The Uniform Code of Military Justice (UCMJ) criminalizes insubordination, disrespect, and other offenses against military discipline. Article 86 covers members who go Absent Without Leave (AWOL). Article 85 covers desertion, which is essentially AWOL but with an intent to remain away permanently. Article 88 prohibits commissioned officers from using contemptuous words against senior civilian leaders. Article 92 addresses dereliction of duty and the failure to obey lawful orders. Article 133 is used against officers for conduct that falls short of their status and rank. Article 134 captures disloyal statements and actions that undermine the United States and its military war efforts. These crimes lack civilian equivalents.
| UCMJ Article | Charge | Example |
|---|---|---|
| 85 | Desertion | Leaving base to avoid a deployment |
| 86 | Absence Without Leave | Leaving the base without a plan to be gone permanently |
| 88 | Contempt Toward Officials | Officer on social media calling the president a traitor |
| 92 | Failure to Obey | Consuming alcohol against regulations |
| 133 | Conduct Unbecoming an Officer | O-4 having an affair with a neighbor |
| 134 | Disloyal Statements | Praising the enemy on social media |
How Commands Handle Disobedience, Discipline, and Conduct Unbecoming Cases
Standalone courts-martial under these articles are uncommon, though dockets will show some prosecutions under Article 133. Typically, if these articles appear in the docket, they’re part of a case that’s focused on more serious charges. But that doesn’t mean the risk is always lower. A reprimand alone can support a separation and end a career without nonjudicial punishment or a court-martial.
Many command investigations relate to allegations under these discipline-centered articles. A common outcome after a command investigation is nonjudicial punishment or a reprimand, followed by an administrative separation proceeding that might involve a contested hearing. If the military tries to separate someone administratively, the member will be entitled to fight the case at a board if they have enough time in service to be board-entitled, or if the military seeks an Other Than Honorable (OTH) service characterization.
Article 133: Conduct Unbecoming an Officer
Article 133 applies to commissioned officers and members of the service academies. It covers conduct on duty and off duty, in public and in private. The government doesn’t have to prove any other crime occurred. It only has to prove the conduct dishonored or disgraced the officer and compromised his standing as an officer.
Officers caught up in an adultery case are at greater risk than an enlisted member in the same situation. Under Article 134 of the UCMJ, an allegation of adultery requires the government to prove the conduct prejudiced good order and discipline or was service discrediting. The conduct must have a tangible impact on the military. The same conduct can be more easily proved under Article 133 because its standard is far more subjective and nebulous.
Sexual assault cases for officers pose a threat that doesn’t exist in enlisted cases. The same defense carries a different risk for an officer. An officer charged under Article 120 will often defend himself by asserting the encounter was consensual, and conceding the encounter concedes the conduct. An enlisted member who does the same thing forces the government to charge him under Article 134, where it has to prove prejudice to good order and discipline or service-discrediting conduct. An officer is held to a higher standard, and Article 133 carries no equivalent burden of proof, so the concession alone can expose the accused to a conviction at a general court-martial, the military equivalent of a felony conviction. Some prosecutors tack on an Article 133 allegation for that reason: to get the officer to agree to a plea deal or an unfavorable administrative resolution. Most JAGs consider that bush league, but it isn’t unheard of.
Officers often expect a long career of honorable service to count in their favor when accused of an Article 133 offense. But the opposite usually happens. Especially for mid-level officers, who don’t enjoy the insulation senior officers get, brass will treat rank as a reason for a harsher outcome.
Article 92: Failure to Obey and Dereliction of Duty
Article 92 covers three things: violating a general order or regulation, failing to obey a lawful order, and dereliction of duty.
A general order applies to everyone noted in the order (unit, base, branch of service), and the government doesn’t have to prove the accused knew what the regulation was. A specific order is different; the government has to prove the accused knew about the order.
Dereliction doesn’t require bad intent. Willful dereliction applies to a member who chose not to do the assignment. Negligence and culpable inefficiency cover situations where the member tried (to some degree) to do the job but failed.
Common Article 92 violations involve underage drinking, violations of liberty or leave restrictions, and failure to abide by dress and grooming standards.
Article 88: Contempt Toward Officials
Article 88 applies to commissioned officers who use contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, a service Secretary, the Secretary of Homeland Security, or a state governor or legislature.
Article 134: Disloyal Statements
The prohibition against disloyal statements under Article 134 applies to anyone subject to the UCMJ, officer or enlisted. While the offense is similar to Article 88, it’s harder to prove. The prosecution would have to prove the statement was disloyal to the United States as a political entity, that the accused intended to promote disloyalty or disaffection among members of the armed forces, and that the statement prejudiced good order and discipline or discredited the service. Examples: praising the enemy and criticizing the strategic war goals of the United States. Criticism of a department or an agency doesn’t satisfy that element.
Today, social media behavior is a common source of cases under Article 88 or Article 134. A member in uniform posting political attacks or undermining the United States threatens unit cohesion and the military’s mission. The video or written statement provides proof of the crime for all to see. Members are advised early and often that they do not enjoy unfettered free speech in the military. Disciplinary actions under Articles 88 and 134 are increasing. See The War Department Reset, Obeying Orders, and UCMJ Consequences for more information.
AWOL and Desertion
Article 86 covers the member’s absence from his place of duty. Article 85 deals with that same absence but with intent to remain away permanently. Article 85 also addresses an absence with intent to avoid hazardous duty or shirk important service. The difference between these charges depends on what the prosecution can prove about the member’s intent. Intent to remain away permanently can form at any point, even in the instant the member leaves base.
Typically, when the absence gets to thirty days, the member is dropped from the unit’s rolls and listed as a deserter in law enforcement databases. It’s a default administrative action, not the degree of proof of desertion the prosecution would need to prove if the case went to a court-martial.
How an absence ends is more important than how long it lasted. No matter how long the member has been gone, it’s always better to turn oneself in than to get arrested and hauled back involuntarily. A member who surrenders to military authority has some control over the outcome, nullifies the desertion argument, and is likely to be administratively separated quickly. A member arrested at the airport or picked up on a traffic stop is in a much worse position.
When civilians arrest someone for desertion, they put him in a county jail, where he’s held until the military picks him up or arranges his return, a process that can take weeks. The odds of a court-martial in that scenario are still fairly low but not nonexistent. Our guide to AWOL and Desertion provides guidance and in-depth information about these cases.
An OTH for Absence Won’t Be Upgraded
Over the past couple of decades, the going rate for desertion or an extended AWOL has been nonjudicial punishment followed by an administrative separation with a service characterization of Other Than Honorable (OTH). A myth spread online during the Global War on Terror was that members could take an OTH and have it upgraded six months later, either automatically or without much difficulty. The myth survives to this day. It was false then, and it’s false now. Members who desert or go AWOL should assume that an OTH will be with them for life.
Gagne, Scherer & Associates: AWOL, Desertion, and Officer Misconduct Defense
Keith Scherer and Greg Gagne are former Air Force JAGs who have defended officers and enlisted members against unauthorized absence, desertion, and officer misconduct allegations for more than 20 years. They handle command investigations, nonjudicial punishment, administrative separation boards, and courts-martial in every branch, at installations in the United States and overseas. Gagne, Scherer & Associates is a national practice limited to military justice. Our attorneys can be reached directly at (224) 935-6172 by text or phone call.