to dispel the ambiguity of intent himself.” “In any event, 

there is no authority whatsoever for a staff judge advocate to make an 

upward interpretation of the sentence, as was done in this case.” 

Id. at 662. 

b) United States v. Kolbjornsen, 56 M.J. 805 (C.G.C.C.A. 2002). Appellant was sentenced 

to a DD, twelve months confinement, and reduction to E-1. The pretrial agreement required 

the CA to suspend any confinement in excess of ten months. At action, the CA approved 

“only so much of the sentence as provides for a BCD, confinement for 3 months, and 

reduction to E-1.” On appeal, the court noted the ambiguity of the action and stated it had 

two options: (1) return the case to the CA for a new SJAR and action to clarify the 

ambiguity, or (2) to construe the ambiguity itself and resolve any inconsistencies in favor of 

the appellant. The court chose the latter and affirmed only so much of the sentence as 

provided for a BCD, confinement for three months, and reduction to E-1. 

c) United States v. Shoemaker, 58 M.J. 789 (A.F.C.C.A. 2003). At action the first time, the 

CA approved only thirty days confinement of a three month sentence. On appeal, the action 

was set aside and the case returned for a new SJAR and action. In the subsequent action, the 

CA approved a sentence of one month. Unfortunately, seven months out of the year contain 

thirty-one days resulting in a potential sentence greater than that originally approved, in 

violation of RCM 810(d). Rather than return the case for a third SJAR and action, the court 

only approved thirty days confinement. 

d) United States v. Mitchell, 58 M.J. 446 (C.A.A.F. 2003). Appellant was sentenced to a 

BCD, ten years confinement, total forfeitures, and reduction to E-1. On appeal, the ACCA 

ordered a rehearing on sentence. On rehearing, the appellant was sentenced to a DD, six 

years confinement, and reduction to E-1. The ACCA affirmed the rehearing sentence finding 

that under an objective standard, a reasonable person would not view the rehearing sentence 

as “in excess of or more severe than” the original sentence; therefore, Article 63, UCMJ, and 

RCM 810(d)(1) were not violated. The CAAF reversed as to sentence, finding that a DD is 

more severe than a BCD and no objective equivalence is available when comparing a 

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punitive discharge with confinement. The CAAF reduced the sentence to a bad-conduct 

discharge, six years confinement, and reduction to E-1. 

e) United States v. Burch, 67 M.J. 32 (C.A.A.F. 2008). Appellant was sentenced to 

confinement for one year, reduction to E-1, and a bad-conduct discharge. The CA suspended 

all confinement in excess of 45 days. Subsequent to his release, but before the suspension 

period was over, or the CA took action, appellant committed additional misconduct. His 

suspension was properly vacated and he was returned to confinement. The CA took action, 

which stated: “execution of that part of the sentence adjudging confinement in excess of 45 

days is suspended for a period of 12 months.” Appellant served approximately 223 days of 

confinement before being released. The CAAF held that this was illegal confinement. “If the 

CA’s action is to be given effect, as required by R.C.M. 1107, attendant circumstances 

preceding the action may not be utilized to undermine it.” The vacation of the suspension 

should have been noted in the action. 

5. Pre-24 June 2014 May disapprove all or any part of a sentence for any or no reason. 

a) United States v. Bono, 26 M.J. 240 (C.M.A. 1988). Reduction in sentence saved the case 

when DC found to be ineffective during sentencing. 

b) United States v. Smith, 47 M.J. 630 (A.C.C.A. 1997). At a GCM, the accused was 

sentenced to total forfeitures (TF), but no confinement. Neither the DC nor the accused 

submitted a request for waiver or deferment, nor complained about the sentence. Accused 

did not go on voluntary excess leave. Fourteen days after sentence, TF went into effect. At 

action, the CA tried to suspend all forfeitures beyond 2/3 until the accused was placed on 

involuntary excess leave. Held: CA’s attempt to suspend was invalid, because the TF was 

executed (at 14 days) prior to the attempted suspension. The ACCA found the time the 

accused spent in the unit (5 Jul to 19 Aug) without pay was cruel and unusual punishment and 

directed the accused be restored 1/3 of her pay. See also United States v. Warner, 25 M.J. 64 

(C.M.A. 1987). 

6. Pre-24 June 2014 IAW RCM 1107(d)(2). May reduce a mandatory sentence adjudged. 

Now, CA may not reduce a mandatory minimum. R.C.M. 1107(d)(1)(D). 

7. May change a punishment to one of a different nature if less severe. United States v. Carter, 

45 M.J. 168 (C.A.A.F. 1996). CA lawfully converted panel’s BCD and twelve month sentence to 

twenty-four additional months’ confinement and no BCD, acting in response to request that 

accused be permitted to retire. Commutation must be clemency, “not ‘merely a substitution’” of 

sentences, but clearly was proper here; BCD was disapproved and accused got his wish to retire, 

and where, importantly, he neither set any conditions on the commutation (e.g., setting a cap on 

confinement he was willing to endure), nor protested the commutation in his submission to the 

CA. But consider the discussion to RCM 1107(d)(1) that a BCD could be converted to 

confinement for up to one year at a special court-martial. 

8. May suspend a punishment. United States v. Barraza, 44 M.J. 622 (N-M.C.C.A. 1996). 

Court approved CA’s reduction of confinement time from PTA-required forty-six months 

(suspended for twelve months) to fourteen months, six days (suspended for thirty-six months). 

Sentence was for ten years. Court emphasized the “sole discretionary power” of CA to approve 

or change punishments “as long as the severity of the punishment is not increased” (citing RCM 

1107(d)(1)). Also significant that approved confinement was twenty-two months less than 

accused sought in his clemency petition. 

9. United States v. Emminizer, 56 M.J. 441 (C.A.A.F. 2002). Error for SJAR to advise CA that 

in order to waive automatic forfeitures at action he would have to disapprove the adjudged 

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forfeitures. CA could have modified the monetary amount of adjudged forfeitures and/or 

suspended the forfeitures for the period of waiver. Case returned to the CA for a new SJAR and 

action. 

10. Pre-24 June 2014 offenses: May reassess sentence. If a CA reassesses sentence after, for 

example, dismissing guilty findings, the CA must do so in conformity with the requirements of 

United States v. Sales, 22 M.J. 305 (C.M.A. 1986). United States v. Harris, 53 M.J. 86 (C.A.A.F. 

2000). The CA may purge any prejudicial effect if it can determine that the sentence would have 

been of a certain magnitude. Further, the SJAR must provide guidance to the CA as the standard 

to apply in reassessing the sentence. United States v. Reed, 33 M.J. 98 (C.M.A. 1991). 

a) United States v. Bonner, 64 M.J. 638 (A.C.C.A. 2007). The SJAR recommended that the 

CA disapprove one specification without giving a reason. The CA did so and approved the 

adjudged sentence. Appellate defense alleged error and pointed to the lack of any Sales 

guidance on sentence reassessment in the SJAR or addendum. The ACCA found no reason 

to believe the specification was disapproved because of legal error (no such allegation in 

RCM 1105/1106 submissions) and concluded that the disapproval was an act of clemency not 

requiring sentence reassessment. See United States v. Kerwin, 46 M.J. 588 (A.F.C.C.A. 

1996) (holding that a pure act of clemency does not require sentence reassessment). In a 

footnote, the ACCA conceded that there may be “middle ground” between pure sentence 

clemency and clemency recommended as a form of relief from “possible legal error” and 

recommended that SJAs advise CAs of the standard for sentence reassessment. 

b) United States v. Taylor, 47 M.J. 322 (C.A.A.F. 1997), aff’d after remand, 51 M.J. 390 

(C.A.A.F. 1999). Discusses how to reassess a sentence if some charges are dismissed by the 

CA. Disregarding the findings is not enough; must disregard the evidence too. Remanded to 

the AFCCA to correctly reassess or order a re-hearing. 

c) United States v. Griffaw, 46 M.J. 791 (A.F.C.C.A. 1997). SJA incorrectly stated that the 

sentence reduction based on the terms of the pre-trial agreement was equal to a form of 

clemency. 

d) United States v. Bridges, 58 M.J. 540 (C.G.C.C.A. 2003). Appellant was sentenced to 

reduction to E-1, forfeiture of all pay and allowances, confinement for twenty-two years, and 

a DD. At action, the CA disapproved two specifications and approved only so much of the 

sentence as provided for reduction to E-1, forfeiture of all pay and allowances, confinement 

for twenty years, and a DD. The CGCCA held that the CA erred in attempting to reassess the 

sentence after dismissing two very serious specifications (indecent acts and forcible sodomy). 

Although the maximum punishment for the offenses both before and after action remained 

the same (i.e., reduction to E-1, forfeiture of all pay and allowances, confinement for life, and 

a DD), the issue was whether the CA or the court could “accurately determine the sentence 

which the members would have adjudged for only those charges and specifications approved 

by the convening authority.” Id. at 545. The court determined that neither the CA nor the 

court could properly reassess the sentence in light of the modified findings, set aside the 

sentence and authorized a rehearing. 

e) United States v. Meek, 58 M.J. 579 (C.G.C.C.A. 2003). Appellant was sentenced to 

reduction to E-1, seventy-five days confinement, and a BCD. At action, the SJA 

recommended disapproval of one charge based upon the PTA. The SJA further 

recommended “I do not recommend that you adjust the accused’s sentence as a result of 

setting aside the military judge’s findings as to Charge I and its specification. The two 

remaining charges to which the accused pled guilty adequately support the sentence 

awarded.” Id. at 580. The CGCCA held that the SJA erred by giving the above guidance and 

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by failing to advise the CA that he must reassess the sentence, approving only so much of the 

sentence as would have been adjudged without the dismissed specification. The CGCCA 

approved only so much of the sentence as provided for reduction to E-1, sixty days 

confinement, and a BCD. 

f) United States v. Perez, 66 M.J. 164 (C.A.A.F. 2008). Shortly after trial, rape victim 

recants. During post-trial Article 39(a) session, military judge finds that he would not have 

found appellant guilty of rape, nor would he have sentenced him to anything more than six 

months confinement, reduction and forfeitures. CA modified findings and sentence by 

approving the BCD, reduction to E-1, and confinement for 206 days. The CAAF held that 

CA did not properly reassess sentence. Under no circumstances can the CA approve a 

sentence greater than the sentencing authority would have adjudged absent the error. 

11. United States v. Rollins, 61 M.J. 338 (C.A.A.F. 2005). Appellant was sentenced to a BCD, 

confinement for eight years, and reduction to E-5. The convening authority revised the findings 

to address issues involving the application of the statute of limitations under Article 43, UCMJ. 

The SJA recommended that the convening authority approve the adjudged sentence, subject to 

reducing the period of confinement from eight to five years to the cure the prejudice from the 

erroneous findings. The convening authority revised the findings but only reduced the sentence 

to seven years. The AFCCA affirmed the findings and sentence as modified by the convening 

authority. The CAAF held that “[t]he convening authority’s action in this case did not cure the 

prejudice from the military judge’s failure to focus the attention of the members on the 

appropriate period of time under the circumstances of this case. See Kotteakos v. United States, 

328 U.S. 750, 765 (1946). Accordingly, we shall set aside the affected findings and authorize a 

rehearing.” 

H. Sentence Credits. 

1. United States v. Minyen, 57 M.J. 804 (C.G.C.C.A. 2002). Although the court recommends 

stating all sentence credits in the CA’s action, it is not required. See also United States v. 

Gunderson, 54 M.J. 593, 594 (C.G.C.C.A. 2000) (recommending that a CA expressly state all 

applicable credits in the action). 

2. AR 27-10, para. 5-32a, states that “the convening authority will show in his or her initial 

action all credits against a sentence to confinement, either as adjudged or approved, regardless of 

the source of the credit (automatic credit for pretrial confinement under U.S. v. Allen, 17 M.J. 

126 (CMA 1984), or judge-ordered additional administrative credit under U.S. v. Suzuki, 14 M.J. 

491 (CMA 1983)), R.C.M. 304, R.C.M. 305, or for any other reason specified by the judge.” 

I. Original signed and dated action must be included in the record. See RCM 1107(f)(1) and 

1103(b)(2)(D)(iv). 

J. RCM 1107(f)(1). Contents of action. See also Appendix 16, MCM, Forms for Actions. 

K. If confinement is ordered executed, “the convening authority shall designate the place . . . in the 

action, unless otherwise prescribed by the Secretary concerned.” RCM 1107(f)(4)(C). 

1. AR 27-10, para. 5-32a states that the CA does not designate a place of confinement. AR 190­

47 controls. 

2. AFI 51-201, para. 9.4. “HQ AFSFC/SFC, not the convening authority, selects the corrections 

facility for post-trial confinement and rehabilitation for inmates gained by HQ AFSFC/SFC 

[inmates not ordered to serve sentences in local correctional facilities].” 

L. What if an error is discovered after action is taken? RCM 1107(f)(2) provides that: 

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1. Before publication or official notice to the accused, CA may recall and modify any aspect of 

action (including modification less favorable to the accused, such as adding the discharge 

approval language, as was required in United States v. Schiaffo, 43 M.J. 835 (A.C.C.A. 1996)). 

2. If either publication or official notice has occurred, CA may only make changes that do not 

result in action less favorable to the accused. 

3. CA must personally sign the modified action. 

4. Action after appellate court has the case is a nullity unless subsequent action is directed or 

case is returned to the CA for further action. United States v. Klein, 55 M.J. 752 (N-M.C.C.A. 

2001). 

M. Action potpourri. 

1. McCray v. Grande, 38 M.J. 657 (A.C.M.R. 1993). Sentence, for purposes of commutation, 

begins to run on date announced. 

2. United States v. Foster, 40 M.J. 552 (A.C.M.R. 1994). Court does not have to treat 

ambiguous action ($214 per month) as forfeiture for one month; may return to CA for 

clarification of intent. 

3. United States v. Muirhead, 48 M.J. 527 (N-M.C.C.A. 1998). Accused sentenced to “forfeit 

all pay and allowances, which is $854.40 for 2 years,” and CA approved the same. Held: 

ambiguous sentence. CA under RCM 1107(d)(1) can return case to court for clarification of 

ambiguous sentence; if he does not, he can only approve a sentence no more severe than the 

unambiguous portion. Rather than return to CA, the NMCCA simply affirmed the unambiguous 

dollar amount. 

N. Post-trial deals. United States v. Olean, 59 M.J. 561 (C.G.C.C.A. 2002). CA authorized to enter 

into post-trial deals where a rehearing is impracticable. In the case at bar, the CA agreed to approve a 

sentence of no punishment, dismiss the specifications which were set aside and returned for a 

rehearing, process the appellant for administrative discharge, and recommend a general discharge. In 

exchange, the appellant agreed to waive personal appearance before the separation board, remain on 

appellate leave, and waive any right to accrued pay, allowances, or travel entitlements. 

XIII. POST-TRIAL PROCESSING TIME. 

A. Service courts have two distinct responsibilities when reviewing allegations of post-trial and 

appellate delay. First, service courts may grant relief to appellants for excessive post-trial delay under 

their broad authority to determine sentence appropriateness under Article 66(c), UCMJ. Second, as a 

matter of law, both the service courts and the CAAF may review claims of untimely review and 

appeal under the Due Process Clause of the Constitution using the principals announced in the case of 

United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). 

B. From sentence to action. An accused has a right to timely review during the post-trial process. 

Diaz v. Judge Advocate General of the Navy, 59 M.J. 34, 37 (C.A.A.F. 2003). 

1. The old, old rule: Dunlap v. Convening Authority, 48 C.M.R. 751 (C.M.A. 1974) (when an 

accused is continuously under restraint after trial, the convening authority must take action within 

ninety days of the end of trial or a presumption of prejudice arises). 

2. The old rule: if prejudice, relief mandated. United States v. Banks, 7 M.J. 92 (C.M.A. 1976). 

3. Back to the future: the evolution to United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). 

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a) United States v. Tardif, 55 M.J. 666 (C.G.C.C.A. 2001), rev’d and remanded, 57 

M.J. 219 (C.A.A.F. 2002), on remand, 58 M.J. 714 (C.G.C.C.A. 2003), aff’d, 59 M.J. 

394 (C.A.A.F. 2004) (summary disposition). The appellant was sentenced to 

forfeiture of all pay and allowances, reduction to E1, three years confinement and a 

DD (the CA only approved two years of confinement). It took the government one 

year to process the record from sentencing to action and forwarding to the appellate 

court. Despite the delay, the CGCCA could find no prejudice that flowed to the 

accused from the post-trial delay and therefore did not grant any relief. Although the 

CGCCA did discuss the Army’s Collazo opinion, it concluded it was bound by the 

CAAF’s precedent regarding undue post-trial delay. On appeal, the CAAF noted that 

relief under Article 66(c), UCMJ, unlike Article 59(a), UCMJ, does not require a 

predicate showing of “error materially [prejudicial to] the substantial rights of the 

accused” and remanded the case to the CGCCA because of the lower court’s 

mistaken belief that it was “constrained” by Article 59(a), UCMJ. Applying 

principles of sentence appropriateness, CCAs can grant relief under Article 66(c) for 

unreasonable and unexplained post-trial delay that does not result in prejudice. On 

remand, the CGCCA agreed with appellant that “neither United States v. Collazo, 

[citation omitted], nor our higher court’s decision in this case requires a showing of 

uniquely personal harm in order to justify a sentence reduction, rather that the delay 

is to be considered along with the rest of the record in determining what sentence 

should be approved.” The CGCCA reduced appellant’s confinement for post-trial 

delay. 

b) United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005). Following his release from 

custody, appellant had applied for a position as a driver. He submitted to the court 

his own declaration and declarations from three officials of a potential employer that 

stated that he would have been considered for employment or actually hired if he had 

possessed a DD-214, even if his discharge was less than honorable. The employer 

was aware of appellant’s court martial for two specifications of unauthorized absence 

and two specifications of missing movement by design, in violation of Articles 86 

and 87. The CAAF held that those un-rebutted declarations were sufficient to 

demonstrate ongoing prejudice beyond what would have been a reasonable time for 

post-trial proceedings. Whether appellant would have had a job for certain was not 

relevant. The court concluded that setting aside the bad-conduct discharge is a 

remedy more proportionate to the prejudice that the unreasonable post-trial delay had 

caused. Appellant was prejudiced by the facially unreasonable post-trial delay, 

which violated his right to due process. The appropriate remedy was disapproval of 

the bad-conduct discharge. 

4. The current rule. On 11 May 2006, the CAAF released United States v. Moreno, 63 

M.J. 129 (C.A.A.F. 2006). The Moreno decision demonstrated that while the CAAF was 

not willing to return to an inflexible Dunlap-style 90-day rule, it was willing to apply 

heightened scrutiny and find due process violations in cases where post-trial processing 

crossed certain defined boundaries. In Moreno, the CAAF announced that it would apply 

a presumption of unreasonable delay to any case completed after 11 June 2006 that: (1) 

did not have initial action taken within 120 days of the completion of the trial; (2) was 

not docketed within 30 days of the convening authority’s action; or, (3) did not have 

appellate review completed by the Court of Criminal Appeals within 18 months of 

docketing. 

a) Once the post-trial delay in a case is determined to be unreasonable, the court 

must balance: (1) the length of the delay against; (2) the reason for the delay; (3) the 

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appellant’s assertion of the right to timely review and appeal; and, (4) prejudice. This 

test represented an adaptation of the Barker v. Wingo, 407 U.S. 514 (1972), test that had 

previously only been used to review speedy trial issues in a Sixth Amendment context. 

While failure to meet the Moreno timelines triggers the Barker v. Wingo analysis, the 

government can still rebut the presumption of prejudice by showing that the delay was 

not unreasonable. 

b) When balancing the length of the delay against the other factors, no single 

factor is required to find that the post-trial delay constitutes a due process violation. 

c) An appellate court must evaluate prejudice to the appellant in light of three 

interests: (1) preventing oppressive incarceration pending appeal; (2) minimizing anxiety 

and concern over those convicted awaiting the outcome of their appeals; (3) limiting the 

possibility that a convicted person’s ground for appeal, and his or her defenses in case of 

reversal or retrial, might be impaired. 

d) In United States v. Toohey, 63 M.J. 353 (C.A.A.F. 2006), the CAAF further 

refined the prejudice factor by announcing that when an appellant had not shown actual 

prejudice under the fourth factor of the Barker v. Wingo analysis, the appellate courts 

could still find a due process violation when, in balancing the other three factors, the 

delay is “so egregious that tolerating it would adversely affect the public’s perception of 

the fairness and integrity of the military justice system.” Id. at 362. 

e) In Moreno, the CAAF suggested a non-exclusive list of relief that could 

include, but was not limited to: (1) day-for-day reduction in confinement or confinement 

credit; (2) reduction of forfeitures; (3) set aside portions of the approved sentence 

including a punitive discharge; (4) set aside of the entire sentence, leaving a sentence of 

no punishment; (5) limitation upon the sentence that may be approved by the convening 

authority following a rehearing; and, (6) dismissal of the charges and specifications with 

or without prejudice. 

f) In United States v. Harrow, 65 M.J. 190 (C.A.A.F. 2007), the CAAF 

determined that even when the post-trial delay is facially unreasonable, if an appellate 

court is convinced that any error was harmless beyond a reasonable doubt, there is no 

need to do a separate analysis of each of the Barker v. Wingo factors. 

g) Cases. 

(1) United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), on remand, No. 

200100715, 2009 WL 1808459 (N-M.C.C.A. June 23, 2009) (unpublished), aff’d, 69 

M.J. 36 (C.A.A.F. 2010) (summary disposition). Appellant was tried and convicted 

by members of rape in violation of Article 120, UCMJ. He was sentenced to 

reduction to E-1, TF, six years confinement, and DD. On appeal, appellant asserted 

that he was denied due process as a result of unreasonable post-trial delay. He was 

sentenced on 29 September 1999. The 746-page Record of Trial (ROT) was 

authenticated 288 days later. On 31 January 2001 (490 days after the court-martial), 

the CA took action. The case was docketed at NMCCA 76 days later. The NMCCA 

granted 18 defense motions for enlargement for time to file an appellate brief. From 

the end of his court-martial until the NMCCA rendered a decision, it took 1,688 days. 

In conducting an analysis of the case, the CAAF adopted the four factors set forth in 

Barker v. Wingo, 407 U.S. 514 (1972), which are: (1) length of the delay; (2) reasons 

for the delay; (3) assertion by Appellant of the right to a timely review and appeal; 

and (4) prejudice suffered by Appellant. During the post-trial process, each of these 

factors will be analyzed based on the circumstances. More importantly for 

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practitioners, the CAAF established new post-trial processing guidelines as follows: 

(1) from sentence to action, the government has 120 days; (2) from action to 

docketing at the Court of Criminal Appeals, the government has 30 days; and, (3) 

from docketing at the Court of Criminal Appeals to appellate decision, the Court has 

18 months to render a decision. Failure to meet these processing timelines serves to 

trigger the four-part Barker analysis. However, the government can rebut the 

presumption by showing that the delay was not unreasonable. 

(2) United States v. Toohey, 63 M.J. 353 (C.A.A.F. 2006). Appellant, 

contrary to his pleas, was convicted of rape and assault consummated by battery. On 

August 13, 1998, he was sentenced to reduction to E-1, forfeiture of all pay and 

allowances, confinement for twelve years and a dishonorable discharge. The 

transcript was 943 pages and the ROT was composed of eleven volumes. It took 

2,240 days from the end of trial until the issuance of the NMCCA’s decision, a period 

of over six years. 

The NMCCA decision was set aside. The CAAF held that the appellant was 

denied his due process right to speedy post-trial and appellate review. They set forth 

the analytical framework using the four Barker v. Wingo factors of: (1) length of 

delay; (2) reasons for the delay; (3) assertion of the right to timely review and appeal; 

and (4) prejudice. The court determined that the first three factors weighed heavily in 

favor of the appellant. Moreover, CAAF ruled that where there is no finding of 

Barker prejudice, they will find a due process violation only when, in balancing the 

other three factors, the delay is so egregious that tolerating it would adversely affect 

the public’s perception of fairness and integrity of the military justice system. See 

also United States v. Harvey, 64 M.J. 13 (C.A.A.F. 2006). 

(3) United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006). A 1,794 day 

delay from sentence to first-level appellate review violated the appellant’s right to 

speedy post-trial relief because he suffered two forms of actual prejudice. First, he 

was denied timely review of a meritorious claim of legal error (an instructional error 

made at trial). Second, the lack of “institutional vigilance” by the government 

resulted in the loss of his right to free and timely professional assistance of detailed 

military appellate defense counsel. The CAAF granted relief in the form of cap on 

sentence at a rehearing ordered as a result of the instructional error. 

(4) United States v. Harvey, 64 M.J. 13 (C.A.A.F. 2006). Despite not 

showing prejudice under the fourth prong of the Barker analysis, the court found that 

a 2,031-day delay from trial to first-level appellate review was “so egregious that 

tolerating it would adversely affect the public’s perception of the fairness and 

integrity of the military justice system.” The CAAF granted relief in the form of a 

cap on sentence upon rehearing (the case had already been returned for rehearing on 

another basis). 

(5) United States v. Simon, 64 M.J. 205 (C.A.A.F. 2006). The government’s 

gross negligence in not mailing a 36-page ROT to the first-level appellate court for 

572 days was a violation of the appellant’s right to speedy post-trial review. The 

CAAF returned the case to the NMCCA with direction that it may grant relief under 

its broad sentence appropriateness authority under Article 66(c) or, as a matter of 

law, under the Due Process Clause. 

(6) United States v. Canchola, 64 M.J. 245 (C.A.A.F. 2007). The CAAF 

specifically rejects the NMCCA’s attempt to create a generalized “excludable delay” 

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concept similar to that used under RCM 707(c) to examine pretrial speedy trial 

issues. 

(7) United States v. Young, 64 M.J. 404 (C.A.A.F. 2007). The CAAF 

considered the circumstances and the entire record, and found that 1,637 days from 

trial through completion of ACCA review was harmless beyond a reasonable doubt. 

(8) United States v. Roberson, 65 M.J. 43 (C.A.A.F. 2007). The CAAF 

found that under the facts of this case, 1,524 days from trial to NMCCA review was 

harmless beyond a reasonable doubt. 

(9) United States v. Pflueger, 65 M.J. 127 (C.A.A.F. 2007). The NMCCA, 

in assessing the “unreasonable and unconscionable” post-trial delay in this case, did 

not approve the BCD. Sentence at trial was a BCD, confinement for four months, 

and reduction to E-1. CA’s action suspended BCD and all confinement in excess of 

90 days. The CAAF found that this was not meaningful sentence relief because the 

BCD had already been remitted at the end of the suspension period. 

(10) United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006). The CAAF 

found that under the facts of this case, 1,867 days from trial to NMCCA review was 

harmless beyond a reasonable doubt. 

(11) United States v. Rodriguez-Rivera, 63 M.J. 372 (C.A.A.F. 2006). The 

CAAF found that despite the six-year delay in appellate review in this case, any relief 

that would be actual and meaningful would be “disproportionate to the possible harm 

generated from the delay.” No relief was warranted or granted. 

(12) United States v. Yammine, 67 M.J. 717 (N-M.C.C.A. 2009). The 

NMCCA was able to assume, without deciding, that the appellant was denied speedy 

post-trial processing (214 days from sentencing to CA Action). The NMCCA then 

found that there was no prejudice and conclude that the error was harmless beyond a 

reasonable doubt. 

(14) United States v. Bush, 68 M.J. 96 (C.A.A.F. 2009). Appellant’s case 

file was “apparently lost in the mail for over six years.” It took over seven years to 

review a 143-page guilty plea. The CAAF finds this to be facially unreasonable. On 

the fourth Barker v. Wingo prong, the CAAF held that the appellant’s unsupported 

affidavit that he was denied employment at a store in Alabama was insufficient to 

establish prejudice. The CAAF holds that Allende does not shift the burden to him to 

establish that the due process violation was not harmless beyond a reasonable doubt. 

The burden remains upon the government. However, in an unsubstantiated affidavit 

case, the government’s burden of proving any due process violation was harmless 

beyond a reasonable doubt will be “more easily attained.” 

(15) United States v. Schweitzer, 68 M.J. 133 (C.A.A.F. 2009). Appellant 

asserted that the eight-year delay from the announcement of sentence until the 

NMCCA rendered its original opinion violated his due process rights. He submitted 

an unsupported affidavit claiming that he averaged less than $35,000 a year in annual 

income since he began his appellate leave, even though persons trained as he was 

normally earned between $79,000 and $95,000. Citing Bush, the CAAF held that 

there was no prejudice under the fourth Barker v. Wingo prong, and that the 

unsupported affidavit of the appellant allowed the government to more easily 

demonstrate that any violation of his due process right was harmless beyond a 

reasonable doubt. 

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(16) United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009). More than eightyear delay from the announcement of sentence until the NMCCA rendered its 

original opinion violated the appellant’s due process rights. However, unsupported 

(and belated) affidavit claiming that his inability to travel due to his appellate leave 

status do not establish actionable harm arising from any delay. The CAAF held that 

under the totality of the circumstances, the post-trial delay was harmless beyond a 

reasonable doubt. Due to the lack of convincing evidence of prejudice in the record, 

the court will not presume prejudice from the length of the delay alone. 

(17) United States v. Mullins, 69 M.J. 113 (C.A.A.F. 2010). Convening 

authority did not take action for 363 days. After docketing, 448 days passed until the 

first contact between appellate defense counsel and the appellant. Over the course of 

the appeals, appellant had four separate appointed attorneys. Appellant also filed 

writs and motions pro se, including complaints about the delay in the appellate 

process. Appellant was eventually released from confinement. Two months later, he 

was allegedly denied unemployment insurance because he was on appellate leave and 

did not have a DD-214. The CAAF skipped over most of the analysis and went right 

to the lack of prejudice. The appellant had three assertions of prejudice: 1) no 

unemployment benefits due to the lack of a DD-214; 2) anxiety because he had to 

register as a sex offender; and, 3) a timely appeal would have allowed him to seek 

legal custody of his children. The CAAF dismissed the latter two arguments since 

the appellant did not prevail on the merits of his appeal. Turning to the 

unemployment benefits, the CAAF held that while this may be prejudicial, it was not 

necessarily so in this case. The appellant provided no affidavits or direct proof that a 

person in appellant’s situation would have been eligible for unemployment benefits. 

Unlike United States v. Jones, 61 M.J. 80 (C.A.A.F. 2004), where the appellant 

provided affidavits from potential employers, this case was lacking of such proof of 

prejudice. Absent prejudice, the post-trial delay was harmless beyond a reasonable 

doubt. The CAAF denied relief. 

(18) United States v. Luke, 69 M.J. 309 (C.A.A.F. 2011). The court 

addressed the eleven-year delay between his conviction and the lower court decision 

(substantially due to a long USACIL investigation into a forensic chemist that 

worked on this case), and the appellant’s claims that he was prejudiced because the 

government destroyed the physical evidence and that he was denied United States 

citizenship due to his conviction. The court assumed that there was error and 

proceeded directly to the conclusion that the delay was harmless beyond a reasonable 

doubt. The court had not found merit in the substantive appeal, so the claims of 

prejudice were harmless. 

(19) United States v. Arriaga, 70 M.J. 51 (C.A.A.F. 2011). The government 

took 243 days from trial to convening authority action in this case. Much of this time 

was devoted to the record of trial. It took the court reporters 82 days to produce the 

record of trial, and it took the trial counsel 80 days to conduct errata on the record of 

trial. The remaining 81 days were spread out over the remaining steps in the post-trial 

process. In a 3-2 decision, the majority of the court found that the accused was denied 

his due process right to a speedy post-trial review and remanded the case to the 

AFCCA for appropriate relief. The court made note in dicta, however, that the 

government’s argument that the delay was “only” 123 days because the Moreno 

standard of 120 days should not count against the government was dismissed 

outright. The court made special note that the clock begins to run on the day that the 

trial is concluded and stops on the date of action. (Note: This point was specifically 

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agreed to by the dissent, making this “dicta holding” a 5-0 part of the decision.) The 

primary analysis revolved around prejudice, and more specifically, oppressive 

incarceration pending appeal. The appellant’s original maximum release date (MRD) 

was March 25, 2012. After the AFCCA lowered his sentence to two years 

confinement, his MRD was March 25, 2010. The AFCCA decision was released on 

May 7, 2010, and the appellant was released on May 14, 2010. This amounted to 51 

extra days in confinement that would not have been served had the government taken 

action within 120 days. The CAAF found that the government violated the 

appellant’s due process rights to a speedy post-trial review. The dissent found no due 

process violation and would have affirmed the AFCCA decision. The dissent spent 

time discussing that a presumptively unreasonable delay is necessarily dependent on 

the type of case. Overall, the dissent would not find a 243 day period from trial to 

action to be prejudicial under the facts and circumstances of this case, and as a result, 

deny relief on that basis. Even assuming prejudicial delay, the dissent would still 

refuse to grant relief on the grounds that oppressive incarceration was speculative at 

best. There is no guarantee that the AFCCA decision would have been released in 

the same amount of time, even if the government would have taken less than 120 

days to action. Even barring that, there is no guarantee that the AFCCA would have 

reduced the appellant’s sentence to confinement by such a large amount had there 

been no post-trial delay in this case. 

5. The ACCA and the exercise of its Article 66, sentence appropriateness authority – 

prejudice not required for relief from post-trial delay. 

a) United States v. Collazo, 53 M.J. 721 (A.C.C.A. 2000). The ACCA came up with a new 

method for dealing with post-trial processing delay. In Collazo, the court granted the 

appellant four months off of his confinement because the government did not exercise due 

diligence in processing the record of trial. The court expressly found no prejudice. 

b) United States v. Bauerbach, 55 M.J. 501 (A.C.C.A. 2001). The only allegation of error 

was undue delay in the post-trial process. Defense sought relief in accordance with Collazo. 

Applying Collazo, the ACCA found that the government did not proceed with due diligence 

in the post-trial process when it took 288 days to process a 384-page record of trial. 

Although no prejudice was established, the court granted relief under its Article 66, sentence 

appropriateness authority reducing confinement by one month. The court did provide 

valuable guidance to SJAs and Chiefs of Justice regarding what might justify lengthy posttrial delay (remembering that the court will test whether the government has proceeded with 

due diligence in the post-trial process based on the totality of the circumstances). 

“Acceptable explanations may include excessive defense delays in the submission of RCM 

1105 matters, post-trial absence or mental illness of the accused, exceptionally heavy military 

justice post-trial workload, or unavoidable delays as a result of operational deployments. 

Generally, routine court reporter problems are not an acceptable explanation.” Bauerbach, 55 

M.J. at 507. 

c) United States v. Delvalle, 55 M.J. 648 (A.C.C.A. 2001). Ten months to prepare 459-page 

ROT was too long; sentence reduced by two months. 

d) United States v. Maxwell, 56 M.J. 928 (A.C.C.A. 2002). Appellant was convicted at a 

GCM of desertion terminated by apprehension and wrongful appropriation of a motor 

vehicle. The adjudged and approved sentence was confinement for five months and a BCD. 

On appeal, appellant alleged undue delay in the post-trial processing of her case. Held: 

fourteen months from trial to action in a case where the ROT is only 384 pages is an 

excessive delay that warrants relief under Collazo and Bauerbach. Note: appellant failed to 

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cite any prejudice resulting from the delay, however, the ACCA, in exercise of its Article 66, 

UCMJ, sentence appropriateness authority affirmed the findings and reduced the period of 

confinement from five to four months. See also United States v. Paz-Medina, 56 M.J. 501 

(A.C.C.A. 2001) (one year delay in post-trial processing of 718-page ROT unreasonable and 

indicates a lack of due diligence). United States v. Hutchison, 56 M.J. 756 (A.C.C.A. 2002) 

(419 day delay from trial to action in an 81-page ROT case is unreasonable – 3-month 

confinement reduction despite the lack of prejudice to the accused). 

e) United States v. Stachowski, 58 M.J. 816 (A.C.C.A. 2003). Delay of 268 days between 

sentence and action was not excessive and did not warrant relief for dilatory post-trial 

processing. Applying a totality of circumstances approach, the court considered the 

following: that the CA reduced the appellant’s confinement by thirty days because of the 

post-trial delay; while processing the appellant’s case, the installation only had one court 

reporter; the lone reporter doubled as the military justice division NCOIC; the backlog of 

cases awaiting transcription was significant; and the cases were transcribed on a “first in, first 

out” basis. Id. at 818. 

f) United States v. Bodkins, 60 M.J. 322 (C.A.A.F. 2004). The CAAF rejected the ACCA’s 

conclusion that the accused is required to ask for timely post-trial processing, and that failure 

to do so waived any right to relief. The accused failed to object to dilatory post-trial 

processing in guilty plea case with a 74-page record of trial (ROT) (i.e., 252 days from 

sentence to action; 412 days from sentence to receipt of ROT by the ACCA). The CAAF 

noted that the responsibility to complete post-trial processing in a timely fashion lies with the 

CA and is not dependent on an accused’s request. The CAAF did, however, observe that the 

absence of a request from the defense is one factor a reviewing court may consider in 

assessing the impact of any delay in a particular case. 

g) United States v. Garman, 59 M.J. 677 (A.C.C.A. 2003). Allegations of dilatory post-trial 

processing will be examined on a case-by-case basis applying a totality of the circumstances 

approach. Court refuses to adopt a bright line rule regarding post-trial delay. Held: 

appellant was not entitled to relief despite a post-trial delay of 248 days from sentence to 

action (i.e., 329 days less 81 days attributable to the defense; the military judge’s time to 

authenticate the record was government time). The factors the court considered were as 

follows: defense counsel’s objection to the post-trial delay was “dilatory,” occurring at day 

324; after the defense objected, the government acted on the case expeditiously (i.e., in five 

days); although unexplained, the delay did not exceed 248 days; slow post-trial processing 

was the only post-trial error; and, the appellant failed to allege any prejudice or harm from the 

delay. Most significant in the court’s decision was the defense counsel’s lack of timely 

objection to the post-trial processing. 

h) United States v. Banks, 75 M.J. 746 (A.C.C.A. 2016). The ACCA denies Government 

claim that delay should be attributed to dilatory Defense action. The Court points out that 

Art. 60, UCMJ, and RCM 1105, provide the Defense with just 20 days to submit post-trial 

matters. Any time past this 20 day allowance will be charged against the Government’s 

processing time. 

XIV. SUSPENSION OF SENTENCE. ARTICLE 71, UCMJ; RCM 1108. 

A. The rule requires the conditions of any suspension to be specified in writing, served on the 

accused, and receipted for by the probationer. United States v. Myrick, 24 M.J. 792 (A.C.M.R. 1987) 

(there must be substantial compliance with RCM 1108). See: 

1. AR 27-10, para. 5-35; 

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2. JAGMAN, section 0158; and, 

3. AFI 51-201, para. 9.23. 

B. Power of the CA to create conditions. 

1. United States v. Cowan, 34 M.J. 258 (C.M.A. 1992). The accused asked the CA for a method 

by which she could serve her confinement and still support her 6-year-old child. CA approved 

the sentence, but suspended for one year confinement in excess of six months and forfeitures in 

excess of $724.20, suspension of forfeitures conditioned upon: 

a) The initiation of an allotment payable to the daughter’s guardian of $278.40, for the 

benefit of the girl; and 

b) The maintenance of the allotment during the time the accused is entitled to receive pay 

and allowances. 

Held: Permissible. Note: court recognizes inherent problems; recommends careful use 

of such actions. 

2. United States v. Schneider, 34 M.J. 639 (A.C.M.R. 1992), aff’d, 38 M.J. 387 (C.M.A. 1993). 

The accused asked for assistance in supporting his dependents. The ACMR upheld CA’s 

suspension of forfeitures in excess of $400.00 on conditions that the accused: 

a) Continue to claim on W-4, as long as he can legitimately do so, single with 2 dependents; 

and 

b) Initiate and maintain allotment to be paid directly to spouse in amount of $2,500. 

C. Period of suspension must be reasonable; conditions must not be “open-ended” or 

“unachievable.” 

1. Limited by AR 27-10, para. 5-35, on a sliding scale from three months in a SCM to two years 

or the period of unexecuted portion of confinement, whichever is longer, in a GCM. 

2. United States v. Spriggs, 40 M.J. 158 (C.M.A. 1994). Uncertain and open-ended period of 

time required to fulfill one of the conditions (self-financed sex offender program) made the period 

of suspension of the discharge and reduction in grade “unreasonably long.” The CMA, especially 

Judge Cox, signals approval for parties’ “creative” and “compassionate” efforts. 

3. United States v. Ratliff, 42 M.J. 797 (N-M.C.C.A. 1995). Eleven years probation not 

unreasonably long under the circumstances (though this extended suspension period may be 

barred in the Army by AR 27-10). 

4. United States v. Koppen, 39 M.J. 897 (A.C.M.R. 1994). Suspension of period of confinement 

in conjunction with an approved discharge should coincide with serving the unsuspended portion 

of confinement. 

5. United States v. Wendlandt, 39 M.J. 810 (A.C.M.R. 1994). Directing that suspension period 

begin on date later than action is not per se improper. 

D. Vacation of Suspension of Sentence. Article 72, UCMJ; RCM 1109. 

1. The rule sets forth the procedural and substantive requirements for vacating a 

suspended sentence. It authorizes immediate confinement pending the vacation 

proceedings, if under a suspended sentence to confinement. See Appendix 18, MCM. 

2. United States v. Connell, 42 M.J. 462 (C.A.A.F. 1995). Appellant challenged the 

vacation of his suspended bad-conduct discharge because the hearing officer, his special 

court-martial convening authority (as required by RCM 1109(d)), had imposed 

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nonjudicial punishment on him for the same offense that caused the vacation of his 

suspended bad-conduct discharge. The CAAF held that this did not make the special 

court-martial convening authority too personally interested to be a neutral and detached 

hearing officer as required by RCM 1109. 

3. United States v. Miley, 59 M.J. 300 (C.A.A.F. 2004). Error for the hearing officer 

(i.e., SPCMCA) in a vacation of suspended punishment situation to refrain from making 

findings of fact on whether a basis for vacation existed. The hearing officer’s decision, 

pursuant to RCM 1109, must include an evaluation of the contested facts and a 

determination of whether the facts warrant vacation. A decision based solely on 

equitable grounds is improper. Error for the GCMCA to vacate the suspended 

punishment when the hearing officer failed to comply with RCM 1109. Held: vacation 

action set aside and returned to the GCMCA for yet another (a third vacation hearing) or 

reinstatement of the terms of the original pretrial agreement. Note: 3-2 decision with J. 

Baker and C.J. Crawford dissenting. 

XV. WAIVER OF APPELLATE REVIEW. ARTICLE 61, UCMJ; RCM 

1110. 

A. RCM 1110(a). After any GCM, except one in which the approved sentence includes death, and 

after a special court-martial in which the approved sentence includes a BCD the accused may elect to 

waive appellate review. 

B. Waiver. The accused may sign a waiver of appellate review any time after the sentence is 

announced. The waiver may be filed only within 10 days after the accused or defense counsel is 

served with a copy of the action under RCM 1107(h). On written application of the accused, the CA 

may extend this period for good cause, for not more than 30 days. See RCM 1110(f)(1). 

C. The accused has the right to consult with counsel before submitting a waiver or withdrawal. 

RCM 1110(b). 

1. Waiver. 

a) Counsel who represented the accused at the court-martial. 

b) Associate counsel. 

c) Substitute counsel. 

2. Withdrawal. 

a) Appellate defense counsel. 

b) Associate defense counsel. 

c) Detailed counsel if no appellate defense counsel has been assigned. 

d) Civilian counsel. 

D. Procedure. 

1. RCM 1110(d). Must be in writing, attached to ROT, and filed with the CA. Written 

statement must include: statement that accused and counsel have discussed accused’s appellate 

rights and the effect of waiver or withdrawal on those rights; that accused understands these 

matters; that the waiver or withdrawal is submitted voluntarily; and signature of accused and 

counsel. See Appendix 19 and 20, MCM. 

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2. TDS SOP requires a seventy-two hour “cooling off” period; re-contact after initial request to 

waive/withdraw. 

3. The accused may only file a waiver within ten days after he or DC is served with a copy of 

the action (or within period of extension not to exceed thirty days). 

4. United States v. Smith, 44 M.J. 387 (C.A.A.F. 1996). May not validly waive appellate 

review, under Article 61, UCMJ, before CA takes initial action in a case, citing, inter alia, United 

States v. Hernandez, 33 M.J. 145 (C.M.A. 1991) (Article 61(a) permits such waiver “within 10 

days after the action . . . is served on the accused or on defense counsel.” RCM 1110(f) must be 

read in this context. Clearly the RCM cannot supersede a statute, but careful reading of the RCM 

reveals that it may be signed “at any time after the sentence is announced” but “must be filed 

within 10 days after” service of the action (emphasis added)). Smith, 44 M.J. at 391-392. 

5. RCM 1110(f)(2). The accused may file a withdrawal at any time before appellate review is 

completed. 

6. RCM 1110(g). Once filed in substantial compliance with the rules, the waiver or withdrawal 

may not be revoked. 

a) United States v. Walker, 34 M.J. 317 (C.M.A. 1992). Documents purporting to withdraw 

accused’s appeal request were invalid attempt to waive appellate review prior to CA’s action. 

b) United States v. Smith, 34 M.J. 247 (C.M.A. 1992). Waiver of appellate representation 

58 days before action by CA was tantamount to waiver of appellate review; therefore, was 

premature and without effect. 

c) Clay v. Woodmansee, 29 M.J. 663 (A.C.M.R. 1989). Accused’s waiver of appellate 

review was null and void as it was the result of the government’s promise of clemency. 

XVI. REVIEW BY A JUDGE ADVOCATE. ARTICLE 64, UCMJ; RCM 

1112. 

A. A Judge Advocate (JA) shall review: 

1. Each general court-martial in which the accused has waived or withdrawn appellate review 

under RCM 1110. 

2. Each special court-martial in which the accused has waived or withdrawn appellate review 

under RCM 1110 or in which the approved sentence does not include a BCD or confinement for 

one year. 

3. Each summary court-martial. 

B. A JA shall review, under service regulations, each case not reviewed under Article 66. AR 27-10, 

para. 5-46b, says this review may be done either by a JA in the Office of the SJA of the convening 

command or by a JA otherwise under the technical supervision of the SJA. 

C. No review required for: total acquittal, a finding of not guilty only by reason of a lack of mental 

responsibility, or where the CA disapproved all findings of guilty. 

D. Disqualification of reviewer for prior participation in case. 

E. The review shall be in writing. It shall contain conclusions as to whether the court-martial has 

jurisdiction over the accused and the offenses, each specification states an offense, and the sentence is 

legal. The review must respond to each allegation of error made by the accused under RCM 1105, 

1106(f), or filed with the reviewing officer directly. If action on the ROT is required by the CA, a 

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recommendation as to the appropriate action and an opinion as to whether corrective action is
 

required must be included. 

F. The ROT shall be sent to the GCMCA over the accused at the time the court-martial was held (or 

to that officer’s successor) for supplementary action if: (1) the reviewer recommends corrective 

action; (2) the sentence approved by the CA includes dismissal, a DD or BCD or confinement in 

excess of six months; or, (3) service regulations require it. 

G. If the reviewing JA recommends corrective action but the GCMCA acts to the contrary, the ROT 

is forwarded to the Judge Advocate General concerned for review under RCM 1201(b)(2). RCM 

1112(g)(1). 

H. If the approved sentence includes dismissal, the service Secretary concerned must review the 

case. 

XVII.EXECUTION OF SENTENCE. UCMJ, ARTICLE 71, UCMJ; RCM 

1113. 

A. A sentence must be approved before it is executed (but confinement, forfeitures, and reduction 

may be carried out before ordered executed). 

B. Confinement, unless deferred is immediate. Forfeitures, both automatic and adjudged, and 

reduction, unless deferred, take effect fourteen days after sentence is announced or upon action, 

whichever is earlier. 

C. The CA’s initial action may order executed all punishments except a DD, BCD, dismissal or 

death. 

D. A Dishonorable Discharge (DD) or Bad-Conduct Discharge (BCD) may be ordered executed only 

after a final judgment within the meaning of RCM 1209 has been rendered in the case. If on the date 

of final judgment, a servicemember is not on appellate leave and more than six months have elapsed 

since approval of the sentence by the CA, before a DD or BCD may be executed, the officer 

exercising GCM jurisdiction over the servicemember shall consider the advice of that officer’s SJA as 

to whether retention would be in the best interest of the service. Such advice shall include the 

findings and sentence as finally approved, the nature and character of duty since approval of the 

sentence by the CA, and a recommendation whether the discharge should be executed. 

1. United States v. Estrada, 68 M.J. 548 (A.C.C.A. 2009), aff’d, 69 M.J. 45 (C.A.A.F. 2010). 

Purported honorable discharge given before bad-conduct discharge could be executed was void. 

AR 27-10, para. 5-16 automatically voided any purported discharge because the honorable 

discharge occurred prior to initial action. 

2. United States v. McPherson, 68 M.J. 526 (A.C.C.A. 2009), aff’d, 68 M.J. 408 (C.A.A.F. 

2009) (summary disposition). Purported honorable discharge given before bad-conduct discharge 

could be executed was not void and remits any approved bad-conduct discharge. The honorable 

discharge in this case occurred after initial action (after a prior honorable discharge issued before 

initial action was revoked as void). 

3. United States v. Watson, 69 M.J. 623 (A.C.C.A. 2010). Prior to CA Action, the appellant, a 

reserve officer, was released from active duty (REFRAD). After CA Action that approved her 

dismissal, she received an honorable discharge. Because the proper authority (Commander, 

HRC, St. Louis) voided the erroneous honorable discharge, the dismissal was not remitted. 

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4. United States v. Watson, 69 M.J. 415 (C.A.A.F. 2011). On appeal from the above case, the 

CAAF (in a 3-2 decision) overturned the decision by the ACCA and held that the administrative 

honorable discharge was validly issued, and therefore remitted the adjudged dismissal. 

5. United States v. Brasington, No. 20060033, 2010 WL 3582596 (A.C.C.A. Sept. 13, 2010) 

(unpublished). Purported honorable discharge given by reserve component of Human Resources 

Command (Soldier was an active duty Soldier, not reserve) was issued in error and withdrawn by 

the same command after a request from the Personnel Control Facility. The ACCA held that the 

reserve component of HRC did not have the authority to discharge the appellant, and his 

discharged was voidable. 

6. United States v. Tarniewicz, 70 M.J. 543 (N-M.C.C.A. 2011). The convening authority 

action stated, in relevant part, “In accordance with the Uniform Code of Military Justice, the 

Manual for Courts-Martial, applicable regulations, and this action, the sentence is ordered 

executed. Pursuant to Article 71, UCMJ, the punitive discharge will be executed after final 

judgment.” The CA’s action, to the extent that it ordered the BCD executed, is a legal nullity. 

See United States v. Bailey, 68 M.J. 409 (C.A.A.F. 2009). The court started by stating that the 

action did not follow the recommended forms for action in Appendix 16, MCM. However, 

Article 71, UCMJ, which states in relevant part, “if a sentence extends to . . . bad-conduct 

discharge . . . that part of the sentence extending to . . . bad-conduct discharge may not be 

executed until there is a final judgment as to the legality of the proceedings.” This means that in 

a case reviewed by a CCA, the BCD could not be executed until appellate review is final. The 

court held that the language in the CA’s action could be interpreted two ways: 1) the CA 

attempted to direct the execution of the BCD; or 2) mere commentary on a possible future event – 

that being affirmance of the case on appeal. In either case, the court held that the language has no 

effect. Article 71, UCMJ does not allow it. 

E. Dismissal of a commissioned officer, cadet or midshipman may be approved and ordered 

executed only by the Secretary concerned or such Under Secretary or Assistant Secretary as the 

Secretary concerned may designate. 

F. Death. A punishment of death may be ordered executed only by the President. 

XVIII. PROMULGATING ORDERS. ARTICLE 76, UCMJ; RCM 1114. 

A. A summary of the charges and specifications is authorized. See MCM, Appendix 17. See also 

United States Army Court of Criminal Appeals, Office of the Clerk of Court, Post Trial Handbook 

(2009). 

B. The specifications and findings in the promulgating order need to sufficiently apprise a third party 

of the specific offenses that the accused was tried on. Stating “AWOL” without more is defective 

because it lacks sufficient specificity to prevent against subsequent prosecution for the same offense. 

1. United States v. Glover, 57 M.J. 696 (N-M.C.C.A. 2002). RCM 1114(c) requires that the 

charges and specifications either be stated verbatim or summarized. The promulgating order in 

this case did neither, providing “no useful information about the offenses” the appellant was 

convicted of except for the number of the UCMJ Article that was violated. Id. at 697. Held: the 

promulgating order failed to comply with RCM 1114(c) and absent a verbatim summary of the 

specification, a “meaningful summary” must be provided. Id. at 698. The court provided relief in 

its decretal paragraph, affirming the findings and sentence and ordering that a supplemental 

promulgating order be issued in compliance with its decision. 

2. United States v. Suksdorf, 59 M.J. 544 (C.G.C.C.A. 2003). Promulgating order that omits 

suspension of confinement in excess of 150 days and incorrectly reflects the pleas and findings at 

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trial is erroneous. Similarly, an action which fails to reflect a required suspension of confinement 

is erroneous. Despite these errors, the appellant failed to allege any prejudice since he was 

released from confinement at the appropriate time and did not serve any confinement in excess of 

the required 150 days. Although Article 66, UCMJ, “does not provide general authority for a 

court of criminal appeals to suspend a sentence, [the CAAF has recognized a service court’s] 

authority to do so when a convening authority failed to comply with the terms of a pretrial 

agreement requiring suspension of some part of a sentence.” Id. at 547. As for the lack of 

attention to detail in the post-trial processing of the case, the CGCCA noted that post-trial 

processing is “not rocket science, and careful proof-reading of materials presented to the 

convening authority, rather than inattention to detail, would save time and effort for all 

concerned.” In affirming the findings and sentence, the CGCCA suspended confinement in 

excess of 150 days and directed the CA to issue a new promulgating order. 

XIX. FINALITY OF COURTS-MARTIAL. RCM 1209. 

A. When is a conviction final? 

1. When review is completed by a Court of Criminal Appeals and ― 

a) The accused does not file a timely petition for review by CAAF and the case is not 

otherwise under review by that court; or 

b) A petition for review is denied or otherwise rejected by CAAF; or 

c) Review is completed in accordance with the judgment of CAAF and: 

(1) A petition for a writ of certiorari is not filed within applicable time limits; 

(2) A petition for a writ of certiorari is denied or otherwise rejected by the Supreme 

Court; or, 

(3) Review is otherwise completed in accordance with the judgment of the Supreme 

Court. 

2. In cases not reviewed by a Court of Criminal Appeals. 

a) When the findings and sentence have been found legally sufficient by a JA, and when 

action by such officer is required, have been approved by the GCMCA, or 

b) The findings and sentence have been affirmed by TJAG when review by TJAG is 

required under RCM 1112(g)(1) or 1201(b)(1). 

B. United States v. Jackson, 38 M.J. 744 (A.C.M.R. 1993). Abatement after death of appellant, 

before appeal to Court of Military Appeals. See also United States v. Huey, 57 M.J. 504 (NM.C.C.A. 2002) (findings and sentence set aside based on accused’s death prior to final action – 

motions to vacate and attach granted). But see United States v. Rorie, 58 M.J. 399 (C.A.A.F. 2003) 

(the CAAF will no longer grant abatement ab initio upon death of an appellant pending Article 

67(a)(3) appellate review, reversing a policy followed by the court since 1953). 

C. Finality and execution of sentences. 

1. A DD or BCD may be ordered executed only after a final judgment within the meaning of 

RCM 1209. 

2. Dismissal may be approved and ordered executed only by the Secretary concerned. 

3. Only President may order execution of death penalty. 

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XX. INEFFECTIVE ASSISTANCE OF COUNSEL. 

A. United States v. Lewis, 42 M.J. 1 (C.A.A.F. 1995). Counsel’s refusal to submit handwritten letter 

as part of post-trial matters was error. Counsel may advise client on contents of post-trial matters but 

final decision is the client’s. The CAAF rejects the ACCA’s procedures for handling IAC allegations, 

originally set out in United States v. Burdine, 29 M.J. 834 (A.C.M.R. 1989). Trial defense counsel 

should not be ordered to explain their actions until a court reviews the record and finds sufficient 

evidence to overcome the presumption of competence. 

B. United States v. Burdine, 29 M.J. 834 (A.C.M.R. 1989). Two key points: 

1. When the accused specifies error in his request for appellate representation or in some other 

form, appellate defense counsel will, at a minimum, invite the attention of the CCA to those 

issues and it will, at a minimum, acknowledge that it has considered those issues and its 

disposition of them. 

2. Guidelines for resolving IAC allegations: 

a) Appellate counsel must ascertain with as much specificity as possible grounds for IAC 

claim. 

b) Appellate defense counsel then will allow the appellant the opportunity to make his 

assertions in the form of an affidavit (explaining the affidavit is not a requirement, but also 

pointing out that it will “add credence” to his allegations). 

c) Appellate defense counsel advises the accused that the allegations relieve the DC of the 

duty of confidentiality with respect to the allegations. 

d) Appellate government counsel will contact the DC and secure affidavit in response to the 

IAC allegations. 

C. United States v. Dresen, 40 M.J. 462 (C.M.A. 1994). Counsel’s request, in clemency petition, for 

punitive discharge was contrary to wishes of accused and constituted inadequate post-trial 

representation. Returned for new PTR and action. 

D. United States v. Pierce, 40 M.J. 149 (C.M.A. 1994). Factual dispute as to whether DC waived 

accused’s right to submit matters to the CA. Held: where DC continues to represent accused posttrial, there must be some showing of prejudice before granting relief based on premature CA action. 

Any error by failing to secure accused’s approval of waiver was not prejudicial in this case. 

E. United States v. Aflague, 40 M.J. 501 (A.C.M.R. 1994). Where there is no logical reason for 

counsel’s failure to submit matters on behalf of an accused and where the record glaringly calls for 

the submission of such matters, the presumption of counsel effectiveness has been overcome and 

appellate court should do something to cleanse the record of this apparent error. 

F. United States v. Robertson, 39 M.J. 211 (C.M.A. 1994). Defense counsel submitted no post-trial 

clemency/response documents. Accused did not meet burden of showing that counsel did not 

exercise due diligence. 

G. United States v. Carmack, 37 M.J. 765 (A.C.M.R. 1993). Defense counsel neglected to contact 

accused (confined at USDB) regarding post-trial submissions. Court admonished all defense counsel 

to live up to post-trial responsibilities; also, admonished SJAs and CAs to “clean up the battlefield” as 

much as possible. 

H. United States v. Sanders, 37 M.J. 628 (A.C.M.R. 1993). Court unwilling to adopt per se rule that 

DCs must submit post-trial matters in all cases. 

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I. United States v. Jackson, 37 M.J. 1045 (N.M.C.M.R. 1993). Since clemency is sole prerogative 

of CA, where defense counsel is seriously deficient in post-trial representation, court reluctant to 

substitute its judgment for that of CA. 

J. United States v. Gilley, 56 M.J. 113 (C.A.A.F. 2001). IAC in submitting three post-trial 

documents which were not approved or reviewed by appellant and which seriously undermined any 

hope of getting clemency; the CAAF also found IAC in counsel’s trial performance. 

K. United States v. Key, 57 M.J. 246 (C.A.A.F. 2002). Without holding, the CAAF hints that 

counsel may be ineffective if they fail to advise the client on his post-trial right to request waiver of 

forfeitures for the benefit of his dependents. 

L. United States v. Starling, 58 M.J. 620 (N-M.C.C.A. 2003). The appellant was not denied posttrial effective assistance of counsel by his counsel’s failure to submit clemency matters. The court 

went on to establish a prospective standard for handling IAC allegations resulting from a failure to 

submit evidence on sentencing or during post-trial: 

[A]bsent a clear indication of inaction by the defense counsel when action was 

compelled by the situation, future claims of inadequate representation for failure to 

exercise sentencing rights or post-trial rights will not be seriously entertained without 

the submission of an affidavit by the appellant stating how counsel’s inaction 

contrasted with his wishes. If the claim involves the failure to submit matters for 

consideration, the content of the matters that would have been submitted must be 

detailed. 

Id. at 623. 

M. Diaz v. The Judge Advocate General of the Navy, 59 M.J. 34 (C.A.A.F. 2003). Article 66, 

UCMJ, and Due Process entitle appellants to timely post-trial and appellate review. In so holding, the 

court noted the following: “the standards for representation of servicemembers by military or civilian 

counsel in military appellate proceedings are identical” and the “duty of diligent representation owed 

by detailed military counsel to servicemembers is no less than the duty of public defenders to indigent 

civilians.” Id. at 38-39. Finally, the differences between the military justice system as compared to 

the civilian system, to include the [military] appellate courts’ unique fact finding authority, compel 

even “greater diligence and timeliness than is found in the civilian system.” Id. at 39. See also 

United States v. Brunson, 59 M.J. 41 (C.A.A.F. 2003) (counsel have a duty to aggressively represent 

their clients before military trial and appellate courts, late filings and flagrant or repeated disregard 

for court rules subject the violator to sanctions). Id. at 43. 

XXI. DISPOSITION OF RECORD OF TRIAL. RCM 1111. 

A. General Courts-Martial. ROT and CA’s action will be sent to the Office of The Judge Advocate 

General (OTJAG). 

B. Special Courts-Martial with an approved BCD will be sent to OTJAG. 

C. Special Courts-Martial with an approved BCD and waiver of appeal. Record and action will be 

forwarded to a Judge Advocate for review (RCM 1112). 

D. Other special courts-martial and summary courts-martial will be reviewed by a Judge Advocate 

under RCM 1112. 

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APPENDIX 

Typical General/Special Court-Martial Post-Trial Processing 

Trial complete 

Prepare Report of 

Result of Trial 

(RCM 1101; 

AR 27-10, ¶ 5-29) 

Prepare Record of Trial 

(ROT)* 

(RCM 1103; 

AR 27-10, ¶¶ 5-40, 5-41) 

ROT delivered to MJ 

for Authentication 

(RCM 1104; 

AR 27-10, ¶ 5-43) 

SJA prepares Post-Trial 

Recommendation 

(SJAR) for CA 

(RCM 1106) 

ROT delivered to 

TC / DC for 

errata 

(RCM 1103) 

SJAR served on 

accused 

(RCM 1106) 

Victim, Accused and DC 

submit post-trial matters 

(RCM 1105 and 1106) 

SJA prepares 

Addendum to SJAR** 

(RCM 1106) 

SJAR served 

on DC 

(RCM 1106) 

Authenticated ROT 

served on accused 

(RCM 1104 and 

1105; AR 27-10, ¶ 

Authenticated 

ROT served 

on DC (if 

requested) 

SJA submits SJAR, defense 

post-trial submissions, and 

Addendum to CA 

(RCM 1107) 

CA takes initial action 

(RCM 1107 and 1108; 

AR 27-10, ¶ 5-31 & 5-32; 

MCM, App. 16) 

Prepare Promulgating 

Order 

(RCM 1114; 

AR 27-10, Chpt. 12; 

MCM, App. 17) 

Publish Promulgating 

Order† 

(RCM 1114; 

AR 27-10, ¶ 12-7) 

Case mailed for 

appellate review†† 

(RCM 1111 and 1201; 

AR 27-10, ¶¶ 5-45, 5­

46, 5-47) 

* Verbatim or summmarized depending on sentence. RCM 1103(b)(2)(B) & (C) 

** The SJA is not required to prepare an Addendum unless the defense raises legal error 

in their post-trial submissions. RCM 1106(d)(4). If the Addendum contains new 

matter, it must be served on the defense. RCM 1106(f)(7). 

† Until publication or official notification to the accused, GCMCA can recall and 

modify his initial action, even if less favorable to the accused. RCM 1107(f)(2). 

†† Until this point, the GCMCA can recall and modify his initial action, so long as the 

modification is no less favorable to the accused. RCM 1107(f)(2). 

SJAR served 

on victim 

(RCM 1105A) 

Authenticated 

ROT served on 

victim 

(RCM 1106) 
 

 

 

 

 

 

 

 

[Back to Table of Contents] 

CHAPTER 29
 

APPEALS & WRITS
 

I. Government Appeals 

II. Extraordinary Writs 

III. Victim Writs 

IV. Appeals at the Courts of Criminal Appeals 

V. CAAF Appeal 

VI. Finality of Courts-Martial 

VII. Petition for a New Trial 

I. GOVERNMENT APPEALS 

A. Article 62, UCMJ; R.C.M. 908(a). In a trial by a court-martial over which a military judge 

presides and in which a punitive discharge may be adjudged, the United States may appeal an order or 

ruling that terminates the proceedings with respect to a charge or specification, excludes evidence that 

is substantial proof of a fact material in the proceedings, or affects the disclosure or nondisclosure of 

classified information. However, the United States may not appeal an order or ruling that is, or 

amounts to, a finding of not guilty, with respect to the charge or specification. 

B. Qualifying Proceeding. 

1. Military judge presides; and 

2. A punitive discharge may be adjudged. This includes a rehearing on sentence which did not 

result in a punitive discharge. See United States v. Davis, 63 M.J. 171 (C.A.A.F. 2006) (“We 

conclude that the Government properly appealed the military judge’s decision under Article 62, 

UCMJ, as the sentence rehearing was empowered to adjudge any sentence authorized for the 

underlying offenses regardless of the sentence approved after the original trial.”). 

C. Qualifying Ruling. 

1. “. . . order or ruling that terminates the proceedings with respect to a charge or specification.” 

R.C.M. 908(a). 

a. Howell v. United States, 75 M.J. 386 (C.A.A.F. 2015). Article 62 limits interlocutory 

appeals – an appeal that occurs before the trial court’s final ruling on the entire case; this case 

was not an interlocutory appeal because the trial court had issued findings and sentence and 

the military judge had authenticated the record before the government appealed. 

2. “. . . order or ruling . . . which excludes evidence that is substantial proof of a fact material....” 

R.C.M. 908(a). 

a. United States v. Vargas, 74 M.J. 1 (C.A.A.F. 2014). The proper test to apply when 

determining whether a ruling excludes evidence under Article 62, UCMJ, is whether the 

ruling at issue in substance or in form has limited the pool of potential evidence that would 

be admissible. A military judge’s denial of a government’s request for a continuance to 

accommodate the availability of witnesses did not constitute an exclusion of evidence 

appealable under Article 62. 

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b. United States v. Bradford, 68 M.J. 371 (C.A.A.F. 2010) (finding that a military 

judge’s decision to not “preadmit” evidence did not constitute “[a]n order or ruling which 

excludes evidence that is substantial proof of fact material in the proceeding). 

c. United States v. Pacheco, 36 M.J. 530 (A.F.C.M.R. 1992) (“it is not necessary that 

the evidence suppressed be the only evidence in the case”); United States v. Hamilton, 36 

M.J. 927 (A.F.C.M.R. 1993). 

3. Or, the functional equivalent of an R.C.M. 908 appealable order. 

a. United States v. Sepulveda, 40 M.J. 856 (A.F.C.M.R. 1994). The MJ granted 

defense’s motion to dismiss three specifications of indecent acts as lesser-included offenses 

of three indecent assault specifications also charged, and further granted defense’s motion to 

consolidate three specs of indecent assault into one specification. AFCMR found jurisdiction 

for appeal appropriate to determine whether dismissal should be with or without prejudice, 

because the MJ terminated proceedings with regard to indecent acts specifications. 

Jurisdiction was also proper with regard to the consolidated specificatrions since 

consolidation is a functional equivalent of dismissal. 

b. United States v. True, 28 M.J. 1 (C.M.A. 1989). The MJ’s abatement order was the 

“functional equivalent” of a ruling that terminates the proceedings. The MJ ordered the 

Government to provide a defense expert and the CA would not pay. Use the “practical 

effects” test. See also United States v. Metcalf, 34 M.J. 1056 (A.F.C.M.R. 1992). 

c. United States v. Harding, 63 M.J. 65 (C.A.A.F. 2006). MJ’s abatement order in this 

case was not a “termination of proceedings” and the Government appeal was not valid under 

Article 62, UCMJ. MJ simply abated proceedings pending enforcement of a warrant of 

attachment; in this case the Government acknowledged that the Marshal’s Service had not 

enforced the writ of attachment the MJ issued to obtain certain records. 

4. BUT NOT “an order or ruling that is, or amounts to, a finding of not guilty of a charge or 

specification.” 

United States v. Adams, 52 M.J. 836 (A.F. Ct. Crim. App. 2000). Appellate court lacked 

jurisdiction to hear government appeal of military judge's granting of defense motion for a 

finding of not guilty pursuant to R.C.M. 917. But see United States v. Brooks, 41 M.J. 792 

(Army Ct. Crim. App. 1995). A court-martial panel president announced guilty to 

specification “by absolute majority.” Voir dire of the panel indicated several straw votes 

were taken on the specification - which resulted in insufficient votes to convict - MJ entered 

finding of not guilty to specification. Government filed appeal under R.C.M. 908. The 

appellate court had jurisdiction, notwithstanding a finding of not guilty, since MJ’s 

characterization of the action was not controlling, and since the case was a members trial, 

only the panel could evaluate the evidence and render findings as to guilt or innocence 

(except for R.C.M. 917 finding). Therefore, the act of the MJ amounted to a dismissal with 

prejudice, and was a proper subject for government appeal. 

5. Classified Information. The 1996 expansion of Art. 62, and 1998 changes to R.C.M. 

908(a), permits appeal of a judge’s order or ruling directing disclosure of classified information 

or imposing sanctions for nondisclosure of classified information. The government may also 

appeal a refusal of the judge to issue a protective order to prevent disclosure of classified 

information, or refusal to enforce such an order previously issued by competent authority. 

B. Nature of Appellate Review 

1. Review by Court of Criminal Appeals. When reviewing matters under Article 62(b), 

UCMJ, a CCA may act only with respect to matters of law. The question during such a review is 

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not whether the reviewing court might disagree with the trial court’s findings, but whether those 

findings are fairly supported by the record. United States v. Baker, 70 M.J. 283 (C.A.A.F. 2010). 

The appellate court will review the military judge’s decision directly and will review the evidence 

in the light most favorable to the party which prevailed below. United States v. Buford, 74 M.J. 

98 (C.A.A.F. 2014) 

2. Further appellate review. In United States v. Lopez de Victoria, 66 M.J. 67 (2008), the 

CAAF decided 3-2 that it had statutory authority to exercise jurisdiction over the courts of 

criminal appeals’ decisions in Article 62 cases despite the absence of an express grant of 

authority in Article 67(a). Relying on the express language in Article 67(a) that the CAAF has 

jurisdiction over “all cases reviewed by a Court of Criminal Appeals . . . ,” the majority reasoned 

that Congress intended uniformity in the application of the Code between the services. If “all 

cases” did not include government appeals, which are by their very nature interlocutory appeals, 

then the purpose of the statute would be defeated. The dissent reasoned that nothing in the plain 

language of Article 62, Article 67, or any other statute grants the CAAF the statutory authority to 

entertain an Article 62 appeal. 

C. Government Appeal Procedure at the Trial Level. 

1. Trial counsel may request a delay of not more than 72 hours. R.C.M. 908(b)(1). 

2. A court-martial may not proceed, except as to matters unaffected by the ruling or order. 

3. The decision to file a notice of appeal with the judge must be authorized by the SJA or the 

GCMCA. For example, see Dep’t. of Army, Reg. 27-10, Military Justice, para. 12-3 (11 May 

2016). 

4. Written notice of the appeal must be filed with the military judge not later than 72 hours after 

the ruling or order. R.C.M. 908(b)(3). 

a. United States v. Daly, 69 M.J. 485 (C.A.A.F. 2011). The CAAF held the 

Government’s action was untimely because it failed to file either a motion for reconsideration 

of the order to dismiss or a notice of appeal within the seventy-two-hour period of 

government appeals authorized in Article 62(a)(2), UCMJ. Instead, the Government took 

twelve days to finalize and submit a brief to the military judge asking for reconsideration of 

the order to dismiss. 

b. United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010). The government has an 

unqualified seventy-two hour period to file a notice of appeal. The government need not 

request a delay in the proceedings in order to preserve the seventy-two hour period for filing 

a notice of appeal. 

c. United States v. Flores-Galarza, 40 M.J. 900 (N.M.C.M.R. 1994). The appellate 

court found R.C.M. 908 provision to file appeal within 72 hours mandatory, and a MJ has no 

authority to extend the time for filing appeal notice. To avoid procedural issues in the future, 

the court recommended the following: 1) MJ should enter essential findings 

contemporaneously with ruling on motion; 2) MJ should state on record that his action is 

ruling of the court; 3) if MJ rules adverse to the government on a significant matter, the MJ 

should then ascertain on the record whether the government is contemplating an appeal; and, 

4) if the government is contemplating an appeal, the MJ should state on record the time of the 

ruling, i.e., the time the 72-hour period will run, and how and where the government may 

provide the MJ with written notice of appeal. See also United States v. Santiago, 56 M.J. 610 

(N.M.C.C.A. 2001). 

5. Written notice to the military judge shall (R.C.M. 908(b)(3)): 

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6. Specify the order appealed and the charges and specifications affected. 

7. Certify that the appeal is not for the purpose of delay. 

8. Certify that the evidence excluded is substantial proof of a material fact. 

9. Automatic Stay. Notice of appeal “automatically stays” trial proceedings except as to 

unaffected charges or specifications. R.C.M. 908(b)(4). 

a. Motions may be litigated in the judge’s discretion. 

b. If trial on merits has not begun: 

(1) Severance at the request of all parties. 

(2) Severance requested by the accused to prevent manifest injustice. 

10. If trial on merits has begun: a party may put on additional evidence within the judge’s 

discretion. 

11. Requesting reconsideration. 

a. Should be undertaken upon request. United States v. Tucker, 20 M.J. 602 

(N.M.C.M.R. 1985). But see United States v. Vangelisti, 30 M.J. 234 (C.M.A. 1990) 

(military judge did not abuse his discretion in denying the prosecution’s request to reopen 

after granting the defense motion to suppress the accused’s confession). 

b. Scope of reconsideration. Harrison v.United States, 20 M.J. 55 (C.M.A. 1985). A 

trial judge has inherent authority, not only to reconsider a previous ruling on matters properly 

before him, but also to take additional evidence in connection therewith. 

c. Effect of reconsideration and time limits. United States v. Santiago, 56 M.J. 610 

(N.M.C.C.A. 2001). The denial of a reconsideration ruling can be appealed, and the time 

limit within which to appeal does not start until the trial court rules on the petition for 

reconsideration. While the MCM does not address timeliness of request for reconsideration, 

the time limits from Article 62 and R.C.M. 908 are appropriately applied to such requests in 

assessing the timeliness for purpose of appeal. 

12. Tolls Speedy Trial. Article 62(c), UCMJ, provides that delays resulting from an appeal 

under Article 62 shall be excluded from speedy trial analysis unless an appropriate authority 

determines that the appeal was filed solely for the purpose of delay with the knowledge that it 

was totally frivolous and without merit. United States v. Danylo, 73 M.J. 183 (C.A.A.F. 2014). 

The government gets a NEW 120 DAY CLOCK. R.C.M. 707(b)(3)(C). 

13. Pretrial confinement of accused pending government appeal. R.C.M. 908(b)(9): If an 

accused is in pretrial confinement at the time the United States files notice of its intent to appeal, 

the commander, in determining whether the accused should be confined pending the outcome of 

an appeal by the United States, should consider the same factors which would authorize the 

imposition of pretrial confinement under R.C.M. 305(h)(2)(B). 

14. Record of trial: 

15. Prepared and authenticated to the extent necessary to resolve the issue appealed. R.C.M. 

908(b)(5). 

16. Essential findings. 

a. When ruling on motions to suppress evidence, military judges are required to state 

their essential findings of fact on the record (R.C.M. 905(d)). 

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b. Findings should be logical and complete enough so that there is no need to resort to 

other parts of the record for meaning. 

c. Military judge should state the legal basis for the decision—the legal standards 

applied and the analysis of the application of these standards to the facts previously stated. 

d. Military judge should state any conclusions made and the decision. 

e. Help frame issues at the trial level; seek clarity and precision in judge’s ruling. 

17. Military judge or Court of Criminal Appeals may require additional portions of the record. 

18. “Forwarding” of the appeal to government representative, designated by the Judge Advocate 

General. R.C.M. 908(b)(6). The matter forwarded shall include: 

19. Statement of the issues appealed. 

20. The original record or summary of the evidence. 

21. Such other matters as the Secretary concerned may prescribe 

22. The goverment must forward the appeal to the government representative within 20 days 

from the date written notice of appeal is filed with the trial court. Article 62. 

a. United States v. Combs, 38 M.J. 741 (A.F.C.M.R. 1993). Government appeal 

properly dismissed for failure to promptly forward. 

b. United States v. Snyder, 30 M.J. 662 (A.F.C.M.R. 1990). The government failed to 

forward the authenticated ROT within 20 days; the accused had remained in pretrial 

confinement pending resolution of appeal. HELD: “The right to liberty is too fundamental to 

apply an ‘almost good enough’ standard to the government’s actions.” 

23. Mailing within 20 days meets the requirements of “forwarding." United States v. Bolado, 34 

M.J. 732 (N.M.C.M.R. 1991) aff'd 36 M.J. 2 (C.M.A. 1992). 

24. The Chief, Government Appellate Division, makes the decision whether to file the appeal; 

therefore coordinate with Government Appellate from the beginning. 

B. Government Appeal Procedure at the Appellate Level 

1. Initially, must be filed at Court of Criminal Appeals. 

2. Appellate counsel represent the parties. But trial counsel and trial defense counsel must 

maintain close contact with appellate counsel. 

3. Courts of Criminal Appeals “may take action only with respect to matters of law.” See 

United States v. Solorio, 21 M.J. 251 (C.M.A. 1986). A Court of Cirminal Appeals has no 

authority to find facts in an Article 62, UCMJ, appeal. See United States v. Baker, 70 M.J. 283 

(C.A.A.F. 2010). 

4. Standard of review. 

a. Did the military judge “err as a matter of law”? 

(1) Questions of law are reviewed de novo. United States v. Kosek, 41 M.J. 60 

(1994). 

(2) See United States v. Rittenhouse, 62 M.J. 509 (A.C.C.A. 2005) (holding military 

judge erred in applying the law to computer evidence and admissions). 

b. Findings of fact 

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(1) “[I]f a military judge’s finding of fact is supported by the evidence of record (or 

lack thereof), then it shall not be disturbed on appeal taken under Article 62.” United 

States v. Vangelisti, 30 M.J. 234 (C.M.A. 1990). 

(2) United States v. Lincoln, 42 M.J. 315 (1995). N.M.C.M.R. reversed MJ on a 

government appeal of the suppression of a confession, and ordered the confession 

admitted into evidence. CAAF noted, “on questions of fact the appellate court is limited 

to determining whether the military judge’s findings are clearly erroneous or unsupported 

by the record. If the findings are incomplete or ambiguous, the ‘appropriate remedy . . . 

is a remand for clarification’ or additional findings.” 

(3) United States v. Reinecke, 30 M.J. 1010 (A.F.C.M.R. 1990). When ruling on 

motions to suppress, the MJ is required to state essential findings on the record; findings 

stated separately and succinctly; findings logical and complete enough so the appellate 

court does not have to resort to other parts of record for meaning; after stating findings, 

MJ should state legal basis for decision, i.e., legal standards applied and analysis of the 

application of the standards to the facts previously stated; and, MJ should state any 

conclusions made and why. 

(4) BUT “clearly erroneous” factual findings do not bind Courts of Criminal 

Appeals. 

(5) United States v. Burris, 21 M.J. 140 (C.M.A. 1985); United States v. Clarke, 23 

M.J. 519 (A.F.C.M.R. 1986), aff’d 23 M.J. 352 (C.M.A. 1987) “We will reverse for an 

abuse of discretion if the military judge’s findings of fact are clearly erroneous or if his 

decision is influenced by an erroneous view of the law....” United States v. Dooley, 61 

M.J. 258 (2005), citing United States v. Gore, 60 M.J. 178 (2004). 

(6) United States v. Hatfield, 43 M.J. 662 (N.M.C.C.A. 1995). MJ dismissed charges 

on speedy trial grounds. NMCCA reversed on government appeal, applying standard of 

review that “findings by the trial court are ‘clearly erroneous’ when, although there is 

some evidence to support them, the appellate court is left with the definite and firm 

conviction that a mistake has been made.” Appellate court cannot simply substitute its 

own judgment of what constitutes “reasonable diligence.” 

5. The CAAF or U.S. Supreme Court may stay trial pending additional review. 

II. EXTRAORDINARY WRITS 

A. The All Writs Act. 

1. “All Writs Act.” 28 U.S.C. § 1651(a). “The Supreme Court and all courts established by act 

of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions 

and agreeable to the usages and principles of law.” 

2. “[A]ll courts established by act of Congress.” Includes both Court of Appeals for the Armed 

Forces and service Courts of Criminal Appeals. United States v. Dowty, 48 M.J. 102 (1998); 

McKineey v. Jarvis, 46 M.J. 870 (Army Ct. Crim. App. 1997). See also Noyd v. Bond, 395 U.S. 

683 (1969); United States v. Curtin, 44 M.J. 439 (1996); Dettinger v. United States, 7 M.J. 216 

(C.M.A. 1979); McPhail v. United States, 1 M.J. 457 (C.M.A. 1976); United States v. Frischholz, 

16 U.S.C.M.A. 150, 36 C.M.R. 306 (1966). 

B. No Automatic Stay. At trial, if a party (usually defense) seeks extraordinary relief, there is no 

requirement to continue the trial to allow the party to petition the appellate court. If the appellate 

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court grants a stay, however, the military judge must stop the proceedings pending resolution of the 

issue. 

C. Theories of Jurisdiction. 

1. Actual Jurisdiction: The authority of the appellate courts to review a court-martial on direct 

review. 

a. Article 66, UCMJ—Court of Criminal Appeals jurisdiction. Every court-martial in 

which the approved sentence extends to death, dismissal, punitive discharge or confinement 

for one year or more. 

b. Article 67, UCMJ—Court of Appeals for the Armed Forces jurisdiction. Every 

court-martial in which the sentence as affirmed by a Court of Criminal Appeals extends to 

death . . . cases certified by the Judge Advocate General . . . and cases reviewed by Courts of 

Criminal Appeals where accused shows good cause for grant of review. 

c. Article 69, UCMJ—The Court of Criminal Appeals may review any court-martial 

where action was taken by the Judge Advocate General pursuant to his authority under 

Article 69, or has been sent to the Court by the Judge Advocate General for review. 

2. Potential Jurisdiction. The authority to determine a matter that may reach the actual 

jurisdiction of the court. 

a. San Antonio Express-News v. Morrow, 44 M.J. 706 (A.F. Ct. Crim. App. 1996). 

Petition for writ of mandamus to open Article 32 hearing to public where USAF major 

charged with murder of child. Court found jurisdiction to consider petition for extraordinary 

relief in exercising supervisory authority over court-martial process, and over cases that may 

potentially reach court on appeal. Since Article 32 hearing is integral part of court-martial 

process, then court has jurisdiction to supervise each tier of military justice process. And see, 

The Denver Post Corp. v. The United Statesand CPT Robert Ayers, 2005 WL 6519929 Army 

No. 20041215, (February 23, 2005) (unpublished) (holding, pursuant to all writs 

authority,respondent's decision to completely close the Article 32 clearly erroneous and a 

usurpation of authority, also finding the decision would resolve recurrent issues that would 

appear in future cases, and finding awaiting relief in the ordinary course of appellate review 

would be an inadequate remedy to preserve the public interest at issue). 

b. U.S.N.M.C.M.R. v. Carlucci, et al, 26 M.J. 328 (C.M.A. 1988); Waller v. Swift, 30 

M.J. 139, 142 (C.M.A. 1990). (“The sentence adjudged by the court-martial included a 

punitive discharge and so was of a severity that would have authorized direct appellate 

review by this court. Indeed, even in its commuted form, the sentence is of such severity.”). 

See also Addis v. Thorsen, 32 M.J. 777 (C.G.C.M.R. 1991) (CCA had potential jurisdiction to 

review record of case in which accused petitioned for extraordinary relief in nature of writ of 

habeas corpus from adjudged confinement through referral of case by judge advocate general 

for review of record, and accordingly CCA had jurisdiction to entertain the extraordinary 

writ, although case was awaiting decision on accused's request for referral by judge advocate 

general) 

3. Ancillary jurisdiction. The authority to determine matters incidental to the court's exercise 

of its primary jurisdiction, such as ensuring adherence to a court order. Boudreaux v. 

U.S.N.M.C.M.R., 28 M.J. 181 (C.M.A. 1989) (court retained ancillary jurisdiction over case 

which it had remanded, to ensure that case was resolved in manner consistent with mandate of 

court, notwithstanding that accused received punishment on remand well below the statutory 

threshold for mandatory review); United States v. Montesinos, 28 M.J. 38, n.3 (C.M.A. 1989) 

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(Because the integrity of the judicial process is at stake, appellate courts can issue extraordinary 

writs on their own motion). 

4. Supervisory Jurisdiction. The broad authority to determine matters that fall within the 

supervisory function of administering the military justice system. 

a. Unger v. Zemniak, 27 M.J. 349 (C.M.A. 1989). Military appellate courts have 

jurisdiction to grant extraordinary relief under the All Writs Act over courts-martial that do 

not qualify for review in the ordinary course of appeal. 

b. Jones v. Commander, 18 M.J. 198 (C.M.A. 1984) (Everett, C.J., dissenting). The 

court refused to exercise writ jurisdiction over a nonjudicial punishment proceeding. 

B. Actual v. Supervisory Jurisdiction; the All Writs Act and Goldsmith 

1. Background: Pre-Goldsmith Case Law. 

a. ABC Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997). Absent “good cause,” petitions for 

extraordinary relief should be submitted initially to the Court of Criminal Appeals. The 

CAAF exercised supervisory jurisdiction under the All Writs Act to grant relief during an 

Article 32(b) Investigation. 

b. Loving v. Hart, 47 M.J. 438 (C.A.A.F. 1998). The CAAF has jurisdiction to issue a 

writ under the All Writs Act even after the case has been affirmed by the Supreme Court. 

The accused sought extraordinary relief because his death sentence was based in part on a 

conviction of felony murder that was unsupported by a unanimous finding of intent to kill or 

reckless indifference to human life. This was an issue raised by Justice Scalia during oral 

argument before the Supreme Court. The CAAF heard the petition but denied relief. 

c. United States v. Dowty, 48 M.J. 102 (C.A.A.F. 1998). The CAAF has authority 

under the All Writs Act to exercise jurisdiction over issues arising from proceedings where 

the Court would not have had direct review. 

d. Dew v. United States, 48 M.J. 639 (A. Ct. Crim. App. 1998). Under the All Writs 

Act, the Army Court has supervisory jurisdiction to consider, on the merits, a writ 

challenging the action taken by The Judge Advocate General pursuant to Article 69(a), 

UCMJ. The accused was convicted of making and uttering worthless checks by dishonorably 

failing to maintain funds. The Office of the Army Judge Advocate General reviewed the case 

and denied relief. The accused petitioned the Army Court, challenging the decision made by 

the Office of the Judge Advocate General. The Army Court exercised its supervisory 

authority under the All Writs Act, heard the petition, but denied relief. 

e. Morgan v. Mahoney, 50 M.J. 633 (A.F. Ct. Crim. App. 1999). The government 

involuntarily recalled the accused (a member of the retired reserves) to active duty to face a 

court-martial. At trial, the accused challenged the jurisdiction of the court-martial. The 

military judge denied the accused’s motion, and the accused petitioned the Air Force Court 

seeking an extraordinary writ ordering the military judge to dismiss all charges and 

specifications. The service court held that it had jurisdiction under the All Writs Act to hear 

the issue and denied the accused’s relief. In denying the writ, the court found that the 

accused was a member of retired reserves, which made him part of the reserve component 

and subject to lawful orders to return to active duty. Since the accused was in an active duty 

status at the time of trial, the court-martial did not lack in personam jurisdiction. 

2. Clinton v.Goldsmith, 119 S.Ct. 1538 (1999). The CAAF exercised supervisory jurisdiction 

under the All Writs Act to stop the government from dropping the accused from the rolls of the 

Air Force. The Supreme Court held that the CAAF lacked jurisdiction, under the All Writs Act, 

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to issue the injunction in question because, (1) the injunction was not "in aid of" the CAAF's 

strictly circumscribed jurisdiction to review court-martial findings and sentences; and (2) even if 

the CAAF might have had some arguable basis for jurisdiction, the injunction was neither 

"necessary" nor "appropriate," in light of the alternative federal administrative and judicial 

remedies available, under other federal statutes, to a service member demanding to be kept on the 

rolls. In a unanimous decision, the Supreme Court held that CAAF exceeded its supervisory 

jurisdiction under the All Writs Act. 

3. Jurisdicion Case Law (Post-Goldsmith). 

a. United States v. Byrd, 53 M.J. 35 (2000). In October 1996, the Navy-Marine Corps 

Court affirmed the accused’s conviction and sentence, which included a punitive discharge. 

The accused did not petition CAAF for review until 22 January 1997. On 2 January 1997 the 

convening authority executed his sentence under Article 71. The service court held that since 

the accused did not petition CAAF for review within 60 days, the intervening discharge 

terminated jurisdiction. CAAF vacated the lower court's decision on the grounds that the 

government failed to establish the petition for review as being untimely and, therefore, the 

sentence had been improperly executed. CAAF also stated it has jurisdiction to review such a 

case under the All Writs Act, notwithstanding execution of the punitive discharge, but 

declined to decide which standard of review was more appropriate, direct or collateral. 

b. Ponder v. Stone, 54 M.J. 613 (N-M. Ct. Crim. App. 2000). Accused refused order to 

receive anthrax vaccination and submitted a request for a stay of proceedings by way of a 

writ of mandamus. Government argued that the Navy court lacked jurisdiction to entertain 

the petition under Goldsmith, because the court could only grant extraordinary relief on 

matters affecting the findings and sentence of a court-martial. NMCCA disagreed, stating 

that review of the petition under the All Writs Act was properly a matter in aid of its 

jurisdiction. 

c. Fisher v. United States, 56 M.J. 691 (N-M. Ct. Crim. App. 2001). Accused filed 

petition for extraordinary relief. The government argued that the appellate court had no 

jurisdiction to consider the petition because the accused’s court-martial was final under 

Article 76. The NMCCA disagreed and considered the petition but denied it. 

d. United States v. Denedo, 129 S. Ct. 2213 (2009). The accused filed an extraordinary 

writ in the Navy-Marine Court, alleging ineffective assistance of counsel almost ten years 

after his case had become final under Article 71. The Navy-Marine Court denied relief. The 

CAAF granted review of the accused’s extraordinary writ. The government appealed the 

CAAF’s decision to the Supreme Court, asserting that neither the Navy-Marine Court nor the 

CAAF had jurisdiction in this case. Without overturning Goldsmith, the Supreme Court ruled 

that the CAAF and the Navy-Marine Court did, in fact, have jurisdiction. The Supreme Court 

reasoned that jurisdiction was proper since the accused’s petition directly challenged the 

validity of his conviction. Article 76, UCMJ, addressing the finality of a court-martial 

conviction after completion of direct review, provides a prudential constraint on collateral 

review, not a jurisdictional limitation. 

B. Extraordinary Circumstances. 

1. Much like the military appellate courts, federal courts struggle with the scope of their 

jurisdiction under the All Writs Act. The Supreme Court held that federal courts can exercise 

writ jurisdiction to protect the legal rights of parties, and are not limited to orders protecting just 

the courts’ own duties and jurisdiction. See United States v. New York Telephone Co., 434 U.S. 

159 (1977). 

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2. Ordinary course of appellate review of trial cannot give adequate relief. Andrews v. Heupel, 

29 M.J. 743 (A.F.C.M.R. 1989). “An extraordinary writ is not to be a substitute for an appeal 

even though hardship may ensue from delay and perhaps an unnecessary trial.” 

3. Circumstances warrant extraordinary relief. 

a. McCray v. Grande, 38 M.J. 657 (A.C.M.R. 1993). Petitioner seeks extraordinary 

writ for release from confinement. CA commuted BCD to four months, but did so five 

months after sentencing. Accused was immediately taken to the brig at Camp Lejeune. The 

brig determined that the accused’s sentence ran from date of sentence and not confinement 

and released the accused. A week later, the accused was taken to an Army facility. The Army 

facility took the position that the accused’s sentence began on the date that the CA commuted 

the BCD to six months and incarcerated petitioner. Proper subject for review by Court, and 

ordered release. 

b. Keaton v. Marsh, 43 M.J. 757 (Army Ct. Crim. App. 1996). Petition for writ of 

habeas corpus by accused who was ordered released from pretrial confinement by military 

magistrate, and subsequently ordered back into pretrial confinement by military judge. Court 

found propriety of accused’s pretrial confinement proper subject for extraordinary writ, and 

ordered release. 

c. Petition for writ of prohibition by accused who was a retiree challenging the right of 

the military justice system to exercise jurisdiction over him was an extraordinary situation 

warranting consideration. Pearson v. Bloss, 28 M.J. 764 (A.F.C.M.R. 1989). See also Sands 

v. Colby, 35 M.J. 620 (A.C.M.R.). 1992). 

d. Toohey v. United States, No. 04-8019, 2004 CAAF LEXIS 656 (Jul. 2, 2004). 

Petitioner seeks extraordinary writ for release from confinement because of lengthy appellate 

delay. The chronology of the case indicates that the Petitioner has not received his first level 

of appeal as of right more than five years and ten months after his sentence was adjudged. 

Court agrees that delay is unreasonable but does not order release. Court gives Navy-Marine 

Corps Court 90 days to issue decision. 

e. United States v. Kreutzer, 60 M.J. 453 (2005). (Crawford, J., dissenting). As 

Petitioner not currently under sentence of death, writ of mandamus granted to the extent that 

Petitioner must be moved from death row. 

f. United States v. Buber, 61 M.J. 70 (2005). (Crawford, J., dissenting). Army Court 

dismissed specification supporting remaining confinement and Government filed for 

reconsideration. Writ of habeas corpus granted with direction to release Petitioner from posttrial confinement immediately. 

4. Available remedies are exhausted. 

5. Relief will advance judicial economy. 

a. Maximize utility of judicial resources. 

b. Resolve recurrent issues that will inevitably lead to more cases in the future. 

c. To prevent a waste of time and energy of military tribunals. 

B. Writ classifications. 

1. Mandamus. Directs a party to take action; rights are not established or created; pre-existing 

duty enforced. In order to prevail on a writ of mandamus, appellant must show that: (1) there is 

no other adequate means to attain relief; (2) the right to issuance of the writ is clear and 

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indisputable; and (3) the issuance of the writ is appropriate under the circumstances. See Hasan 

v. Gross, 71 M.J. 416 (C.A.A.F. 2012). 

2. Prohibition. Directs a party to cease doing an act or prohibits execution of a planned act that 

violates a law or an individual’s rights. 

3. Error Coram Nobis. “Error in our court”; a review of a court’s own prior judgment 

predicated on a material error of fact, or to correct constitutional or fundamental errors, including 

those sounding in due process. 

4. Habeas Corpus. “That you have the body”; directs the release of a person from some form 

of custody. 

C. Filing a writ. 

1. Preliminary Considerations. 

a. Does the case qualify? 

(1) Jurisdiction. 

(2) Relief sought. 

(3) Extraordinary Circumstance. 

b. Must the military judge grant a continuance? 

(1) Discretion of the military judge (R.C.M. 906(b)(1)). 

(2) No automatic stay; but once a stay is issued by CCA or CAAF, proceedings must 

stop. 

c. Which forum? 

(1) There is a preference for initial consideration by a CCA. See ABC, Inc. v. 

Powell, 47 M.J. 363 (1997); United States v. Redding, 11 M.J. 100 (C.M.A. 1981) 

(opinion of Cook, J.); See also R.C.M. 1204(a), Discussion (C.M.R. filing favored for 

judicial economy). 

(2) CAAF, Rules of Practice and procedure, Rule 4(b)(1): The Court may, in its 

discretion, entertain original petitions for extraordinary relief . . .. Absent good cause, no 

such petition shall be filed unless relief has first been sought in the appropriate Court of 

Criminal Appeals. Original writs are rarely granted. 

d. Considerations of time and subject matter. 

2. Special rule for trial counsel. Before filing an application for extraordinary relief on behalf of 

the government, government representatives should (will) coordinate with Appellate 

Government. 

D. Procedure. 

1. Petitioner has initial burden of persuasion to show jurisdiction and extraordinary 

circumstances. The party seeking relief has an “extremely heavy burden.” McKinney v. Jarvis, 

46 M.J. 870, 873 (Army Ct. Crim. App. 1997; United States v. Mahoney, 36 M.J. 679, 685 

(A.F.C.M.R. 1992). The petitioner must show that the complained of actions were more than 

“gross error” and constitute a “judicial usurpation of power.” San Antonio Express-News v. 

Morrow, 44 M.J. 706 (A.F. Ct. Crim. App. 1996). 

2. The “show cause” order shifts burden. 

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IV. VICTIM WRITS 

Article 6b, UCMJ, was amended in 20015 and 2016, to state that if a victim of an offense under the 

UCMJ believes that a ruling by a military judge, or an Art. 32 preliminary hearing officer, violates the 

victim’s rights afforded by Military Rules of Evidence 412, 513, 514, and 615, or that orders a victim 

to submit to a deposition, the victim may petition the Court of Criminal Appeals for a writ of 

mandamus to require the court-martial to comply with the Military Rules of Evidence, or to quash the 

deposition order. Article 6b is unique in that it provides victims a statutory right to petition for a Writ 

of Mandamus even before a case has been referred to a court-martial. 

V. APPEALS AT THE COURTS OF CRIMINAL APPEALS: ARTICLES 66 

AND 69, UCMJ; R.C.M. 1201 

A. Cases automatically reviewed by a Court of Criminal Appeals (Article 66). 

1. Cases in which the approved sentence includes death. 

2. Cases in which the approved sentence includes a punitive discharge or confinement for a year 

or more. 

B. Scope of CCA review: both law and fact. 

1. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992). Courts of Military Review need not 

address in writing all assignments of error, so long as the written opinion notes that judges 

considered any assignments of error and found them to be without merit. 

2. United States v. Quigley, 35 M.J. 345 (C.M.A. 1992). Choice of whether to call appellate 

court’s attention to issue rests with counsel, although choice is subject to scrutiny for effective 

assistance of counsel in each case. 

3. United States v. Gunter, 34 M.J. 181 (C.M.A. 1992). Error for CMR to deny accused’s 

motion to submit handwritten matter for consideration by that court (detailed summary by 

appellate defense counsel not sufficient). 

C. Power of Courts of Criminal Appeals (CCAs). UCMJ, Article 66(c): 

1. “It may affirm only such findings of guilty and the sentence or such part or amount of the 

sentence, as it finds correct in law and fact and determines, on the basis of the entire record, 

should be approved. In considering the record, it may weigh the evidence, judge the credibility of 

witnesses, and determine controverted questions of fact, recognizing that the trial court saw and 

heard the witnesses.” 

2. United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010). CAAF found error where CCA set 

aside and dismissed finding of guilty to the child pornography offense based on “unique 

circumstances.” While the CCA clearly has the authority to disapprove part or all of the sentence 

and findings, nothing suggests that Congress intended to provide the CCAs with unfettered 

discretion to do so for any reason, for no reason, or on equitable grounds, which is a function of 

the command prerogative of the convening authority. 

3. United States v. Cole, 31 M.J. 270 (C.M.A. 1990). “Article 66(c)[‘s] . . . awesome, plenary, 

de novo power of review” grants CCAs the authority to substitute their judgment for that of the 

MJ. It also allows a “substitution of judgment” for that of the court members. 

4. United States v. Claxton, 32 M.J. 159 (C.M.A. 1991). A “carte blanche” to do justice. J. 

Sullivan in dissent notes CCAs are still bound by the law. 

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5. United States v. Keith, 36 M.J. 518 (A.C.M.R. 1992). In appropriate case, the ACMR may 

fashion equitable and meaningful remedy regarding sentence. 

6. United States v. Smith, 39 M.J. 448 (C.M.A. 1994). Plenary, de novo power of CCA does not 

include finding facts regarding allegations of which fact finder has found accused not guilty. 

7. United States v. Lewis, 38 M.J. 501 (A.C.M.R. 1993), aff’d, 42 M.J. 1 (C.A.A.F. 2005). 

Appellate court has authority to investigate allegations of IAC, including authority to order 

submission of affidavits and a hearing before a MJ. 

8. United States v. Joyner, 39 M.J. 965 (A.F.C.M.R. 1994). In reviewing severity of sentence, 

appellate court’s duty is to determine whether accused’s approved sentence is correct in law and 

fact based on individualized consideration of nature and seriousness of offense and character of 

accused. United States v. Smith, 56 M.J. 653 (A. Ct. Crim. App. 2001) (holding that nine-year 

sentence for escape from Disciplinary Barracks and related offenses not inappropriately severe 

even though co-accused and individual who initiated the scheme to escape only received three 

years). See also United States v. Hundley, 56 M.J. 858 (N-M. Ct. Crim. App. 2002); United 

States v. Ransom, 56 M.J. 861 (A. Ct. Crim. App. 2002). 

9. United States v. Ragard, 56 M.J. 852 (A. Ct. Crim. App. 2002). Clemency power is not 

within the powers granted to appellate courts by Article 66, UCMJ. Appellant argued that his 

medical condition (having AIDS) made his dismissal an inappropriately severe sentence because 

his dismissal would limit his access to medical care. The Army court disagreed, noting that 

sentence appropriateness involves a judicial function of ensuring that the accused gets the 

punishment deserved while clemency involves “bestowing mercy.” 

10. United States v. Sales, 22 M.J. 305 (C.M.A. 1986). Appellate court may reassess a sentence 

if it is convinced that the sentence would have been of at least a certain magnitude, even if there 

is no error. If there is an error, such a reassessment must purge the prejudicial impact of the error. 

If the error was of constitutional magnitude, the court must be persuaded beyond a reasonable 

doubt that its reassessment has rendered any error harmless. If the appellate court cannot be 

certain that the prejudicial impact can be eliminated by reassessment and that the sentence would 

have been of a certain magnitude, it must order a rehearing on sentence. See also United States v. 

Harris, 53 M.J. 86 (C.A.A.F. 2000) (noting that appellate courts must also make the same 

determination if a sentence has been reassessed by a convening authority). 

11. United States v. Doss, 57 M.J. 182 (C.A.A.F. 2002). Appellant convicted of assault 

consummated by a battery, assault with a dangerous weapon, and soliciting another to murder his 

wife. At trial, the DC presented no evidence on appellant’s mental condition other than his 

unsworn statement. On appeal, the NMCCA found appellant’s defense counsel ineffective during 

the sentencing portion of the trial by failing to present evidence of appellant’s mental condition. 

The court reassessed the appellant’s sentence and reduced the period of confinement from eight to 

seven years. On appeal, the CAAF found that the DC’s omissions could not be cured (i.e., 

rendered harmless beyond a reasonable doubt) by reassessing the sentence because it was 

impossible to determine what evidence a competent defense counsel would have presented. The 

court, therefore, held that the lower court abused its discretion in reassessing the sentence instead 

of ordering a rehearing. 

12. United States v. Mitchell, 58 M.J. 446 (C.A.A.F. 2003). Appellant convicted of, among other 

offenses, five drug distribution specifications and sentenced to a BCD, ten years confinement, 

total forfeitures, and reduction to E-1. On appeal, the ACCA set aside two distribution 

specifications and ordered a rehearing on sentence. On rehearing, the appellant was sentenced to 

a DD, six years confinement, and reduction to E-1. The ACCA affirmed the sentence finding that 

under an objective standard, a reasonable person would not view the rehearing sentence as “in 

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excess of or more severe than” the original sentence; therefore, Article 63, UCMJ, and R.C.M. 

810(d)(1) were not violated. The CAAF reversed as to sentence, finding that a DD is more severe 

than a BCD and no objective equivalence is available when comparing a punitive discharge with 

confinement. The CAAF affirmed only so much of the sentence as provided for a BCD, six years 

confinement, and reduction to E-1. 

13. United States v. Commander, 39 M.J. 972 (A.F.C.M.R. 1994). Appellate courts may examine 

disparate sentences when there is direct correlation between each accused and their respective 

offenses, sentences are highly disparate, and there are no good and cogent reasons for differences 

in punishment. See also United States v. Kelly, 40 M.J. 558 (N.M.C.M.R. 1994). 

14. United States v. Pingree, 39 M.J. 884 (A.C.M.R. 1994) (inappropriately severe sentence 

reassessed, dismissal disapproved). See also United States v. Hudson, 39 M.J. 958 (N.M.C.M.R. 

1994) (court disapproved BCD); United States v. Triplett, 56 M.J. 875 (A. Ct. Crim. App. 2002) 

(court reduced accused period of confinement from fifteen years to ten years based on the fiveand six-year sentences two co-accused received). 

15. United States v. Dykes, 38 M.J. 270 (C.M.A. 1993). Standard for ordering post-trial hearing 

on issue presented to appellate court: 

a) Not required where no reasonable person could view opposing affidavits, in light of 

record of trial, and find the facts alleged by accused to support claim. 

b) Required where substantial unresolved questions concerning accused’s claim. 

16. United States v. Fagan, 58 M.J. 534 (A. Ct. Crim. App. 2003), rev’d, 59 M.J. 238 (C.A.A.F. 

2004). The lower court was correct in holding that United States v. Ginn, 47 M.J. 236 (C.A.A.F. 

1997)1 provides the proper analytical framework for dealing with a post-trial affidavit raising a 

claim of cruel and unusual punishment. The lower court, however, erred in holding that it could 

grant relief at its level “in lieu of ordering a DuBay hearing (United States v. DuBay, 37 C.M.R. 

411 (C.M.A. 1967)), to resolve the disputed factual issues raised by the appellant’s affidavit. 

“The linchpin of the Ginn framework is the recognition that a Court of Criminal Appeals’ factfinding authority under Article 66(c) does not extend to deciding disputed questions of fact 

1 In United States v. Ginn, the CAAF established six principles for dealing with allegations of error raised for the 

first time on appeal in a post-trial affidavit: 

a. First, if the facts alleged in the affidavit allege an error that would not result in relief even if any factual
 

dispute were resolved in the appellant’s favor, the claim may be rejected on that basis.
 

b. Second, if the affidavit does not set forth specific facts but consists instead of speculative or conclusory
 

observations, the claim may be rejected on that basis.
 

c. Third, if the affidavit is factually adequate on its face to state a claim of legal error and the Government
 

either does not contest the relevant facts or offers and affidavit that expressly agrees with those facts, the
 

Court can proceed to decide the legal issues on the basis of those uncontroverted facts.
 

d. Fourth, if the affidavit is factually adequate on its face but the appellate filings and the record as a
 

whole “compellingly demonstrate” the improbability of those facts, the Court may discount those factual
 

assertions and decide the legal issue.
 

e. Fifth, when an appellate claim of ineffective representation contradicts a matter that is within the
 

record of a guilty plea, an appellate court may decide the issue on the basis of the appellate file and record
 

(including the admissions made in the plea inquiry at trial and appellant’s expression of satisfaction with
 

counsel at trial) unless the appellant sets forth facts that would rationally explain why he would have made 

such statements at trial but not upon appeal.
 

f. Sixth, the Court of Criminal Appeals is required to order a factfinding hearing only when the abovestated circumstances are not met. In such circumstances the court must remand the case to the trial level
 

for a DuBay proceeding.
 

Fagan, 58 M.J. at 537 (emphasis in original). 

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pertaining to a post-trial claim, solely or in part on the basis of conflicting affidavits submitted by 

the parties.” 59 M.J. 238, 242 (C.A.A.F. 2004). Finally, the lower court erred in finding a 

conflict, “where none exists” between Ginn and United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 

1998). 59 M.J. at 243. “The exercise of the ‘broad power’ referred to in Wheelus flowed from 

the existence of an acknowledged legal error or deficiency in the post-trial review process. It is 

not a ‘broad power to moot claims of prejudice’ in the absence of acknowledged legal error or 

deficiency, nor is it a mechanism to ‘moot claims’ as an alternative to ascertaining whether a 

legal error or deficiency exists in the first place.” 59 M.J. at 244. 

17. United States v. Campbell, 57 M.J. 134 (C.A.A.F. 2002). Standard for handling post-trial 

discovery issues: 

a) Has appellant met his threshold burden of demonstrating that some measure of appellate 

inquiry is warranted? If no – stop. If yes, then – 

b) What method of review should be used (e.g., affidavits, interrogatories, fact-finding 

hearing, etc.)? 

18. United States v. Hutchison, 57 M.J. 231 (C.A.A.F. 2002). Sentence review limited to 

determining appropriateness of sentence. Consideration of whether civilian criminal prosecution 

was “appropriate” is an improper consideration for the CCA. 

19. United States v. Perron, 58 M.J. 78 (C.A.A.F. 2003). Appellate courts (i.e., CCAs) cannot 

impose alternative relief on an unwilling appellant to rectify a mutual misunderstanding of a 

material term of a PTA. Appellant must consent to the proposed relief or be afforded the 

opportunity to withdraw from the prior plea. But see United States v. Lundy, 63 M.J. 299 

(C.A.A.F. 2006). 

20. United States v. Holt, 58 M.J. 227 (C.A.A.F. 2003). The lower court (AFCCA) erred, 

depriving the appellant of a proper Article 66(c) review limited to the record of trial, when it 

considered numerous exhibits for the truth of the matters asserted, “alter[ing] the evidentiary 

quality of the [exhibits]” when the military judge ruled otherwise and instructed the members that 

they were not to consider the cited evidence for the truth of the matters asserted. Id. at 233. 

“Article 66(c) limits the Courts of Criminal Appeals to a review of the facts, testimony, and 

evidence presented at trial, and precludes a Court of Criminal Appeals from considering ‘extrarecord’ matters when making determinations of guilt, innocence, and sentence appropriateness 

(citation omitted). Similarly, the Courts of Criminal Appeals are precluded from considering 

evidence excluded at trial in performing their appellate review function under Article 66(c).” Id. 

at 232. 

21. United States v. Osuna, 58 M.J. 879 (C.G. Ct. Crim. App. 2003). Appellate courts are 

limited, absent clearly erroneous findings or legal error, to the factual determinations made by 

prior panels of that court. In appellant’s first appeal, the court affirmed the findings but remanded 

for a new review and action because there was no evidence that the CA considered the appellant’s 

clemency submissions or that he was ever advised to consider the defense’s written submissions. 

C.J. Baum, in the first appeal, dissented re: findings on several offenses citing to a lack of factual 

sufficiency. On appeal the second time, the appellant renewed his challenge to the findings. The 

court, in an opinion authored by C.J. Baum, held “it would be inappropriate for us to readdress 

our previous factual determination, absent a legal error necessitating such action.” Id. at 880. 

22. United States v. Castillo, 59 M.J. 600 (N-M. Ct. Crim. App. 2003). The appellant was 

convicted of unauthorized absence terminated by apprehension and sentenced to reduction to E-1, 

fifty-one days confinement, and a BCD. On appeal [Castillo I], the appellant alleged that her 

sentence was inappropriately severe, an allegation that the court agreed with, setting aside the 

CA’s action and remanding with the following direction: 

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The record will be returned to The Judge Advocate General for remand to the 

[CA], who may upon further consideration approve an adjudged sentence no 

greater than one including a discharge suspended under proper conditions. 

Id. at 601 (quoting United States v. Castillo, No. 200101326, 2002 WL 1791911 (N-M. 

Ct. Crim. App. Jul. 31, 2002) (unpublished)). Upon remand, the SJAR erroneously 

advised the CA that the appellate court “recommended” that the punitive discharge be set 

aside. The defense counsel disagreed with the SJAR noting that the guidance from the 

NMCCA was not a recommendation. The CA, following the SJA’s advice, again 

approved a punitive discharge. Held: the CA’s decision to disregard the court’s 

guidance was “a clear and obvious error,” a decision based on advice that was similarly 

“clearly erroneous” and “misguided.” Id. Finally, the court advised that “[p]arties 

practicing before trial and appellate courts have only three options when faced with 

[their] rulings [: comply with the decision, request reconsideration, or appeal to the next 

higher authority to include certification of an issue by the Judge Advocate General].” Id. 

In exercising its sentence appropriateness authority under Article 66(c), UCMJ, the court 

approved only so much of the sentence as provided for reduction to E-1 and 51 days 

confinement, and disapproved the BCD. 

D. Cases reviewed by TJAG (Article 69(a)). 

1. Those GCMs when the approved sentence does not include a dismissal, DD, or BCD, or 

confinement for a year or more (Article 69(a)). 

2. Those cases where a JA finds, under R.C.M. 1112, that as a matter of law corrective action 

should be taken and the GCMCA does not take action that is at least as favorable to the accused 

as that recommended by the JA (R.C.M. 1112(g)(l)). 

3. Cases which have been finally reviewed, but not reviewed by a CCA or TJAG (per R.C.M. 

1201(b)(1)), may sua sponte or upon application of the accused under Article 69(b) be reviewed 

on the grounds of: 

a) Newly discovered evidence. 

b) Fraud on the court. 

c) Lack of jurisdiction. 

d) Error prejudicial to the substantial rights of the accused. 

e) Appropriateness of the sentence. 

4. TJAG may consider if the sentence is appropriate and modify or set aside the findings or 

sentence. 

5. TJAG has the power to authorize a rehearing. 

E. United States Army Legal Services Agency (USALSA). 

1. Army Court of Criminal Appeals (Article 66, UCMJ). 

2. Defense Appellate Division (Article 70, UCMJ). 

3. Government Appellate Division (Article 70, UCMJ). 

4. Examination and New Trials Division (Article 69, UCMJ). 

VI. REVIEW BY THE COURT OF APPEALS FOR THE ARMED 

FORCES: ARTICLES 67 & 142, UCMJ; R.C.M. 1204 

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A. Authorized five judges since 1 October 1990. 

B. Expanded role of Senior Judges. 

C. Service of Article III Judges. 

D. Cases reviewed. 

1. All cases in which the sentence as approved by a Court of Criminal Appeals extends to death. 

2. All cases reviewed by a Court of Criminal Appeals which TJAG orders sent to the CAAF for 

review. 

3. All cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and 

on good cause shown, the CAAF has granted a review. 

4. Extraordinary writ authority. 

E. United States v. Schoof, 37 M.J. 96 (C.M.A. 1993). Equal protection and due process challenge 

to TJAG’s authority to certify issues under Article 67. 

F. United States v. Jones, 39 M.J. 315 (C.M.A. 1994). Power of the CAAF usually does not include 

making sentence-appropriateness determinations; that is the province of the Courts of Criminal 

Appeals. 

G. United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009). Article 67(b), UCMJ, provides that the 

appellant has sixty days from the date of notification of a Court of Criminal Appeals decision to 

petition the Court of Appeals for the Armed Forces for review. The appellant in this case filed his 

petition for review approximately 73 days after notification of the NMCCA decision. The United 

States Supreme Court decided Bowles v. Russell, 551 U.S. 205 (2007), shortly before the NMCCA 

decision in this case. Bowles concluded that statutory periods within which an accused may file a 

petition for review are jurisdictional. The CAAF holds that Article 67(b) is jurisdictional. Appeal 

was outside the authority of the CAAF to grant. 

H. Abatement Ab Initio. United States v. Rorie, 58 M.J. 399 (C.A.A.F. 2003). Appeal to the CAAF 

under Article 67(a)(3), UCMJ, is a matter of discretion and NOT a matter of right. As such, the 

CAAF will no longer grant abatement ab initio upon death of an appellant pending Article 67(a)(3) 

appellate review, reversing a policy followed by the court since 1953. Abatement ab initio is a 

“matter of policy in Federal courts,” not mandated by the Constitution or statute, and is not part of the 

Rules of Practice and Procedures for the CAAF. By reversing its prior 50-year policy, the court is 

now in line with the rule established by the Supreme Court in Dove v. United States, 423 U.S. 325 

(1976). To the extent that United States v. Kuskie, 11 M.J. 253 (C.M.A. 1981) and Berry v. The 

Judges of the United States Army Court of Military Review, 37 M.J. 158 (C.M.A. 1983) are 

inconsistent with this decision, they were overruled. See also United States v. Ribaudo, 62 M.J. 286 

(C.A.A.F. 2006). 

I. Decisions of the Court of Appeals for Armed Forces may be reviewed by the Supreme Court by 

writ of certiorari. However, the Supreme Court may not review by writ of certiorari any action of 

CAAF in refusing to grant a petition for review. 

VII. FINALITY OF COURTS-MARTIAL: R.C.M. 1209 

A. When is a conviction final? 

1. When review is completed by a Court of Criminal Appeals and ― 

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a) The accused does not file a timely petition for review by CAAF and the case is not 

otherwise under review by that court; or 

b) A petition for review is denied or otherwise rejected by CAAF; or 

c) Review is completed in accordance with the judgment of CAAF and: 

(1) A petition for a writ of certiorari is not filed within applicable time limits; 

(2) A petition for a writ of certiorari is denied or otherwise rejected by the Supreme 

Court; or, 

(3) Review is otherwise completed in accordance with the judgment of the Supreme 

Court. 

2. In cases not reviewed by a Court of Criminal Appeals. 

a) When the findings and sentence have been found legally sufficient by a JA, and when 

action by such officer is required, have been approved by the GCMCA, or 

b) The findings and sentence have been affirmed by TJAG when review by TJAG is 

required under R.C.M. 1112(g)(1) or 1201(b)(1). 

B. United States v. Jackson, 38 M.J. 744 (A.C.M.R. 1993). Abatement after death of appellant, 

before appeal to Court of Military Appeals. See also United States v. Huey, 57 M.J. 504 (N-M. Ct. 

Crim. App. 2002) (findings and sentence set aside based on accused’s death prior to final action – 

motions to vacate and attach granted). But see United States v. Rorie, 58 M.J. 399 (C.A.A.F. 2003) 

(the CAAF will no longer grant abatement ab initio upon death of an appellant pending Article 

67(a)(3) appellate review, reversing a policy followed by the court since 1953). 

C. Finality and execution of sentences. 

1. A DD or BCD may be ordered executed only after a final judgment within the meaning of 

R.C.M. 1209. 

2. Dismissal may be approved and ordered executed only by the Secretary concerned. 

3. Only President may order execution of death penalty. See, R.C.M. 1207. 

VIII. PETITION FOR A NEW TRIAL: ARTICLE 73, UCMJ; R.C.M. 1210 

A. Within 2 years of initial action by the CA. Requirements: 

1. Evidence discovered after trial or fraud on the court. 

2. Evidence not such that it would have been discovered by petitioner at time of trial in exercise 

of due diligence. 

3. Newly discovered evidence, if considered by a court-martial in light of all other pertinent 

evidence, would probably produce a substantially more favorable result for the accused. 

B. Approval authority: OTJAG, CCA, or CAAF. 

C. Concern for avoiding manifest injustice is adequately addressed in three requirements in R.C.M. 

1210(f). United States v. Williams, 37 M.J. 352 (C.M.A. 1993). 

D. United States v. Hanson, 39 M.J 610 (A.C.M.R. 1994). Petition for new trial based on newly 

discovered evidence. 

E. United States v. Luke, 69 M.J. 309 (C.A.A.F. 2011). Petition for a new trial based upon 

misconduct by USACIL serology analyst. The CAAF cited to the three requirements above and held 

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that this evidence would not have resulted in a substantially more favorable result for the appellant. 

Several of the judges would also have found this request for a new trial time barred under Article 73, 

UCMJ, which requires a petition to be filed within two years of CA action. In this case, the request 

came in four years after the two year window (due to the late discovery of the serology analyst 

misconduct). 

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[Back to Table of Contents] 

CHAPTER 30
 

CORRECTIONS & POST-CONVICTION CONSEQUENCES
 

I. Introduction 

II. Corrections 

III. Clemency and Parole 

VI. Resources 

I. INTRODUCTION 

The military, as well as civilian society, analyzes five reasons when determining an appropriate 

sentence once an individual has been convicted. Those reasons are rehabilitation, punishment, 

protection of society, preservation of good order and discipline, and deterrence. See R.C.M. 1001g. 

The types of sentences that a court-martial panel member or military judge may impose include no 

action, reduction in rank, forfeitures, fine, hard labor without confinement, confinement, punitive 

discharge, or death. 

II. CORRECTIONS 

A. DoD policy states that the Military Services’ correction programs should strive to achieve 

uniformity, effectiveness, and efficiency in the administration of corrections functions. Additionally, 

the military departments shall administer the clemency and parole programs to foster safe and 

appropriate release of military offenders under such terms and conditions that are consistent with the 

needs of society, the rights of victims, and the rehabilitation of the prisoner. DoD Instruction 1325.7, 

Administration of Military Correctional Facilities and Clemency and Parole, March 11, 2013. 

B. Military corrections have three objectives: 

1. Provide a safe and secure environment for the incarceration of military offenders; 

2. Protect the community from offenders; 

3. Prepare military prisoners for their release whether return to duty or civilian status with the 

prospect of becoming productive Soldier/citizens for conforming to military or civilian 

environments. 

C. DoD Correctional Facilities include confinement facilities, Regional Corrections Facilities 

(RCFs), and a centralized, long-term corrections facility, the United States Disciplinary Barracks 

(USDB). 

1. Confinement facilities (Level 1) provide pretrial and short-term post-trial confinement 

support. Each service will determine the time limit for confinement at each of its level one 

facilities. The current norm for the Army is up to 90 days; when necessary the Level 1 facility 

may confine prisoners more than 90 days, but may not exceed 1 year. A Level 1 facility provides 

custody and control, administrative support, and limited counseling support for military prisoners. 

There are currently four Level 1 military facilities: 

a) US Army Regional Correctional Facility – Europe, Sembach Kaserne, Germany 

b) US Army Regional Correctional Facility – Korea, Camp Humphreys, Korea 

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c) Marine Corps Regional Brig, Camp Lejeune, NC
 

d) Marine Corps Brig, Camp Pendleton, CA
 

2. Regional Corrections Facilities (RCF) (Level 2) house prisoners sentenced to confinement of 

five (5) years or less. For sentences over five years, each Service must evaluate its prisoners to 

determine whether they can be appropriately confined at a RCF (Level 2 facility). A Level 2 

facility provides multifaceted correctional treatment programs, vocational and military training, 

administrative support, basic educational opportunity, employment, selected mental health 

programs, custodial control, and training to prepare military prisoners for return to duty, if 

deemed suitable, or to civilian society as a productive citizen. There are five Level 2 RCFs: 

a)	 Northwest Regional Correctional Facility, Joint Base Lewis-McChord, WA 

b)	 Naval Consolidated Brig, Charleston, SC 

c)	 Naval Consolidated Brig, Miramar, CA (all DoD female prisoners housed here) 

d)	 Midwest Regional Correctional Facility, Fort Leavenworth, KS 

e)	 Naval Consolidated Brig, Chesapeake, VA 

3. United States Disciplinary Barracks, Fort Leavenworth, KS (only DoD Level 3 facility). 

D. Federal Bureau of Prisons (FBOP) Facilities. Prisoners with approved sentences to confinement 

may be transferred to a FBOP facility with the concurrence or by direction of the appropriate 

Secretary of Military Department or designee. Authority to transfer the prisoners to the FBOP 

confers no right on prisoners to request transfer. Once transferred to the FBOP, prisoners will not 

return to DoD custody unless the transfer was temporary for medical issues. 

1.	 Factors considered when determining whether to transfer a prisoner to a FBOP include: 

a) The prisoner’s demonstrated potential for return to military service or rehabilitation. 

b) The nature and circumstances of the prisoner’s offenses. 

c) The prisoner’s incarceration record, including participation in rehabilitation programs. 

d) The status of the prisoner’s court-martial appeal and involvement in other legal 

proceedings. 

e) The nature and circumstances of the prisoner’s sentence, including length of sentence to 

confinement. 

f) The prisoner’s age.
 

g) Any other special circumstances relating to the prisoner, the needs of the Service, or the 

interests of national security. 

2. Commitments based on lack of mental capacity to stand trial or acquittal because of lack of 

mental capacity at time of offense may be transferred to the FBOP. See AR 190-47, para 3-4. 

E. The Department of the Army, Provost Marshal General determines the place of incarceration for 

prisoners who are sentenced to more than 30 days based on operational requirements and programs. 

F.	 Prisoner Status. 

1. Pretrial prisoner: a person subject to the UCMJ who is properly ordered to confinement 

pending preferral of charges, disposition of charges, or trial by court-martial, or a person properly 

ordered to confinement while awaiting trial by a foreign court is a pretrial prisoner. For pretrial 

confinement rules and guidance, see the Pre-Trial confinement chapter of this deskbook. 

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2. Adjudged prisoner: a person whose sentence to confinement has been announced in open 

court by not yet approved by the convening authority. 

3. Sentenced prisoner: occurs when the convening authority takes action to approve the
 

confinement portion of the sentence. 

4. Discharged prisoner: occurs upon completion of appellate review and execution of the 

punitive discharge. 

G. Abatement of Confinement. 

1. Good conduct time (GCT) is a deduction from a prisoner’s release date for good conduct and 

faithful observance of all facility rules and regulations. 

2. FOR SENTENCES ADJUDGED PRIOR TO 1 JANUARY 2005: 

Sentence Rate 

a) < 12 months 5 days per month
 

b) 1 < 3 years 6 days per month
 

c) 3 < 5 years 7 days per month
 

d) 5 < 10 years 8 days per month
 

e) 10 years or more 10 days per month
 

f) Life or death None
 

3. FOR SENTENCES ADJUDGED ON OR AFTER 1 JANUARY 2005: 

a) Five days for each month of confinement, and 1 day for each 6-day portion of a month, 

regardless of sentence or multiple sentence length. 

b) Extra good conduct time (EGCT) or earned time (ET) is a deduction from a prisoner’s 

release date earned for participation and graded effort in the areas of work, offense-related or 

other rehabilitation programs, education, self-improvement and personal growth, and support 

activities. This credit is awarded only when overall evaluations are average or higher. 

c) New rule: Maximum of 8 days earned time may be awarded per month. Old rule: 

During first year of confinement, not to exceed 3 days per month; thereafter, not to exceed 5 

days per month. 

d) Special acts abatement (SAA) is a deduction from a prisoner’s release date earned for a 

specific act of heroism, humanitarianism, or extraordinary institutional or community support 

deemed appropriate by the correctional facility commander. Prisoner without a release date 

(e.g. life without parole, death) may earn SAA, but it shall be held in abeyance and only 

awarded if the sentence is reduced to a determinate sentence length. 

e) Maximum award of 2 days of SAA per month for a period not to exceed 12 months for a 

single act. Additional special acts may only extend period of abatement, not the monthly rate 

of earning. 

f) Total of GCT, ET, and SAA awarded for any one month shall not exceed 15 days. 

g) Minimum release date is calculated upon arrival at facility based on good conduct time 

that could be earned for entire period of sentence. Inmate is released at minimum release date 

absent parole or forfeiture of good conduct time or extra good conduct time, if any. 

h) Maximum release date 

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i) A reduction in confinement by clemency will adjust the minimum release date. 

j) Inmates accepting parole waive all time abatements and remain on parole until maximum 

release date. 

k) Prisoners who have an approved finding of guilty for an offense that occurred after 1 

October 2004, the award of good conduct time, earned time, and special act abatement shall 

be conditioned on the prisoner submitting an acceptable release plan and fully cooperating in 

all other respects with the mandatory supervised release policy, if directed to do so. 

l) Forfeiture and restoration of abatements. As a consequence of violations of institutional 

rules or the UCMJ, a facility commander may direct forfeiture of GCT, ET, and SAA. 

Discipline and Adjustment Boards are used to ensure due process. Forfeited time can be 

reinstated at the discretion of the facility commander. 

H. Mandatory Supervised Release. Prisoners who are not granted parole prior to their MRD
 

(minimum release date) can be ordered on a supervised release.
 

1. Policy of the DoD to use supervised release in all cases except where it is determined by the 

Service Clemency and Parole Boards to be in appropriate. 

2. Terms and conditions are identified in the release plan. The prisoner acknowledges the 

receipt of the terms and conditions. 

3. The Service Clemency and Parole Boards may modify or release any terms or conditions of 

supervision or may terminate supervision entirely. 

4. A violation of the supervised release will be considered equivalent to a violation of the terms 

and conditions of parole and processed in the same manner. 

5. United States v. Pena, 64 MJ 259 (2007) – The Air Force Clemency and Parole Board 

ordered Pena to participate in the Mandatory Supervised Release Program for seventy-two days – 

terminating on his maximum release date. The Board set forth twenty-five conditions to include 

participating in a community based sex offender treatment program and consent to periodic 

examinations of his computer. Prior to his release he submitted a declaration that noted a number 

of hardships his participation in the program created. CAAF looked to see if his participation in 

the program constituted cruel or unusual punishment or otherwise violated an express prohibition 

in the UCMJ; unlawfully increased his punishment; or rendered his guilty plea improvident. 

CAAF held that the program did not constitute cruel or unusual punishment, that Pena did not 

demonstrate that the collateral consequences actually imposed increased his punishment; and that 

the plea agreement was provident. 

III. CLEMENCY & PAROLE 

A. Service Clemency & Parole Boards 

1. Senior civilian employees and field grade officers. 

2. Act for Service Secretaries, except for parole considerations for prisoners in FBOP facilities 

which are decided by U.S. Parole Commission. 

B. Clemency Eligibility. 

1. Clemency is an action taken to remit or suspend the unexecuted part of a court-martial 

sentence, upgrade a discharge, or restore an individual convicted at CM. Death sentence cases 

are not eligible for review by boards, unless sentence commuted to a lesser punishment. See AR 

15-130, para. 3-1d(6). 

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2.	 Review timelines are as follows: 

Initial Review 

Sentence is 12 months – 10 yrs NLT 9 months after confined 

Sentence is 10-20 years NLT 24 months after confined 

Sentence is 20-30 years NLT 3 years after confined 

Sentence greater than 30 years NLT 10 years after confined (for offenses after 

16 Jan 2000) 

Life w/o parole NET 20 years after confined (requires Service 

Secretary Approval) 

After Initial Review 

12 months to 20 years Annually 

20-30 years After 3 years 

30 years to Life w/o parole After 10 years 

Life w/o parole Every 3 years after 20 years of confinement 

(requires Service Secretary Approval) 

C.	 Parole Eligibility. 

1. Parole is the early release of a prisoner. Must have sentence of at least twelve (12) months 

confinement and a punitive discharge. Once considered, inmate will be considered annually by 

service board unless transferred to FBOP. Inmate may waive parole consideration. 

Sentence	 Eligibility 

a) 12 months - 30 years 1/3 of sentence, but NET < 6 mos.
 

b) 30 years to life 10 years
 

c) Life 20 years (if offense occurred after 16 Jan 2000)
 

d) Death or Life w/o parole Not eligible
 

D.	 Considerations. 

1.	 Nature and circumstances of offenses. 

2.	 Civilian and military history. 

3.	 Confinement record. 

4. Personal characteristics, such as age, education, marital and family status, and psychological 

profile. 

5.	 Victim impact. 

6.	 Protection and welfare of society. 

7.	 Need for good order and discipline. 

8.	 Other matters as appropriate. 

E.	 Conditions for parole release. 

1.	 Prisoner must submit a parole plan and agree to abide by the plan. 

2.	 The plan must include:
 

a) A statement of where the prisoner plans to reside and with whom. 

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b) Guaranteed employment, an offer of effective assistance to obtain employment, or 

acceptance in a valid educational or vocational program. 

c) A requirement that the prisoner shall comply with State and local registration 

requirements in the location the prisoner plans to reside. 

d) Other requirements such as a restitution plan, completion of a substance abuse treatment, 

participation in counseling or therapy programs, etc. 

3. The Board may establish and subsequently modify conditions or release as it considers 

reasonable or appropriate. 

4. Prisoners who accept parole waive all GCT and EGCT and serve parole till the expiration of 

their full sentence. 

F. Parole supervision: Individuals released on parole are under the direct supervision of Federal 

probation officers. 

G. Parole revocation. 

1. Standard—violation of condition that warrants revocation. 

2. Suspension of parole. 

3. Preliminary interview. 

4. Parole revocation hearing. 

5. Forfeiture of credit for service of sentence on parole. 

H. Additional Opportunities for Clemency. 

1. Discharge Review Boards can review discharges not given by general courts-martial. 

2. Boards for Correction of Military Records may grant clemency after Clemency & Parole 

Boards lose review authority; however, may not overturn conviction. 

3. Presidential Pardons. 

IV. RESOURCES 

Army Review Boards Agency (ARBA) Web page: http://arba.army.pentagon.mil. 

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[Back to Table of Contents] 

CHAPTER 31
 

IMPROPER SUPERIOR-SUBORDINATE RELATIONSHIPS &
 

FRATERNIZATION
 

I. Introduction 

II. Improper Superior-Subordinate Relationships 

III. Fraternization and Related Offenses 

IV. Case Law 

V. References
 

App. Army Regulation 600-20 (Extract)
 

I. INTRODUCTION 

A. Three Separate Concepts. 

1. Improper Superior – Subordinate Relationships. 

2. Fraternization. 

3. Sexual Harassment. 

B. A Spectrum of Misconduct. 

II. IMPROPER SUPERIOR - SUBORDINATE RELATIONSHIPS 

A. History: 

1. Task Force found disparate treatment between Services. 

2. New policy announced by Secretary Cohen on 29 Jul 98. 

3. Not effective immediately; gave Services 30 days to provide draft new policies to DoD. 

Essence of guidance now included within AR 600-20, paras 4-14 through 4-16. 

4. Does NOT cover all senior / subordinate relationships. 

5. Directs Service Secretaries to prohibit by policy: 

a) Personal relationships, such as dating, sharing living accommodations, engaging in 

intimate or sexual relations, business enterprises, commercial solicitations, gambling and 

borrowing between officer and enlisted regardless of their Service; and 

b) Personal relationships between recruiter and recruit, as well as between permanent party 

personnel and trainees. 

B. The Old Army Policy. Previous AR 600-20 (30 Mar 88), para 4-14. Two Part Analysis: 

1. Part One: “Army policy does not hold dating or most other relationships between soldiers 

(sic) [of different ranks] as improper, barring the adverse effects listed in AR 600-20.” Old DA 

Pam 600-35, Para. 1-5(e). Therefore, Army policy did not prohibit dating (even between officers 

and enlisted Soldiers), per se. 

2. Part Two: 

a) “Relationships between soldiers (sic) of different rank that involve, or give the 

appearance of, partiality, preferential treatment, or the improper use of rank or position for 

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personal gain, are prejudicial to good order, discipline, and high unit morale. It is Army 

policy that such relationships will be avoided.” Old AR 600-20, paragraph 4-14. 

b) "Commanders and supervisors will counsel those involved or take other action, as 

appropriate, if relationships between soldiers (sic) of different rank 

(1) Cause actual or perceived partiality or unfairness. 

(2) Involve the improper use of rank or position for personal gain. 

(3) Create an actual or clearly predictable adverse impact on discipline, authority or 

morale." Old AR 600-20, para 4-14a. 

Key Note: Old AR 600-20 was not a punitive regulation. The revised paragraphs ARE PUNITIVE. 

C.	 The Current Army Policy. Changes to AR 600-20, paras 4-14, 4-15 and 4-16. 

1. A New Distinction (as of November 2014): The Army updated its strict prohibitions to 

include relationships between junior enlisted Soldiers and noncommissioned officers. 

2.	 THREE Part Analysis: 

a) Part 1: Is this a "strictly prohibited" category? 

b) Part 2: If not, are there any adverse effects? 

c) Part 3: If not “strictly prohibited” and there are no adverse effects, then the relationship 

is not prohibited. 

3.	 Para 4-14: Relationships between military members of different grade. 

a) "Officer" includes commissioned and warrant officers. 

b) “Noncomissioned officer” refers to a Soldier in the grade of corporal to command 

sergeant major/sergeant major.
 

c) “Junior enlisted soldier” refers to a Soldier in the grade of private to specialist.
 

d) Applies to relationships between Soldiers in both the Active and Reserve components, 

and between Soldiers and members of other services.
 

e) Is gender-neutral.
 

f) (THIS IS PARA 4-14b.) The following relationships between Soldiers of different 

grades are prohibited: 

(1) Relationships that compromise or appear to compromise the integrity of supervisory 

authority or the chain of command; 

(2) Relationships that cause actual or perceived partiality or unfairness; 

(3) Relationships that involve or appear to involve the improper use or rank or position 

for personal gain; 

(4) Relationships that are, or are perceived to be, exploitative or coercive in nature; and 

(5) Relationships that cause an actual or clearly predictable adverse impact on discipline, 

authority, morale, or the ability of the command to accomplish its mission. 

NOTE: Subparagraphs (1) and (4) are new additions to the three adverse effects looked for under the 

old policy’s analysis. 

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g) (THIS IS PARA 4-14c.) Certain types of personal relationships between officers and 

enlisted and noncommissioned officers and junior enlisted personnel are prohibited. 

Prohibited relationships include: 

(1) Ongoing business relationships (including borrowing or lending money, commercial 

solicitations and any other on-going financial or business relationships), except: 

(a) Landlord / tenant; and 

(b) One time transactions (such as car or home sales). 

(c) All ongoing business relationships existing on the effective date of this 

prohibition, that were otherwise in compliance with the former policy, were not 

prohibited until 1 Mar 00 (“grace period”). 

(d) This prohibition does not apply to USAR / ARNG Soldiers when the ongoing 

business relationship is due to the Soldiers' civilian occupation or employment. 

(2) Personal relationships, such as dating, shared living accommodations (other than as 

directed by operational requirements), and intimate or sexual relationships. 

(a) This prohibition does not affect marriages (change as of 13 May 2002) 

(b) Otherwise prohibited relationships (dating, shared living accommodations [other 

than directed by operational requirements] and intimate or sexual relationships), 

existing on the effective date of this prohibition, that were not prohibited under prior 

policy, were not prohibited until 1 Mar 00. 

(c) Relationships otherwise in compliance with this policy are prohibited under this 

policy solely because of the change in status of one party to the relationship (such as 

commissioning). The couple does have one year to either terminate the relationship 

or marry within one year of the actual start date of the program or before the change 

in status occurs, whichever is later. 

(d) Reserve Component (RC)/RC exclusion when the personal relationship is 

primarily due to civilian acquaintanceship, unless on active duty (AD) or full-time 

National Guard duty (FTNGD) other than annual training (AT). 

(e) AD/RC exclusion when the personal relationship is primarily due to civilian 

association, unless on AD or FTNGD other than AT. 

(3) Gambling. NO EXCEPTIONS. 

(a) An NCAA basketball pool with a monetary buy-in is prohibited when there is a 

mix of officer and enlisted personnel participants. There is no prohibition against 

gambling between officers. 

(b) An NCAA bracket competition with a certificate or trophy to the winner even 

with officer and enlisted personnel participants is permissible. 

(c) Remember the Joint Ethics Regulation (JER), § 2-302 also addresses gambling. 

While it may not be prohibited under AR 600-20, it may violate the JER. 

(4) These prohibitions are not intended to preclude normal team-building associations 

between Soldiers, which occur in the context of activities such as community 

organizations, religious activities, family gatherings, unit social functions or athletic 

teams or events. 

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(5) All Soldiers bear responsibility for maintaining appropriate relationships between 

military members. The senior military member is usually in the best position to terminate 

or limit relationships that may be in violation of this paragraph, but all Soldiers involved 

may be held accountable for relationships in violation of this paragraph. 

4. Para 4-15: Other Prohibited Relationships. 

a) Trainee / Soldier. Any relationship between IET trainees and permanent party Soldiers 

(not defined) not required by the training mission is prohibited. This prohibition applies 

regardless of the unit of assignment of either the permanent party Soldier or the trainee. 

b) Recruit / Recruiter. Any relationship between a permanent party Soldier assigned or 

attached to USAREC, and potential prospects, applicants, members of the Delayed Entry 

Program or members of the Delayed Training Program, not required by the recruiting 

mission, is prohibited. The prohibition applies regardless of the unit of assignment or 

attachment of the parties involved. 

5. Para 4-16: Paragraphs 4-14b. 4-14c and 4-15 are punitive. Violations can be punished as 

violations of Article 92, UCMJ. 

D. Commander’s Analysis: How does the commander determine what’s improper? 

1. JAs must cultivate the idea that commanders should consult with OSJA. 

2. Use common sense. “The leader must be counted on to use good judgment, experience, and 

discretion. . . ." 

3. Keep an open mind. Don’t prejudge every male/female relationship. Relationships between 

males of different rank or between females of different rank can be as inappropriate as 

male/female relations. "[J]udge the results of the relationships and not the relationships 

themselves." DA Pam 600-35. 

4. Additional scrutiny should be given to relationships involving (1) direct 

command/supervisory authority, or (2) power to influence personnel or disciplinary actions. 

"[A]uthority or influence . . . is central to any discussion of the propriety of a particular 

relationship." DA Pam 600-35. These relationships are most likely to generate adverse effects. 

5. Be wary that appearances of impropriety can be as damaging to morale and discipline as 

actual wrongdoing. 

E. Command Response. 

1. The commander has a wide range of responses available to him and should use the one that 

will achieve a result that is "warranted, appropriate, and fair." Counseling the Soldiers concerned 

is usually the most appropriate initial action, particularly when only the potential for an 

appearance of actual preference or partiality, or an appearance without any adverse impact on 

morale, discipline or authority exists. 

2. Adverse Administrative Actions: Order to terminate, relief, re-assign, bar to re-enlistment, 

reprimand, adverse OER/NCOER, administrative separation. 

3. Criminal Sanctions: Fraternization, disobey lawful order, conduct unbecoming, adultery. 

F. Commander's Role. 

1. Commanders should seek to prevent inappropriate or unprofessional relationships through 

proper training and leadership by example. AR 600-20, para. 4-14(f). 

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2. Don’t be gun-shy. Mentoring, coaching, and teaching of Soldiers by their seniors should not 

be inhibited by gender prejudices. Old AR 600-20, para. 4-14 (e)(1). 

3.	 Training. DA Pam 600-35. 

III. FRATERNIZATION AND RELATED OFFENSES 

A.	 General. 

1.	 Fraternization is easier to describe than define. 

2. There is no stereotypical case. Examples include sexual relations, drinking, and gambling 

buddies. 

B.	 Fraternization. UCMJ art. 134. 

1. The President has expressly forbidden officers from fraternizing on terms of military equality 

with enlisted personnel. MCM, pt. IV, ¶ 83b. 

2.	 Elements: the accused 

a) was a commissioned or warrant officer; 

b) fraternized on terms of military equality with one or more certain enlisted member(s) in a 

certain manner; 

c) knew the person(s) to be (an) enlisted member(s); and 

d) such fraternization violated the custom of the accused’s service that officers shall not 

fraternize with enlisted members on terms of military equality; and 

e) under the circumstances, the conduct of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. 

3.	 “Hard to define it, but I know it when I see it.” 

4. Article 134 has also been successfully used to prosecute instances of officer-officer 

fraternization, United States v. Callaway, 21 M.J. 770 (A.C.M.R. 1986), and even enlistedenlisted relationships. United States v. Clarke, 25 M.J. 631 (A.C.M.R. 1987), aff’d, 27 M.J. 361 

(C.M.A. 1989). 

5. Maximum punishment: dismissal/dishonorable discharge, total forfeitures and two years 

confinement. MCM, pt. IV, ¶ 83e. 

6.	 Custom. 

a) The gist of this offense is a violation of the custom of the armed forces against 

fraternization; it does not prohibit all contact or association between officers and enlisted 

persons. 

b)	 Customs vary from service to service, and may change over time. 

c) Custom of the service must be proven through the testimony of a knowledgeable witness. 

United States v. Wales, 31 M.J. 301 (C.M.A. 1990). 

7.	 Factors to Consider in Deciding How to Dispose of an Offense.
 

a) Nature of the military relationship;
 

b) Nature of the association;
 

c) Number of witnesses;
 

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d)	 Likely effect on witnesses. 

C.	 Failure to Obey Lawful General Order or Regulation. UCMJ art. 92. 

1.	 Elements. MCM, pt. IV, ¶ 16b(1).
 

a) There was in effect a certain lawful general order or regulation;
 

b) the accused had a duty to obey it; and
 

c) the accused violated or failed to obey the order or regulation.
 

2. Maximum punishment: dismissal/dishonorable discharge, total forfeitures and two years 

confinement. MCM, pt. IV, ¶ 16e(1). 

3.	 Applications. 

a) Applicable to officers and enlisted. 

b) Most effective when used to charge violations of local punitive general regulations (for 

example, regulations prohibiting improper relationships between trainees and drill sergeants). 

4. Remember: AR 600-20 re: improper relationships is NOW a punitive regulation. 

D.	 Conduct Unbecoming an Officer. UCMJ art. 133. 

1.	 Elements. 

a) Accused did or omitted to do certain acts; and 

b) That, under the circumstances, the acts or omissions constituted conduct unbecoming an 

officer and gentleman. 

2.	 Only commissioned officers and commissioned warrant officers may be charged under article 

133. Maximum punishment: dismissal, total forfeitures and confinement for a period not in 

excess of that authorized for the most analogous offense for which punishment is prescribed in 

the Manual, e.g., two years for fraternization. 

E.	 Sexual Harassment. 

1.	 Charged under Article 93 as Cruelty and Maltreatment. 

2. Other offenses may be possible given the facts and circumstances of the case such as 

extortion, bribery, adultery, indecent acts or assault, communicating a threat, conduct 

unbecoming, and conduct prejudicial to good order/discipline. 

IV. CASE LAW 

A. United States v. Pitre, 63 M.J. 163 (2006). The court held that simple disorder with a trainee is 

an LIO of Article 92, violation of a lawful general regulation, having a relationship not required by 

the training mission. 

B. United States v. Fuller, 54 M.J. 107 (2000). Appellant was convicted of numerous offenses 

stemming from his sexual relations with subordinate female members of his unit. The CAAF granted 

review on the issue of whether the evidence was legally sufficient to sustain a conviction for cruelty 

and maltreatment of one of the victims. The evidence showed that while assigned to an inprocessing 

unit where the appellant was her platoon sergeant, the victim voluntarily went to the appellant’s 

apartment with a friend, drank 10-12 oz. of liquor, kissed appellant, and got undressed and engaged in 

repeated sexual intercourse with appellant and another platoon sergeant. Additionally, the victim 

stated that in her decision to have sexual intercourse with the appellant, she never felt influenced by 

his rank and that he never threatened her or her career. Finally, the CAAF concluded that the 

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evidence did not support a finding that the victim showed any visible signs of intoxication prior to the 

sexual intercourse with appellant. Although the CAAF found that the evidence was not legally 

sufficient to sustain a conviction for cruelty and maltreatment, they did find that it supported a 

conviction for the lesser-included offense of a simple disorder in violation of Article 134, UCMJ, 

since the appellant’s conduct was prejudicial to good order and discipline or service discrediting. In 

mentioning that “appellant’s actions clearly would support a conviction for violation the Army’s 

prohibition against improper relationships between superiors and subordinates...”, the CAAF cited to 

the current version of Army Regulation 600-20 (15 Aug[sic] 1999). The court, however, did not 

address the fact that the appellant’s conduct occurred in 1996, when the regulation was not punitive 

and that therefore he could not have been found guilty for failure to obey a general regulation under 

Article 92, UCMJ. 

C. United States v. Brown, 55 M.J. 375 (2001). ISSUES: The CAAF considered the issues, inter 

alia, of: 1) whether the trial court erred by admitting the Air Force’s pamphlet on discrimination and 

sexual harassment for the members to consider on findings and sentencing; and 2) whether the 

charges of conduct unbecoming an officer were supported by legally sufficient evidence. 

1. FACTS: The appellant, a captain and an Air Force nurse, was convicted of conduct 

unbecoming an officer for his comments to and physical contact with three co-workers over a ten 

month period. Appellant was married, had one child, and had served nearly ten years on active 

duty. All victims were female and, like the appellant, were company grade officers and Air Force 

nurses. All the victims worked in the operating room with the appellant at some point. The 

physical contact for which appellant was convicted included placing his hand on the other nurses’ 

hair, thighs, knees, and buttock. The verbal conduct for which appellant was convicted included 

persistent complements on their hair, eyes, and physical appearance and questions about their 

weight, whether they were happily married, whether they had a boyfriend, if they had ever had an 

affair, and in the case of one nurse, what type of bathing suit she wore and if women masturbated. 

Additionally, he asked them for their home phone numbers and asked them out for dates. Some 

of the victims showed their displeasure with appellant’s physical contact with them by moving 

away from the appellant, and one told the appellant that she did not like the way he touched her. 

Contrarily, none of the complainants made their disapproval of the appellant’s verbal comments 

known to him or to anyone in their chain-of-command. 

2. HOLDING: The CAAF ruled that the military judge did not abuse his discretion when he 

admitted the nonpunitive Air Force Pamphlet (AFP) 36-2705, Discrimination and Sexual 

Harassment (28 February 1995) over defense objection. In so ruling, the CAAF agreed with the 

military judge that the AFP was relevant to establish notice of the prohibited conduct and the 

applicable standard of conduct in the Air Force community to the appellant. Additionally, the 

CAAF stated that in cases were evidence of the custom of the service is needed to prove an 

element of an offense, it is likely that the probative value will out weigh the prejudicial effect. 

With regard to the sufficiency of the evidence, the CAAF focused on the fact that government 

relied on the AFP to establish the applicable standard of conduct. When considering the 

standards in the AFP, combined with the facts of the case, the CAAF concluded that the 

government had to show that: “(1) appellant’s conduct was ‘unwelcomed’; (2) it consisted of 

verbal and physical conduct of a sexual nature and (3) it created an intimidating, hostile, or 

offensive work environment that was so severe or pervasive that a reasonable person would 

perceive that work environment as hostile or abusive, and the victim of the abuse perceived it as 

such.” The CAAF went on to analyze the verbal comments and physical contact by the appellant 

separately. In finding the evidence legally insufficient to support appellant’s convictions for the 

verbal comments, the CAAF noted that the record was clear that none of the victims ever 

informed the appellant that any of his remarks were unwelcome. While the AFP does not require 

a recipient of sexual remarks to tell the speaker that the remarks were unwelcome, the CAAF felt 

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that a recipient’s action or inaction in response to the remarks is relevant in determining whether 

the speech was unwelcome. The CAAF further noted from the record that the working 

atmosphere of the parties regularly accepted conversations involving physical appearance and 

sexual matters. This atmosphere cut against a finding that the appellant’s comments created a 

work environment that was “hostile or abusive.” However, the CAAF affirmed the convictions 

for the physical contact, concluding that it was not reasonable for the appellant “to assume that 

[the victims] would consent to physical contact of an intimate nature absent some communication 

of receptivity or consent.” 

D. United States v. Carson, 55 M.J. 656 (Army Ct. Crim. App. 2001). Appellant was convicted, 

contrary to his pleas, of maltreatment of subordinates (five specifications) and indecent exposure 

(three specifications). Appellant was the supervising desk sergeant in a military police station. While 

on duty appellant ordered a female MP to “physically search his crotch,” and he repeatedly exposed 

his penis to three of his subordinate female MP Soldiers. The appellant challenged the maltreatment 

conviction stemming from his conduct with one of the victims, stating that his conduct did not result 

in “physical or mental pain or suffering” by this alleged victim. The victim of the challenged 

conviction testified that she never asked appellant to see his penis, that she was bothered and shocked 

when he exposed himself, and that she considered herself a victim. In holding that proof that the 

victim suffered “physical or mental pain” was not required in order to support a conviction for 

maltreatment of a subordinate, the ACCA relied on the fact that neither the UCMJ nor the Manual of 

Courts-Martial contained this requirement. In making this determination, ACCA expressly overruled 

its earlier contrary holding in United States v. Rutko, 36 M.J. 798 (A.C.M.R. 1993). Affirmed by 

United States v. Carson, 57 M.J. 410 (C.A.A.F. 2002) 

E. United States v. Matthews, 55 M.J. 600 (C.G. Ct. Crim. App. 2001). Contrary to his pleas, 

appellant was convicted of attempted forcible sodomy, maltreatment by sexual harassment, indecent 

assault, and solicitation to commit sodomy. The charges arose from allegations of a subordinate 

female enlisted sailor who claimed that while she was on TDY with the appellant, he sexually 

assaulted her and attempted to force her to perform oral sodomy on him while they were in his hotel 

room. Contrarily, the appellant testified that it was the alleged victim who had initiated the sexual 

interaction, that the sexual foreplay was mutual, and that he never used force on her. Evidence 

presented at trial established that the appellant had sixteen years on active duty and had amassed an 

outstanding record and reputation for devotion to duty and honesty. In sharp contrast, several 

witnesses stated that they had little or no confidence in the alleged victim’s truthfulness or integrity, 

and that she was a poor duty performer. The service court felt that this case boiled down to a 

swearing contest between the two parties, therefore, the issue of each of their credibility was 

paramount. In overturning the appellant’s convictions for attempted forcible sodomy, maltreatment 

by sexual harassment, and indecent assault, the court relied heavily on the disparate opinion and 

reputation testimony concerning the two involved parties. The majority gave little weight to the 

testimony of medical and psychiatric experts who treated the alleged victim and found her credible 

and her reaction to the assault consistent with post-traumatic stress disorder. The court noted that 

these experts had assumed the accuracy of the facts related by the alleged victim and also pointed to 

the defense forensic psychiatrist who was skeptical of the alleged victim’s account of events. The 

majority was quick to point out that under the facts of the case, the appellant was guilty of violating 

the service’s general regulation against fraternization, but that he was never charged with that crime. 

F. United States v Goddard, 54 M.J. 763 (N.M. Ct. Crim. App. 2000). Contrary to his pleas, the 

appellant was convicted of maltreatment and fraternization in violation of Articles 93 and 134, 

UCMJ. The charges resulted from a one time consensual sexual encounter with his female 

subordinate on the floor of the detachment’s administrative office. In setting aside the maltreatment 

conviction, the service court cited the CAAF’s decision in U.S. v. Fuller, 54 M.J. 107 (2000), in 

which it concluded that, “a consensual sexual relationship between a superior and a subordinate, 

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without more, would not support a conviction for the offense of maltreatment.” The court did, 

however, approve the lesser-included offense of a simple disorder in violation of Article 134, UCMJ. 

The fact that the sexual encounter took place in the detachment’s administrative office, that after the 

sexual encounter was over the appellant instructed the victim leave the office in a manner that 

ensured that other personnel would not see her, and that the victim lost respect for and avoided the 

appellant because she had been briefed that such relationships were improper, all led the court to 

conclude that appellant’s conduct was prejudicial to good order and discipline. 

G. United States v. Sanchez, 50 M.J. 506 (A.F. Ct. Crim. App. 1998). Accused cannot be convicted 

of both conduct unbecoming (Art. 133) and fraternization (Art. 134) when the misconduct alleged in 

the specifications is identical; fraternization gets dismissed. Those fraternization allegations not 

alleged in conduct unbecoming specifications remain. Court cites United States v. Harwood, 46 M.J. 

26, 28 (1997) in support. 

H. United States v. Hawes, 51 M.J. 258 (1999). CAAF affirmed Air Force Court’s decision to set 

aside fraternization conviction and to reassess the appellant’s sentence without ordering a rehearing. 

CAAF agreed that the fraternization offense was “relatively trivial” when compared to other 

misconduct. 

I. United States v. Mann, 50 M.J. 689 (A.F. Ct. Crim. App. 1999). Sexual relationship is not a 

prerequisite for fraternization. Evidence was legally and factually sufficient to support conviction for 

fraternization. No interference with accused’s access to witnesses where order prohibiting accused 

from contact with his fraternization partner did not prohibit accused’s counsel from such contact. 

A.F. court finds no unlawful command influence or unlawfulness with the order. 

J. United States v. Rogers, 54 M.J. 244 (2000). Evidence legally sufficient to sustain Art. 133 

conviction for the offense of conduct unbecoming an officer by engaging in an unprofessional 

relationship with a subordinate officer in appellant’s chain of command. AF Court holds there is no 

need to prove breach of custom or violation of punitive regulation. 

V. References. 

A. Army References. 

1. Dep’t of Army, Reg. 600-20, Personnel--General: Army Command Policy (6 Nov 2014) 

2. Manual for Courts-Martial, United States [hereinafter MCM]. 

3. Dep't of Army, Pam. 600-35, Personnel--General: Relationships Between Soldiers of 

Different Rank (21 Feb 2000). 

B. Navy, Marine Corps, and Air Force References. 

1. OPNAVINST 5370.2C, Navy Fraternization Policy (26 Apr 2007). 

2. Marine Corps Manual 1100.4 (as amended by HQMC, ALMAR 185/96, 130800Z May 96, 

subject: Marine Corps Manual (MCM) Change 3) and MARCORMAN 1100.4 (13 May 96). 

3. Department of Air Force Instruction 36-2909, Personnel: Professional and Unprofessional 

Relationships (13 Aug 2004, Incorporating Change 1, 8 July 2010). 

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APPENDIX A
 

AR 600-20 FRATERNIZATION (EXTRACT)
 Issue Date: 6 November 2014 

4–14. Relationships between Soldiers of different rank 

a. The term "officer," as used in this paragraph, includes both commissioned and warrant officers unless otherwise 

stated. The term “noncommissioned officer” refers to a Solider in the grade of corporal to command sergeant 

major/sergeant major. The term “junior enlisted Soldier” refers to a Soldier in the grade of private to specialist. The 

provisions of this paragraph apply to both relationships between Army personnel and between Army personnel and 

personnel of other military services. This policy is effective immediately, except where noted below, and applies to 

different-gender relationships and same-gender relationships. 

b. Relationships between Soldiers of different rank are prohibited if they— 

(1) Compromise, or appear to compromise, the integrity of supervisory authority or the chain of command. 

(2) Cause actual or perceived partiality or unfairness. 

(3) Involve, or appear to involve, the improper use of rank or position for personal gain. 

(4) Are, or are perceived to be, exploitative or coercive in nature. 

(5) Create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the 

command to accomplish its mission. 

c. Certain types of personal relationships between officers and enlisted personnel, or NCOs and junior enlisted 

Soldiers, are prohibited. Prohibited relationships include the following: 

(1) Ongoing business relationships between officers and enlisted personnel. This prohibition does not apply to 

landlord/tenant relationships or to one-time transactions such as the sale of an automobile or house, but does apply 

to borrowing or lending money, commercial solicitation, and any other type of on-going financial or business 

relationship. Business relationships between NCOs and junior enlisted Soldiers that exist at the time this policy 

becomes effective and that were authorized under previously existing rules and regulations, are exempt provided the 

individuals are not in the same chain of command and the relationship does not meet the criteria listed in paragraph 

4-14b(1 thorough 5). In the case of Army National Guard or United States Army Reserve personnel, this prohibition 

does not apply to relationships that exist due to their civilian occupation or employment. 

(2) Dating, shared living accommodations other than those directed by operational requirements, and intimate or 

sexual relationships between officers and enlisted personnel, or NCOs and junior enlisted Soldiers. This prohibition 

does not apply to— 

(a) Marriages. When evidence of fraternization between an officer and enlisted member prior to their marriage 

exists, their marriage does not preclude appropriate command action based on the prior fraternization. Commanders 

have a wide range of responses available including counseling, reprimand, order to cease, reassignment, 

administrative action or adverse action. Commanders must carefully consider all of the facts and circumstances in 

reaching a disposition that is appropriate. Generally, the commander should take the minimum action necessary to 

ensure that the needs of good order and discipline are satisfied. 

(b) Situations in which a relationship that complies with this policy would move into non-compliance due to a 

change in status of one of the members (for instance, a case where two junior enlisted members are dating and one is 

subsequently commissioned or selected as a warrant officer, commissioned officer, OR NCO). In relationships 

where one of the enlisted members has entered into a program intended to result in a change in their status from 

enlisted to officer or junior enlisted to NCO, the couple must terminate the relationship permanently or marry within 

either one year of the actual start date of the program, before the change in status occurs, or within one year of the 

publication date of this regulation, whichever occurs later. 

(c) Personal relationships between members of the National Guard or Army Reserve, when the relationship 

primarily exists due to civilian acquaintanceships, unless the individuals are on active duty (other than annual 

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training), on full-time National Guard duty (other than annual training), or serving as a dual status military 

technician. 

(d) Personal relationships between members of the Regular Army and members of the National Guard or Army 

Reserve when the relationship primarily exists due to civilian association and the Reserve component member is not 

on active duty (other than annual training), on full-time National Guard duty (other than annual training), or serving 

as a dual status military technician. 

(e) Prohibited relationships involving dual status military technicians, which were not prohibited under previously 

existing rules and regulations, are exempt until one year of publication date of this regulation. 

(f) Soldiers and leaders share responsibility, however, for ensuring that these relationships do not interfere with 

good order and discipline. Commanders will ensure that personal relationships that exist between Soldiers of 

different ranks emanating from their civilian careers will not influence training, readiness, or personnel actions. 

(3) Gambling between officers and enlisted personnel, or NCOs and junior enlisted Soldiers. 

d. These prohibitions are not intended to preclude normal team building associations that occur in the context of 

activities such as community organizations, religious activities, Family gatherings, unit-based social functions, or 

athletic teams or events. 

e. All military personnel share the responsibility for maintaining professional relationships. However, in any 

relationship between Soldiers of different grade or rank, the senior member is generally in the best position to 

terminate or limit the extent of the relationship. Nevertheless, all members may be held accountable for relationships 

that violate this policy. 

f. Commanders should seek to prevent inappropriate or unprofessional relationships through proper training and 

leadership by example. Should inappropriate relationships occur, commanders have available a wide range of 

responses. These responses may include counseling, reprimand, order to cease, reassignment, or adverse action. 

Potential adverse action may include official reprimand, adverse evaluation report(s), nonjudicial punishment, 

separation, bar to reenlistment, promotion denial, demotion, and courts martial. Commanders must carefully 

consider all of the facts and circumstances in reaching a disposition that is warranted, appropriate, and fair. 

4–15. Other prohibited relationships 

a. Trainee and Soldier relationships. Any relationship between permanent party personnel and initial entry training 

(IET) trainees not required by the training mission is prohibited. This prohibition applies to permanent party 

personnel without regard to the installation of assignment of the permanent party member or the trainee. 

b. Recruiter and recruit relationships. Any relationship between permanent party personnel assigned or attached to 

the United States Army Recruiting Command and potential prospects, applicants, members of the Delayed Entry 

Program (DEP), or members of the Delayed Training Program (DTP) not required by the recruiting mission is 

prohibited. This prohibition applies to United States Army Recruiting Command Personnel without regard to the 

unit of assignment of the permanent party member and the potential prospects, applicants, DEP members, or DTP 

members. 

c. Training commands. Training commands (for example, TRADOC and AMEDDC) and the United States Army 

Recruiting Command are authorized to publish supplemental regulations to paragraph 4–15, which further detail 

proscribed conduct within their respective commands. 

4–16. Fraternization 

Violations of paragraphs 4–14b, 4–14c, and 4–15 may be punished under Article 92, UCMJ, as a violation of a 

lawful general regulation. 

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[Back to Table of Contents] 

CHAPTER 32
 

VICTIMS’ RIGHTS/PROGRAMS & SEXUAL ASSAULT POLICY
 

(SVC, SHARP, VWAP, FAP)
 

I. Introduction 

II. Victims’ Rights 

III. Sexual Assault Policy: Procedural Protections for Victims 

IV. Sexual Harassment/Assault Response and Prevention Program 

V. Office of the Staff Judge Advocate Victim/Witness Liaison Program 

VI. Special Victim Counsel Program 

VII. Domestic Abuse and the Family Advocacy Program 

VIII. References 

Appx A: Commander’s Checklists 

Appx B: Critical Time Standards – Sexual Assault 

Appx C: Critical Time Standards – Sexual Harassment 

I. INTRODUCTION 

A. Generally. This chapter combines previous chapters on the Victim Witness Assistance Program, 

Sexual Harassment/Assault Response and Prevention Program (SHARP), and Family Advocacy 

Program (FAP) while adding sections describing Victims’ Rights, Sexual Assault Policy, and the 

Special Victim Counsel (SVC) Program. The resulting chapter is intended to act as a reference guide 

and general overview for existing programs serving all crime victims as well as adult and child 

victims of sexual offenses and domestic abuse. 

B. References. Section VIII includes a list of references specific to each section. Review the source 

documents for a more detailed understanding of the applicable rules and policy. 

II. VICTIMS’ RIGHTS 

A. Generally. In 1990, Congress passed the Victims’ Rights and Restitution Act, which was replaced 

by 18 U.S.C. § 3771, the 2004 Crime Victims’ Rights Act (CVRA). The CVRA grants crime victims 

certain rights in federal criminal cases. In general, a victim of a federal crime is guaranteed the right 

to be protected from the accused, the right to notice, the right not to be excluded from court 

proceedings, to be reasonably heard, the right to restitution and the right to confer with an attorney. 

The CVRA also dictated that proceedings should be free from unreasonable delay and respect the 

victim’s dignity and privacy 

Since the late 1990’s, many high profile military sexual assault cases focused a spotlight on military 

culture, handling of sexual crimes, and data collection. The Air Force responded by creating a sexual 

assault victim’s counsel program in January 2013. In July 2013, the Court of Appeals for the Armed 

Forces (CAAF) decided LRM v. Kastenberg, an Air Force case which established a limited right for 

victims to be heard through counsel at military courts-martial. In response, and to ensure victims 

were afforded the same protections granted to federal crime victims, Congress passed the 2014 

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National Defense Authorization Act (NDAA) which included the addition of Article 6b, Uniform 

Code of Military Justice (UCMJ) – Rights of a Victim of an Offense Under the UCMJ, as well as a 

new 10 U.S.C. § 1044(e) establishing a Special Victim Counsel (SVC) under the Legal Assistance 

program authority. The rights outlined in Article 6b mirror the CVRA and apply to ALL individuals 

who have suffered direct physical, emotional, or pecuniary harm as a result of the commission of an 

offense under the UCMJ (see Article 6b(b)). 

While Article 6b applies to all crime victims of an UCMJ offense, eligibility for Army Sexual 

Harassment/ Assault Response and Prevention (SHARP) services, Family Advocacy Program (FAP) 

services and Special Victim Counsel (SVC) representation varies by type of crime and victim status. 

The command, office of the staff judge advocate (OSJA) and personnel across programs should work 

together to ensure that the rights of all crime victims are enforced. However, the Staff Judge 

Advocate is specifically tasked with ensuring local policies and procedures are established to give 

crime victims the rights described. (see AR 27-10, paragraph 17-10(b)). 

B. Definition of Victim. Individual who has suffered direct physical, emotional, or pecuniary harm 

as a result of the commission of an offense under the UCMJ. If a victim is under 18 years old, 

incompetent, incapacitated or deceased, the military judge shall designate a representative from 

among the representatives of the estate of the victim or a family member. (Article 6b sections (b) and 

(c)). NOTE: Section 5105 of the 2016 Military Justice Act (MJA) of 2016 amends the language to 

include “the legal guardians of the victim or the representatives of the victim’s estate, family 

members, or any other person designated as suitable by the military judge, may assume the rights of 

the victim under this section.” 

C. Crime Victims’ Rights. ARTICLE 6b, UCMJ; AR 27-10, PARA. 17-10(b). 

1. The right to be reasonably protected from the accused; 

2. The right to reasonable, accurate, and timely notice of any of the following: 

a. A public hearing concerning the continuation of confinement prior to trial of the accused. 

b. A preliminary hearing under section 832 of this title (article 32) relating to the offense. 

c. A court-martial relating to the offense. 

d. A public proceeding of the service clemency and parole board relating to the offense. 

e. The release or escape of the accused, unless such notice may endanger the safety of any 

person. 

3. The right not to be excluded from any public hearing or proceeding described in paragraph 

(2) unless the military judge or investigating officer, as applicable, after receiving clear and 

convincing evidence, determines that testimony by the victim of an offense under this chapter 

would be materially altered if the victim heard other testimony at that hearing or proceeding. 

4. The right to be reasonably heard at any of the following: 

a. A public hearing concerning the continuation of confinement prior to trial of the accused. 

b. A sentencing hearing relating to the offense. 

c. A public proceeding of the service clemency and parole board relating to the offense. 

5. The reasonable right to confer with the counsel representing the Government at any 

proceeding described in paragraph (2). 

6. The right to receive restitution as provided in law. 

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7. The right to proceedings free from unreasonable delay. 

8. The right to be treated with fairness and with respect for victim’s dignity and privacy 

D. Staff Judge Advocate Responsibilities (Army Regulation 27-10, paras. 17-10, 17-14, 17-15). 

1. Staff Judge Advocates will ensure that local policies and procedures are established to provide 

for crime victim rights. 

2. During investigation and prosecution of crime, will provide victims the earliest possible 

notice of significant events in the case (reasonable, accurate and timely), to include: 

a. Status of investigation of crime, with limits. 

b. Apprehension of suspected offender. 

c. Decision to prefer (or file in civilian court) or dismiss charges. 

d. Initial appearance of suspect before pretrial confinement hearing or at Article 32, UCMJ 

investigation. 

e. Scheduling of each court proceeding victim is required or entitled to attend. 

f. Detention or release from detention of offender or suspected offender. 

g. Acceptance of plea of guilty or other verdict. 

h. Result of trial. 

i. If sentenced to confinement, probable parole date. 

j. General information regarding corrections process. 

k. Opportunity to consult with trial counsel concerning evidence in aggravation. 

l. How to submit victim impact statement to Army Clemency and Parole Board. 

3. Upon sentence to confinement, the trial counsel or Government representative will: 

a. Formally inform the victim (or victim’s SVC), regarding post-trial procedures 

i. Victim’s eligibility to submit matters for consideration by the convening authority 

during the clemency phase (RCM 1105A) 

ii. Notify if the offender’s confinement or parole status changes, and when the offender 

will be considered for parole or clemency 

b. Provide DD Form 2703 and complete DD Form 2704. 

E. Consultation with Victims (Army Regulation 27-10, para 17-15). 

1. The trial counsel, VWL, or other Government representative will consult crime victims or if 

applicable, the SVC regarding the below critical determinations. Consultation may be limited 

when justified by the circumstances, such as to avoid endangering the safety of a victim or a 

witness, jeopardizing an ongoing investigation, disclosing classified or privileged information, or 

unduly delaying the disposition of an offense. The victim’s preference is not controlling and the 

command retains discretion to determine the disposition of the offenses to best maintain good 

order and discipline. 

a. Decisions not to prefer charges. 

b. Decisions concerning pretrial restraint of the alleged offender or his or her release. 

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c. Pretrial dismissal of charges. 

d. Negotiations of pretrial agreements and their potential terms. 

F. Property Return and Restitution (Army Regulation 27-10, para 17-16). 

1. SJAs will ensure that all noncontraband seized property that has been acquired as evidence 

for use in the prosecution of an offense is safeguarded and returned to the appropriate person, 

organization, or entity as expeditiously as possible per AR 195–5, or AR 190–30, as applicable. 

2. Victims who suffer personal injury or property loss or damage as a result of an offense should 

be informed of the various means available to seek restitution. 

a. If loss of property is the result of a wrongful taking or willful damage by a member of the 

Armed Forces then look to UCMJ, Art. 139 

i. UCMJ, Art. 139 investigations should be conducted in a manner that does not 

interfere with any ongoing criminal investigations or courts-martial proceedings. 

3. Victims should also be informed of the possibility of pursuing other remedies 

a. Claims 

b. Private lawsuits 

c. Federal or State crime victim compensation programs 

i.	 Transitional Compensation Program for abused family members under 10 USC § 

1059 (see infra Section VII) 

ii. Civilian sources and points of contact to assist 

(a) Local claims office 

(b) Legal assistance or lawyer referral services 

4. Court-martial convening authorities will consider appropriateness restitution as a term and 

condition in pretrial agreements, and will consider whether the offender has made restitution to 

the victim when taking clemency action under RCM 1107. 

5. Army Clemency and Parole Board will also consider the appropriateness of restitution in 

clemency and parole actions. 

G. Victim Attendance at Article 32 Preliminary Hearing (RCM 405(i)(2)) 

1. A “victim” for purposes of RCM 405(i)(2) is defined as “a person who is alleged to have 

suffered a direct physical, emotional, or pecuniary harm as a result of the matters set forth in a 

charge or specification under consideration and is named in one of the specifications under 

consideration.” 

2. The victim has a right to reasonable, accurate and timely notice of the proceeding, a right to 

be protected from the accused and the reasonable right to confer with counsel for the government 

during the hearing. 

3. The victim is NOT required to testify at the preliminary hearing. However, the victim has the 

right to be present and not excluded from any portion of the hearing, unless the preliminary 

hearing officer (PHO), after receiving clear and convincing evidence, determines the testimony 

by the victim would be materially altered if the victim heard other testimony at the proceeding. 

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4. The victim shall be excluded if a privilege is invoked under MRE 412, 513 or 514 or 

evidence is offered under MRE 412, 513 or 514 for charges other than those in which the victim 

is named. 

H. Victim Attendance at Court Proceedings (MRE 615) 

1. A “victim” for purposes of MRE 615 is defined as “a person who has suffered direct physical, 

emotional, or pecuniary harm as a result of the commission of a crime, including (A) in the case 

of a victim that is an institutional entity, an authorized representative of the entity; and (B) in the 

case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, one of the 

following (in order of preference): (i) a spouse; (ii) a legal guardian; (iii) a parent; (iv) a child; (v) 

a sibling; (vi) another family member; or (vii) another person designated by the court.” 

2. Military Rule of Evidence 615 (Excluding Witnesses) prohibits the military judge from 

sequestering certain categories of witnesses to prevent them from hearing the testimony of other 

witnesses, including: “(e) A victim of an offense from the trial of an accused for that offense, 

unless the military judge, after receiving clear and convincing evidence, determines that 

testimony by the victim would be materially altered if the victim heard other testimony at that 

hearing or proceeding.” 

a. Subparagraph (e) extends to victims at courts-martial the same rights granted to victims by 

the Crime Victims’ Rights Act, 18 U.S.C. §3771. Victim is defined as a person directly and 

proximately harmed as a result of the commission of a Federal offense, and the victim has 

“the right not to be excluded from any such public court proceeding, unless the court, after 

receiving clear and convincing evidence, determines that testimony by the victim would be 

materially altered if the victim heard other testimony at that proceeding.” 18 U.S.C. 

§3771(a)(3). 

b. The rules allowing victims to remain in the courtroom are subject to other rules, such as 

those regarding classified information, witness deportment, and conduct in the courtroom. 

I. Crime Victims and Presentencing (RCM 1001A) 

1. A “crime victim” for purposes of RCM 1001A is defined as “a person who has suffered direct 

physical, emotional, or pecuniary harm as a result of the commission of an offense for which the 

accused was found guilty.” 

2. Right to be heard 

a. In capital cases, the right to be reasonably heard includes the right to make a sworn 

statement. 

b. In non-capital cases, the right to be reasonably heard means the right to make a sworn or 

unsworn statement. If the victim makes an unsworn statement, the victim may not be crossexamined. The prosecution or defense may rebut any statement of fact within the unsworn 

statement. The unsworn statement may be oral, written or both and requires a copy be 

presented to the judge, trial counsel and defense counsel after announcement of findings (the 

judge may waive for good cause). 

J. Post-Trial - Matters Submitted by a Crime Victim (RCM 1105A) 

1. Defined. For purposes of this rule, a “crime victim” is a person who has suffered direct 

physical, emotional, or pecuniary harm as a result of the commission of an offense of which the 

accused was found guilty, and on which the convening authority is taking action under R.C.M. 

1107. When a victim is under 18 years of age, incompetent, incapacitated, or deceased, the term 

includes one of the following (in order of precedence): a spouse, legal guardian, parent, child, 

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sibling, or similarly situated family member. For a victim that is an institutional entity, the term 

includes an authorized representative of the entity. 

2. Form of Statement. In writing and signed. The statement may include photographs, but no 

other media. 

3. Timing. Within 10 days of receipt of the SJAR or the ROT (if eligible to receive under Article 

54(e) UCMJ), whichever is later. The crime victim may request an extension of up to 20 days. In 

summary courts-martial, the victim has 7 days to submit the matters to the summary court-martial 

officer after the announcement of sentence. 

K. Disclosure of Information to Crime Victims (TJAG Policy Memo 14-09, October 2014) 

1. Upon Preferral of Charges the Government will provide to the victim (or SVC): 

a. A copy of all statements and documentary evidence produced or provided by the victim; 

b. An excerpt of the charge sheet setting forth the preferred specifications pertaining to the 

victim 

c. The date time and location of any pretrial confinement review pursuant to RCM 305, and 

the preliminary hearing pursuant to Article 32, UCMJ 

2. Upon Receipt or Filing, the Government will provide to the victim (or SVC): 

a. A summarized transcript of the victim’s testimony at the preliminary hearing 

b. An excerpt of the charge sheet setting forth the referred specifications pertaining to the 

victim 

c. Any docket requests, as well as docketing or scheduling orders including deadlines for 

motions and the date and location of trial sessions 

d. A copy of any motion or responsive pleading that may limit a victim’s ability to 

participate or impact the victim’s rights, privileged communications, or private medical 

information. 

e. Any defense request to interview the victim 

3. Any additional crime victim requests for documents or investigative reports may be 

processed through the Freedom of Information Act (FOIA) or Privacy Act.
 

L. Protection from Retaliation. All crime victims will be protected from restriction of their 

communications, reprisal by their command for making a report, ostracism or social retaliation by 

their peers, and cruelty and maltreatment. 

1. Reprisal (Professional Retaliation) – Whistleblower Protection Act (10 U.S.C. §1034); Army 

Regulation 20-1 (Inspector General Activities and Procedures); Army Directive (AD) 2014-20; 

NEW Article 132, UCMJ (effective date no later than January 2019). 

a. Military Whistleblower Protection (DoD Directive 7050.06 and AR 600-20, para. 5-12; 

para. 6-11; 8-5(m)(27)(a))) 

i. Restricting Communications with Members of Congress and Inspector General (IG) 

and Members of Congress Prohibited. No person may restrict a member of the armed 

forces in communicating with a Member of Congress or an IG. 

ii. Prohibition of Retaliatory Personnel Actions for Communications. No person may 

take (or threaten to take) an unfavorable personnel action, or withhold (or threaten to 

withhold) a favorable personnel action, as a reprisal against a member of the armed 

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forces for making or preparing or being perceived as making or preparing 

communications to the following (including but not limited to); 

(a) Member of Congress or an Inspector General 

(b) Member of a Department of Defense audit, inspection, investigation, or law 

enforcement organization 

(c) Any person or organization in the chain of command or any person designated to 

receive such communications (refer to AR 600-20, para. 5-12). 

iii. Investigations completed by IG or DoD IG. Administrative actions may be taken in 

response to a founded IG investigation. 

b. Reprisal type retaliation defined in Army Directive (AD) 2014-20 as “taking or threatening 

to take an adverse or unfavorable personnel action, or withholding or threatening to withhold 

a favorable personnel action, with respect to a victim or other member of the Armed Forces 

because the individual reported a criminal offense or was believed to have reported a criminal 

offense.” 

 i. Investigations completed by IG or DoD IG if high ranking subject or sexual assault 

victim reported. Punitive and prosecuted under Article 92, UCMJ. 

c. Command actions in evaluation. 

i. Raters are required to document significant deviations from commitment to unlawful 

discrimination and/or sexual harassment and identify instances of reprisal/retaliation 

taken by the rated individual in that evaluation report. 

ii.	 If a Soldier’s separation appears to be in retaliation for the Soldier filing an 

unrestricted report of sexual assault, SCMCA and GCMCA should consider in their 

mandatory review in consultation with the SJA. 

2. Ostracism and Social Retaliation (Army Directive 2014-20) 

a. Defined as “excluding from social acceptance, privilege or friendship a victim or other 

member of the Armed Forces because: (a) the individual reported a criminal offense; (b) the 

individual was believed to have reported a criminal offense; or (c) the ostracism was 

motivated by the intent to discourage reporting of a criminal offense or otherwise to 

discourage the due administration of justice.” 

b. Technically, AD 2014-20 is punitive and may be prosecuted under Article 92, UCMJ. 

According to the DoD Retaliation Prevention and Response Strategy (April 2016), military 

justice responses to offenses of ostracism may engender resentment and further retaliation 

against a crime victim. More effective methods to reduce ostracism fall under command 

prevention strategies and informal resolution. 

c. Allegations of ostracism/social retaliation will be referred to and investigated by, the 

victim’s chain of command or supervision or by any other appropriate investigative agency, 

organization or entity. 

3. Cruelty and Maltreatment (Article 93, UCMJ; AD 2014-20) 

a. Defined. Cruelty, oppression or maltreatment, although not necessarily physical, must be 

measured by an objective standard. Assault, improper punishment and sexual harassment 

may constitute the offense. The imposition of necessary or proper duties and the exaction of 

their performance does not constitute this offense even though the duties are arduous or 

hazardous or both. (see Article 93, UCMJ). 

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b. Between members of different ranks. Cruelty toward, oppression or maltreatment of any 

person subject to the orders or the alleged offender may be punished under Article 93, UCMJ 

i.	 Allegations of a subordinate against a superior servicemember will be referred to and 

investigated by the appropriate investigative agency, organization or entity (usually 

victim’s chain of command, Military Police/CID). 

c. c. Between peers or other persons. Acts of cruelty, oppression or maltreatment (as 

defined in Article 93, UCMJ) committed against a victim, an alleged victim or another 

member of the Armed Forces by peers or other persons, because the individual reported, or 

was believed to have reported a criminal offense. 

i. Allegations of cruelty, oppression or maltreatment between peers or other persons 

will be referred to and investigated by the victim’s chain of command or by any other 

appropriate investigative agency, organization or entity. 

ii. Punishable under the punitive AD 2014-20/ Article 92, UCMJ. 

4. Reporting and tracking in cases of sex assault. The SARC will track incidents of retaliation 

at the SARB and the command will address in accordance with the DoD Retaliation Response 

and Prevention Strategy and Implementation Plan and AD 2015-16. (see infra Section IV) 

5. Online misconduct, or the use of electronic communication to inflict harm, includes 

communication of a threat, indecent language, obstruction of justice, stalking, sexual harassment, 

bullying, hazing, retaliation or any other types of misconduct that undermine dignity and respect. 

(see ALARACT 014/2017; Department of the Army Memorandum, “Implementation Plan – 

Professionalization of Online Conduct,” dated 16 June 2015) 

a. Soldiers or civilian employees who participate in or condone misconduct, whether offline 

or online, may be subject to criminal, disciplinary, and/or administrative action. Contractor 

employee misconduct will be referred to the employing contractor through applicable 

contracting channels for appropriate action. 

b. Personnel who experience or witness online misconduct should report matters to the 

chain of command, supervisor, family support services, equal opportunity/equal employment 

opportunity, SHARP, IG or Army law enforcement. 

c. When the electronic communication is the primary means or most important charge of 

misconduct, then the OSJA (usually the Chief of Justice) should report the allegation using 

the “Report of Online Misconduct and Disposition” form to OTJAG, Criminal Law Division, 

within one week of the command’s disposition of the allegation of online misconduct. Do 

not report if the online misconduct is evidence or a minor charge. 

M. Enforcement: 

1. By Court of Criminal Appeals (Article 6b) 

d. Petition for a writ of mandamus 

i.	 If the victim of an offense believes that a preliminary hearing ruling under Article 32 

or a court-martial ruling violates the rights of the victim afforded by an Article or rule 

(specifically including MRE 412, MRE 513, MRE 514 or MRE 615), the victim may 

petition the Court of Criminal Appeals for a writ of mandamus to require the preliminary 

hearing officer or the court-martial to comply with the Article or rule. 

ii.	 If the victim of an offense is subject to an order to submit to a deposition, 

notwithstanding the availability of the victim to testify at the court-martial trying the 

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accused for the offense, the victim may petition the Court of Criminal Appeals for a writ 

of mandamus to quash such order. 

iii.	 A petition for a writ of mandamus described in this subsection shall be forwarded 

directly to the Court of Criminal Appeals and shall have priority over all other 

proceedings before the court. 

2. Congressional Inquiry. Public Law entitles constituents to correspond with their elected 

officials. Interested parties may ask elected officials to help with a matter involving the 

DoD. http://open.defense.gov/Transparency/Congressional-Inquiries/ 

3. Inspector General (IG) Complaint. (AR 20-1) 

a. Any Army military or civilian member may file. 

b. Complaint may be filed with command or supervisor, IG or other established grievance 

channel. 

4. Complaints of Wrongs (Article 138, UCMJ) 

a. Any member of the armed forces may apply to his/her commanding officer for redress of 

a perceived wrong. 

b. If refused, the Soldier may complain to any superior commissioned officer who forwards 

the complaint to the officer exercising general court-martial jurisdiction over the officer 

against whom it is made. 

5. Informal Resolution. In cases of government mistake or negligence, a negotiated solution 

between victim or victim’s representative and Government counsel or command may be 

appropriate. 

6. Nothing in Article 6b should authorize a cause of action for damages, or create /imply any 

duty or obligation to any victim or other person for the breach of which the United States or any 

of its officers or employees could be held liable in damages. 

N. Victims’ Rights Case Law 

1. United States v. Rorie, 58 M.J. 399 (C.A.A.F. 2003). CAAF overturns 53 years of precedent 

and holds that it will no longer follow a policy of abatement ab initio for appellants who die 

following review by the intermediate service courts but prior to final review by the Court of 

Appeals for the Armed Forces. The rationale for overturning the abatement policy rested on two 

grounds: first, even after the death of a military defendant “there remains a substantial punitive 

interest in preserving otherwise lawful and just military convictions”; and second, the impact of 

abatement ab initio on victims’ rights, and, in particular, the issue of restitution as a condition of a 

pretrial agreements, reduced sentence, clemency, or parole. “Particularly where there has been 

one level of appeal of right, abatement ab initio at this level frustrates a victim’s legitimate 

interest in restitution and compensation.” 

2. United States v. Ducharme, 59 M.J. 816 (N-M. Ct. Crim. App. 2004). Appellant was tried in 

July, 1999, prior to the effective date of changes to MRE 615 permitting sentencing witnesses to 

observe trial on the merits (the effective date of those changes is 15 May 2002). The court held 

that the military judge did not err when he ruled that, under Mil. R. Evid. 806 (control of 

spectators), one of the government’s sentencing witnesses (negligent homicide victim’s mother) 

could remain in the courtroom throughout trial. In addition, under Mil. R. Evid. 615 as it existed 

at the time of appellant’s trial which required sequestration of witnesses upon request of either 

party, the trial defense counsel waived the issue. Finally, even assuming the military judge erred 

under Mil. R. Evid. 615 as it existed at the time of appellant’s trial, any error was harmless. 

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3. LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013). Widely viewed to be the precursor to 

Article 6b and the Special Victim Counsel (SVC) program, LRM strengthened the right of the 

victim to be heard on issues of privilege and MRE 412 during a court-martial. The three issues 

certified by the Air Force Judge Advocate General to C.A.A.F. include whether the service court 

of appeals (CCA) erred by holding it lacked jurisdiction to hear victim’s petition for a writ of 

mandamus under the All Writs Act; whether the military judge erred by denying the victim the 

opportunity to be heard on an M.R.E. 513 issue through counsel in violation of protections under 

the M.R.E., the CVRA and the U.S. Constitution; and whether C.A.A.F. should issue a writ of 

mandamus to the lower court. LRM held that the C.A.A.F. has statutory jurisdiction to review 

the CCA’s finding on the basis of TJAG certification, and that the CCA erred in determining 

there was no subject-matter jurisdiction because the court did not apply the correct analysis. The 

court also determined that even though victims are not a party to the litigation, they are not 

precluded from asserting standing to contest a ruling on a held privilege, stating “a reasonable 

opportunity to be heard at a hearing includes the right to present facts and legal argument, and 

that a victim or patient who is represented by counsel be heard through counsel.” Declining to 

issue a writ of mandamus, C.A.A.F. returned the issue back to the trial court reinforcing the 

military judge’s discretion to impose reasonable limitations on the victim’s right to be heard 

under R.C.M. 801. 

4. EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016). In light of the plain 

language of Article 6b, C.A.A.F. now lacks jurisdiction to entertain a writ-appeal by alleged 

victim who sought to reverse a military judge’s order for disclosure of mental health records 

(M.R.E. 513). Article 6b(e) granted right to victims allowing for mandamus petition to a court of 

criminal appeals ends at the CCA. 

5. Randolph v. HV & United States, No. 16-0678 (C.A.A.F. Feb. 2, 2017). In light of the plain 

language of Article 6b, C.A.A.F. also lacks jurisdiction to entertain an accused’s appeal of a CCA 

decision to grant victim petitioner’s request for a writ of mandamus, denying the trial court’s 

order to disclose mental health records (M.R.E. 513). The accused argued that jurisdiction 

existed under Article 67(a)(3) of the UCMJ, however C.A.A.F. concluded that there was no 

precedent to apply Article 67 cases to a petition filed under Article 6b, and that “it would violate 

congressional intent for this Court to review Article 6b cases upon petition by the accused but not 

the victim.” 

III. SEXUAL ASSAULT POLICY: PROCEDURAL PROTECTION FOR 

VICTIMS 

A. Generally. Besides the protections afforded to all crime victims under Article 6b, victims of 

sexually related offenses are provided additional procedural protections, with the greatest protections 

granted to victims of rape, sexual assault, forcible sodomy and attempts of those crimes. While this 

section will address baseline DoD policy and Army implementation, it is important to note that 

victims from other services may be afforded additional protections, and that each Army General 

Court Martial Convening Authority (GCMCA) may impose additional requirements or withholding 

policies with regard to sexually related offenses. When arriving to a new location, always check the 

existing local policies. 

B. Definitions 

1. The definitions of “Sexual Assault” and “Sex Related Offenses” may vary depending on the 

source or regulation as well as the date of the alleged offense and the applicable language of 

Article 120 at the time of the offense. Always check the source document’s definition. 

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2. In general, the term “Sexual Assault” includes: Violations of Article 120 (rape, sexual assault, 

aggravated sexual contact, abusive sexual contact), Article 125 (forcible sodomy) and attempts of 

any of the above offenses in violation of Article 80, UCMJ. 

3. In general, the term “Sex Related Offenses” includes: Violations of Article 120 (rape, sexual 

assault, aggravated sexual contact, abusive sexual contact), Article 120a (stalking), Article 120b 

(rape and sexual assault of a child), Article 120c (other sexual misconduct – indecent 

viewing/visual recording/broadcasting), Article 125, UCMJ (forcible sodomy) and attempts of 

any of the above offenses in violation of Article 80, UCMJ. 

4. NOTE: The 2017 NDAA and Military Justice Act (MJA) will revise the above definitions 

with an effective date of no later than 1 January 2019. 

C. Rights for Victims of Sex Related Offenses. In addition to the rights and protections afforded to 

all victims of crimes under the UCMJ, victims of sex related offenses may be eligible for the 

following procedural protections. 

1. Option to file a Restricted Report (see infra Section IV). 

2. Access to Sexual Assault Response Coordinator (SARC) and Victim Advocate (VA) along 

with medical and counseling services in accordance with the Sexual Harassment/ Assault 

Response and Prevention (SHARP) program (see infra Section IV). 

3. Ability to request Expedited Transfer (see infra Section IV). 

4. May consult with an SVC (see infra Section VI and Army Regulation 27-10 (11 June 2016), 

para. 17-10 (a)) 

a. Must be notified of right to consult with SVC prior to interview or making an official 

statement and upon initial contact with the following individuals: 

(1) Military Criminal Investigator 

(2) Government Counsel (Trial Counsel) 

(3) Sexual Assault Response Coordinator (SARC) 

(4) Victim Advocate (VA) 

(5) Victim Witness Liaison (VWL) 

b. An eligible victim may decline representation by an SVC. 

4. Withholding Sexual Assault Initial Disposition Authority (SA-IDA) to the O-6 Brigade 

Commander (see infra Section IV). 

5. Command (O-6 Brigade Commander) deferral of victims’ collateral misconduct adjudication 

until after final disposition of the charges against the accused (see infra Section IV). 

a. Assignment of TDS counsel to represent the victim (TDS Policy Memorandum # 

2014-01, Detailing of Defense Counsel and Formation of Attorney-Client Relationships with 

Alleged Victims of Sexual Offenses) 

b. Commander must consider immunity for the victim if the collateral misconduct is 

deferred. (See DoDI 6495.02) 

6. Interviews (Article 46, UCMJ; AR 27-10, paragraph 17-10(11)(b); RCM 701(e)(1); 10 

U.S.C. 1044e(b)(6)): 

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a. Victim may have escort/ SVC with them during law enforcement interviews. 

b. Defense Counsel Interviews 

(1) Defense Counsel (DC) must request interview through Trial Counsel (TC), VWL, 

SVC or other victim representative. 

(2) Upon TC notice to DC of intent to call alleged victim to testify at an Article 32 

Preliminary Hearing or a court-martial, DC must make any request to interview victim 

through SVC or other victim’s counsel. 

(3) If requested by alleged victim, any interview shall take place only in the presence of 

the TC, victim’s counsel/SVC, SHARP VA. 

7. Opportunity to Express Preference Regarding Prosecution Venue (RCM 306(e); AR 27-10, 

paragraph 17-10(11)(c)): 

a. Alleged victim of an offense committed in the United States shall be provided with an 

opportunity to express views as to whether the offense should be prosecuted by court-martial 

or in a civilian court with jurisdiction over the offense. 

b. The TC, VWL, other Government representative or SVC will obtain the preference, and 

the convening authority shall consider the victim’s preference for jurisdiction prior to making 

an initial disposition determination and shall continue to consider the victims views until final 

disposition. 

c. The convening authority shall ensure that the civilian authority with jurisdiction is 

notified of the victim’s preference. 

8. Command Preferral and Referral Decisions 

a. The convening authority shall not consider the service history of the accused in the 

decision to prefer or refer charges of sexual assault 

b. If the convening authority and SJA agree that referral of sexual assault charges are not 

appropriate in a case, then the decision will be reviewed by the next highest commander. If 

the SJA believes that charges should be referred, then the decision shall be reviewed by the 

Secretary of the Army. (AD 2014-19) 

c. If the convening authority refers a charge for rape, sexual assault, rape of a child, 

sexual assault of a child, forcible sodomy or attempts of the above (Articles 120(a), 120(b), 

120b(a) and 120b(b), Article 125 and Article 80), then the charges must be referred to a 

General Court Martial. (RCM 201(f)(1)(D)). 

9. Mandatory minimums. If the accused is found guilty of rape, sexual assault, rape of a child, 

sexual assault of a child, forcible sodomy or attempts of the above (Articles 120(a), 120(b), 

120b(a) and 120b(b), Article 125 or Article 80), then the punishment must include, at a minimum, 

dismissal or dishonorable discharge. (Article 56(b), UCMJ). 

10. Post-Trial 

a. Victim entitled to copies of the record of trial (Article 54(e), UCMJ; RCM
 

1103(g)(3)(A); 1104(b)(1)(E); AR 27-10, para. 5-45)
 

(1) Definition of “Victim” includes being a named victim in a specification under Article 

120, Article 120b, Article 120c, Article 125 or any attempt to commit such offenses 

under Article 80. If victim is a minor, a copy should be offered to the parent or legal 

guardian of the victim. 

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(2) In a GCM or SPCM where a qualifying specification resulted in a finding, a copy 

shall be given free of charge to the victim. 

(3) Article 54(e), UCMJ states: “In the case of a general or special court-martial 

involving a sexual assault or other offense covered by ... (article 120), a copy of all 

prepared records of the proceedings of the court-martial shall be given to the victim of 

the offense if the victim testified during the proceedings. The records of the proceedings 

shall be provided without charge and as soon as the records are authenticated. The victim 

shall be notified of the opportunity to receive the records of the proceedings.” RCM 

1103 is broader and does not require that the victim testified. 

(4) ROT service on a qualifying victim. The ROT should contain the documents listed 

in RCM 1103(b)(2). 

(5) No later than authentication of the record, the trial counsel shall notify the victim 

of the opportunity to receive a copy of the ROT. The victim may decline receipt in 

writing which shall be attached to the ROT. 

c. Crime victim’s right to submit matters to the convening authority during the clemency 

phase of the court-martial process (see RCM 1105A, infra Section II). 

11. Command Review of Administrative Separations. All SPCMCA and GCMCAs will 

review all administrative separation actions involving victims of sexual assault. The review must 

consider the following. (AR 600-20, para. 8-5; AR 635-200, para. 1-15) 

a. If the separation appears to be in retaliation for the Soldier filing an unrestricted report of 

sexual assault. If so, consult with SJA. 

b. If the separation involves a medical condition related to the sexual assault, to include Post 

Traumatic Stress Disorder. If so, consult with the medical personnel. 

c. If the separation is in the best interests of the Army, the Soldier, or both. If not, consult 

with SJA. 

d. Status of the case against the alleged offender, and the effect of the Soldier’s (victim’s) 

separation on the disposition or prosecution of the case. If the case is still open, consult CID 

and SJA. 

IV. SEXUAL HARASSMENT/ASSAULT RESPONSE AND 

PREVENTION PROGRAM (SHARP) 

A. Generally. 

1. The Sexual Harassment/Assault Response and Prevention (SHARP) Program reinforces the 

Army’s commitment to eliminate incidents of sexual assault through a comprehensive policy that 

centers on awareness and prevention, training and education, victim advocacy, response, 

reporting and follow-up. Army policy promotes sensitive care and confidential reporting for 

victims of sexual assault and accountability for those who commit these crimes. 

2. Sexual Assault Policy. Sexual assault is a criminal offense that has no place in the Army. It 

degrades mission readiness by devastating the Army’s ability to work effectively as a team. It is 

incompatible with the Army Values and is punishable under the UCMJ and other federal and 

local civilian laws. 

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3. Relationship with DoD Sexual Assault Response and Prevention Office (DoD SAPRO). The 

DoD SAPRO office is the single point of accountability for sexual assault policy and assessment 

within the DoD and it provides oversight to ensure that each of the Service's programs complies 

with DoD policy and DoD Instruction (DoDI) 6495.02, Sexual Assault Prevention and Response 

Program Procedures. The Army SHARP program provides services to those who report both 

sexual assault and sexual harassment. 

B. Eligibility for SHARP services. 

1. SHARP Sexual Assault Response Coordinator (SARC) and Victim Advocate (SHARP VA) 

services. Active duty (AD) Service members, National Guard (NG) and Reserve Component 

(RC) members will be eligible to receive advocacy services from a SARC or SHARP VA 

regardless of whether the assault took place while on active duty, prior to enlistment or 

commissioning, or while performing inactive duty training. 

2. Eligibility to file a Restricted or Unrestricted report of Sexual Assault. Service members, NG 

and RC members, DoD Civilian employees (see AD 2017-02), and military dependents over 18 

years of age who were victims of a perpetrator other than a spouse or intimate partner, will be 

eligible to file a restricted report regardless of whether the assault took place while on active duty, 

prior to enlistment or commissioning, or while performing inactive duty training. Dependents 

under 18 and all other non-military victims are not eligible to file a restricted report. 

3. Medical Care. Service members, NG and RC members are eligible for treatment at a military 

treatment facility (MTF). Non-military victims of sexual assault are only eligible for medical 

services at an MTF if that individual is otherwise eligible as a Service member or TRICARE 

beneficiary of the military health system to receive treatment in an MTF at no cost to them. 

A reserve component sexual assault victim whose reported offense occurred while on active 

duty and who is expected to be released from active duty before the Line of Duty (LOD) 

determination is made, may request that the Service Secretary retain the member on active 

duty until completion of an LOD determination to assure continuity of health care services. 

4. Non-military individuals, including DoD Civilian employees and their family dependents 

over 18 years of age, along with US citizen DoD contractor personnel when authorized to 

accompany the force, are offered LIMITED SAPR services to be defined as the assistance of a 

Sexual Assault Response Coordinator (SARC) and a SAPR Victim Advocate (VA) while 

undergoing emergency care OCONUS and limited emergency medical care at an MTF. 

5. Victims of sexual assault, domestic abuse or child abuse will be referred to the Family 

Advocacy Program (FAP) victim advocacy in accordance with Department of Defense 

Instruction (DoDI) 6400.06. 

C. Definition of Sexual Assault. For the purpose of DoD-wide sexual assault prevention and 

response awareness training and education, the term “sexual assault” is defined as intentional sexual 

contact, characterized by use of force, threats, intimidation, or abuse of authority or when the victim 

does not or cannot consent. “Consent” shall not be deemed or construed to mean the failure of the 

victim to offer physical resistance. Consent cannot be given when the offender uses force, threat of 

force, coercion, or when the victim is asleep, incapacitated, or unconscious. The term includes a 

broad category of sexual offenses consisting of the following specific UCMJ offenses: 

1. Article 120, UCMJ: Rape, sexual assault, aggravated sexual contact, abusive sexual contact 

2. Article 125, UCMJ: Forcible sodomy (oral or anal sex) 

3. Article 80, UCMJ: Attempts to commit Article 120/125 acts 

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D. Definition of Sexual Harassment. (see AR 600-20, Chapter 7; 10 USC 1561) 

1. “. . . is a form of gender discrimination that involves unwelcomed sexual advances, request 

for sexual favors, and other verbal or physical conduct of a sexual nature between the same or 

opposite genders when: 

a. submission to, or rejection of, such conduct is made either explicitly or implicitly a term 

or condition of a person’s job, pay, career or 

b. submission to, or rejection of, such conduct by a person is used as a basis for career or 

employment decisions affecting that person; 

c. such conduct has the purpose or effect of unreasonably interfering with an individual’s 

work performance or creates an intimidating, hostile or offensive working environment. 

2. Any person in a supervisory or command position who uses or condones implicit or explicit 

sexual behavior to control, influence, or affect the career, pay, or job of a Soldier or civilian 

employee is engaging in sexual harassment. Similarly, any Soldier or civilian employee who 

makes deliberate or repeated unwelcome verbal comments, gestures, or physical contact of a 

sexual nature is engaging in sexual harassment. 

Categories of Sexual Harassment: 

a. Verbal: telling sexual jokes, using sexually explicit profanity, threats, sexually oriented 

cadences, or sexual comments. Can include “honey, sweetheart, babe, hunk.” 

b. Non-verbal: blowing kisses, winking, staring (undressing with eyes). 

c. Physical: touching, kissing, but also blocking hallways, unsolicited back or neck rubs. 

(Note: There is significant overlap between that physical contact which constitutes sexual 

assault and that physical contact which constitutes sexual harassment. Any unwanted 

physical contact reported or alleged related to or in context of sexual harassment must be 

reported immediately to USACIDC for investigation. The USACIDC investigation process 

will determine if the physical contact meets the legal definition of sexual assault.) 

Types of Sexual Harassment: 

d. Quid pro quo: conditions placed on career or teams of employment in return for favors. 

Includes implicit or explicit threats of adverse action. Can include third-party victims who are 

affected by job actions granted to another in exchange for sexual favors. 

e. Hostile environment: Brings the topic of sex or gender differences into the workplace. 

Need not be quid pro quo. If physical acts, sexual comments, or non-verbal actions 

unreasonably interfere with the job performance of another, it is sexual harassment. Can 

include comments about body parts, sexual jokes, suggestive pictures. 

Procedure: Complaints of sexual harassment follow same procedures as Equal 

Opportunity complaints. See AR 600-20, chapter 7, for details. 

E. Victim Advocacy Program Personnel. Victim’s use of advocacy services is optional; however, 

commanders must ensure that victims have access to a well-coordinated, highly responsive sexual 

assault victim advocacy program that is available 24 hours a day/seven days a week both in garrison 

and in a deployed environment. 

1. Sexual Assault Response Coordinator (SARC). The SARC is the single point of contact 

(POC) for all sexual assault, sexual harassment and retaliation complaints. This is a 2012 change 

from past practice, in which sexual harassment was handled by Equal Opportunity officers (see 

ALARACT 007-2012). 

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a. Full time SARCs and SHARP VAs required at the brigade (or equivalent) level. 

Collateral duty SARC and SHARP VAs required at the Battalion & Installation level. 

b. Senior Command SARC: direct report to the Senior Commander 

c. Oversees all VAs battalion & below 

d. Appointed Installation or Brigade SARC reports to Senior Command SARC 

e. Supervises & oversees entire SHARP program: 

Supervises SHARP VAs 

Serve as the program manager of victim support services who coordinates and oversees 

the local implementation and execution of the Sexual Assault Prevention and Response 

Program. 

Ensure overall local management of sexual assault awareness, prevention, training, and 

victim advocacy. 

Oversee Victim Advocates and Unit Victim Advocates in the performance of their duties 

providing victim services. 

Ensure victims are properly advised of their options for restricted and unrestricted 

reporting. Ensure victim acknowledges in writing his/her preference for restricted or 

unrestricted reporting on a DD Form 2910, Victim Reporting Preference Statement 

(VRPS). 

Ensure all unrestricted reported incidents of sexual assault are reported to the installation 

commander within 24 hours. 

Ensure that non-identifying personal information/details related to a restricted report of 

sexual assault is provided to the Installation Commander within 24 hours of occurrence. 

This information may include: rank, gender, age, race, service component, status, time 

and location. Ensure that information is disclosed in a manner that preserves a victim’s 

anonymity. Careful consideration of which details to include is of particular significance 

at installations or other locations where there are a limited number of minority females or 

female officers assigned. 

Ensure victims are notified of the resources available to report instances of retaliation, 

reprisal, ostracism, maltreatment, sexual harassment or to request a transfer or MPO. 

Responsible for entering information into Defense Sexual Assault Information Database 

(DSAID) and tracking reports of sexual assault, sexual harassment and retaliation. 

f. Each brigade has a unit SARC appointed by the brigade commander. In addition, each 

battalion is assigned two deployable unit victim advocates. 

g. Requires 80-hour TRADOC MTT-provided training course. 

h. Requires 90-day “right seat” training w/ VA and EO personnel. 

i. Grade/Rank requirement: 

(1) Battalion level SARC/SHARP: SFC, MAJ, CW3, GS-11 or higher 

(2) Brigade and below VA/SHARP: SSG, 1LT, CW2, GS-9 or higher 

F. Sexual Harassment/Assault Response and Prevention Victim Advocate (SHARP VA) 

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1. Seven week TRADOC MTT-provided training course. Five additional weeks for VA
 

instructors.
 

2. 90-day “right seat” training w/ VA and EO personnel 

3. Grade/rank: SSG, 1LT, CW2, GS-9 or higher 

4. Duties: 

a. When assigned by the SARC, provide crisis intervention, referral, and ongoing nonclinical support to the victim. The victim alone will decide whether to accept the offer of 

victim advocacy services. VAs are not counselors, they are facilitators of services. 

b. Referral to services includes: psychological treatment, medical, legal, housing assistance; 

full range of FAP and civilian victim support services 

c. Report to and coordinate directly with the SARC when assigned to assist a victim. 

d. Inform victims of their options for restricted and unrestricted reporting, and explain the 

scope and limitations of the SARC’s role as an advocate. 

e. If the victim chooses restricted reporting, ensure the victim is taken to a healthcare 

provider in lieu of reporting the incident to law enforcement or chain of command. 

f. If victim chooses the unrestricted reporting option, the SHARP VA will immediately 

notify law enforcement and healthcare provider. 

g. Safeguard documents in their possession pertaining to sexual assault incidents and protect 

information that is case related. 

G. Commander Responsibilities (see AR 600-20, chapter 8-5o and appendix F) 

1. The victim’s unit commander must take the following actions in the case of an unrestricted 

report of sexual assault. 

a. Immediately notify CID. Do NOT conduct an internal command directed investigation 

of the sexual assault. 

b. Notify the Sexual Assault Response Coordinator (SARC) and report all incidents of 

sexual assault to the office of the staff judge advocate within 24 hours. 

c. Ensure the victim’s physical safety. This frequently will involve issuing a Military 

Protective Order (MPO). Ensure that victims of sexual assault receive sensitive care and 

support and are not re-victimized as a result of reporting the incident. If the victim’s safety is 

in jeopardy, establish a High-Risk Response Team (HRRT). 

d. Require that the victim receives timely access to medical and psychological treatment and 

make sure the victim was asked if s/he would be willing to have a Sexual Assault Forensic 

Examination (SAFE). Facilitate access to all available services and inform the victim of the 

opportunity to consult with an SVC or legal assistance attorney. 

e. Complete and send any required Critical Commander Information Reports (CCIR) 

through the chain of command within 24 hours for incidents involving sexual assault and 

harassment. Strictly limit information pertinent to an investigation to those who have an 

official need to know. 

f. Confirm the SARC entered all reported sexual assaults into the DoD Sexual Assault 

Incident Database (DSAID) within 48 hours of the report. 

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g. Complete the Sexual Assault Incident Response Oversight Report (SAIRO) within eight 

days of the report. Send the SAIRO to the installation commander as well as through the 

victim’s chain of command. 

h. Collaborate closely with the SARC, legal, medical, and chaplain offices and other service 

providers to provide timely, coordinated, and appropriate responses to sexual assault issues 

and concerns. 

i. Continue to make administrative & logistical coordination for movement of victim to 

receive care, regardless of whether the victim is cooperating in the investigation or 

prosecution. 

j. If the incident is a domestic incident, refer the victim to FAP victim advocacy. 

k. Monitor for incidents of coercion, ostracism, discrimination or reprisals against the 

victim in the unit, workplace or through social media. 

2. The accused’s unit commander must take the following actions in the case of an unrestricted 

report of sexual assault. 

a. Immediately notify CID. Do NOT conduct an internal command directed investigation 

of the sexual assault. 

b. Complete and send a Critical Commander Information Report (CCIR) through the chain 

of command within 24 hours for incidents involving sexual assault and harassment. Strictly 

limit information pertinent to an investigation to those who have an official need to know. 

c. Monitor well-being of the alleged offender, particularly for any indications of suicidal 

ideation or other unhealthy attempts to cope with stress and ensure appropriate assistance is 

rendered. 

d. Flag any Soldier under charges, restraint, or investigation for sexual assault in accordance 

with AR 600-8-2, and suspend the Soldier’s security clearance in accordance with AR 380­

67. 

e. Monitor for incidents of coercion, ostracism, discrimination or reprisals against the 

victim in the unit, workplace or through social media. 

f. Complete and send abbreviated SAIRO report if victim is civilian who is not eligible for 

SAPR services. 

3. The victim’s battalion commander must check in with and notify the victim of the status of 

the unrestricted case at the following times. (see AR 600-20, para 8-5 and DoDI 6495.02, Encl 

5) 

a. Personally update the victim on the status of the case within 14 calendar days of the 

report. 

b. Ensure the company commander notifies the victim of the status of the case on a monthly 

basis, usually within 72 hours of the Sexual Assault Review Board (SARB). 

c. Ensures the victim is updated on the final case disposition and that the DA Form 4833 is 

completed. 

d. Personally follow up with the victim to make sure the victim’s needs have been addressed 

within 45 days after final disposition of the case. 

4. Commander’s responsibilities - administrative separations. 

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Chapter 32 

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e. GCMCA is the lowest separation authority for cases involving Soldiers who filed an 

unrestricted report of sexual assault in the last 24 months. 

f. When initiating an administrative separation on any Soldier for any reason (voluntary or 

involuntary), include on the Notification / Acknowledge / Election of Rights form: 

(1) Whether the Soldier filed an unrestricted report of sexual assault in the last 24 

months. 

(2) Whether the Soldier does / does not believe that this separation is a direct / indirect 

result of the sexual assault. 

g. If the separation appears to be in retaliation for the Soldier filing an unrestricted report of 

sexual assault consult with the JA. 

h. If the separation involves a medical or mental health condition that is related to the sexual 

assault, to include PTSD consult with the appropriate medical personnel and the JA. 

i. If the separation is NOT in the best interests of the Army, the Soldier, or both, consult 

with the JA. 

j. The status of the case against the alleged offender, and the effect of the Soldier’s 

(victim’s) separation on the disposition or prosecution of the case. If the case is still open, 

consult with the servicing CID unit and JA. 

k. Commanders will initiate the administrative separation of any Soldier convicted of a sexoffense whose conviction did not result in a punitive discharge or dismissal. Sex-offense is 

defined as an offense requiring sex offender registration under 42 USC section 16911 or as 

defined in AR 27-10, Chapter 24. 

Note that if the Soldier was convicted of rape, sexual assault, rape of a child, sexual 

assault of a child, forcible sodomy or attempts of the above, the Soldier will receive a 

mandatory minimum of a dismissal or dishonorable discharge (see Article 56(b), UCMJ). 

If the separation authority approves retention of an enlisted Soldier, the separation 

authority will initiate separation under the Secretarial plenary separation authority under 

AR 635-200, para. 5-3. 

5. Commander’s responsibilities – Documenting and reviewing (AD 2014-29; AD 2013-21; 

ALARACT 058/2016). 

a. Commanders (O-5 or higher) will screen the record brief of current and incoming 

Soldiers for court-martial convictions, nonjudicial punishment or punitive administrative 

actions for sex related offenses. The purpose is to ensure commanders are aware of the 

history of sex-related offenses of Soldiers within their formations. 

b. Any punitive administrative action (including but not limited to reprimand, 

admonishment or censure at any level of command), nonjudicial punishment or court-martial 

conviction for a sex-related offense must be placed in the Soldier’s permanent record in the 

Army Military Human Resources Record (AMHRR). 

See ALARACT 058/2016 for implementing instructions. Different Assignment 

Consideration Codes (ASCO) are required for sex-related offenses and sex-offenses. The 

servicing SJA must provide an opinion as to whether the offenses fall into one of the two 

categories. The Soldier will be given notice and have an opportunity to respond before 

the adverse action is included in the file. The response will be filed with the adverse 

administrative action. 

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c. Any OCONUS Soldier convicted of a sex-offense whose conviction did not result in a 

punitive discharge or dismissal shall be reassigned to a CONUS or permitted OCONUS 

location (e.g. Hawaii, Alaska, Puerto Rico). Soldiers convicted of a sex-offense shall not be 

assigned or deployed on temporary duty (TDY), temporary change of station (TCS), or 

permanent change of station (PCS) to non-permitted OCONUS locations. 

Sex-offense is defined as an offense requiring sex offender registration under 42 USC 

section 16911 or as defined in AR 27-10, Chapter 24. 

H. Initial Disposition Authority 

1. Baseline DoD policy dictates that disposal of cases resulting from allegations of rape, sexual 

assault, forcible sodomy and attempts are withheld to the Brigade commander level, O-6 and 

above. A commander authorized to dispose of cases involving an allegation of sexual assault, 

otherwise known as the sexual assault initial disposition authority (SA-IDA), may do so only 

after receiving the advice of the servicing judge advocate. See DODM April 20, 2012: 

Withholding Initial Disposition Authority under the Uniform Code of Military Justice in Certain 

Sexual Assault Cases. 

2. According to AR 600-20, paragraph 8-5, disposal of “sexual assault” cases are withheld to 

the Battalion commander level, O-5 and above. Because rape and sexual assault are withheld to 

the O-6 commander, allegations of aggravated sexual contact, abusive sexual contact and 

attempts would be the type of sexual assault cases within the O-5 commander’s initial disposition 

authority. 

I. Reporting Options: There are two possible reporting options for victims of sexual assault. The 

victim may make an unrestricted report of sexual assault which results in a CID investigation, 

collection of a Sexual Assault Forensic Examination (SAFE), provision of counseling, medical/ 

mental health care services and opportunities for transfer to another unit. The victim may also make a 

restricted report of sexual assault. A restricted report does not result in a CID investigation while 

allowing the collection of the SAFE, counseling, medical and mental health care services. The 

restricted report will not allow for other services requiring command knowledge, such as an expedited 

transfer. 

1. Unrestricted Reporting. A Soldier who is sexually assaulted and desires medical treatment, 

counseling, and an official investigation of his/her allegation, may use current reporting channels 

(e.g., chain of command, law enforcement) or he/she may file a DD Form 2910 with the SARC or 

the on-call SAPR victim advocate to elect an unrestricted report. Upon receiving an unrestricted 

report of sexual assault, the SARC will immediately assign a victim advocate and will notify the 

installation and immediate commander within 24 hours. Additionally, with victim’s consent, the 

healthcare provider shall conduct a forensic examination, which should include the collection of 

evidence. Details regarding the incident will be limited to only those personnel who have a 

legitimate need to know. 

Chain of Command (CoC) responsibilities. If any member of the CoC learns of the sexual 

assault from any source, s/he must report that information to CID. The CoC includes 

commanders, non-commissioned officers in the victim’s CoC and civilian supervisors. 

2. Restricted Reporting. A Soldier or a military dependent 18 years of age or older who is 

sexually assaulted may, on a confidential basis, disclose the details of his/her assault to 

specifically identified individuals and receive medical treatment and counseling, without 

triggering the official investigative process. 

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a. The following are the only individuals capable of accepting or receiving a Restricted 

Report: SARC; SHARP Victim Advocate; Healthcare Provider (to include psychotherapists). 

The Restricted Report is officially made when the restricted reporting option is elected on 

a DD Form 2910, completed and signed by the victim. 

Healthcare personnel who receive a restricted report shall contact a SARC or SHARP VA 

to ensure that a DD Form 2910 is correctly completed and that the victim is offered 

SAPR services. 

b. Privilege and confidentiality exist with the following individuals: SARC (when acting as 

a victim advocate in accordance with MRE 514); SHARP/FAP Victim Advocate (MRE 514); 

DoD SAFE Helpline Staff (MRE 514); Chaplain (MRE 503); Legal Assistance 

Attorney/SVC (MRE 502); Psychotherapist (MRE 513). 

A chaplain, SVC or legal assistance attorney cannot accept or receive a Restricted 

Report. 

If in the course of otherwise privileged communications, a victim indicates that he/she 

wishes to file a Restricted Report, then the individual with privilege shall facilitate 

contact with a SARC or SHARP VA to ensure the provision of services and the 

completion of the DD Form 2910. 

c. SARC Reporting. The SARC shall report non-PII concerning sexual assault incidents 

(without any identifying information on the victim or alleged assailant) to the installation 

commander within 24 hours of the report. 

d. If the victim confides in a person who is not in the chain of command and who does not 

have a designated privilege or confidentiality (i.e. friend, roommate, team member), then 

according to DoDI 6495.02, the victim may still maintain the option to make a restricted 

report. The timing of the Restricted Report filing is crucial. 

If the victim elects the Restricted Report option and signs the DD Form 2910 before the 

SARC is notified by law enforcement or the command, then the victim maintains the 

Restricted Report and ALL communications with the SARC and VA remain privileged 

and confidential along with the SAFE kit. 

If the victim does not sign the DD Form 2910 before the SARC is notified by law 

enforcement or the command, then the report must be Unrestricted and law enforcement 

launches an investigation. 

(a) SARC informs victim that the option to file a restricted report is no longer 

available. 

(b) All communications between the victim and SHARP VA will remain privileged 

except for the minimum necessary to make the Unrestricted Report. 

If CoC or law enforcement discovers the sexual assault allegation, an independent 

investigation is initiated regardless of the status of the report. 

(c) All communications between the victim and individuals without privilege (i.e. 

friend, roommate, team member) are not confidential and may be disclosed to law 

enforcement pursuant to the investigation. 

(d) If the report is Restricted, then communications between the victim and the 

SARC and SHARP VA are confidential and no PII may be released to law 

enforcement. 

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3. Converting a Restricted Report to an Unrestricted Report 

a. A sexual assault victim may convert from a Restricted Report to an Unrestricted Report 

at any time. The victim may NOT convert an Unrestricted Report to a Restricted Report. 

b. In cases where a victim elects restricted reporting, the SARC, assigned VA (whether 

uniformed or civilian), and healthcare providers may not disclose covered communications to 

law enforcement or command authorities, either within or outside DoD, unless a specified 

exception applies. Covered communications are oral, written or electronic communications 

of personally identifiable information related to the sexual assault, made by a victim and 

related to the sexual assault to SARC, assigned VA or healthcare provider. 

c. If an exception to restricted reporting applies, then the SARC will evaluate the 

confidential information, and contact the installation SJA office (administrative law attorney) 

who shall advise as to whether one of the exceptions apply. In cases of uncertainty or 

disagreement, the matter shall be brought to the attention of the installation commander for 

decision utilizing non-PII information. 

d. Improper disclosure of covered communications, improper release of medical 

information, and other violations of this policy are prohibited and may result in discipline 

under the UCMJ, loss of credentials, or other adverse personnel or administrative action. 

e. The following exceptions authorize a disclosure of a Restricted Report ONLY if SJA 

consultation has occurred: 

Authorized by the victim in writing. 

Necessary to prevent or mitigate a serious and imminent threat to the health or safety of 

the victim or another person (ex. multiple reports involving same alleged offender or 

safety/security exceptions contained in MRE 514). 

Required for fitness for duty or disability determinations. Limited to information 

necessary to process to those who need to know (Disability Retirement Boards and 

officials). There is no obligation to report to law enforcement or command for 

investigation. 

Required for supervision of coordination of direct victim healthcare or services. SARC, 

SHARP VA or healthcare provider can disclose specifically requested information to 

those with an official need to know. 

Ordered by a military official (e.g., a duly authorized subpoena in a UCMJ case), Federal 

or State Judge in a court of competent jurisdiction. Until determination is made after the 

SARC/ VA consults with the installation SJA, then only non-PII should be disclosed. 

4. Regardless of whether the Soldier elects restricted or unrestricted reporting, confidentiality of 

medical information will be maintained IAW current guidelines on Health Information Privacy 

Portability Act (HIPPA). 

5. A victim’s disclosure of his/her sexual assault to persons outside the prospective sphere of 

persons covered by this policy may result in an investigation of the allegations. 

NOTE: AR 600-20, paragraph 8-2 states that all Soldiers aware of a sexual assault, should 

immediately (within 24 hours) report. The paragraph does not direct a specific recipient for 

the report and the “Victim Confiding in Another Person” provision of DoDI 6495.02 conflicts 

with that guidance. Victims who tell another Soldier retain their ability to make a restricted 

report under the DoD policy. Commanders should be made aware of the conflict and, in 

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consultation with the JA, establish policies and training in an attempt to reduce the number of 

unwilling reports. 

6. This SAPR policy does not create any actionable rights for the alleged offender or the victim, 

nor constitute a grant of immunity for any actionable conduct by the offender or victim. Covered 

communications that have been disclosed may be used in disciplinary proceedings against the 

offender or the victim, even if such communications were improperly disclosed. 

7. Improper disclosure of covered communications, improper release of medical information, 

and other violations of this policy are prohibited and may result in discipline under the UCMJ, 

loss of credentials, or other adverse personnel or administrative action. 

8. Confidential statements made by a victim to a SARC/VA for the purposes of facilitating 

advice or support are privileged under MRE 514. 

J. Expedited transfer of sexual assault victims who file unrestricted reports: 

1. Threats to life or safety: immediate report to command & law enforcement 

2. Soldier must request transfer. 

3. Commander of soldier’s unit must act w/in 72 hours of request. 

4. If transfer denied, soldier can file a request for review to the first General or Flag Officer (or 

equal SES) in the chain of command. 

5. GO or FO has 72 hours to act. 

6. If a request to transfer to a different installation is denied at the installation level, the 

disapproval authority is the Commander, HRC. 

K. Sexual Assault Incident Response Oversight Report (SAIRO) (DoDI 6495.02; DTM 14-007; 

Army Directive 2015-10) 

1. Purpose. To provide General/Flag officer (G/FO) level commanders with oversight of the 

local response to sexual assault report from a victim service member or report against a subject 

service member. The goal is to assure victim care, visibility and transparency to senior leaders 

and system accountability. 

2. Responsible Commander 

a. If the victim is a service member, the victim’s immediate commander prepares and files 

SAIRO when notified of an unrestricted report or independent investigation. SARC and CID 

provide input to the report. SARC is responsible for providing all victim information 

required in the SAIRO for unrestricted reports. The SARC will usually not be responsible for 

providing victim information for independent investigations as CID will be responsible for 

providing all information. 

b. If the victim is a civilian and subject is the service member, then the subject’s immediate 

commander prepares and files an abbreviated SAIRO. 

c. If the subject is the responsible commander, then the next highest commander will 

prepare and file the report. 

d. SAIRO is required even if reported sexual assault occurred before enlistment or 

commissioning. 

3. When: Within the first eight calendar days of the unrestricted report or independent 

investigation. 

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Triggers for eight day clock include: 

When unrestricted report is made to SARC or SHARP VA and DD Form 2910 is
 

completed and signed.
 

Conversion of restricted report to unrestricted report on DD Form 2910. 

If an independent investigation is started, when CID notifies immediate commander.
 

4. SAIRO Recipients (only those with a need to know). 

a. Installation commander (if incident occurred on or in the vicinity of a military
 

installation)
 

b. First O-6 and first G/FO in the victim’s chain of command (if victim is a service member) 

c. First O-6 and first G/FO in the subject’s chain of command (if subject is a service 

member)
 

d. If alleged subject is a possible recipient, SAIRO will go to next highest commander. 

5. SAIRO Contents. 

a. Incident Data. May only be obtained through CID, as command directed investigations 

are prohibited. No victim PII should be included in the report.
 

Victim gender, duty status, Service affiliation, assigned unit, grade and current
 

geographic area where the victim is stationed and lives.
 

Subject gender, duty status, Service affiliation, assigned unit, grade and current
 

geographic area where subject is stationed and lives.
 

Most serious alleged sexual assault offense.
 

Location, date and time of alleged sexual assault.
 

Date victim was referred to the SARC or SHARP VA.
 

Date offense was reported to CID or other MCIO. 

If subject is Service member, then whether the subject has been temporarily moved.
 

Any other relevant information
 

b. Advocacy services offered. Including SAPR advocacy services of a SARC/ SHARP VA 

as well as SVC. 

Confirmation that SARC entered information into Defense Sexual Assault Incident 

Database (DSAID) within 48 hours. 

Description of any circumstance in the response that adversely affected the command’s 

ability to address the victim’s needs (including timeliness, obstacles to care, retaliation or 

reprisal). 

Before releasing any privileged communications, SARC will obtain victim consent for 

disclosure and confirm that victim was informed of the ability to speak to a Special 

Victims’ Counsel (SVC). 

Summary of the SAPR services offered. 

Date of next SARB or Case Management Group (CMG). 

c. Victim’s Immediate Commander Input. 

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d.	 Healthcare. 

Do not include PII or individually identifiable health information. 

Provide date when victim was offered medical and mental health care. 

Provide date when the victim was offered a sexual assault forensic examination (SAFE) 

at the appropriate location. If not offered, explain why. 

e.	 Investigation. Information provided by CID.
 

Case number.
 

Confirmation victim has been provided with DD Form 2701.
 

f.	 Safety. Information provided by SARC. 

Date safety assessment was conducted and whether there was a need to assemble a HighRisk Response Team. 

Date victim was provided with information on MPOs and Civilian Protective Orders 

(CPO) and whether they were filed.
 

What safety measures were taken (if in a deployed environment).
 

g. Expedited Transfers. If victim is service member, SARC will provide immediate 

commander assigned to prepare SAIRO report. 

Date victim was given information regarding expedited transfers. 

A report on whether or not the victim requested an expedited transfer. If in processing 

include date of receipt. 

h.	 Legal Services. 

Date eligible victim informed of SVC program. 

Confirmation that victim was notified that SVC is not the prosecution and will represent 

the victim and the victim’s interest through the provision of legal advice and 

representation. 

L. Sexual Assault Review Board (SARB) (DoDI 6495.02, Enclosure 9; AR 600-20, Appendix E) 

1. The SARB provides executive oversight, procedural guidance and feedback concerning the 

installation’s SAPR program. The SARB reviews the installation’s prevention program and the 

response to any sexual assault incidents. This includes reviewing cases and procedures to improve 

processes, system accountability and victim access to quality services. 

2.	 The senior commander or designated representative will chair the SARB. 

3.	 SARB Members include: 

a.	 Installation SARC (required) 

b.	 Victim Advocate (as appropriate and deemed necessary by the senior commander) 

c.	 CID Agent 

d.	 SJA (usually an administrative law attorney) 

e.	 Provost Marshal or representative law enforcement 

f.	 Chaplain or representative 

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g. Sexual assault clinical provider or sexual assault care coordinator 

h. Chief, Behavioral Health 

i. Other members may be appointed or invited (ex. victim’s commander SVWL, ASAP, 

SVC) 

4. Responsibilities 

a. The SARB will convene monthly to review sexual assault cases and facilitate monthly 

updates to victims within 72 hours of the SARB. 

b. The senior commander will send findings through the appropriate channels noting 

deficiencies in processes and procedures, while recommending improvements for preventing 

or responding to sexual assault. 

c. The senior commander will ask all members whether there has been any retaliation 

against the victim, the individual who reported, any witnesses, the SARC or VA in any cases. 

If so, the incident of retaliation will be reported, tracked at the SARB and the victim’s O-5 

Battalion Commander will draft a plan to respond to and address the retaliation. (AD 2015­

16) 

d. The senior commander will maintain the integrity of confidential cases and will not use 

identifying information when discussing cases. 

e. The SARB will conduct reviews of MOAs with other Services and civilian agencies 

regarding SAPR support. 

f. Commanders should be careful not to comment on desired outcomes in cases. 

M. Collateral Misconduct of Victim. In unrestricted reported sexual assault cases where there is 

evidence of collateral victim misconduct (most commonly underage drinking, fraternization adultery, 

drug use), to prevent the erroneous perception that the Department of Defense views a victim’s 

collateral misconduct as more serious than the crime of sexual assault, commanders should consider 

deferring discipline of any victim’s misconduct until all investigations are complete and the sexual 

assault allegation has been resolved, unless extenuating or other overriding circumstances make delay 

inappropriate in the judgment of the commander and/or legal counsel. Initial disposition authority for 

collateral misconduct is withheld to an O-6 with special court-martial convening authority. 

1. Additionally, for those sexual assault cases for which command action on victim’s collateral 

misconduct is deferred, Military Service command action reporting and processing requirements 

should take such deferrals into consideration and allow for the time deferred to be subtracted 

from applicable metrics and processing times. 

2. Commanders and judge advocates must also be mindful of any potential statute of limitations 

when determining whether to defer action. 

3. Deferral may be bad trial strategy. A victim whose own misconduct is deferred is subject to 

attack on the theory that she has complained of sexual assault for the purpose of avoiding 

punishment for her drinking, or other behavior. If the misconduct is punished beforehand (for 

alcohol, the routine punishment is generally minimal), then this defense argument is negated. The 

victim should be consulted, and the pros & cons explained before proceeding with un-deferred 

collateral misconduct punishment. 

4. If the command defers action on the victim’s collateral misconduct until after a court-martial, 

the command must consider requests for testimonial or transactional immunity for the victim’s 

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testimony. Testimonial or transactional immunity may only be approved by the GCMCA and 

only provides immunity from military criminal prosecution. 

N. Training and Prevention. The objective of SAPR training is to eliminate incidents of sexual 

assault through a comprehensive program that focuses on awareness and prevention, education, 

victim advocacy, reporting, response, and follow up. There are four categories of training for the 

SAPR Program. The categories are Professional Military Education (PME) training, Unit Level 

training, Pre-Deployment training, and Responder training. Training is now handled by Mobile 

Training Teams, arranged through the SHARP/SARC. 

1. PME training is progressive and sequential in areas such as (including but not limited to): 

a. Initial Entry Training; 

b. Pre-commissioning/Basic Officer Leadership Instruction – I (BOLC I) to include ROTC; 

c. Captain’s Career Course; 

d. Pre-command Course. 

e. Unit Level Training. All Soldiers will attend and participate in unit level SAPR training 

annually. Training will be scenario based, using real life situations to demonstrate the entire 

cycle of reporting, response, and accountability procedures. The I.AM.STRONG campaign is 

the primary provider of soldier training, which will no longer be presented by the local SARC 

f. Responder Training. Primary responders to sexual assault incidents will receive the same 

baseline training throughout the DoD, to ensure that any Service member who is assaulted 

will receive the same level of response regardless of Service component. SARC & VA 

training will be provided by TRADOC MTTs. Other first responder components will design 

their own training. Training should emphasize that coordinating victim support services is a 

team effort and to be effective all the team members must be allowed to do their job and must 

understand the role of the others on the team. First responder agencies include: 

Healthcare; 

MPs and CID; 

Judge Advocates; 

Chaplains; 

SARCs; and 

Victim Advocates 

O. Sexual Assault Forensic Examination (SAFE). The 2014 NDAA mandated that all military 

treatment facilities have SAFE availability. However, if a DoD healthcare provider is not available, 

the victim will be appropriately referred to a civilian provider for the forensic examination, if the 

victim requests such a forensic examination. 

1. Whenever possible, military installations should have established formal memoranda of 

understanding (MOU) with military facilities or off-base non-military facilities for the purpose of 

conducting sexual assault examinations. 

2. The SARC or victim advocate will ensure that a victim is aware of any local or state sexual 

assault reporting requirements that may limit the possibility of restricted reporting, prior to 

proceeding with the SAFE at the local off-post non-military facility. 

P. Restricted Report Case Number (RRCN). 

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1. Each Military Service will designate a military agency to generate an alpha-numeric RRCN, 

unique to each incident, that will be used in lieu of personal-identifying information to label and 

identify the evidence collected from a SAFE (i.e., Sexual Assault Evidence Collection kit (SAE 

kit), accompanying documentation, personal effects, clothing). 

2. Upon completion of the SAFE, the HCP will package and label the evidence with the RRCN 

and notify the service-designated military agency trained and capable of collecting and preserving 

evidence, to assume custody of the evidence using established “chain of custody” procedures. 

MOUs with off-post non-military facilities should include instructions for the notification of a 

SARC, receipt and application of a RRCN and disposition of evidence back to the military 

agency. The RRCN and general description of the evidence shall be entered into a log to be 

maintained by the military agency. 

3. Five year storage period for restricted SAFE evidence. 

a. Thirty days prior to the expiration of the five-year storage period, the military agency 

shall notify the appropriate SARC that the storage period is about to expire. The SARC shall 

notify the victim accordingly. 

b. If a victim does not desire to change to an unrestricted report and does not request the 

return of any personal effects or clothing maintained as part of the evidence prior to the 

expiration of the storage period, in accordance with established procedures for the destruction 

of evidence, the military agency shall destroy the evidence maintained under the victim’s 

RRCN. 

c. The evidence shall similarly be destroyed if, at the expiration of five years, victims do not 

advise the SARC of their decision or the SARC is unable to notify a victim because the 

victim’s whereabouts are no longer known. 

d. If, at any time, a victim elects to change their reporting preference to the unrestricted 

reporting option, the SARC shall notify CID, who will then assume custody of the evidence 

maintained by the RRCN from the military agency under established chain of custody 

procedures. 

V. OFFICE OF THE STAFF JUDGE ADVOCATE (OSJA) 

VICTIM/WITNESS ASSISTANCE PROGRAM (VWAP). 

A. Objectives (AR 27-10, paras. 17-4, 17-6) 

1. Mitigate the physical, psychological and financial hardships suffered by victims and 

witnesses of offenses investigated by Department of the Army authorities and foster full 

cooperation of victims and witnesses within the military criminal justice system. 

2. Encourage development and strengthening of victim and witness services, consolidate 

information pertaining to victim and witness services, coordinate multidisciplinary victim/witness 

services by and through victim witness liaisons (VWLs). 

B. Definitions (AR 27-10, para. 17-5) 

1. Victim: a person who has suffered direct physical, emotional or pecuniary harm as the result 

of a commission of a crime in violation of the UCMJ (or in violation of the law of another 

jurisdiction if any portion of the investigation is conducted primarily by the DoD components), 

including but not limited to: 

a. Military members and their family members; 

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b. When stationed OCONUS, DoD civilian employees and contractors, and their family 

members; 

c. Institutional entity’s representative (federal, state and local agencies are not eligible for 

services available to individual victims); 

d. Victim under age 18, incompetent, incapacitated, or deceased (in order of preference): a 

spouse, legal guardian, parent, child, sibling, other family member, or court designated 

person; and 

e. Includes victims identified as a result of investigations of potential UCMJ violations 

conducted under the provisions of AR 15-6. 

2. Witness: person who has information or evidence about a crime, and provides that 

knowledge to a DoD component about an offense within the component’s investigative 

jurisdiction. If witness is a minor, includes a family member of legal guardian. BUT not a 

defense witness, perpetrator or accomplice. 

C. Victim Witness Liaison (VWL) 

1. SJA designates in writing. 

2. Guides victims and witnesses through the trial process. Provides services to all victims as a 

facilitator and coordinator for services, benefits (including transitional compensation) and 

possibly travel. Provides services to witnesses, sometimes experts, as a facilitator and 

coordinator for services, benefits and possibly travel. Maintains relationship with the local 

confinement facility and helps coordinate confinement. 

3. Ensures victims are notified of their rights and complete DD Forms 2701-2706. 

4. The VWL must be perceived as impartial actors in the prosecution process and may work in 

any department of the JAG office. The VWL is not part of the prosecution team. 

5. The VWL is not a victim advocate. There is no privilege between the VWL and the 

victim/witness, and communications are not confidential.
 

D. Special Victim Witness Liaison (SVWL) 

1. The Trial Counsel Assistance Program (TCAP) hires specially trained SVWLs to work with 

Special Victim Prosecutors (SVP) in the field and serve as the VWL in special cases. The 

SVWL’s primary duty is to support victims and witnesses in cases of domestic violence, sexual 

assault (including Article 120, 120b, and Article 125, UCMJ), and child abuse/molestation. 

Ideally, the SVWL is present during all phases of the court-martial to ensure the victim 

understands to the process, and is informed of their rights and resources, and may act as the 

primary POC for information and updates in special cases. 

2. The most important difference between the VWL and the SVWL is that the SVWL works 

directly for the SVP and is part of the prosecution team. The SVWL’s notes are not discoverable 

as they are considered attorney work-product. 

3. The SVWL may or may not provide services to government witnesses/experts, as a facilitator 

and coordinator for services, benefits and possibly travel. Will not provide services to defense 

witnesses. 

4. Ensures victims are notified of their rights and complete DD Forms 2701-2706 and 

coordinate as a facilitator for services, benefits and possibly travel. Works with the OSJA VWL 

as a team. 

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5. The SVWL is not a victim advocate. There is no privilege between the VWL and the 

victim/witness, and communications are not confidential. 

6. Use of the SVWL varies by installation. The position description for the SVWL is 

purposefully broad and the SVP, SVWL and OSJA should tailor the duties of the SVWL to 

support the special victim needs and caseload of the individual installation. 

E. SJA Responsibilities 

1. SJA’s are designated as the “local responsible official” and have the following
 

responsibilities:
 

a. Establish and supervise Victim/Witness Assistance Program (VWAP) within their GCM 

jurisdiction. Ensure establishment of local policies and procedures to afford crime victims’ 

Article 6b rights. 

b. Establish a Victim and Witness Assistance Council to extent practicable, at “each 

significant military installation,” to ensure interdisciplinary cooperation. 

c. Designate, in writing, Victim/Witness Liaison (VWL). 

(1) Preference for a commissioned or warrant officer or civilian (GS-11 and above). 

(2) Exceptional circumstances allow SSG or GS-6 and above. 

(3) VWL’s should be outside the military justice section “to the extent permitted by 

resources.” 

(4) To the extent resources permit, SJA’s “should refrain from appointing attorneys as 

VWL’s.” If an attorney is appointed, the attorney must explain that there is no attorneyclient relationship formed as a result of providing VWL services. 

2. ENSURE COMMUNICATION WITH THE VICTIM. Victims have a right to be informed at 

the earliest opportunity of significant events in the status of the case, and every 30 days following 

proffer of charges. Keeping victims informed is a requirement of the victim’s bill of rights and is 

good practice to maintain a cooperative relationship. 

3. Ensure Law Enforcement Agencies (LEA) inform victims and witnesses of VWL’s name, 

location and phone number. 

4. TRAINING! Must ensure annual training is provided to all agencies involved in program. 

At a minimum, training will cover victims’ rights; available compensation through federal, state, 

and local agencies, providers’ responsibilities under the VWAP program, and requirements and 

procedures of AR 27-10, Chapter 17. 

6. Ensure DoD Victim and Witness Bill of Rights is posted in office of commanders and 

agencies providing victim and witness assistance. 

7. Establish separate waiting areas at courts-martial and other investigative proceedings. “In a 

deployed environment, victims and Government witnesses should be afforded a separate waiting 

area to the greatest extent practicable.” 

8. Ensure victims and witnesses are advised that their interests are protected by administrative 

and criminal sanctions, i.e. obstruction of justice charges, etc., and that victims and witnesses 

should promptly report any attempted intimidation, harassment, or other tampering to military 

authorities. 

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9. Ensure appropriate law enforcement agencies are immediately notified in case where the life, 

well-being, or safety of a victim or witness is jeopardized by his or her participation in the 

criminal investigation or prosecution process. 

10. Ensure victim’s and witness’ requests for investigative reports or other documents are 

processed under FOIA or Privacy Act. 

11. Ensure DD Forms are distributed/completed. 

12. Coordinate with criminal investigative agents to ensure all noncontraband property seized as 

evidence is safeguarded and returned; ensure victims are informed of applicable procedures for 

requesting return of property. 

F. DD and DA Forms (download at http://www.apd.army.mil/) 

1. DD Form 2701, Initial Information for Victims and Witnesses of Crime. 

2. DD Form 2702, Court-Martial Information for Victims and Witnesses of Crime. 

3. DD Form 2703, Post-Trial Information for Victims and Witnesses of Crime. 

4. DD Form 2704, Victim/Witness Certification and Election Concerning Inmate Status. 

5. DD Form 2705, Victim/Witness Notification of Confinee Status. 

6. DD Form 2706, Annual Report on Victim and Witness Assistance. 

7. DA Form 7568, Army Victim/Witness Liaison Program Evaluation. 

G. Responsibilities (VWL, trial counsel, or other government representative). 

1. VWL (recommended). 

a. As soon as possible, but NLT appointment of Art. 32 Preliminary Hearing Officer or 

referral of charges, ensure victims and witnesses have been provided DD Form 2701 (Initial 

Information for Victims and Witnesses of Crime). 

b. Provide DD Form 2702. 

c. Inform victim of the place where the victim may receive emergency medical care and 

social service support. 

d. Inform victims of where they can obtain financial, legal, and other support, including 

right to file Article 139 claim and right to transitional compensation, if applicable. 

e. During investigation and prosecution of crime, will provide victims the earliest possible 

notice of significant events in the case, to include: 

(1) Status of investigation of crime, with limits. 

(2) Apprehension of suspected offender. 

(3) Decision to prefer or dismiss charges. 

(4) Initial appearance of suspect before pretrial confinement hearing or at Article 32, 

UCMJ investigation. 

(5) Scheduling of each court proceeding victim is required or entitled to attend. 

(6) Detention or release from detention of offender or suspected offender. 

(7) Acceptance of plea of guilty or other verdict. 

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(8) Result of trial. 

(9) If sentenced to confinement, probable parole date. 

(10) General information regarding corrections process. 

(11) Opportunity to consult with trial counsel concerning evidence in aggravation. 

(12) How to submit victim impact statement to Army Clemency and Parole Board. 

(13) The VWL will “make reasonable efforts to notify witnesses and representatives 

of witnesses, when applicable and at the earliest opportunity” of numbers one through ten 

above. 

f. Advise victims and witnesses of protections from intimidation. See Military Protective 

Order, Section V and Appendix, below. 

g. Act as intermediary between victims and witnesses, when requested, to arrange 

interviews by defense or government. 

Advise victims on property return and restitution. 

Notification of victims’ and witness’ employers and creditors. 

Witness fees and costs. 

h. During trial and investigative proceedings, provide to victims and witnesses: 

(1) Assistance in obtaining child care. 

(2) Transportation/parking. 

(3) Lodging. 

(4) Separate waiting area outside presence of accused and defense witnesses. 

(5) Translators/interpreters 

i. Upon sentence to confinement provide victims (and witnesses “adversely affected by the 

offender”): 

(1) General information regarding post-trial procedures (DD Form 2703). 

(2) Prepare DD Form 2704. Victims and witnesses elect whether they want notification 

of changes in inmate status. Ensure copy forwarded to confinement facility and ensure 

offender does not have access to copy of information. 

2. Trial counsel. 

a. Consult victims concerning: 

(1) Decision not to prefer charges; 

(2) Decisions concerning pretrial restraint or release; 

(3) Pretrial dismissal of charges; and 

(4) Negotiations of pretrial agreements and their potential terms. 

Note: Victim does not have veto power over command’s decision on these matters; view 

is considered, not controlling. 

b. Establish separate waiting areas at courts-martial and other investigative proceedings. 

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c. In coordination with SJA and CMCA, consider making restitution a term and condition of 

pretrial agreements. Also consider whether restitution was made when action is taken. 

3. Commander, Confinement Facility. 

a. Upon entry into confinement facility commander ensures receipt of DD Form 2704 and 

determines whether victim and/or witness requested notification of changes in confinement 

status. If victim and/or witness so indicated, commander will advise of: 

(1) Offender’s place of confinement and minimum release date. 

(2) Earliest possible notice of: 

(a) Clemency/parole hearing dates. 

(b) Transfer of inmate to another facility. 

(c) Escape, recapture, or other form of release from confinement. 

(d) Release from supervised parole. 

(e) Death of inmate. 

b. Forward DD Form 2704 if inmate is transferred. 

c. Protect against disclosure to inmate of victim and witness addresses. 

d. Reporting requirements as set forth below. 

H. Reporting Requirements. 

1. For each calendar year (CY), not later than 15 February of each year, SJA of each command 

having GCM jurisdiction must report the number of persons who received DD Form 2701, 2702 

or 2703 from trial counsel, Victim Witness Liaison (VWL) or designee 

a. SJA will obtain data for their reports from subordinate commands attached or assigned to 

their GCM jurisdiction for military justice purposes, including RC units. 

b. Negative reports are required. 

c. Use DD Form 2706. 

2. Forward report through MACOM channels to Criminal Law Division, ATTN: DAJA-CL, 

HQDA, Office of The Judge Advocate General, 1777 North Kent Street, Rosslyn, VA 22209­

2194. 

I. Other required reports (Negative reports required). 

1. Military Police channels report the number of: 

a. Victims and witnesses who received DD Form 2701 or 2702 from LEA personnel. 

b. Victims and witnesses who were informed of their right (via DD Form 2704 or 

otherwise) to notification of changes in inmate status. 

c. Victims and witnesses who were notified using DD Form 2705. 

d. Confinees, by service, in Army facilities about whom victim/witness notifications must 

be made. 

2. OTJAG Criminal Law prepares consolidated report for submission to DoD Under Secretary 

for Personnel and Readiness, Legal Policy Office) 

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J. Evaluation of Victim/Witness Liaison Program 

1. SJAs will ensure that each victim and witness in an incident that is prosecuted at a GCM or 

SPCM, or investigated pursuant to UCMJ, Art. 32, in those cases not disposed of by GCM or 

SPCM, receives a victim/witness evaluation form. 

a. SJAs will use DA 7568 (Army Victim/Witness Liaison Program Evaluation). 

b. Evaluation forms will be reviewed locally by the SJA and copies forwarded quarterly to 

Criminal Law Division, ATTN: DAJA-CL, ATTN: Victim/Witness Coordinator, Office of 

The Judge Advocate General, HQDA, 1777 North Kent Street, Rosslyn, VA 22209-2194, by 

mail or electronically. 

K. Anonymous submission requirement for DA 7568 and SJA cover letter. 

1. The evaluation form may be provided to victims and witnesses by hand, by mail or otherwise, 

but must be returned in an anonymous manner. AR 27-10, paragraph 18-28d suggests the 

installation of a drop box away from the military justice section or the provision of a preaddressed envelope or "other anonymous means of return" to victims and witnesses. 

2. The recipients of the evaluation form must be advised that the form will be returned in an 

anonymous manner and cannot be accepted in any other manner. The evaluation form will be 

accompanied by a cover letter under the signature of the SJA. The cover letter will thank the 

victim/witness for assisting the prosecution, and emphasize the need for a response and the 

anonymous nature of the response. 

L. Other Assistance Available to Victims. 

1. Installation assistance. VWL will assist victim in contacting agencies or individuals 

responsible for providing necessary services and relief. 

a. Command Chaplain. 

b. Family Advocacy Center/Army Community Service. 

c. Emergency Relief Funds. 

d. Legal Assistance, if appropriate. 

e. American Red Cross. 

f. If victims are not eligible for military services, or where military services are not 

available, “the VWL will provide liaison assistance in seeking any available nonmilitary 

services within the civilian community.” 

2. Pretrial Agreements - negotiated restitution. 

3. Transportation and shipment of household goods. (See JFTR). 

4. State and local assistance. 

5. Transitional Compensation. 10 U.S.C. § 1059; DoD Instruction 1342.24, Change 1 (16 

January 1997); AR 608-1, Army Community Service, (22 December 2016); Army Directive (AD) 

2015-35. 

a. Dependent-abuse offenses resulting in separation of service member from active duty or 

total forfeiture of all pay and allowances pursuant to court-martial conviction or 

administrative separation. 

(1) Applies to cases on or after 30 November 1993. 

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(2) Applies to voluntary and involuntary separation proceedings (example: 

discharge in lieu of trial by court-martial UP Chapter 10, AR 635-200). 

(3) Dependent-abuse offenses - conduct by an individual while a member of the 

armed forces on active duty for a period of more than thirty days that involves abuse of 

the then-current spouse or dependent child of the member and that is a criminal offense 

defined by the Uniform Code of Military Justice or other criminal code applicable to the 

jurisdiction where the act of abuse is committed. Offenses that may qualify as dependent 

abuse offenses include but are not limited to sexual assault, rape, sodomy, assault, 

battery, murder, and manslaughter. 

(4) Dependent Child. An unmarried child, including an adopted child or stepchild, 

who was residing with the member at the time of the dependent abuse offense and who is 

(a) Under 18 years of age; 

(b) Eighteen or older and incapable of self-support because of mental or physical 

incapacity that existed prior to age 18 and who is dependent on the member for over 

one-half of the child’s support; 

(c) 18 or older, but less than 23, and is a college student and who is dependent on the 

member for over one-half of the child’s support. 

(5) Unborn Child. An unborn child who was carried during pregnancy when a 

dependent abuse occurred that resulted in the separation of the Soldier and who was 

subsequently born alive to the eligible spouse or former spouse is entitled to a dependent 

share of transitional compensation. 

6. Compensation. 

a. Duration of payments dependent upon the unserved portion of the member’s obligated 

active duty service (no less than 12 months, but no more than 36 months). 

b. Start-date: 

(1) Date sentence is adjudged if the sentence, as adjudged, includes a dismissal, 

dishonorable discharge, bad conduct discharge, or forfeiture of all pay and allowances. 

(2) If there is a pretrial agreement that provides for disapproval or suspension of a 

dismissal, dishonorable discharge, bad conduct discharge, or forfeiture of all pay and 

allowances, then start date is the date of the approval of the court-martial sentence if the 

sentence, as approved, includes an unsuspended dismissal, dishonorable discharge, bad 

conduct discharge, or forfeiture of all pay and allowances; 

(3) If pursuant to administrative separation, the date of initiation of separation 

proceedings. 

c. Amount of compensation increases with each dependent. See 38 U.S.C. § 1311(a)(1). 

d. Dependent loses payments if remarries or cohabitates with abuser, or is an active 

participant in the abuse.
 

e. Payment stops if administrative separation is disapproved. 

f. Payment stops if dismissal, dishonorable discharge, of bad-conduct discharge is remitted, 

set aside, or mitigated to a lesser punishment that does not include any such punishment. 

g. Application for transitional compensation: individual submits request through military 

service of member. 

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h. Requires annual certification of entitlement to funds by spouse and dependent children. 

i. Payment is from Operation and Maintenance Funds. Defense Finance and Accounting 

Service issues the payments, and administrative oversight of the funds (approval of payments 

and such) is through the Community and Family Support Center (CFSC), a DA level 

organization. 

7. Other benefits – 

a. Commissary and exchange privileges for length of time eligible for transitional 

compensation; 

b. Medical and dental care for up to one year for injuries related to dependent abuse 

offense(s). Applies to dependents of a member separated due to dependent abuse offense 

(includes discharge as result of conviction as well as administrative separation). 

c. Commanders should ensure that when a Soldier is separated as a result of a dependentabuse offense that the victim and the offense are clearly specified in the separation action to 

document the basis for this entitlement (see AR 608-1, app H) 

B. Deferral and waiver of forfeitures. 

8. Deferral. 

a. Accused may request, in writing, deferment of forfeitures. RCM 1101(c)(2). 

b. Accused burden to show “the interests of the accused and the community in deferral 

outweigh the community’s interest in imposition of the punishment on its effective date [e.g., 

forfeitures].” RCM 1101(c)(3). 

c. Applies to adjudged forfeitures (Article 57(a)(2), UCMJ; RCM 1101(c)) AND automatic 

forfeitures (Article 58b(a)(1), UCMJ)). United States v. Lundy, 60 M.J. 52 (C.A.A.F. 2004); 

United States v. Adney, 61 M.J. 554 (A. Ct. Crim. App. 2005). 

9. Waiver of forfeitures. 

a. Accused may request waiver of automatic forfeitures (Article 58b, UCMJ) or the CA may 

waive sua sponte. Request does not have to be made by accused; may be made by 

dependents or someone (VWL) on behalf of dependents. 

b. The accused’s request should be in writing. 

c. Waiver is allowed for a period not to exceed six months and is for the purpose of 

providing support to the accused’s dependents, as defined in 37 U.S.C. § 401. 

d. Factors CA may consider include: “the length of the accused’s confinement, the number 

and age(s) of the accused’s family members, whether the accused requested waiver, any debts 

owed by the accused, the ability of the accused’s family members to find employment, and 

the availability of transitional compensation for abused dependents permitted under 10 U.S.C. 

1059.” RCM 1101(d)(2). 

e. Waiver of forfeitures is authorized as soon as they become effective; need not wait until 

action. 

VI. SPECIAL VICTIMS’ COUNSEL (SVC) PROGRAM. 

A. Generally. The Special Victims’ Counsel (SVC) program was codified in 10 U.S.C. § 1044e, 

pursuant to the 2014 National Defense Authorization Act (NDAA) section 1716 “Special Victims’ 

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Counsel for victims of sex-related offenses.” The program provides victims of sex related offenses 

legal counsel to advise and represent the victim through the court-martial process. 

B. Scope of Representation. Army SVCs are legal assistance attorneys who receive specialized 

training and are certified by TJAG to represent victims of certain sex related offenses. 

1. Sex related offenses include any offense under Article 120, Article 120a, Article 120b, 

Article 120c, Article 125c, or an attempt under Article 80, UCMJ. 

2. Primary responsibility is to provide zealous representation to their clients throughout the full 

spectrum of the military justice process. 

a. Represent best interests of their client even when interests do not align with the 

Government. 

b. Empower client by fostering victim’s understanding of the military justice and 

administrative processes of investigation and courts-martial. 

c. Represent victims who file both Unrestricted and Restricted Reports. 

3. Duration of representation: From initial investigation to convening authority action. 

a. Convening authority action includes no action. 

b. At a court-martial, final convening authority action on the sentence is considered “initial 

action” post submission of clemency matters. 

4. An SVC may provide the following services (10 USC §1044e) 

a. Legal consultation regarding potential criminal liability of the victim stemming from, or 

in relation to the circumstances surrounding the alleged sex-assault offense and the victim’s 

right to seek trial defense service (TDS) counsel. 

b. Legal consultation regarding the VWAP program, the rights and benefits afforded to the 

victim, the role of the VWAP liaison and what privileges do or do not exist. A distinction 

between the privilege held by an attorney or advocate must be explained in relation to the 

lack of privilege held by the VWL/ SVWL. 

c. Legal consultation regarding the responsibilities and support provided to the victim by 

the SARC, SHARP VA or domestic abuse advocate (FAP VA) to include any privileges that 

may exist regarding communications. 

d. Legal consultation regarding third-party litigation (against parties other than the United 

States). 

e. Legal consultation regarding the military justice system, including but not limited to: 

(i) Roles and responsibilities of the parties/investigators. 

(ii) Military justice proceedings. 

(iii) Government’s authority to compel cooperation and testimony. 

(iv) Victim’s responsibility to testify and other duties to the court. 

f. Representing the victim at any proceeding in connection with reporting, investigation and 

prosecution. 

g. Legal consultation regarding eligibility and requirements for services available from 

appropriate agencies or offices for emotional and mental health counseling and other medical 

services. 

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h. Legal consultation and assistance: 

i. In personal civil legal matters (Note that an SVC shall not represent a victim in any 

civilian proceeding but may provide assistance in accordance with AR 27-3); 

ii. In any proceedings of the military justice and administrative process in which a victim 

can participate as a witness or other party; 

iii. In understanding the availability of, and obtaining any protections offered by, civilian 

and military protection or restraining orders; and 

iv. In understanding the eligibility and requirements for, and obtaining, any available 

military and veteran benefits, such as transitional compensation benefits and other State 

and Federal victims’ compensation programs. 

v.	 In all cases in which the victim reports allegations of professional or social retaliation, 

the SVC will work with local stakeholders to address the retaliation. The SVC will also 

record the allegations in CIS in a narrative format detailing the nature of the allegation 

and the disposition or resolution. 

i. Legal consultation and assistance in connection with: 

i.Any complaint against the government including any allegation under review by the 

Inspector General and a complaint regarding equal employment opportunities. 

ii.Any request to the government for information, including a request under 5 U.S.C. § 

552a, Freedom of Information Act (FOIA) request. 

iii.Any correspondence and other communications with Congress. 

iv.Such other legal assistance as the Secretary of Defense may authorize in regulations 

proscribed. 

j. In those instances where the victim has a Medical Evaluation Board (MEB) or Physical 

Disability Evaluation Board (PEB) pending, the Soldiers’ MEB or PEB counsel or other 

appropriate representative is primarily responsible for advising and representing the victim on 

these matters. 

C. Eligibility 

1. All active duty Army Soldiers who report they are a victim of a sex related offense are 

eligible for SVC representation. 

a. Soldiers who are on active duty, but were victims of sexual assault prior to enlistment or 

commissioning are generally not eligible for SVC representation but may be eligible for legal 

assistance. 

b. Soldiers who report they are a victim of sex offenses under State and Federal laws are 

also eligible for limited SVC assistance. 

c. Victims assaulted by foreign military members may be entitled to appointment of a local 

counsel from the host country, paid for by the victim’s unit. 

2. Eligibility for Reserve Component (RC) Soldiers 

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a. Regardless of duty status, RC Soldiers are eligible for SVC representation if the 

circumstances of the alleged sex-related offense have a nexus to the military service of the 

victim. 

b. While the victim may receive SVC representation, to assure continuity of medical and 

mental health care services, the command should complete a Line of Duty (LOD) 

Investigation. Commanders can assist the NG or RC member in requesting contractual active 

duty status (or be brought onto active duty status) to complete an LOD in order to assure 

continuity of healthcare. 

3. Eligibility for Dependents and Other Victims (10 U.S.C. Section 1072) 

a. Dependents who report they are victims of a Servicemember are eligible for SVC 

representation. 

b. Former dependents will be eligible if they were entitled to legal assistance at the time of 

the offense. 

c. All remaining categories of individuals eligible for legal assistance under AR 27-3 or 10 

USC 1044 are eligible for SVC representation. 

d. Dependent children (under 18 years of age) are also eligible for representation. 

4. Eligibility for Members of Other Services 

a. The service of the victim dictates the service of the SVC. 

b. An Army SVC must get approval to represent a victim from another service, and the 

victim’s service must decline representation 

5. Eligibility for Department of Defense Civilian Employees 

a. A civilian employee who is not eligible for military legal assistance, may be eligible for 

SVC representation with Secretary of the Army waiver and SVC Program Manager approval. 

D. Victim Notification of Right to an SVC 

a. The first responsible party to make contact with a victim, to include the SHARP VA, 

SARC, FAP, criminal investigator, VWL, or TC, will inform eligible victims of their right to 

an SVC (see 10 U.S.C. 1565b). 

b. The victim may decline representation. However, an initial declination of SVC services 

does not permanently waive the right to an SVC. An SVC may be requested at any time 

throughout the military justice process. 

E. Representation Through Military Justice Process 

1. If victim has filed an unrestricted report and has retained an SVC, the SVC will serve the 

SJA, Chief of Military Justice, SDC, CID, the VWL and the SARC/VA/FAP with a notice of 

representation. 

2. The SVC should attend interviews of the victim by the investigators, TC and DC and should 

ensure that another individual (paralegal or VWL) is present. Requests by defense counsel to 

interview the victim must be made through the SVC. 

3. The SVC will make regular contact with counsel for the parties to make sure that the victim 

receives all due notifications and documents upon preferral of charges and upon filing. (See 

infra. Sections II, III, V) 

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4. After preferral of charges, the TC will ensure the SVC’s information is included on the 

Electronic Docket Request (EDR). 

5. SVCs have limited standing to represent victims before Army courts and shall follow all 

Rules of Court to the same extent as the parties. According to the SVC Handbook, a victim of a 

sex assault has a right to be heard through counsel on issues implicating MRE 412 (rape shield), 

MRE 513 (psychiatrist-patient privilege), MRE 514 (victim advocate-victim privilege), MRE 615 

(exclusion of victim from trial) and any other matter where the client’s interest or rights are at 

stake. 

a. The right to be heard through counsel is affirmed in the language of MRE 412 (rape 

shield), MRE 513 (psychiatrist-patient privilege), and MRE 514 (victim advocate-victim 

privilege). Because a ruling on MRE 615 and any other matter where the client’s rights are at 

stake can be the subject of a writ of mandamus, it is assumed that the victim retains the right 

to be heard through counsel on those issues. 

b. Article 6b grants all crime victims the right to be reasonably heard at a public hearing 

concerning the continuation of confinement prior to trial of the accused, a sentencing hearing 

relating to the offense and a public proceeding of the service clemency and parole board 

relating to the offense. 

c. LRM v. Kastenberg (see infra Section II) articulated when a victim retains the right to be 

heard through counsel. Even though victims are not a party to the litigation, they are not 

precluded from asserting standing to contest a ruling on a held privilege, as the court stated “a 

reasonable opportunity to be heard at a hearing includes the right to present facts and legal 

argument, and that a victim or patient who is represented by counsel be heard through 

counsel.” 

VII. DOMESTIC ABUSE AND THE FAMILY ADVOCACY PROGRAM. 

A. Army policy for domestic abuse. 

1. Domestic violence is a pervasive problem not only in society, but also in the military. 

a. In the ten-year period from FY01-13, the military averaged 12.04 substantiated incidents 

of spousal abuse per 1000 couples. See Department of Defense Family Advocacy Program, 

Department of Defense Family Advocacy Program Fiscal Year 2013 Data, available at 

http://www.ncdsv.org/images/DoD_ChildAbuseAndDomesticAbuseDataTrendsFY2001­

2013_5-20-2014.pdf (last visited 30 January 2017). Abuse includes acts of physical violence 

and/or sexual violence and/or emotional abuse. Overall, incidents of abuse experienced a 

significant downward trend: 16.5 substantiated incidents of spousal abuse per 1000 couples in 

FY 01 compared to 11.1 in FY 13. 

b. Also in the same time period, FY01-13, the military averaged 5.85 substantiated incidents 

of child abuse per 1000. Id. These rates were fairly constant throughout the ten-year period. 

2. Department of Defense (DoD) Policy. “Domestic violence is an “offense against the 

institutional values of the Military Services of the United States of America.” Leaders at all 

levels within the DoD must “take appropriate steps to prevent domestic violence, protect victims, 

and hold those who commit it accountable.” 

3. Like the Sexual Assault Prevention and Response Program, the domestic violence policy does 

not create any actionable rights for the alleged offender or the victim, nor constitute a grant of 

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immunity for any actionable conduct by the alleged offender or victim, nor does it create any 

form of evidentiary or testimonial privilege. 

4. Army Regulation 608-18, The Army Family Advocacy Program (13 September 2011), 

establishes Army policy for handling domestic violence issues. 

5. DA takes a cooperative approach with local communities to: 

a. Identify, Report and Investigate child and spouse abuse cases; 

b. Protect abused victims from further abuse in both emergency and nonemergency 

situations; and 

c. Provide services and treatment to Families in which child abuse has occurred. 

B. Responsibilities. 

1. At DA level, the Assistant Chief of Staff for Installation Management (ACSIM) has 

responsibility for the Family Advocacy Program. 

2. The Commander, U.S. Army Community and Family Support Center develops policy and 

programs. 

3. Installation Commanders: 

a) Establish programs for preventing, reporting, and treating spouse and child abuse as per 

AR 608-18 (13 Sept 2011). http://www.apd.army.mil/pdffiles/r608_18.pdf 

b) Appoint an installation Family Advocacy Program (FAP) Manager on orders to manage 

the program and ensure compliance with regulation. 

c) Review and approve FAP funding. 

d) Submit consolidated FAP budget requirements through MACOM for forwarding to 

Community and Family Support (CFSC). 

e) Designate a reporting point of contact (RPOC) and ensure a 24-hour emergency response 

system. 

f) Establish mandatory counseling and educational programs under the FAP for Soldiers 

involved in substantiated abuse. 

g) Establish voluntary educational and counseling programs and encourage maximum 

participation. 

h) Consider Case Review Committee (CRC) recommendations when taking or 

recommending disciplinary or administrative actions on Soldiers or civilians involved in 

abuse. 

i) Direct development of a Memorandum of Agreement (MOA) with Child Protective 

Services (CPS) and other civilian agencies adjoining Army installations. 

j) Appoint members of the CRC, the Family Advocacy Committee (FAC), and the Fatality 

Review Committee (FRC) by written order and name for a minimum 1-year appointment. 

k) Review CRC and FAC minutes and FRC recommendations. 

l) Establish training to ensure that all subordinate commanders and senior enlisted advisers 

(E-7 to E-9) are briefed on FAP within 45 days of assuming command, and annually 

thereafter. 

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4. Unit Commanders: 

a. Attend spouse and child abuse commander education programs designed for unit 

commanders. 

b. Schedule time for Soldiers to attend troop awareness briefings. 

c. Be familiar with rehabilitative, administrative, and disciplinary procedures relating to 

abuse. 

d. Report and investigate suspected abuse to RPOC. 

e. Direct Soldier to participate in FAP assessment. 

f. Attend Case Review Committee (CRC) presentations when unit Soldiers involved. 

g. Encourage Soldier cooperation in Family Advocacy Programs (also ensuring that 

Soldiers are properly advised of Article 31 rights). 

h. Provide written no-contact orders, as appropriate; counsel Soldiers; and take other 

actions, as appropriate, regarding compliance with civilian orders of protection. 

i. Support and comply with CRC recommendations to maximum extent possible. 

j. Consider CRC recommendations before taking administrative or disciplinary action. 

k. Notify CRC chairperson when reassigning Soldiers or moving family members who are 

involved in treatment for abuse. 

l. Encourage participation of civilian family members in treatment programs. 

m. Be aware of Lautenberg Amendment issues. 

C. The Family Advocacy Program 

1. Army policy is to prevent spouse and child abuse, to protect those who are victims of abuse, 

to treat those affected by abuse, and to ensure personnel are professionally trained to intervene in 

abuse cases. Commanders have authority to take appropriate disciplinary or administrative 

action, and the FAP will promote public awareness within the military community and coordinate 

professional intervention at all levels within the civilian and military communities, including law 

enforcement, social services, health services, and legal services. 

2. The FAP is designed to break the cycle of abuse by identifying abuse as early as possible and 

providing treatment for affected Family members. Key players and responsibilities include: 

a. FAP Manager (FAPM) - works for the director of Army Community Services on-post. 

The FAPM has numerous responsibilities, among them: 

(1) Coordinates all FAP efforts to ensure compliance with regulation. 

(2) Ensures that all abuse reports from ACS are forwarded to the RPOC. 

(3) Central installation POC for all FAP briefing or training requests. 

(4) Supervises ACS prevention staff. 

(5) Provides liaison with civilian and military service providers. Has lead responsibility 

for developing and coordinating an installation MOA. 

(6) Assesses the special FAP needs of military families on installation and in 

surrounding communities. 

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(7) Identifies prevention and treatment resources and submits budget requests. 

(8) Develops training programs, provides statistical reports. 

b. The Family Advocacy Committee (FAC): 

(1) The FAC is the multidisciplinary team that advises installation commander on FAP 

policy and procedure. 

(2) The FAC is chaired by the garrison or base support battalion commander or designee. 

(3)`The FAC is composed of the following members: 

(a) FAPM 

(b) Chief, SWS/CRC chairperson 

(c) Pediatrician or other MD. 

(d) Community Health Nurse (ad hoc). 

(e) DENTAC commander or representative. 

(f) Provost Marshall or senior representative. 

(g) CID representative. 

(h) SJA or representatives (CRC representative and the victim/witness coordinator). 

(i) ASAP clinical director or senior representative. 

(j) Child and Youth Services coordinator. 

(k) Installation Chaplain or representative. 

(l) Installation Command Sergeant Major. 

(m) Public Affairs Officer 

(n) Consultants (e.g. school liaison officers, child protective services, and local court 

representative). 

(4) The FAC meets at least quarterly. 

(5) The FAC identifies trends requiring a command or community response, coordinates 

civilian and military resources, facilitates an integrated community approach to the 

prevention of child and spouse abuse, develops community, command and troop 

education prevention programs, publicizes how to report abuse, and addresses 

administrative details. 

c. Case Review Committee (CRC): 

(1) The CRC is a multidisciplinary team appointed on orders by the installation 

commander and supervised by the medical treatment facility (MTF) commander.
 

(2) The CRC is ordinarily chaired by the Chief, Social Work Services. 

(3) The unit commander exercising UCMJ authority over the alleged abusers will be 

invited to attend when the case involves one of his/her personnel. 

(4) The CRC tracks and evaluates cases of reported abuse. 

(a) The CRC should determine if the cases are substantiated or unsubstantiated. 

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(b) The standard of review is a preponderance of the evidence. 

(c) A majority of the CRC members present must vote to substantiate. 

(5) The CRC meets monthly; each case is reviewed at least quarterly. 

(6) The CRC determines whether civilian courts should intervene. 

(7) The CRC determines whether to recommend removal of children from home. 

(8) The CRC recommends corrective measures. 

(9) The CRC briefs the commander on status of case. 

(10) CRC recommendations, such as treatment, foster care, etc., do not preclude 

criminal or adverse administrative action against a Soldier. 

D. Reporting Options and requirements 

1. Restricted Reporting Policy for Incidents of Domestic Abuse 

a. The DoD is committed to ensuring victims of domestic abuse are protected, treated with 

dignity and respect, and provided support, advocacy, and care. DoD policy also strongly 

supports effective command awareness and prevention programs and law enforcement and 

criminal justice activities that will maximize accountability and prosecution of perpetrators of 

domestic abuse. To achieve these dual objectives, the DoD policy prefers that personnel 

report suspected domestic abuse incidents promptly to activate both victims' services and 

accountability actions. However, a requirement that all domestic abuse incidents be reported 

can represent a barrier for victims hoping to gain access to medical and victim advocacy 

services without command or law enforcement involvement. 

b. In order to address these competing interests, the Department of Defense issued an 

instruction, DoD Instruction 6400.06 providing victims of domestic violence two reporting 

options: unrestricted reporting and restricted reporting. 

(1) Unrestricted Reporting. Victims of domestic abuse who want to pursue an 

official investigation of an incident should use current reporting channels, e.g., chain of 

command, Family Advocacy Program (FAP), or law enforcement. Upon notification of a 

reported domestic abuse incident, victim advocacy services and FAP clinical services will 

be offered to the victim. Additionally, at the victim's discretion/request, the healthcare 

provider shall conduct any forensic medical examination deemed appropriate. Details 

regarding this incident will be limited to only those personnel who have a legitimate need 

to know. 

(2) Restricted Reporting. In cases where an adult victim elects restricted reporting, 

the victim advocate and healthcare providers may not disclose covered communications 

(defined in the policy memorandum) to either the victim's or offender's commander or to 

law enforcement either within or outside DoD, except as provided by exceptions within 

the policy memorandum. 

(a) Restricted reports must be made to one of the following individuals: 

(i) Victim advocate; 

(ii) Healthcare provider (defined in the policy memo); 

(iii) Supervisor of victim advocate. 

. 

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(b) Exceptions to Confidentiality. In cases in which victims elect restricted 

reporting, the prohibition on disclosing covered communications is waived to the 

following persons when disclosure would be for the following reasons: 

(i) Named individuals when disclosure is authorized by the victim in writing. 

(ii) Command officials and law enforcement when necessary to prevent or lessen 

a serious and imminent threat to the health or safety of the victim or another 

person. 

(iii) FAP and any other agencies authorized by law to receive reports of child 

abuse or neglect when, as a result of the victim's disclosure, the victim advocate 

or healthcare provider has a reasonable belief that child abuse has also occurred. 

However, disclosure will be limited only to information related to the child 

abuse. 

(iv) Disability Retirement Boards and officials when disclosure by a healthcare 

provider is required for fitness for duty for disability retirement determinations, 

limited to only that information which is necessary to process the disability 

retirement determination. 

(v) Supervisors of the victim advocate or healthcare provider when disclosure is 

required for the supervision of direct victim treatment or services. 

(vi) Military or civilian courts of competent jurisdiction when a military, Federal, 

or State judge issues a subpoena for the covered communications to be presented 

to the court or to other officials or when required by Federal or State statute or 

applicable U.S. international agreement. 

(vii) Other officials or entities when required by Federal or State statute or 

applicable U.S. international agreement. 

E. Reporting Requirements. 

1. Report Point of Contact (RPOC). AR 608-18, Para. 3-3: 

a. Designated by installation commander as a central POC. 

b. Normally the MTF emergency room or MP Desk. 

c. Manned 24 hours. 

d. Publicly disseminate on an “ongoing basis.” 

2. Who must report suspected abuse? 

n. All Soldiers, civilian employees and members of military community should be 

encouraged to report known or suspected cases. 

o. Law enforcement, medical, social work and school personnel, Family Advocacy 

personnel, Child Youth Services personnel, and psychologists must report. 

p. Commanders must report. 

3. Commanders will report allegations of abuse involving their Soldiers to the RPOC. 

F. Records of Reported Abuse. 

1. The US Medical Command, Fort Sam Houston, maintains an Army-wide, centralized data 

bank containing a confidential index of victim-based reported spouse and child abuse cases – 

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Army Central Registry (ACR). Used to assist in the early identification, verification, and 

retrieval of reported cases of spouse and child abuse.
 

2. Must be substantiated spouse and child abuse. 

a. The standard used by the Case Review Committee – a preponderance of the evidence 

available indicates abuse occurred. 

b. Distinguish the standard used by CID in titling decisions: credible information exists that 

a crime was committed and this person did it. 

3. CRC chairperson will initially notify the unit commander within 24 hours after receiving any 

report of spouse or child abuse. 

G. Protecting alleged victims 

1. Removal of Children from Home. 

a. Medical Protective Custody AR 608-18, para. 3-20. If the child is properly at the MTF, 

child may be taken into medical protective custody as follows: 

(1) Obtain parental consent, if possible. 

(2) If consent is not given, ask whether the child suffers from abuse or neglect by a 

parent to the extent that immediate removal from the home is necessary to avoid 

imminent danger to the child’s life or health. 

(3) The treating physician makes the initial determination. 

(4) Approved by MTF commander. 

(5) Unit commander will be notified. 

b. Children cannot be removed from a home, school or child care facility unless a bona fide 

medical emergency exists. Coordination with civilian authorities may be appropriate. 

c. Foster Care. 

(1) Generally, need parental consent or order from state or foreign court with 

jurisdiction. 

(2) U.S. - seek court order and work with the local child protection service even if 

parental consent is given. 

(3) Foreign Country - Coordinate with host nation authorities. 

d. Emergency situations. The installation commander may authorize if abuse is 

substantiated and child at risk of imminent death or serious bodily harm, or serious mental or 

physical abuse. 

H. Military Protective Orders (MPOs). 

1. In unrestricted reporting cases, commanders shall execute the following procedures regarding 

MPOs DoDI 6495.02 (28 March 2013): 

4. Require the SARC or the SHARP VA must inform sexual assault victims protected by an 

MPO, of the option to request transfer from the assigned command. 

5. Notify the appropriate civilian authorities of the MPO. 

6. Place the MPO in the National Crime Information Center (NCIC). 

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7. Advise the person seeking the MPO that the MPO is not enforceable by civilian authorities 

off base. 

8. Complete DD Form 2873, “Military Protective Order (MPO)” and provide to the victim(s) 

and the alleged offender(s). 

9. Definitions: 

a. Domestic violence: An offense under the US Code, the UCMJ, or state law that involves 

the use, attempted use, or threatened use of force or violence against a person of the opposite 

sex, or a violation of a lawful order issued for the protection of a person of the opposite sex, 

who is: 

(1) A current or former spouse; 

(2) A person with whom the abuser shares a child in common; or 

(3) A current or former intimate partner with whom the abuser shares or has shared a 

common domicile. 

b. Child Abuse: The physical or mental injury, sexual abuse or exploitation, or negligent 

treatment of a child. It does not include discipline administered by a parent or legal guardian 

to his or her child provided it is reasonable in manner and moderate in degree and otherwise 

does not constitute cruelty. 

10. Commanders will: 

a) Issue MPOs when necessary to safeguard victims, quell disturbances, and 

maintain good order and discipline while victims have time to pursue issuance 

or enforcement of protective orders through the civilian courts.
 

b) Use DD Form 2873 for MPOs. 

c) Provide distribution for DD Form 2873 as listed on the form. 

11. Issues for commanders to consider: 

a) May want to limit SSN and address of victim in Block 2 of the form. 

b) Higher commanders may want to establish a level of authority for issuance 

of MPOs . . . should it be company or battalion level? 

Note the comprehensive nature of protections and limitations in the 

MPO: prohibits all direct and third-party contact, e-mail or telephonic 

contact; requires mandatory counseling; requires surrender and/or 

disposal of both government and privately-owned weapons. 

I. Lautenberg Amendment 

1. Department of Defense Implementation: 

a. Memorandum, Assistant Secretary of Defense, Force Management Policy, Subject: 

Interim DoD Policy on Domestic Violence Amendment to the Gun Control Act (22 Oct 

1997). 

b. Message, 151100Z Jan 98, Headquarters, Dep’t of Army, DAPE-MPE, subject: HQDA 

Message on Interim Implementation of Lautenberg Amendment (15 Jan. 1998). 

2. Message, 311108Z Oct 97, Headquarters, Dep’t of Army, DAJA-LA, subject: Interim 

Guidance on Lautenberg Amendment Issues (31 Oct. 1997). 

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3. Message, 211105Z May 99, Headquarters, Dep’t of Army, DAPE-MPE, subject: HQDA 

Guidance on Deployment Eligibility, Assignment, and Reporting of Solders Affected by the 

Lautenberg Amendment. 

4. Memorandum, Under Secretary of Defense for Personnel and Readiness, Subject: 

Department of Defense Policy for Implementation of Domestic Violence Misdemeanor 

Amendment to the Gun Control Act for Military Personnel (27 Nov. 2002). 

5. Final DA Implementation: Message, 221927Z October 2004, Headquarters, Dep’t of Army, 

DAPE-MPE, subject: HQDA Message on Final Implementation of the Lautenberg Amendment to 

the Gun Control Act of 1968. 

6. AR600-20, ch.4-22 (6 November 2014) 

7. JAGCNet site for Legal Assistance: https://www.jagcnet2.army.mil/LegalAssistance# 

8. Basic Provisions. 

a. 18 U.S.C. § 922(d) prohibits the transfer of “any firearm or ammunition to any person 

whom you know or have reasonable cause to believe . . . has been convicted in any court of a 

misdemeanor crime of domestic violence.” 

b. 18 U.S.C. § 922(g) prohibits “any person . . . who has been convicted in any court of a 

misdemeanor crime of domestic violence . . . to receive any firearm or ammunition which has 

been shipped in interstate or foreign commerce.” 

c. Violations of either prohibition are punishable by 10 years confinement, $250,000 fine, 

or both. 18 U.S.C. § 924(a)(2). 

d. 18 U.S.C. § 925 formerly exempted “any firearm or ammunition imported for, sold or 

shipped to, or issued for the use of, the United States or any department or agency thereof.” 

This “federal exemption” has been eliminated for individuals “convicted in any court of a 

misdemeanor crime of domestic violence.” 

e. What is a “Misdemeanor Crime of Domestic Violence?” 18 U.S.C. § 921(a)(33). 

(1) The person was convicted of a crime classified as a misdemeanor in the jurisdiction 

where the conviction was entered. 

(2) The offense had as an element the use or attempted use of physical force, or 

threatened use of a deadly weapon. This is the only required element. 

(a) U.S. v. Hayes, 555 U.S. 415 (2009): in a prosecution for violation of the Gun 

Control Act, the court held that the underlying misdemeanor need only include an 

element of violence. To obtain the Gun Control conviction, however, the government 

must also prove beyond a reasonable doubt that the victim of the misdemeanor was a 

domestic partner. 

(b) U.S. v. Smith, 56 M.J. 711, 714 (A.F. Court Crim. App. 2001): look behind the 

misdemeanor violence conviction to find relationship of the victim; see also U.S. v. 

Shelton, 325 F.3d 553, 562 (5th Cor. 2003): the predicate offense need not include an 

element identifying the defendant/victim relationship. 

f. The offender was at the time of the offense: 

(1) A current or former spouse, parent or guardian of the victim; 

(2) A person with whom the victim shared a child in common; 

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(3) A person who was cohabiting with or has cohabited with the victim as a spouse, 

parent or guardian of the victim; 

(4) A person who was similarly situated to a spouse, parent, or guardian of victim. 

g. The convicted offender was represented by counsel, or knowingly and intelligently 

waived the right to counsel. 

h. If entitled to have the case tried by jury, the case was actually tried by a jury or the person 

knowingly and intelligently waived the right to have the case tried by a jury. 

i. The conviction has not been expunged or set aside, or the convicted offender has not been 

pardoned for the offense or had civil rights restored, unless the pardon, expungement, or 

restoration of civil rights provides that the offender may not ship, transport, possess, or 

receive firearms. 

9. Dep’t of Defense and Dep’t of Army Response. 

a. Interpretation. 

(1) Conviction of a misdemeanor crime of domestic violence does not include a 

summary court-martial conviction or nonjudicial punishment under Article 15. 

(2) The law does not apply to crew served weapons or major weapons systems (tanks, 

missiles, aircraft, etc.). 

(3) The law applies to all other Army issue and privately owned firearms and 

ammunition. 

(4) The Army policy applies worldwide (including hostile fire areas). 

(a) There is no “military exception” to Lautenberg. 

(b) Pursuant to the 27 November 2002 DoD Policy Memorandum, felony crimes of 

domestic violence are now considered qualifying convictions for Lautenberg 

Amendment purposes. 

10. AR 600-20, 4-22: 

a. Senior mission commander must: 

(1) Ensure immediate implementation of the message. 

(2) Display the message outside unit arms rooms and all facilities in which Government 

firearms or ammunition are stored, issued, disposed, or transformed. 

(3) Inform Soldiers that they have an affirmative and continuing obligation to inform 

their superiors if they have, or later obtain, a qualifying conviction. DD Form 2760 shall 

be used for this purpose. Soldiers will also be informed of the use immunity provisions 

of DD Form 2760 (neither the information nor evidence gained from filling out the form 

can be used in any prosecution against a Soldier for past violations of the Lautenberg 

Amendment). 

(4) Ensure that company-level commanders collect completed DD Form 2760s and file 

in local MPRF. 

(5) Ensure that local pre-command courses inform company-level commanders of their 

obligations. 

(6) Implement procedures to track domestic violence arrests and convictions off-post. 

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11. Reporting Requirements. All Soldiers with qualifying convictions must be identified and 

reported to ensure compliance with the law. 

12. Commanders who have reasonable cause to believe there is a qualifying conviction should 

take action to investigate. An investigation may be initiated by ordering a Soldier to complete 

DD Form 2760. 

13. Soldiers who have or believe they have a qualifying conviction should be referred to a legal 

assistance attorney for advice. Legal assistance attorneys can assist in seeking pardon or 

expungement of convictions. 

14. Soldiers will be given a reasonable time to seek expungement or pardon for a qualifying 

conviction. Commanders can extend up to one year for that purpose. Factors to consider are in 

AR600-20, 4-22(8). 

15. If a Soldier has a qualifying conviction, or there is reasonable cause to believe he has one, the 

commander will immediately retrieve all government-issued firearms and ammunition and advise 

the Soldier to consult with a legal assistance attorney on the lawful disposal or sale of privatelyowned firearms or ammunition. 

16. Personnel policies. 

a. Utilization. Soldiers with qualifying convictions: 

(1) Must be detailed to meaningful duties that do not require bearing weapons or 

ammunition. 

(2) May be reassigned to TDA units that deny them access to weapons and ammunition. 

(3) May not be appointed or assigned to leadership, supervisory, or property 

accountability positions that would require access to firearms or ammunition. 

(4) May not attend any service school where instruction with firearms or ammunition is 

part of the curriculum. 

(5) Must be counseled that inability to complete service schools could impact future 

promotion and retention. 

b. Mobilization/Deployment. Soldiers with qualifying convictions are not mobilization 

assets and are nondeployable for missions requiring possession of firearms or ammunition. 

c. Assignment. 

(7) Lautenberg Soldiers are not eligible for OCONUS assignments. 

(8) OCONUS active and AGR Soldiers will complete their tours. 

(9) Soldiers will not be curtailed from OCONUS assignments. 

(10) For purposes of this message, OCONUS does not include Alaska, Hawaii, or 

Puerto Rico. 

d. Retention. 

(11) The Army does not have a specific “Lautenberg Chapter.” 

(12) Bar to reenlistment 

(13) No waivers for enlistment 

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(14) Commanders may separate Soldiers based on the underlying conduct that led to 

the qualifying conviction or for the conviction itself. 

(15) Soldiers may be temporarily accommodated pending a bar to reenlistment or 

involuntary separation. Must be assigned ETS not more than 12 months from notice of 

conviction. 

(16) Inability to perform certain missions due to a qualifying conviction may be 

appropriate comments for evaluation and efficiency reports. 

(17) Soldiers will not be given a waiver for enlistment or reenlistment. 

(18) Soldiers with qualifying convictions are not eligible for indefinite reenlistment. 

(19) Soldiers who have reenlisted for options requiring a CONUS PCS will proceed to 

new assignment. 

(20) OCONUS Soldiers will receive new assignment instructions from HRC. 

(21) Soldiers who have reenlisted for retraining in an MOS where instruction includes 

weapons or ammunition training will be deleted from assignment instructions and may 

request voluntary separation. 

17. Officers. Officers may request REFRAD or submit an unqualified resignation. RC officers 

not on active duty may submit an unqualified resignation or be recommended for involuntary 

separation. 

18. Reporting Requirements. 

a. Active Army. All Soldiers will be identified at nondeployable and added to the 

nondeployable total under the code ‘LA.’ 

b. Reserve Components. The ARNG Directorate will report for Army National Guard. 

USARC will report for USAR. IRR, standby reserve, and retired reserve not subject to 

reporting requirement. 

19. USR. Commanders will continue to report non-deployable personnel under this policy on the 

USR. 

VIII. REFERENCES 

A. Victims’ Rights References 

1. Military Crime Victims’ Rights Act of 2013, 10 U.S.C. § 

806b https://www.law.cornell.edu/uscode/text/10/806b
 

2. Justice for All Act of 2004, 18 U.S.C. § 3771 (repeals Section 502 of Victims’ Rights and 

Restitution Act of 1990 (42 U.S.C. §§ 10606­

10607)). https://www.law.cornell.edu/uscode/text/18/3771 

3. Victim Rights Clarification Act of 1997, 18 U.S.C. § 

3510. https://www.law.cornell.edu/uscode/text/18/3510
 

4. Victim and Witness Protection Act of 1982, 18 U.S.C. §§ 1503, 1505, 1510, 1512-1515, 

3146, 3579, 3580. 

5. Victims of Crime Act of 1984, 42 U.S.C. §§ 10601­

10603. https://www.law.cornell.edu/uscode/text/42/10601
 

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6. 38 U.S.C. §1311-1314 (Dependency and Indemnity
 

Compensation). http://www.law.cornell.edu/uscode/text/38/1311
 

7. Dep’t of Army Reg. 27-10, Military Justice, Chapter 17 (July 

2016). http://www.apd.army.mil/pdffiles/r27_10.pdf
 

8. Dep’t of Army Reg. 600-20, Army Command Policy, Ch. 8 (6 November
 

2014). http://www.apd.army.mil/epubs/DR_pubs/DR_a/pdf/web/r600_20.pdf
 

9. Dep’t of Army Reg. 635-200, Active Duty Enlisted Administrative Separations, para. 1-15 

(19 December 2016). http://www.apd.army.mil/epubs/DR_pubs/DR_a/pdf/web/AR635­

200_Web_FINAL_18JAN2017.pdf 

10. Dep’t of Army Directive 2014-20 (19 June 2014), subject: Prohibition of Retaliation Against 

Soldiers for Reporting a Criminal Offense, https://fas.org/irp/doddir/army/ad2014_20.pdf 

11. All Army Activities Message (ALARACT) 014/2017 (02/23/2017): Professionalization of 

Online Misconduct (also see expired ALARACT 122/2015). 

12. Department of the Army Memorandum, “Implementation Plan – Professionalization of 

Online Conduct,” dated 16 June 2015. 

B. Procedural Protection for Sexual Assault Victims and SHARP References 

1. DoD Sexual Assault Prevention and Response Office http://www.sapr.mil/ 

2. Army SHARP Program website http://www.sexualassault.army.mil/ 

3. Dep’t of Army Reg. 27-10, Military Justice, Chapter 17 (July 2016). 

http://www.apd.army.mil/pdffiles/r27_10.pdf
 

4. Dep’t of Army Reg. 600-20, Army Command Policy, Ch. 7, 8 (6 November 2014). 

http://www.apd.army.mil/epubs/DR_pubs/DR_a/pdf/web/r600_20.pdf
 

5. Dep’t of Air Force Instruction (AFI) 90-6001, Sexual Assault Prevention and Response 

Program (21 May 2015 incorporating change 18 March 2016), http://static.epublishing.af.mil/production/1/af_cvs/publication/afi90-6001/afi90-6001.pdf 

6. OPNAV Instruction 1752.1C, Navy Sexual Assault Prevention and Response (SAPR) 

Program (13 August 2015), 

https://doni.daps.dla.mil/Directives/01000%20Military%20Personnel%20Support/01­

700%20Morale%2c%20Community%20and%20Religious%20Services/1752.1C.pdf 

7. Marine Corps Order 1752.5B, Sexual Assault Prevention and Response (SAPR) Program (1 

March 2013), http://www.marines.mil/portals/59/MCO%201752_5B.pdf 

8. US Coast Guard Commandant Instruction 1754.10E, Sexual Assault Prevention and 

Response Program (December 2016), https://www.uscg.mil/directives/cim/1000­

1999/CIM_1754_10E.pdf
 

9. ALARACT 058/2016 (6/23/16): Guidance for Processing Assignment Consideration Codes 

(ASCO) for Documented Sex-Related Offenses and Convicted Sex Offenses (Found through 

AKO ALARACT messages) 

10. ALARACT 007/2012 (1/12/2012): SHARP Program Implementation Guidance. 

http://www.preventsexualassault.army.mil/alaract_messages_2012.cfm
 

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11. ALARACT 182/2010 (6/10/2010): SHARP Program Implementation & Training. 

http://www.preventsexualassault.army.mil/alaract_messages_2010.cfm 

12. DoD Directive (DoDD) 6495.01, Sexual Assault Prevention and Response Program (January 

23, 2012, incorporating 20 January 2015 change), 

http://www.dtic.mil/whs/directives/corres/pdf/649501p.pdf 

13. DoD Instruction (DoDI) 6495.02, Sexual Assault Prevention and Response Program 

Procedures (July 7, 2015), http://www.dtic.mil/whs/directives/corres/pdf/649502p.pdf 

14. DoD Instruction (DoDI) 5505.18, Investigation of Adult Sexual Assault in the Department of 

Defense (25 January 2015), Incorporating Change 2, 18 June 2015, 

http://www.dtic.mil/whs/directives/corres/pdf/550518p.pdf 

15. DODM April 20, 2012: Withholding Initial Disposition Authority under the Uniform Code of 

Military Justice in Certain Sexual Assault Cases. 

http://www.dod.gov/dodgc/images/withhold_authority.pdf 

16. Dep't of Army Directive 2011-19 (3 October 2011), subject: Expedited Transfer or 

Reassignment Procedures for Victims of Sexual Assault, 

http://www.apd.army.mil/pdffiles/ad2011_19.pdf 

17. Dep't of Army Directive 2013-20 (27 September 2013), subject: Assessing officers and 

Noncommissioned Officers on Fostering Climates of Dignity and Respect and adhering to the 

SHARP, http://www.eur.army.mil/SHARP/files/resources/AD_2013-20.pdf 

18. Dep't of Army Directive 2013-21 (7 November 2013), subject: Initiating Separation 

Proceedings and Prohibiting Overseas Assignment for Soldiers Convicted of Sex Offenses, 

http://www.apd.army.mil/pdffiles/ad2013_21.pdf 

19. Dep’t of Army Directive 2014-09 (07 May 2014), subject: Reserve Component Eligibility for 

the Special Victims’ Counsel Program, 

http://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ad2014_09.pdf 

20. Dep't of Army Directive 2014-19 (27 June 2014), subject: Implementation of Section 1744 of 

the National Defense Authorization Act for Fiscal Year 2014 - Review of Decisions not to Refer 

Charges of Certain Sex Related Offices for Trial By Courts-Martial. 

21. Dep’t of Army Directive 2014-20 (19 June 2014), subject: Prohibition of Retaliation Against 

Soldiers for Reporting a Criminal Offense, https://fas.org/irp/doddir/army/ad2014_20.pdf 

22. Dep’t of Army Directive 2014-29 (09 December 2014), subject: Inclusion and Command 

Review of Information on Sex-Related Offenses in the Army Military Human Resource Record, 

http://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ad2014_29.pdf 

23. Dep’t of Army Directive 2015-10 (24 February 2015), subject: Sexual Assault Incident 

Response Oversight Report (SAIRO), 

http://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ad2015_10.pdf 

24. Directive-type Memorandum (DTM) 14-007 – “Sexual Assault Incident Response Oversight 

(SAIRO) Report” (Expired 30 Sept. 2015 but good reference) 

https://www.hsdl.org/?view&did=758726 

26. Dep’t of Army Directive 2015-16 (04 March 2015), subject: Command Engagement to 

Prevent Retaliation, http://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ad2015_16.pdf 

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27. Dep’t of Army Directive 2015-29 (06 August 2015), subject: Confidential Reviews of 

Characterization of Terms of Discharge of Members of the Army Who Are Victims of Sexual 

Offenses, http://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ad2015_29.pdf 

28. Dep’t of Army Directive 2017-12 (5 January 2017), subject: Sexual Harassment/Assault 

Response and Prevention (SHARP) Services for Department of the Army Civilians. 

29. A National Protocol for Sexual Assault Medical Forensic Examinations, U.S. Department Of 

Justice Office on the Violence Against Women (April 2013). 

https://www.ncjrs.gov/pdffiles1/ovw/241903.pdf 

C. Office of the Staff Judge Advocate (OSJA) Victim/Witness Liaison Program References 

1. 10 U.S.C. §1059 (Transitional
 

Compensation). http://www.law.cornell.edu/uscode/text/10/1059
 

2. DoD Directive (DoD Dir.) 1030.1, Victim and Witness Assistance (April 13, 

2004). http://www.dtic.mil/whs/directives/corres/pdf/103001p.pdf
 

3. DoD Instruction (DoDI) 1030.2, Victim and Witness Assistance Procedures (June 4, 

2004). http://www.dtic.mil/whs/directives/corres/pdf/103002p.pdf
 

4. DoD Instruction (DoDI) 6400.07, Standards for Victim Assistance Services in the Military 

Community (November 25, 2013). 

5. Dep’t of Air Force Instruction (AFI) 51-201, Victim and Witness Assistance, ch. 7 (3 

February 2010). http://www.e-publishing.af.mil/shared/media/epubs/afi51-201.pdf
 

6. OPNAV Instruction 5800.7A, Victim and Witness Assistance Program (4 March 

2008). http://doni.daps.dla.mil/Directives/05000%20General%20Management%20Security%20a 

nd%20Safety%20Services/05-800%20Laws%20and%20Legal%20Services/5800.7A.pdf 

7. Marine Corps Order P5800.16A, Victim and Witness Assistance Program (VWAP), ch 6 (28 

November 

2005). http://www.donsapro.navy.mil/PolicyandInsturctions/MCO%20P5800.16A%20CH%201­

5.pdf 

8. US Coast Guard Commandant Instruction M5810.1D, Victim and Witness Protection, ch 

3.M. (17 August 2000). http://www.uscg.mil/legal/mj/MJ_Doc/MJM113.pdf 

D. Special Victim Counsel (SVC) Program References 

1. Special Victims’ Counsel for victims of sex-related offenses, 10 USC
 

§1044e, https://www.law.cornell.edu/uscode/text/10/1044e
 

2. Special Victim Counsel Handbook, April 2016 (3d Edition) 

3. Legal Assistance Program, 10 USC §1044, https://www.law.cornell.edu/uscode/text/10/1044 

4. TDS Policy Memorandum # 2014-01, Detailing of Defense Counsel and Formation of
 

Attorney-Client Relationships with Alleged Victims of Sexual Offenses.
 

https://www.jagcnet.army.mil/8525781C0048C0D5/0/CDAD8A039EECF2ED85257CD600596C 

B0?opendocument 

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E. Domestic Abuse and FAP References. 

1. Gun Control Act of 1968, 18 U.S.C. § 921-928 (Supp. 

1997). http://www.gpo.gov/fdsys/pkg/USCODE-2011-title18/pdf/USCODE-2011-title18-partIchap44.pdf 

2. The “Lautenberg Amendment” to the Brady Handgun Violence Prevention Act, P.L. 104­

208, Title VI, section 658, 110 Stat. 3009.371; codified at 18 U.S.C. § 922(d)(9), § 922(g)(9); § 

925(a)(1); (effective 30 Sept. 1996). 

3. UNCLAS ALARACT 131/2003 (October 3, 2003) : Final implementation of Lautenberg 

Amendment to the Gun Control Act of 

1968 http://www.monterey.army.mil/legal/criminal_law/lautenberg_final.pdf 

4. Army Regulation 600-20, ch. 4-22 (6 November 2014): Domestic Violence Amendment to 

the Gun Control Act of 1968 http://www.apd.army.mil/pdffiles/r600_20.pdf 

5. Under Secretary of Defense for Personnel and Readiness Policy Memorandum, "Restricted 

Reporting Policy for Incidents of Domestic Abuse" (January 22, 2006), http://www.usmcmccs.org/victimadv/domestic/Restricted%20Reporting%20signed.pdf 

6. DoD Directive (DoDD) 6400.01, Family Advocacy Program (13 February
 

2015), http://www.dtic.mil/whs/directives/corres/pdf/640001p.pdf
 

7. DoD Instruction (DoDI) 6400.06, Domestic Abuse Involving DoD Military and Certain 

Affiliated Personnel (9 July 2015), http://www.dtic.mil/whs/directives/corres/pdf/640006p.pdf . 

8. Dep’t of Army Reg. 27-10, Military Justice, Chapter 17 (11 May
 

2016), http://www.apd.army.mil/pdffiles/r27_10.pdf . 

9. Dep’t of Army Reg. 608-18, The Army Family Advocacy Program (13 September 

2011), http://www.apd.army.mil/pdffiles/r608_18.pdf 

10. Dependents of members separated for dependent abuse: transitional compensation; 

commissary and exchange benefits, 10 U.S.C. § 

1059, https://www.law.cornell.edu/uscode/text/10/1059 

11. DoD Instruction (DoDI) 1342.24, Transitional Compensation for Abused Dependents, 

Change 1 (16 January 1997), http://www.dtic.mil/whs/directives/corres/pdf/134224p.pdf 

12. Army Regulation 608-1, ch. 4-12 (22 December 2016): Army Community 

Service, http://www.apd.army.mil/epubs/DR_pubs/DR_a/pdf/web/AR608-1_Web_Final.pdf 

13. Dep't of Army Directive 2015-35 (28 August 2015), subject: Transitional Compensation for 

Abused Dependents, http://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ad2015_35.pdf 

14. Military Homefront Domestic Abuse Page:
 

http://www.militaryhomefront.dod.mil/tf/domesticabuse.
 

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APPENDIX A 

Commander Must Do Items 

1.	 Ensure victim safety (MPO, safety transfer of victim, etc.) 

2.	 Immediately notify CID 

3.	 Immediately notify SARC 

4.	 Immediately notify higher-level command 

5.	 Notify SJA 

6.	 Notify victim of right to SVC (if not already done) 

7.	 Notify victim in unrestricted report case of right to request expedited transfer 

8.	 Through order to subordinates ensure: 

a.	 The protection of victim privacy including limiting incident information to personnel 

with need to know 

b.	 Personnel are reporting incidents of retaliation 

9.	 Complete Sexual Assault Incident Response Oversight (SAIRO) report within 8 days 

10. Battalion Commander conducts initial victim update brief within 14 days of report 

11. Updates victim within 3 days of SARB/CMG (at least monthly) 

12. Victim’s commander attends SARB/CMG 

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13. Complete DA Form 4833 after final disposition 

14. Battalion Commander conducts final victim brief within 45 days after final disposition 

The actions in the following list are to be taken in the event of receiving a report of sexual assault. 

Although the commander has significant leadership responsibility for actions after a report of 

sexual assault, not necessarily all of the actions listed below will be taken by the commander 

personally. This list is non-inclusive. Commanders must review AR 600-20, AR 27-10, DoDI 6495.02, 

the Commander’s Legal Handbook, and the SHARP Guidebook along with other pertinent guidance 

regarding sexual assault to ensure they are aware of all requirements. 

Victim’s Commander 

1. Ensure the physical safety of the victim-determine if the alleged offender is still nearby 

and if the victim needs protection. 

2. Provide the victim emergency healthcare, regardless of visible injuries, unless the victim 

declines healthcare. Ensure that sexual assault victims are given priority, and treated as emergency 

cases. 

3. Notify CID and commanders in the chain of command (as appropriate) immediately, as soon 

as the victim’s immediate safety is assured, and medical treatment procedures elected by the victim are 

initiated. 

4. Ensure the SARC is notified immediately. 

5. Ensure the victim understands the availability of victim advocacy and the benefits of 

accepting confidential advocacy and support. 

6. Inform the victim of the availability of the Special Victim Counsel (SVC), to confidentially 

explain, among other issues, the military justice process. 

7. Contact your judge advocate. 

8. Collect only the necessary information (e.g., victim’s identity, location, and time of the 

incident, name and/or description of offender(s)). DO NOT ASK DETAILED QUESTIONS 

AND/OR PRESSURE THE VICTIM FOR RESPONSES OR INFORMATION ABOUT THE 

INCIDENT. 

9. Ask if the victim needs a support person to immediately join them, 

•	 If the support person is a personal friend or family member, advise the victim this support 

person could later be called to testify as a witness if the case goes to trial. 

10. Ask if the victim would like a chaplain to be notified and notify accordingly. 

11. Make appropriate administrative and logistical coordination for movement of victim to 

receive care. (Involve minimum number of personnel possible on a need-to-know basis). 

12. Ensure the victim is made aware of his/her options during each phase of the medical, 

investigative, and legal processes to include notification of the right to Special Victim Counsel. 

(Reference AR 600-20, AR 27-10, DoDI 6495.02, DoDI 1030.2) 

13. Ensure CID notifies victims and witnesses of their rights through a completed Victims and 

Witnesses of Crime form, DD Form 2701. (Reference AR 27–10). 

14. Inform the victim of the resources available through the Victim and Witness Assistance 

Program (VWAP) (AR 27–10). Also, inform the victim of resources accessible from anywhere in the 

world (that is, Military One Source (from U.S.: 1–800–464–8107; International: 800–464– 81077; 

International collect: 484–530–5889, 24-hours-a-day, 7-days-a-week)). 

15. To the extent practicable, strictly limit knowledge of the facts or details regarding the 

incident to only those personnel who have a legitimate need-to-know. Protect the victim’s privacy. 

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16. Take action to safeguard the victim from any formal or informal investigative interviews 

or inquiries, except those conducted by authorities who have a legitimate need-to-know, including 

but not limited to, the Criminal Investigation Command investigator(s) and the trial counsel. 

17. Throughout the investigation, consult with the victim, and listen/engage in quiet support, 

as needed, and provide the victim appropriate emotional support resources. 

18. Continue to monitor the victim’s well-being, particularly if there are any indications of 

suicidal ideations. 

19. Determine the best courses of action for separating the victim and the alleged offender 

during the investigation: 

•	 Determine whether the victim desires to be transferred to another unit. 

•	 Determine if the alleged offender needs/desires to be transferred to another unit. 

•	 Consider whether a Military Protection Order (MPO) (DD Form 2873), referred 

to as “no contact order,” is appropriate. 

•	 Coordinate with sexual assault response agencies and the chain of command 

(involve as few people as possible and only on a need to know basis, protecting 

the victim’s privacy) to determine if the victim’s condition warrants 

redeployment or reassignment until there is a final legal disposition of the sexual 

assault case and/or the victim is no longer in danger. 

•	 To the extent practicable, preferential consideration related to the reassignment 

should be based on the victim’s desires. 

20. If the alleged offender is a foreign national or from a coalition force, confer with SJA on 

responsibilities, options, and victim’s rights (in theater). 

21. Brigade commanders should consider deferring discipline for victim misconduct until all 

investigations are completed and the sexual assault allegation has been resolved. Keep in mind the 

implications of this decision on speedy trial and/or statute of limitations and consult your TC. 

22. When practicable, consult with the servicing legal office, CID, and notify the assigned 

SAPR VA or SARC prior to taking any administrative or disciplinary action affecting the victim. 

23. Reporting and Notification Requirements 

24. Complete a CCIR in accordance with local policy. 

25. Confirm the SARC entered all reported sexual assaults into the DoD Sexual Assault 

Incident Database (DSAID) within 48 hours of the report. 

26. Complete and forward the SAIRO report within 8 calendar days of the unrestricted 

report. 

27. Attend the monthly Sexual Assault Review Board (SARB) Meeting. If the Deputy 

Installation Commander, chair the monthly SARB meeting. Direct the required SARB members 

attend the meetings. 

28. Update the victim on the status of the case within 72 hours of the monthly SARB. 

29. Ensure the victim receives monthly reports regarding the status of the sexual assault 

investigation from the date the investigation was initiated until there is a final disposition of the 

case (the commander can update the victim within 72 hours of the SARB). If the victim or alleged 

offender is transferred or redeployed prior to the case closing, coordinate with investigative and 

SJA personnel before ceasing monthly updates on parties involved. 

30.If you are the Battalion Commander, update the victim on the status of the case within 14 days 

of the unrestricted report and within 45 days of the final disposition of the accused’s case. 

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Appendix B
 

Critical Time Standards – Sexual Assault
 

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Appendix C
 

Critical Time Standards – Sexual Harassment
 

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