UCMJ Article 106: Impersonatingan Officer or Official
At Bilecki Law Group, we defend service members against charges of impersonating a commissioned or warrant officer, noncommissioned officer, petty officer, agent of superior authority or government official under Article 106 of the UCMJ.
Facing an impersonation or unauthorized insignia allegation? Contact Bilecki Law Group for a free consultation before giving a statement about what happened.
What Is Article 106 of the UCMJ?
Article 106 prohibits wrongfully and willfully impersonating an officer, noncommissioned officer, petty officer, military agent of superior authority or government official. Intent to defraud is not required in every case. It is an additional requirement for the aggravated form of impersonation. When the charge involves impersonating a government official without intent to defraud, the government must also prove an act exercising or asserting the authority of the claimed office.
EVERY CASE
Wrongful and willful impersonation
Knowing you are falsely holding yourself out
AGGRAVATED FORM
+ Intent to defraud
Max: 3 years, dishonorable discharge
GOVERNMENT OFFICIAL, NO INTENT TO DEFRAUD
+ An act asserting the office’s authority
Max: 6 months, bad-conduct discharge
Doing an impression of your superior officer in the barracks to get a laugh from your fellow Lance Corporals is different from knowingly holding yourself out as an officer. The accusation must identify the role you supposedly claimed and how you claimed it. The issue is not simply whether you pretended to hold a rank higher than your own, and calling something a prank does not resolve the case.
An impression for a laugh
Doing your superior officer in the barracks
Impersonation
Knowingly holding yourself out as an officer
That’s an important distinction because the military is home to some of the most irreverent gallows humor on the planet. A barracks joke can get serious in a hurry if command takes offense. Command displeasure, by itself, does not prove wrongful and willful impersonation. We examine what actually happened and what the government can prove.
How Can You Fight an Article 106 Charge?
What perhaps started out as a joke about your commanding officer can threaten your career and leave you facing a serious conviction. We are going to fight for the best possible outcome. That starts with testing the charge, the alleged intent and the evidence supporting each.
Identify Exactly What You Were Accused of Claiming
A photograph in a uniform, a message signed with a rank and a witness saying “he acted like an officer” do not present the same proof. We examine the complete exchange, the claimed credentials and the circumstances in which they were used. Did you actually claim the rank or office, or did someone assume it? If the allegation comes from a social media account or message, who controlled it and who sent the material? The government must connect the alleged impersonation to you and prove that you knew you were falsely holding yourself out that way.
Test the Alleged Intent to Defraud
The Manual for Courts-Martial defines “intent to defraud” as an intent to obtain, through a misrepresentation, an article or thing of value and to apply it to one’s own use and benefit or to the use and benefit of another, either permanently or temporarily.
What does the prosecution say you intended to obtain? Who was supposedly being defrauded, and how? We compare that allegation with the messages, applications, transactions and witness accounts. A claim that you wanted to impress someone is not a substitute for proving the charged intent to obtain an article or thing of value through misrepresentation.
It is important to note that there is no requirement that you or anyone else actually benefited from the impersonation. There is also no requirement that anyone was actually deceived. It could be the worst impersonation of all time and fool no one. That does not automatically defeat the charge. The government still has to prove the applicable elements, including intent to defraud when it charges that aggravated offense.
NOT REQUIRED
- That anyone was actually deceived
- That you or anyone else actually benefited
REQUIRED WHEN CHARGED
- An intent to obtain an article or thing of value
- Through a misrepresentation
- For your own or another’s use and benefit
Put the Alleged Joke or Prank in Its Full Context
We are going to fight the prosecution at every turn where the facts and law give us a fight. When the words, audience and surrounding circumstances support a joke or prank, we put that context in front of the decision maker. What was said before the quoted line? Who was present? Was there a complete recording, an obvious performance or an actual assertion of authority? There may also have been a good reason you believed you were entitled to a particular ribbon or badge. That requires its own analysis under Article 106a.
Preserve the complete messages, photographs, recordings and relevant orders, including material that looks unfavorable. Do not delete a post, alter a record or ask a witness to change a statement. Speak with defense counsel before trying to explain the incident to investigators. An honest assessment includes the damaging facts as well as the helpful ones.
What Is Article 106a of the UCMJ?
Article 106a is a separate offense governing the wrongful wearing of unauthorized insignia, decorations, badges, ribbons, devices or lapel buttons. A Lance Corporal trying to enter the officers’ club by claiming to be a lieutenant raises different questions from a service member accused of wearing an unauthorized qualification badge. We identify the actual conduct and the offense the government says it establishes.
ARTICLE 106
Impersonating
Claiming to be an officer, NCO, petty officer, agent or official
ARTICLE 106a
Wearing
Unauthorized insignia, decorations, badges, ribbons, devices or lapel buttons
Military honors and qualification badges mean something to the people who earn them. An accusation that you wore one without authority deserves a serious defense. The government must prove more than the fact that an item appeared on your uniform.
Check the Authorization and the Applicable Rules
Authorization depends on Department of Defense and service regulations. We examine the award orders, qualification records, personnel entries and the rules governing that particular item, uniform and occasion. A missing entry or an administrative discrepancy needs to be resolved against the underlying records. It is not automatically proof that you knowingly wore something you were not entitled to wear.
Conduct is “wrongful” when it is done without legal justification or excuse. For Article 106a, the wearing must be intentional, and you must actually know that you are not entitled to wear the item. Actual knowledge is required, although the government may prove it through circumstantial evidence.
There is a difference between believing an award had been approved and deciding you deserved it even though it had not been authorized. We examine what you were told, what documents you received and what you knew at the time. A genuine mistake about authorization can matter to the knowledge element; simply saying you meant no harm does not answer it.
Ranger Tabs, jump wings, combat action ribbons and SEAL Tridents are examples of the items that can raise an authorization issue. The Manual also explains that wearing an item is not unauthorized when the circumstances show it was in jest or for an innocent or legitimate purpose, such as a dramatic costume or legitimate law enforcement activity. The circumstances must support that explanation. Calling it a costume after the fact does not settle what you knew or what you were doing.
What Must the Prosecution Prove Under Article 106?
The prosecution must prove each required element beyond a reasonable doubt. The basic requirements are:
- You impersonated an officer, noncommissioned officer, petty officer, agent of superior authority of one of the armed forces or government official in the manner alleged.
- The impersonation was wrongful and willful.
“Willful” means knowing that you are falsely holding yourself out as the claimed officer, agent or official. “Officer” includes a commissioned or warrant officer.
If intent to defraud is charged, the government must also prove that you intended to defraud the identified person or organization in the manner alleged.
For impersonation of a government official without intent to defraud, the government must also prove one or more acts exercising or asserting the authority of the office you claimed. That added requirement does not apply to every military officer impersonation charge.
What Must the Prosecution Prove Under Article 106a?
- You wore the identified insignia, decoration, badge, ribbon, device or lapel button on your uniform or civilian clothing.
- You were not authorized to wear it.
- The wearing was wrongful.
For the greater maximum discussed below, the government must also establish that the item was one of the specified decorations or a valor device on a personal award. The distinction affects the available punishment.
What Punishment Can You Face Under Articles 106 and 106a?
You may be tempted to take the punishment and move on, especially if you think the uniform, message or photograph looks bad. Before making that decision, understand what the government has to prove and what a conviction could cost you. An accusation is not proof, and the maximum punishment is not a prediction of your sentence.
For impersonation with intent to defraud, the maximum includes three years of confinement, a dishonorable discharge and forfeiture of all pay and allowances. For other impersonation cases, it includes six months of confinement, a bad-conduct discharge and forfeiture of all pay and allowances. Reduction to E-1 may also be available for an enlisted member.
For Article 106a, the ordinary maximum is six months of confinement, a bad-conduct discharge and forfeiture of all pay and allowances. The maximum confinement increases to one year for wrongful wearing of the Medal of Honor, Distinguished Service Cross, Navy Cross, Air Force Cross, Silver Star, Purple Heart or a valor device on a personal award. A bad-conduct discharge and forfeiture of all pay and allowances remain authorized. Reduction in grade may be available for an enlisted member.
One-year maximum for wrongfully wearing
- Medal of Honor
- Distinguished Service Cross
- Navy Cross
- Air Force Cross
- Silver Star
- Purple Heart
- A valor device on a personal award
| Offense | Maximum confinement | Maximum punitive discharge for enlisted members | Applicable confinement parameters |
|---|---|---|---|
| Article 106: impersonation with intent to defraud | 3 years | Dishonorable discharge | Category 2: 1–36 months |
| Article 106: other impersonation cases | 6 months | Bad-conduct discharge | Category 1: 0–6 months after applying the offense maximum |
| Article 106a: specified decorations or a valor device on a personal award | 1 year | Bad-conduct discharge | Category 1: 0–12 months |
| Article 106a: other unauthorized items | 6 months | Bad-conduct discharge | Category 1: 0–6 months after applying the offense maximum |
Punitive separation depends on status and forum. A general court-martial may dismiss a commissioned officer, including a commissioned warrant officer, or a cadet or midshipman for any offense. It may also adjudge a dishonorable discharge for a warrant officer who is not commissioned, regardless of the offense’s listed discharge maximum. Dishonorable discharge and dismissal require a general court-martial. A bad-conduct discharge and reduction in grade apply only to enlisted members. The forum and an accepted plea agreement may impose lower limits.
The sentencing parameters generally apply in noncapital general and special courts-martial when all offenses of conviction occurred on or after 28 December 2023. A military judge may depart when specific facts justify it under the governing rule and must explain the departure in writing. The ranges do not override a lower offense maximum or the court’s jurisdictional limits. Earlier offenses require the rules applicable to their dates, and several convictions can create greater total exposure than the maximum for one offense.
Experienced Military Defense Lawyers for Article 106 Charges
If the government dresses an impersonation allegation up like a plot to steal America’s nuclear codes, we bring the case back to the facts and law. We make the prosecution work for a living. We challenge what it cannot prove and give you a straight assessment of what it can. That may mean contesting the charge, challenging the alleged intent to defraud, or negotiating the charges, forum or sentence. We prepare for the fight and discuss the choices with you.
Tim Bilecki and Ben Gold prepare your case together, test the government’s strongest arguments and challenge each other’s assumptions. Tim leads the defense and the courtroom fight. Ben works the evidence, legal issues and strategy with him. The preparation has to support the position we take in negotiations and the case we are ready to try.
When the evidence calls for an independent investigator or outside expert, we identify the work that needs to be done and the person qualified to do it. Expert assistance may require private funding or a request through the applicable military process. Hiring civilian counsel does not itself guarantee that the government will fund an expert.
Facing Charges Outside the United States?
We are based in Tampa, Florida, and represent service members worldwide. Tim and Ben begin preparing the defense remotely and both travel for trials and boards. Tell us where the case is being handled, what has been alleged and what deadlines you face so we can discuss the representation your case requires.
If you are ready to fight, so are we. Contact us for a confidential initial consultation.