PART IV
p. 303
reason to know of the presence of drugs, to drive the automobile onto a military installation, is, although not present in the automobile, guilty of wrongful introduction of drugs onto a military installation. (On these facts, the driver would be guilty of no crime.) Similarly, if, upon orders of a superior, a soldier shot a person who appeared to the soldier to be an enemy, but was known to the superior as a friend, the superior would be guilty of murder (but the soldier would be guilty of no offense). (b) Other Parties. If one is not a perpetrator, to be guilty of an offense committed by the perpetrator, the person must: (i) Assist, encourage, advise, instigate, coun- sel, command, or procure another to commit, or as- s i s t , e n c o u r a g e , a d v i s e , c o u n s e l , o r c o m m a n d another in the commission of the offense; and (ii) Share in the criminal purpose or design. One who, without knowledge of the criminal venture or plan, unwittingly encourages or renders assistance to another in the commission of an of- fense is not guilty of a crime. See the parentheticals i n t h e e x a m p l e s i n p a r a g r a p h 1 b ( 2 ) ( a ) a b o v e . I n some circumstances, inaction may make one liable as a party, where there is a duty to act. If a person (for example, a security guard) has a duty to inter- fere in the commission of an offense, but does not interfere, that person is a party to the crime if such a noninterference is intended to and does operate as an aid or encouragement to the actual perpetrator. (3) Presence. (a) Not necessary. Presence at the scene of the crime is not necessary to make one a party to the crime and liable as a principal. For example, one who, knowing that a person intends to shoot another person and intending that such an assault be carried out, provides the person with a pistol, is guilty of assault when the offense is committed, even though not present at the scene. (b) Not sufficient. Mere presence at the scene of a crime does not make one a principal unless the requirements of paragraph 1b(2)(a) or (b) have been met. (4) Parties whose intent differs from the perpetra- tor’s. When an offense charged requires proof of a specific intent or particular state of mind as an ele- ment, the evidence must prove that the accused had that intent or state of mind, whether the accused is c h a r g e d a s a p e r p e t r a t o r o r a n “ o t h e r p a r t y ” t o crime. It is possible for a party to have a state of mind more or less culpable than the perpetrator of the offense. In such a case, the party may be guilty of a more or less serious offense than that commit- ted by the perpetrator. For example, when a homi- cide is committed, the perpetrator may act in the heat of sudden passion caused by adequate provoca- tion and be guilty of manslaughter, while the party who, without such passion, hands the perpetrator a weapon and encourages the perpetrator to kill the victim, would be guilty of murder. On the other hand, if a party assists a perpetrator in an assault on a person who, known only to the perpetrator, is an officer, the party would be guilty only of assault, while the perpetrator would be guilty of assault on an officer. (5) Responsibility for other crimes. A principal may be convicted of crimes committed by another principal if such crimes are likely to result as a natural and probable consequence of the criminal venture or design. For example, the accused who is a party to a burglary is guilty as a principal not only of the offense of burglary, but also, if the perpetrator kills an occupant in the course of the burglary, of murder. ( See also paragraph 5 concerning liability for offenses committed by co-conspirators.) (6) Principals independently liable. One may be a principal, even if the perpetrator is not identified or prosecuted, or is acquitted. (7) Withdrawal. 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 meet the following requirements: ( a ) I t m u s t o c c u r b e f o r e t h e o f f e n s e i s committed; (b) The assistance, encouragement, advice, in- stigation, counsel, command, or procurement given by the person must be effectively countermanded or negated; and (c) The withdrawal must be clearly communi- cated to the would-be perpetrators or to appropriate law enforcement authorities in time for the perpetra- tors to abandon the plan or for law enforcement authorities to prevent the offense. 2. Article 78—Accessory after the fact a. Text of statute. Any person subject to this chapter who, know- IV-2 ¶1.b.(2)(a) Article 78
p. 304
ing that an offense punishable by this chapter has been committed, receives, comforts, or assists the offender in order to hinder or prevent his appre- hension, trial, or punishment shall be punished as a court-martial may direct. b. Elements. (1) That an offense punishable by the code was committed by a certain person; (2) That the accused knew that this person had committed such offense; ( 3 ) T h a t t h e r e a f t e r t h e a c c u s e d r e c e i v e d , c o m - forted, or assisted the offender; and (4) That the accused did so for the purpose of hindering or preventing the apprehension, trial, or punishment of the offender. c. Explanation. (1) In general. The assistance given a principal by an accessory after the fact is not limited to assist- ance designed to effect the escape or concealment of the principal, but also includes acts performed to conceal the commission of the offense by the princi- p a l ( f o r e x a m p l e , b y c o n c e a l i n g e v i d e n c e o f t h e offense). (2) Failure to report offense. The mere failure to report a known offense will not make one an acces- sory after the fact. Such failure may violate a gen- eral order or regulation, however, and thus constitute an offense under Article 92. See paragraph 16. If the o f f e n s e i n v o l v e d i s a s e r i o u s o f f e n s e , f a i l u r e t o report it may constitute the offense of misprision of a serious offense, under Article 134. See paragraph 95. (3) Offense punishable by the code. The term “of- fense punishable by this chapter” in the text of the article means any offense described in the code. (4) Status of principal. The principal who com- mitted the offense in question need not be subject to the code, but the offense committed must be punish- able by the code. ( 5 ) C o n v i c t i o n o r a c q u i t t a l o f p r i n c i p a l . T h e prosecution must prove that a principal committed the offense to which the accused is allegedly an accessory after the fact. However, evidence of the conviction or acquittal of the principal in a separate trial is not admissible to show that the principal did or did not commit the offense. Furthermore, an ac- cused may be convicted as an accessory after the fact despite the acquittal in a separate trial of the principal whom the accused allegedly comforted, re- ceived, or assisted. (6) Accessory after the fact not a lesser included offense. The offense of being an accessory after the fact is not a lesser included offense of the primary offense. (7) Actual knowledge. Actual knowledge is re- q u i r e d b u t m a y b e p r o v e d b y c i r c u m s t a n t i a l evidence. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Any person subject to the code who is found guilty as an accessory after the fact to an offense punishable by the code shall be subject to the maximum punishment authorized for the principal offense, except that in no case shall the death penalty nor more than one-half of the maxi- mum confinement authorized for that offense be ad- judged, nor shall the period of confinement exceed 10 years in any case, including offenses for which life imprisonment may be adjudged. f. Sample specification. I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , knowing that (at/on board—location), on or about 20 , had committed an offense punishable by the Uniform Code of Military Justice, to wit: , did, (at/on board—location) (subject- matter jurisdiction data, if required), on or about 20 , in order to (hinder) (prevent) the (ap- p r e h e n s i o n ) ( t r i a l ) ( p u n i s h m e n t ) o f t h e s a i d , ( r e c e i v e ) ( c o m f o r t ) ( a s s i s t ) t h e s a i d by . 3. Article 79—Conviction of lesser included offenses a. Text of statute. 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. b. Explanation. (1) In general. A lesser offense is “necessarily included” in a charged offense when the elements of the lesser offense are a subset of the elements of the charged offense, thereby putting the accused on no- tice to defend against the lesser offense in addition to the offense specifically charged. A lesser offense may be “necessarily included” when: (a) All of the elements of the lesser offense are IV-3 ¶3.b.(1)(a)Article 79
p. 305
included in the greater offense, and the common elements are identical (for example, larceny as a lesser included offense of robbery); (b) All of the elements of the lesser offense are included in the greater offense, but at least one ele- ment is a subset by being legally less serious (for example, housebreaking as a lesser included offense of burglary); or (c) All of the elements of the lesser offense are “included and necessary” parts of the greater of- fense, but the mental element is a subset by being legally less serious (for example, wrongful appropri- ation as a lesser included offense of larceny). Discussion The “elements test” is the proper method for determining lesser i n c l u d e d o f f e n s e s . S e e U n i t e d S t a t e s v . J o n e s , 6 8 M . J . 4 6 5 (C.A.A.F. 2010); Schmuck v. United States , 489 U.S. 705 (1989); Appendix 23 of this Manual, Art. 79. Paragraph 3.b.(1) was amended to comport with the elements test, which requires that the elements of the lesser offense must be a subset of the ele- ments of the charged offense. The elements test does not require identical statutory language, and use of normal principles of statu- tory interpretation is permitted. The elements test is necessary to safeguard the due process requirement of notice to a criminal defendant. (2) Sua sponte duty. A military judge must in- struct panel members on lesser included offenses reasonably raised by the evidence. (3) Multiple lesser included offenses. When the offense charged is a compound offense comprising two or more lesser included offenses, an accused may be found guilty of any or all of the offenses included in the offense charged. For example, rob- bery includes both larceny and assault. Therefore, in a proper case, a court-martial may find an accused not guilty of robbery, but guilty of wrongful appro- priation and assault. (4) Findings of guilty to a lesser included offense. A court-martial may find an accused not guilty of the offense charged, but guilty of a lesser included offense by the process of exception and substitution. The court-martial may except (that is, delete) the words in the specification that pertain to the offense charged and, if necessary, substitute language appro- priate to the lesser included offense. For example, the accused is charged with murder in violation of A r t i c l e 1 1 8 , b u t f o u n d g u i l t y o f v o l u n t a r y m a n - slaughter in violation of Article 119. Such a finding may be worded as follows: Of the Specification: Guilty, except the word “murder” substituting therefor the words “willfully a n d u n l a w f u l l y k i l l , ” o f t h e e x c e p t e d w o r d , n o t guilty, of the substituted words, guilty. Of the Charge: Not guilty, but guilty of a viola- tion of Article 119. If a court-martial finds an accused guilty of a lesser included offense, the finding as to the charge shall state a violation of the specific punitive article violated and not a violation of Article 79. ( 5 ) S p e c i f i c l e s s e r i n c l u d e d o f f e n s e s . S p e c i f i c lesser included offenses, if any, are listed for each offense in Appendix 12A, but the list is merely guidance to practitioners, is not all-inclusive, and is not binding on military courts. Discussion Practitioners must consider lesser included offenses on a case- by-case basis. See United States v. Jones , 68 M.J. 465 (C.A.A.F. 2010); United States v. Alston , 69 M.J. 214 (C.A.A.F. 2010); discussion following paragraph 3.b.(1)(c) above. The lesser in- cluded offenses listed in Appendix 12A were amended in 2016 to comport with the elements test; however, practitioners must ana- lyze each lesser included offense on a case-by-case basis. See Appendix 23 of this Manual, Art. 79. 4. Article 80—Attempts a. Text of statute. (a) 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. (b) Any person subject to this chapter who at- tempts to commit any offense punishable by this chapter shall be punished as a court-martial may direct, unless otherwise specifically prescribed. (c) Any person subject to this chapter may be convicted of an attempt to commit an offense al- though it appears on the trial that the offense was consummated. b. Elements. (1) That the accused did a certain overt act; (2) That the act was done with the specific intent to commit a certain offense under the code; (3) That the act amounted to more than mere preparation; and IV-4 ¶3.b.(1)(a) Article 80
p. 306
(4) That the act apparently tended to effect the commission of the intended offense. c. Explanation. ( 1 ) I n g e n e r a l . T o c o n s t i t u t e a n a t t e m p t t h e r e must be a specific intent to commit the offense ac- companied by an overt act which directly tends to accomplish the unlawful purpose. (2) More than preparation. Preparation consists of devising or arranging the means or measures nec- essary for the commission of the offense. The overt act required goes beyond preparatory steps and is a direct movement toward the commission of the of- fense. For example, a purchase of matches with the intent to burn a haystack is not an attempt to commit arson, but it is an attempt to commit arson to apply- ing a burning match to a haystack, even if no fire results. The overt act need not be the last act essen- tial to the consummation of the offense. For exam- ple, an accused could commit an overt act, and then voluntarily decide not to go through with the in- tended offense. An attempt would nevertheless have been committed, for the combination of a specific intent to commit an offense, plus the commission of an overt act directly tending to accomplish it, consti- tutes the offense of attempt. Failure to complete the offense, whatever the cause, is not a defense. ( 3 ) F a c t u a l i m p o s s i b i l i t y . A p e r s o n w h o p u r - posely engages in conduct which would constitute the offense if the attendant circumstances were as that person believed them to be is guilty of an at- tempt. For example, if A, without justification or excuse and with intent to kill B, points a gun at B and pulls the trigger, A is guilty of attempt to mur- der, even though, unknown to A, the gun is defec- t i v e a n d w i l l n o t f i r e . S i m i l a r l y , a p e r s o n w h o reaches into the pocket of another with the intent to steal that person’s billfold is guilty of an attempt to commit larceny, even though the pocket is empty. (4) Voluntary abandonment. It is a defense to an attempt offense that the person voluntarily and com- p l e t e l y a b a n d o n e d t h e i n t e n d e d c r i m e , s o l e l y b e - cause of the person’s own sense that it was wrong, prior to the completion of the crime. The voluntary abandonment defense is not allowed if the abandon- ment results, in whole or in part, from other reasons, for example, the person feared detection or appre- hension, decided to await a better opportunity for success, was unable to complete the crime, or en- c o u n t e r e d u n a n t i c i p a t e d d i f f i c u l t i e s o r u n e x p e c t e d resistance. A person who is entitled to the defense of voluntary abandonment may nonetheless be guilty of a lesser included, completed offense. For example, a p e r s o n w h o v o l u n t a r i l y a b a n d o n e d a n a t t e m p t e d armed robbery may nonetheless be guilty of assault with a dangerous weapon. (5) Solicitation. Soliciting another to commit an offense does not constitute an attempt. See para- graph 6 for a discussion of Article 82, solicitation. (6) Attempts not under Article 80. While most attempts should be charged under Article 80, the f o l l o w i n g a t t e m p t s a r e s p e c i f i c a l l y a d d r e s s e d b y s o m e o t h e r a r t i c l e , a n d s h o u l d b e c h a r g e d accordingly: (a) Article 85—desertion (b) Article 94—mutiny or sedition. (c) Article 100—subordinate compelling (d) Article 104—aiding the enemy (e) Article 106a—espionage (f) Article 119a—attempting to kill an unborn child (g) Article 128—assault (7) Regulations. An attempt to commit conduct which would violate a lawful general order or regu- lation under Article 92 ( see paragraph 16) should be charged under Article 80. It is not necessary in such cases to prove that the accused intended to violate the order or regulation, but it must be proved that t h e a c c u s e d i n t e n d e d t o c o m m i t t h e p r o h i b i t e d conduct. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Any person subject to the code who is found guilty of an attempt under Article 80 to commit any offense punishable by the code shall be subject to the same maximum punishment authorized for the commission of the offense at- tempted, except that in no case shall the death pen- a l t y b e a d j u d g e d , a n d i n n o c a s e , o t h e r t h a n attempted murder, shall confinement exceeding 20 years be adjudged. Except in the cases of attempts of Article 120(a) or (b), rape or sexual assault of a child under Article 120b(a) or (b), and forcible sod- o m y u n d e r A r t i c l e 1 2 5 , m a n d a t o r y m i n i m u m puilishment provisions shall not apply. f. Sample specification. In that (personal jurisdiction data) did, (at/on board—location) (subject-matter jurisdic- IV-5 ¶4.f.Article 80
p. 307
tion data, if required), on or about 20 , attempt to (describe offense with sufficient detail to include expressly or by necessary implication every element). 5. Article 81—Conspiracy a. Text of statute. (a) Any person subject to this chapter who con- spires with any other person to commit an offense under this chapter shall, if one or more of the con- spirators does an act to effect the object of the con- spiracy, be punished as a court-martial may direct. (b) Any person subject to this chapter who con- spires with any other person to commit an offense under the law of war, and who knowingly performs an overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a c o u r t - m a r t i a l o r m i l i t a r y c o m m i s s i o n m a y d i r e c t , and, if death does not result to any of the victims, by such punishment, other than death, as a court-martial or military commission may direct. b. Elements. (1) Conspiracy. (a) That the accused entered into an agreement with one or more persons to commit an offense under the UCMJ; and (b) That, while the agreement continued to ex- ist, 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. (2) Conspiracy when offense is an offense under the law of war resulting in the death of one or more victims. (a) That the accused entered into an agreement with one or more persons to commit an offense under the law of war; (b) That, while the agreement continued to ex- ist, and while the accused remained a party to the a g r e e m e n t , t h e a c c u s e d k n o w i n g l y p e r f o r m e d a n overt act for the purpose of bringing about the object of the conspiracy; and (c) That death resulted to one or more victims. c. Explanation. (1) Co-conspirators. Two or more persons are re- quired in order to have a conspiracy. Knowledge of the identity of co-conspirators and their particular connection with the criminal purpose need not be e s t a b l i s h e d . T h e a c c u s e d m u s t b e s u b j e c t t o t h e code, but the other co-conspirators need not be. A person may be guilty of conspiracy although incapa- ble of committing the intended offense. For exam- ple, a bedridden conspirator may knowingly furnish the car to be used in a robbery. The joining of another conspirator after the conspiracy has been established does not create a new conspiracy or af- fect the status of the other conspirators. However, the conspirator who joined an existing conspiracy can be convicted of this offense only if, at or after the time of joining the conspiracy, an overt act in f u r t h e r a n c e o f t h e o b j e c t o f t h e a g r e e m e n t i s committed. ( 2 ) A g r e e m e n t . T h e a g r e e m e n t i n a c o n s p i r a c y need not be in any particular form or manifested in any formal words. It is sufficient if the minds of the parties arrive at a common understanding to accom- plish the object of the conspiracy, and 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. (3) Object of the agreement. The object of the agreement must, at least in part, involve the com- mission of one or more offenses under the code. An agreement to commit several offenses is ordinarily but a single conspiracy. 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. (4) Overt act. (a) The overt act must be independent of the agreement to commit the offense; must take place at the time of or after the agreement; must be done by one or more of the conspirators, but not necessarily the accused; and must be done to effectuate the object of the agreement. (b) The overt act need not be in itself criminal, but it must be a manifestation that the agreement is being executed. Although committing the intended offense may constitute the overt act, it is not essen- tial that the object offense be committed. Any overt act is enough, no matter how preliminary or prepara- tory in nature, as long as it is a manifestation that the agreement is being executed. (c) An overt act by one conspirator becomes IV-6 ¶4.f. Article 81
p. 308
the act of all without any new agreement specifically directed to that act and each conspirator is equally guilty even though each does not participate in, or have knowledge of, all of the details of the execu- tion of the conspiracy. (5) Liability for offenses. Each conspirator is lia- ble for all offenses committed pursuant to the con- s p i r a c y b y a n y o f t h e c o - c o n s p i r a t o r s w h i l e t h e conspiracy continues and the person remains a party to it. (6) Withdrawal. A party to the conspiracy who abandons or withdraws from the agreement to com- mit the offense before the commission of an overt act by any conspirator is not guilty of conspiracy. An effective withdrawal or abandonment must con- sist of affirmative conduct which is wholly inconsis- tent with adherence to the unlawful agreement and which shows that the party has severed all connec- tion with the conspiracy. A conspirator who effec- tively abandons or withdraws from the conspiracy after the performance of an overt act by one of the conspirators remains guilty of conspiracy and of any offenses committed pursuant to the conspiracy up to the time of the abandonment or withdrawal. Howev- er, a person who has abandoned or withdrawn from the conspiracy is not liable for offenses committed t h e r e a f t e r b y t h e r e m a i n i n g c o n s p i r a t o r s . T h e w i t h d r a w a l o f a c o n s p i r a t o r f r o m t h e c o n s p i r a c y does not affect the status of the remaining members. (7) Factual impossibility. It is not a defense that the means adopted by the conspirators to achieve their object, if apparently adapted to that end, were actually not capable of success, or that the conspira- tors were not physically able to accomplish their intended object. (8) Conspiracy as a separate offense. A conspir- acy to commit an offense is a separate and distinct offense from the offense which is the object of the conspiracy, and both the conspiracy and the consum- mated offense which was its object may be charged, tried, and punished. The commission of the intended offense may also constitute the overt act which is an element of the conspiracy to commit that offense. (9) Special conspiracies under Article 134. The United States Code prohibits conspiracies to commit certain specific offenses which do not require an o v e r t a c t . T h e s e c o n s p i r a c i e s s h o u l d b e c h a r g e d under Article 134. Examples include conspiracies to impede or injure any Federal officer in the discharge o f d u t i e s u n d e r 1 8 U . S . C . § 3 7 2 , c o n s p i r a c i e s against civil rights under 18 U.S.C. § 241, and cer- tain drug conspiracies under 21 U.S.C. § 846. See paragraph 60c(4)(c)(ii). d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Any person subject to the code who is found guilty of conspiracy shall be subject to the maximum punishment authorized for t h e o f f e n s e t h a t i s t h e o b j e c t o f t h e c o n s p i r a c y . However, with the exception noted below, if death is an authorized punishment for the offense that is the object of the conspiracy, the maximum punishment shall be dishonorable discharge, forfeiture of all pay and allowances, and confinement for life without eligibility for parole. If the offense that is the object of the conspiracy is an offense under the law of war, the person knowingly performed an overt act for the purpose of bringing about the object of the conspira- cy, and death results to one or more victims, the death penalty shall be an available punishment. f. Sample specification. (1) Conspiracy. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , c o n s p i r e w i t h ( a n d ) t o commit an offense under the Uniform Code of Mili- tary Justice, to wit: (larceny of , of a v a l u e o f ( a b o u t ) $ , t h e p r o p e r t y o f ), and in order to effect the object of the conspiracy the said (and ) did . (2) Conspiracy when offense is an offense under the law of war resulting in the death of one or more victims. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , c o n s p i r e w i t h ( a n d ) t o commit an offense under the law of war, to wit: (murder of ), and in order to effect the object of the conspiracy the said know- i n g l y d i d r e s u l t i n g i n t h e d e a t h o f . 6. Article 82—Solicitation a. Text of statute. (a) Any person subject to this chapter who so- IV-7 ¶6.a.(a)Article 82
p. 309
licits or advises another or other to desert in violation of section 885 of this title (Article 85) or mutiny in violation of section 894 of this title (Article 94) shall, if the offense solicited or ad- v i s e d i s a t t e m p t e d o r c o m m i t t e d , b e p u n i s h e d with the punishment provided for the commission of the offense, but, if the offense solicited or ad- vised is not committed or attempted, he shall be punished as a court-martial may direct. (b) Any person subject to this chapter who so- licits or advises another or others to commit an act of misbehavior before the enemy in violation of section 899 of this title (Article 99) or sedition in violation of section 894 of this title (Article 94) shall, if the offense solicited or advised is commit- ted, be punished with the punishment provided for the commission of the offense, but, if the of- fense solicited or advised is not committed, he shall be punished as a court-martial may direct. b. Elements. (1) That the accused solicited or advised a certain person or persons to commit any of the four offenses named in Article 82; and (2) That the accused did so with the intent that the offense actually be committed. [Note: If the offense solicited or advised was at- tempted or committed, add the following element] ( 3 ) T h a t t h e o f f e n s e s o l i c i t e d o r a d v i s e d w a s (committed) (attempted) as the proximate result of the solicitation. c. Explanation. (1) Instantaneous offense. The offense is com- plete when a solicitation is made or advice is given with the specific wrongful intent to influence an- other or others to commit any of the four offenses named in Article 82. It is not necessary that the person or persons solicited or advised agree to or act upon the solicitation or advice. (2) Form of solicitation. Solicitation may be by means other than word of mouth or writing. Any act or conduct which reasonably may be construed as a serious request or advice to commit one of the four offenses named in Article 82 may constitute solicita- tion. It is not necessary that the accused act alone in the solicitation or in the advising; the accused may act through other persons in committing this offense. (3) Solicitations in violation of Article 134. Solic- itation to commit offenses other than violations of t h e f o u r o f f e n s e s n a m e d i n A r t i c l e 8 2 m a y b e charged as violations of Article 134. See paragraph 105. However, some offenses require, as an element of proof, some act of solicitation by the accused. These offenses are separate and distinct from solici- tations under Articles 82 and 134. When the ac- cused’s act of solicitation constitutes, by itself, a separate offense, the accused should be charged with that separate, distinct offense—for example, pander- ing ( see paragraph 97) and obstruction of justice (see paragraph 96) in violation of Article 134. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. If the offense solicited or advised is committed or (in the case of soliciting desertion or mutiny) attempted, then the accused shall be punished with the punishment provided for the commission of the offense solicited or advised. If the offense solicited or advised is not committed or (in the case of soliciting desertion or mutiny) attempted, then the following punishment may be imposed: (1) To desert—Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. ( 2 ) T o m u t i n y — D i s h o n o r a b l e d i s c h a r g e , f o r f e i - ture of all pay and allowances, and confinement for 10 years. (3) To commit an act of misbehavior before the e n e m y — D i s h o n o r a b l e d i s c h a r g e , f o r f e i t u r e o f a l l pay and allowances, and confinement for 10 years. (4) To commit an act of sedition—Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. f. Sample specifications. (1) For soliciting desertion (Article 85) or mutiny (Article 94). In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , (a time of war) by (here state the manner and form of solicitation or advice), (solicit) (advise) (and ) to (desert in violation of Article 85) (mutiny in violation of Arti- cle 94) [*and, as a result of such (solicitation) (ad- vice), the offense (solicited) (advised) was, on or a b o u t , 2 0 , ( a t / o n b o a r d — l o c a t i o n ) , ( a t t e m p t e d ) ( c o m m i t t e d ) b y ( a n d )]. [*Note: This language should be added to the end of the specifi- cation if the offense solicited or advised is actually committed.] IV-8 ¶6.a.(a) Article 82
p. 310
(2) For soliciting an act of misbehavior before the enemy (Article 99) or sedition (Article 94). In that (personal jurisdiction data) d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , (a time of war) by (here state the manner and form of solicitation or advice), (solicit) (advise), (and ) to commit (an act of misbehavior before the enemy in violation of Article 99) (sedition in violation of Article 94) [*and, as a result of such (solicitation) (advice), the o f f e n s e ( s o l i c i t e d ) ( a d v i s e d ) w a s , o n o r a b o u t 2 0 , ( a t / o n b o a r d — l o c a t i o n ) , c o m m i t t e d by (and )]. [*Note: This language should be added to the end of the specifi- cation if the offense solicited or advised is actually committed.] 7. Article 83—Fraudulent enlistment, appointment, or separation a. Text of statute. Any person who— ( 1 ) p r o c u r e s h i s o w n e n l i s t m e n t o r a p p o i n t - ment in the armed forces by knowingly false rep- resentation or deliberate concealment as to his qualifications for that enlistment or appointment and receives pay or allowances thereunder; or ( 2 ) p r o c u r e s h i s o w n s e p a r a t i o n f r o m t h e armed forces by knowingly false representation or deliberate concealment as to his eligibility for that separation; shall be punished as a court-martial may direct. b. Elements. (1) Fraudulent enlistment or appointment. (a) That the accused was enlisted or appointed in an armed force; (b) That the accused knowingly misrepresented or deliberately concealed a certain material fact or facts regarding qualifications of the accused for en- listment or appointment; (c) That the accused’s enlistment or appoint- ment was obtained or procured by that knowingly false representation or deliberate concealment; and (d) That under this enlistment or appointment that accused received pay or allowances or both. (2) Fraudulent separation. (a) That the accused was separated from an armed force; (b) That the accused knowingly misrepresented or deliberately concealed a certain material fact or facts about the accused’s eligibility for separation; and (c) That the accused’s separation was obtained or procured by that knowingly false representation or deliberate concealment. c. Explanation. (1) In general. A fraudulent enlistment, appoint- m e n t , o r s e p a r a t i o n i s o n e p r o c u r e d b y e i t h e r a knowingly false representation as to any of the qual- ifications prescribed by law, regulation, or orders for the specific enlistment, appointment, or separation, or a deliberate concealment as to any of those dis- qualifications. 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 enlist- ment, appointment, or separation in any particular case, and any information that normally would have been so considered had it been provided to that officer. (2) Receipt of pay or allowances. A member of the armed forces who enlists or accepts an appoint- ment 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 ap- pointment. Acceptance of food, clothing, shelter, or transportation from the government constitutes re- ceipt of allowances. However, whatever is furnished the accused while in custody, confinement, arrest, or other restraint pending trial for fraudulent enlistment or appointment is not considered an allowance. The receipt of pay or allowances may be proved by cir- cumstantial evidence. (3) One offense. One who procures one’s own e n l i s t m e n t , a p p o i n t m e n t , o r s e p a r a t i o n b y s e v e r a l misrepresentations or concealment as to qualifica- tions for the one enlistment, appointment, or separa- tion so procured, commits only one offense under Article 83. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. ( 1 ) F r a u d u l e n t e n l i s t m e n t o r a p p o i n t m e n t . D i s - honorable discharge, forfeiture of all pay and allow- ances, and confinement for 2 years. ( 2 ) F r a u d u l e n t s e p a r a t i o n . D i s h o n o r a b l e d i s - charge, forfeiture of all pay and allowances, and confinement for 5 years. IV-9 ¶7.e.(2)Article 83
p. 311
f. Sample specifications. (1) For fraudulent enlistment or appointment. I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , by means of (knowingly false repre- sentations that (here state the fact or facts material to qualification for enlistment or appointment which were represented), when in fact (here state the true fact of facts)) (deliberate concealment of the fact that (here state the fact or facts disqualifying the accused for enlistment or appointment which were concealed)), procure himself/herself to be (enlisted as a ) (appointed as a ) in the (here state the armed force in which the accused procured the enlistment or appointment), and did thereafter, (at/on board—location), receive (pay) (al- lowances) (pay and allowances) under the enlist- ment) (appointment) so procured. (2) For fraudulent separation. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , by means of (knowingly false repre- sentations that (here state the fact or facts material to eligibility for separation which were represented), when in fact (here state the true fact or facts)) (de- liberate concealment of the fact that (here state the fact or facts concealed which made the accused inel- igible for separation)), procure himself/herself to be separated from the (here state the armed force from which the accused procured his/her separation). 8. Article 84—Effecting unlawful enlistment, appointment, or separation a. Text of statute. Any person subject to this chapter who effects an enlistment or appointment in or a separation f r o m t h e a r m e d f o r c e s o f a n y p e r s o n w h o i s known to him to be ineligible for that enlistment, appointment, or separation because it is prohib- ited by law, regulation, or order shall be pun- ished as a court-martial may direct. b. Elements. (1) That the accused effected the enlistment, ap- pointment, or separation of the person named; (2) That this person was ineligible for this enlist- ment, appointment, or separation because it was pro- hibited by law, regulation, or order; and (3) That the accused knew of the ineligibility at t h e t i m e o f t h e e n l i s t m e n t , a p p o i n t m e n t , o r separation. c. Explanation. It must be proved that the enlist- ment, appointment, or separation was prohibited by law, regulation, or order when effected and that the a c c u s e d t h e n k n e w t h a t t h e p e r s o n e n l i s t e d , a p - pointed, or separated was ineligible for the enlist- ment, appointment, or separation. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 5 years. f. Sample specification. I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , effect (the (enlistment) (appointment) of as a in (here state the armed force in which the person was enlisted or a p p o i n t e d ) ) ( t h e s e p a r a t i o n o f f r o m (here state the armed force from which the person was separated)), then well knowing that the said was ineligible for such (enlistment) (ap- p o i n t m e n t ) ( s e p a r a t i o n ) b e c a u s e ( h e r e s t a t e f a c t s whereby the enlistment, appointment, or separation was prohibited by law, regulation, or order). 9. Article 85—Desertion a. Text of statute. (a) Any member of the armed forces who— (1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently; (2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or (3) without being regularly separated from one of the armed forces enlists or accepts an ap- p o i n t m e n t i n t h e s a m e o r a n o t h e r o n e o f t h e armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when author- ized by the United States; is guilty of desertion. ( b ) A n y c o m m i s s i o n e d o f f i c e r o f t h e a r m e d forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion. IV-10 ¶7.f. Article 85
p. 312
(c) Any person found guilty of desertion or at- tempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any o t h e r t i m e , b y s u c h p u n i s h m e n t , o t h e r t h a n death, as a court-martial may direct. [Note: Paragraph 9a(a)(3) above has been held not to state a separate offense by the United States Court of Military Appeals in United States v. Huff , 22 C.M.R. 37 (1956)] b. Elements. (1) Desertion with intent to remain away per- manently. (a) That the accused absented himself or her- self from his or her unit, organization, or place of duty; (b) That such absence was without authority; (c) That the accused, at the time the absence began or at some time during the absence, intended to remain away from his or her unit, organization, or place of duty permanently; and (d) That the accused remained absent until the date alleged. [Note: If the absence was terminated by apprehen- sion, add the following element] (e) That the accused’s absence was terminated by apprehension. (2) Desertion with intent to avoid hazardous duty or to shirk important service. (a) That the accused quit his or her unit, organ- ization, or other place of duty; (b) That the accused did so with the intent to avoid a certain duty or shirk a certain service; (c) That the duty to be performed was hazard- ous or the service important; (d) That the accused knew that he or she would be required for such duty or service; and (e) That the accused remained absent until the date alleged. (3) Desertion before notice of acceptance of res- ignation. (a) That the accused was a commissioned offi- cer of an armed force of the United States, and had tendered his or her resignation; (b) That before he or she received notice of the acceptance of the resignation, the accused quit his or her post or proper duties; (c) That the accused did so with the intent to remain away permanently from his or her post or proper duties; and (d) That the accused remained absent until the date alleged. [Note: If the absence was terminated by apprehen- sion, add the following element] (e) That the accused’s absence was terminated by apprehension. (4) Attempted desertion. (a) That the accused did a certain overt act; (b) That the act was done with the specific intent to desert; (c) That the act amounted to more than mere preparation; and (d) That the act apparently tended to effect the commission of the offense of desertion. c. Explanation. (1) Desertion with intent to remain away per- manently. (a) In general. Desertion with intent to remain away permanently is complete when the person ab- sents himself or herself without authority from his or her unit, organization, or place of duty, with the i n t e n t t o r e m a i n a w a y t h e r e f r o m p e r m a n e n t l y . A prompt repentance and return, while material in ex- tenuation, is no defense. It is not necessary that the person be absent entirely from military jurisdiction and control. (b) Absence without authority —inception, du- ration, termination. See paragraph 10c. (c) Intent to remain away permanently. (i) The intent to remain away permanently from the unit, organization, or place of duty may be formed any time during the unauthorized absence. The intent need not exist throughout the absence, or for any particular period of time, as long as it exists at some time during the absence. ( i i ) T h e a c c u s e d m u s t h a v e i n t e n d e d t o remain away permanently from the unit, organiza- tion, or place of duty. When the accused had such an intent, it is no defense that the accused also intended to report for duty elsewhere, or to enlist or accept an appointment in the same or a different armed force. (iii) The intent to remain away permanently IV-11 ¶9.c.(1)(c)(iii)Article 85
p. 313
m a y b e e s t a b l i s h e d b y c i r c u m s t a n t i a l e v i d e n c e . Among the circumstances from which an inference may be drawn that an accused intended to remain absent permanently are: that the period of absence was lengthy; that the accused attempted to, or did, dispose of uniforms or other military property; that the accused purchased a ticket for a distant point or was arrested, apprehended, or surrendered a consid- erable distance from the accused’s station; that the accused could have conveniently surrendered to mil- itary control but did not; that the accused was dissat- isfied with the accused’s unit, ship, or with military service; that the accused made remarks indicating an i n t e n t i o n t o d e s e r t ; t h a t t h e a c c u s e d w a s u n d e r charges or had escaped from confinement at the time of the absence; that the accused made preparations indicative of an intent not to return (for example, financial arrangements); or that the accused enlisted or accepted an appointment in the same or another armed force without disclosing the fact that the ac- cused had not been regularly separated, or entered any foreign armed service without being authorized by the United States. On the other hand, the follow- ing are included in the circumstances which may tend to negate an inference that the accused intended to remain away permanently: previous long and ex- cellent service; that the accused left valuable per- sonal property in the unit or on the ship; or that the accused was under the influence of alcohol or drugs during the absence. These lists are illustrative only. (iv) Entries on documents, such as personnel accountability records, which administratively refer to an accused as a “deserter” are not evidence of intent to desert. (v) Proof of, or a plea of guilty to, an un- authorized absence, even of extended duration, does not, without more, prove guilt of desertion. (d) Effect of enlistment or appointment in the same or a different armed force. Article 85a(3) does not state a separate offense. Rather, it is a rule of evidence by which the prosecution may prove intent to remain away permanently. Proof of an enlistment or acceptance of an appointment in a service without disclosing a preexisting duty status in the same or a different service provides the basis from which an inference of intent to permanently remain away from the earlier unit, organization, or place of duty may be drawn. Furthermore, if a person, without being regularly separated from one of the armed forces, enlists or accepts an appointment in the same or another armed force, the person’s presence in the military service under such an enlistment or appoint- ment is not a return to military control and does not terminate any desertion or absence without authority from the earlier unit or organization, unless the facts of the earlier period of service are known to military authorities. If a person, while in desertion, enlists or a c c e p t s a n a p p o i n t m e n t i n t h e s a m e o r a n o t h e r armed force, and deserts while serving the enlist- ment or appointment, the person may be tried and convicted for each desertion. (2) Quitting unit, organization, or place of duty with intent to avoid hazardous duty or to shirk im- portant service. ( a ) H a z a r d o u s d u t y o r i m p o r t a n t s e r v i c e . “Hazardous duty” or “important service” may in- clude service such as duty in a combat or other dangerous area; embarkation for certain foreign or sea duty; movement to a port of embarkation for that purpose; entrainment for duty on the border or coast in time of war or threatened invasion or other dis- turbances; strike or riot duty; or employment in aid of the civil power in, for example, protecting proper- ty, or quelling or preventing disorder in times of great public disaster. Such services as drill, target practice, maneuvers, and practice marches are not o r d i n a r i l y “ h a z a r d o u s d u t y o r i m p o r t a n t s e r v i c e . ” Whether a duty is hazardous or a service is impor- tant depends upon the circumstances of the particu- lar case, and is a question of fact for the court- martial to decide. (b) Quits. “Quits” in Article 85 means “goes absent without authority.” (c) Actual knowledge. Article 85 a(2) requires proof that the accused actually knew of the hazard- ous duty or important service. Actual knowledge may be proved by circumstantial evidence. ( 3 ) A t t e m p t i n g t o d e s e r t . O n c e t h e a t t e m p t i s made, the fact that the person desists, voluntarily or otherwise, does not cancel the offense. The offense is complete, for example, if the person, intending to desert, hides in an empty freight car on a military reservation, intending to escape by being taken away in the car. Entering the car with the intent to desert is the overt act. For a more detailed discussion of attempts, see paragraph 4. For an explanation con- cerning intent to remain away permanently, see par- agraph 9c(1)(c). (4) Prisoner with executed punitive discharge. A prisoner whose dismissal or dishonorable or bad- IV-12 ¶9.c.(1)(c)(iii) Article 85
p. 314
conduct discharge has been executed is not a “mem- ber of the armed forces” within the meaning of Arti- cles 85 or 86, although the prisoner may still be subject to military law under Article 2( a)(7). If the facts warrant, such a prisoner could be charged with escape from confinement under Article 95 or an offense under Article 134. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Completed or attempted desertion with intent to avoid hazardous duty or to shirk important serv- ice. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. (2) Other cases of completed or attempted deser- tion. (a) Terminated by apprehension. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. ( b ) T e r m i n a t e d o t h e r w i s e . D i s h o n o r a b l e d i s - charge, forfeiture of all pay and allowances, and confinement for 2 years. (3) In time of war. Death or such other punish- ment as a court-martial may direct. f. Sample specifications. (1) Desertion with intent to remain away per- manently. I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , did, on or about 20 , (a time of war) without authority and with intent to remain away therefrom permanently, absent himself/herself from his/her (unit) (organization) (place of duty), to wit: , l o c a t e d a t ( ) , a n d d i d remain so absent in desertion until (he/she was ap- prehended) on or about 20 . (2) Desertion with intent to avoid hazardous duty or shirk important service. I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , did, on or about 20 , (a time of war) with intent to (avoid hazardous duty) (shirk important s e r v i c e ) , n a m e l y : , q u i t h i s / h e r ( u n i t ) (organization) (place of duty), to wit: , located at ( ), and did remain so absent in desertion until on or about 20 . (3) Desertion prior to acceptance of resignation. I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) having tendered his/her resignation and prior to due notice of the acceptance of the same, did, on or about 20 , (a time of war) without leave a n d w i t h i n t e n t t o r e m a i n a w a y t h e r e f r o m p e r - manently, quit his/her (post) (proper duties), to wit: , and did remain so absent in desertion until (he/she was apprehended) on or about 20 . (4) Attempted desertion. I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , (a time of war) attempt to (absent h i m s e l f / h e r s e l f f r o m h i s / h e r ( u n i t ) ( o r g a n i z a t i o n ) (place of duty) to wit: , without author- ity and with intent to remain away therefrom per- manently) (quit his/her (unit) (organization) (place o f d u t y ) , t o w i t : , l o c a t e d a t , with intent to (avoid hazardous duty) (shirk important service) namely ) ( ). 10. Article 86—Absence without leave a. Text of statute. Any member of the armed forces who, without authority— (1) fails to go to his appointed place of duty at the time prescribed; (2) goes from that place; or (3) absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed; shall be punished as a court-martial may direct. b. Elements. (1) Failure to go to appointed place of duty. (a) That a certain authority appointed a certain time and place of duty for the accused; (b) That the accused knew of that time and place; and (c) That the accused, without authority, failed to go to the appointed place of duty at the time prescribed. (2) Going from appointed place of duty. (a) That a certain authority appointed a certain time and place of duty for the accused; (b) That the accused knew of that time and place; and (c) That the accused, without authority, went from the appointed place of duty after having repor- ted at such place. (3) Absence from unit, organization, or place of duty. (a) That the accused absented himself or her- IV-13 ¶10.b.(3)(a)Article 86
p. 315
self from his or her unit, organization, or place of duty at which he or she was required to be; ( b ) T h a t t h e a b s e n c e w a s w i t h o u t a u t h o r i t y from anyone competent to give him or her leave; and (c) That the absence was for a certain period of time. [Note: if the absence was terminated by apprehension, add the following element] ( d ) T h a t t h e a b s e n c e w a s t e r m i n a t e d b y apprehension. (4) Abandoning watch or guard. (a) That the accused was a member of a guard, watch, or duty; (b) That the accused absented himself or her- self from his or her guard, watch, or duty section; (c) That absence of the accused was without authority; and [Note: If the absence was with intent to abandon the accused’s guard, watch, or duty section, add the following element] (d) That the accused intended to abandon his or her guard, watch, or duty section. (5) Absence from unit, organization, or place of duty with intent to avoid maneuvers or field exer- cises. (a) That the accused absented himself or her- self from his or her unit, organization, or place of duty at which he or she was required to be; (b) That the absence of the accused was with- out authority; (c) That the absence was for a certain period of time; ( d ) T h a t t h e a c c u s e d k n e w t h a t t h e a b s e n c e would occur during a part of a period of maneuvers or field exercises; and (e) That the accused intended to avoid all or part of a period of maneuvers or field exercises. c. Explanation. (1) In general. This article is designed to cover every case not elsewhere provided for in which any member of the armed forces is through the mem- ber’s own fault not at the place where the member is required to be at a prescribed time. It is not neces- sary that the person be absent entirely from military jurisdiction and control. The first part of this ar- ticle—relating to the appointed place of duty—ap- plies whether the place is appointed as a rendezvous for several or for one only. (2) Actual knowledge. The offenses of failure to go to and going from appointed place of duty re- quire proof that the accused actually knew of the appointed time and place of duty. The offense of absence from unit, organization, or place of duty with intent to avoid maneuvers or field exercises requires proof that the accused actually knew that the absence would occur during a part of a period of maneuvers or field exercises. Actual knowledge may be proved by circumstantial evidence. (3) Intent. Specific intent is not an element of unauthorized absence. Specific intent is an element for certain aggravated unauthorized absences. ( 4 ) A g g r a v a t e d f o r m s o f u n a u t h o r i z e d a b s e n c e . There are variations of unauthorized absence under Article 86(3) which are more serious because of aggravating circumstances such as duration of the absence, a special type of duty from which the ac- cused absents himself or herself, and a particular s p e c i f i c i n t e n t w h i c h a c c o m p a n i e s t h e a b s e n c e . These circumstances are not essential elements of a violation of Article 86. They simply constitute spe- cial matters in aggravation. The following are aggra- vated unauthorized absences: (a) Unauthorized absence for more than 3 days (duration). ( b ) U n a u t h o r i z e d a b s e n c e f o r m o r e t h a n 3 0 days (duration). (c) Unauthorized absence from a guard, watch, or duty (special type of duty). (d) Unauthorized absence from guard, watch, or duty section with the intent to abandon it (special type of duty and specific intent). ( e ) U n a u t h o r i z e d a b s e n c e w i t h t h e i n t e n t t o avoid maneuvers or field exercises (special type of duty and specific intent). (5) Control by civilian authorities. A member of the armed forces turned over to the civilian authori- ties upon request under Article 14 ( see R.C.M. 106) is not absent without leave while held by them under that delivery. When a member of the armed forces, being absent with leave, or absent without leave, is held, tried, and acquitted by civilian authorities, the m e m b e r ’ s s t a t u s a s a b s e n t w i t h l e a v e , o r a b s e n t without leave, is not thereby changed, regardless how long held. The fact that a member of the armed forces is convicted by the civilian authorities, or adjudicated to be a juvenile offender, or the case is “diverted” out of the regular criminal process for a p r o b a t i o n a r y p e r i o d d o e s n o t e x c u s e a n y u n - IV-14 ¶10.b.(3)(a) Article 86
p. 316
authorized absence, because the member’s inability to return was the result of willful misconduct. If a member is released by the civilian authorities with- out 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. ( 6 ) I n a b i l i t y t o r e t u r n . T h e s t a t u s o f a b s e n c e without leave is not changed by an inability to return through sickness, lack of transportation facilities, or other disabilities. But the fact that all or part of a period of unauthorized absence was in a sense en- forced or involuntary is a factor in extenuation and should be given due weight when considering the initial disposition of the offense. When, however, a person on authorized leave, without fault, is unable to return at the expiration thereof, that person has not committed the offense of absence without leave. (7) Determining the unit or organization of an accused. A person undergoing transfer between ac- tivities is ordinarily considered to be attached to the activity to which ordered to report. A person on temporary additional duty continues as a member of the regularly assigned unit and if the person is ab- sent from the temporary duty assignment, the person becomes absent without leave from both units, and may be charged with being absent without leave from either unit. (8) Duration. Unauthorized absence under Article 86(3) is an instantaneous offense. It is complete at the instant an accused absents himself or herself without authority. Duration of the absence is a mat- ter in aggravation for the purpose of increasing the m a x i m u m p u n i s h m e n t a u t h o r i z e d f o r t h e o f f e n s e . Even if the duration of the absence is not over 3 days, it is ordinarily alleged in an Article 86(3) specification. If the duration is not alleged or if alleged but not proved, an accused can be convicted of and punished for only 1 day of unauthorized absence. (9) Computation of duration. In computing the duration of an unauthorized absence, any one contin- uous period of absence found that totals not more than 24 hours is counted as 1 day; any such period that totals more than 24 hours and not more than 48 hours is counted as 2 days, and so on. The hours of departure and return on different dates are assumed to be the same if not alleged and proved. For exam- ple, if an accused is found guilty of unauthorized absence from 0600 hours, 4 April, to 1000 hours, 7 April of the same year (76 hours), the maximum punishment would be based on an absence of 4 days. However, if the accused is found guilty simply of unauthorized absence from 4 April to 7 April, the maximum punishment would be based on an ab- sence of 3 days. (10) Termination—methods of return to military control. (a) Surrender to military authority. A surrender occurs when a person presents himself or herself to any military authority, whether or not a member of the same armed force, notifies that authority of his or her unauthorized absence status, and submits or demonstrates a willingness to submit to military con- trol. Such a surrender terminates the unauthorized absence. (b) Apprehension by military authority. Appre- hension by military authority of a known absentee terminates an unauthorized absence. (c) Delivery to military authority. Delivery of a known absentee by anyone to military authority ter- minates the unauthorized absence. (d) Apprehension by civilian authorities at the request of the military. When an absentee is taken into custody by civilian authorities at the request of military authorities, the absence is terminated. (e) Apprehension by civilian authorities with- out prior military request. When an absentee is in the hands of civilian authorities for other reasons and these authorities make the absentee available for return to military control, the absence is terminated when the military authorities are informed of the absentee’s availability. (11) Findings of more than one absence under o n e s p e c i f i c a t i o n . A n a c c u s e d m a y p r o p e r l y b e found guilty of two or more separate unauthorized absences under one specification, provided that each absence is included within the period alleged in the specification and provided that the accused was not misled. If an accused is found guilty of two or more unauthorized absences under a single specification, the maximum authorized punishment shall not ex- ceed that authorized if the accused had been found guilty as charged in the specification. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. IV-15 ¶10.e.Article 86
p. 317
(1) Failing to go to, or going from, the appointed place of duty. Confinement for 1 month and forfei- ture of two-thirds pay per month for 1 month. ( 2 ) A b s e n c e f r o m u n i t , o r g a n i z a t i o n , o r o t h e r place of duty. (a) For not more than 3 days. Confinement for 1 month and forfeiture of two-thirds pay per month for 1 month. (b) For more than 3 days but not more than 30 days. Confinement for 6 months and forfeiture of two-thirds pay per month for 6months. (c) For more than 30 days. Dishonorable dis- charge, forfeiture of all pay and allowances, and confinement for 1 year. (d) For more than 30 days and terminated by apprehension. Dishonorable discharge, forfeiture of a l l p a y a n d a l l o w a n c e s , a n d c o n f i n e m e n t f o r 1 8 months. ( 3 ) F r o m g u a r d o r w a t c h . C o n f i n e m e n t f o r 3 months and forfeiture of two-thirds pay per month for 3 months. (4) From guard or watch with intent to abandon. Bad-conduct discharge, forfeiture of all pay and al- lowances, and confinement for 6 months. (5) With intent to avoid maneuvers or field exer- cises. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months. f. Sample specifications. (1) Failing to go or leaving place of duty. In that (personal jurisdiction data), did (at/on board—location), on or about 20 , without authority, (fail to go at the time prescribed to) (go from) his/her appointed place of duty, to wit: (here set forth the appointed place of duty). (2) Absence from unit, organization, or place of duty. In that (personal jurisdiction da- ta), did, on or about 20 , without authori- t y , a b s e n t h i m s e l f / h e r s e l f f r o m h i s / h e r ( u n i t ) (organization) (place of duty at which he/she was r e q u i r e d t o b e ) , t o w i t : , l o c a t e d a t , and did remain so absent until (he/she was apprehended) on or about 20 . (3) Absence from unit, organization, or place of duty with intent to avoid maneuvers or field exer- cises. In that (personal jurisdiction data), did, on or about 20 , without authority and with intent to avoid (maneuvers) (field exercises), absent himself/herself from his/her (unit) (organiza- tion) (place of duty at which he/she was required to b e ) , t o w i t : l o c a t e d a t ( ) , a n d d i d remain so absent until on or about 20 . ( 4 ) A b a n d o n i n g w a t c h o r g u a r d . I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , b e i n g a m e m b e r o f t h e ( g u a r d ) ( w a t c h ) ( d u t y s e c t i o n ) , d i d , ( a t / o n b o a r d - l o c a t i o n ) , o n o r a b o u t 20 , without authority, go from his/her (guard) (watch) (duty section) (with intent to aban- don the same). 11. Article 87—Missing movement a. Text of statute. A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished as a court-martial may direct. b. Elements. (1) That the accused was required in the course of duty to move with a ship, aircraft or unit; ( 2 ) T h a t t h e a c c u s e d k n e w o f t h e p r o s p e c t i v e movement of the ship, aircraft or unit; (3) That the accused missed the movement of the ship, aircraft or unit; and ( 4 ) T h a t t h e a c c u s e d m i s s e d t h e m o v e m e n t through design or neglect. c. Explanation. (1) Movement. “Movement” as used in Article 87 includes a move, transfer, or shift of a ship, aircraft, or unit involving a substantial distance and period of time. Whether a particular movement is substantial is a question to be determined by the court-martial considering all the circumstances. Changes which do n o t c o n s t i t u t e a “ m o v e m e n t ” i n c l u d e p r a c t i c e marches of a short duration with a return to the point of departure, and minor changes in location of ships, aircraft, or units, as when a ship is shifted from one berth to another in the same shipyard or harbor or when a unit is moved from one barracks to another on the same post. (2) Mode of movement. (a) Unit. If a person is required in the course of duty to move with a unit, the mode of travel is not important, whether it be military or commercial, and includes travel by ship, train, aircraft, truck, bus, or walking. The word “unit” is not limited to any spe- cific technical category such as those listed in a table of organization and equipment, but also in- IV-16 ¶10.e.(1) Article 87
p. 318
cludes units which are created before the movement with the intention that they have organizational con- tinuity upon arrival at their destination regardless of their technical designation, and units intended to be disbanded upon arrival at their destination. (b) Ship, aircraft. If a person is assigned as a crew member or is ordered to move as a passenger aboard a particular ship or aircraft, military or char- tered, then missing the particular sailing or flight is e s s e n t i a l t o e s t a b l i s h t h e o f f e n s e o f m i s s i n g movement. (3) Design. “Design” means on purpose, inten- tionally, or according to plan and requires specific intent to miss the movement. ( 4 ) N e g l e c t . “ N e g l e c t ” m e a n s t h e o m i s s i o n t o take such measures as are appropriate under the cir- cumstances 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 proba- ble consequences in connection with the prospective movement, such as a departure from the vicinity of t h e p r o s p e c t i v e m o v e m e n t t o s u c h a d i s t a n c e a s would make it likely that one could not return in time for the movement. (5) Actual knowledge. In order to be guilty of the offense, the accused must have actually known of the prospective movement that was missed. Knowl- edge of the exact hour or even of the exact date of the scheduled movement is not required. It is suffi- cient if the approximate date was known by the accused as long as there is a causal connection be- tween the conduct of the accused and the missing of the scheduled movement. Knowledge may be proved by circumstantial evidence. (6) Proof of absence. That the accused actually missed the movement may be proved by documen- tary evidence, as by a proper entry in a log or a morning report. This fact may also be proved by the testimony of personnel of the ship, aircraft, or unit (or by other evidence) that the movement occurred at a certain time, together with evidence that the accused was physically elsewhere at that time. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Design. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. (2) Neglect. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year. f. Sample specification. I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , through (neglect) (design) miss the m o v e m e n t o f ( A i r c r a f t N o . ) ( F l i g h t ) (the USS ) (Company A, 1 s t B a t t a l i o n , 7 t h I n f a n t r y ) ( ) w i t h which he/she was required in the course of duty to move. 12. Article 88—Contempt toward officials a. Text of statute. Any commissioned officer who uses contemptu- ous words against the President, the Vice Presi- d e n t , C o n g r e s s , t h e S e c r e t a r y o f D e f e n s e , t h e Secretary of a military department, the Secretary of Homeland Security, or the Governor or legisla- ture of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct. b. Elements. (1) That the accused was a commissioned officer of the United States armed forces; (2) That the accused used certain words against an official or legislature named in the article; (3) That by an act of the accused these words came to the knowledge of a person other than the accused; and (4) That the words used were contemptuous, ei- ther in themselves or by virtue of the circumstances under which they were used. [Note: If the words were against a Governor or legislature, add the following element] (5) That the accused was then present in the State, Territory, Commonwealth, or possession of the Gov- ernor or legislature concerned. c. Explanation. The official or legislature against whom the words are used must be occupying one of the offices or be one of the legislatures named in A r t i c l e 8 8 a t t h e t i m e o f t h e o f f e n s e . N e i t h e r “Congress” nor “legislature” includes its members i n d i v i d u a l l y . “ G o v e r n o r ” d o e s n o t i n c l u d e “lieutenant governor.” It is immaterial whether the words are used against the official in an official or private capacity. If not personally contemptuous, ad- verse criticism of one of the officials or legislatures named in the article in the course of a political d i s c u s s i o n , e v e n t h o u g h e m p h a t i c a l l y e x p r e s s e d , may not be charged as a violation of the article. Similarly, expressions of opinion made in a purely IV-17 ¶12.c.Article 88
p. 319
p r i v a t e c o n v e r s a t i o n s h o u l d n o t o r d i n a r i l y b e charged. Giving broad circulation to a written publi- cation containing contemptuous words of the kind made punishable by this article, or the utterance of contemptuous words of this kind in the presence of military subordinates, aggravates the offense. The truth or falsity of the statements is immaterial. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Dismissal, forfeiture of all pay and allowances, and confinement for 1 year. f. Sample specification. I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , [use (orally and publicly) ( ) the following contemptuous words] [in a contemptu- ous manner, use (orally and publicly) ( ) the following words] against the [(President) (Vice P r e s i d e n t ) ( C o n g r e s s ) ( S e c r e t a r y o f ) ] [ ( G o v e r n o r ) ( l e g i s l a t u r e ) o f t h e ( S t a t e o f ) (Territory of ) ( ), a (State) (Ter- r i t o r y ) ( ) i n w h i c h h e / s h e , t h e s a i d , was then (on duty), (present)], to wit: “ ,” or words to that effect. 13. Article 89—Disrespect toward a superior commissioned officer a. Text of statute. Any person subject to this chapter who be- haves with disrespect toward his superior com- missioned officer shall be punished as a court- martial may direct. b. Elements. (1) That the accused did or omitted certain acts or used certain language to or concerning a certain commissioned officer; (2) That such behavior or language was directed toward that officer; (3) That the officer toward whom the acts, omis- sions, or words were directed was the superior com- missioned officer of the accused; (4) That the accused then knew that the commis- sioned officer toward whom the acts, omissions, or w o r d s w e r e d i r e c t e d w a s t h e a c c u s e d ’ s s u p e r i o r commissioned officer; and (5) That, under the circumstances, the behavior or l a n g u a g e w a s d i s r e s p e c t f u l t o t h a t c o m m i s s i o n e d officer. c. Explanation. (1) Superior commissioned officer. ( a ) A c c u s e d a n d v i c t i m i n s a m e u n i f o r m e d service. If the accused and the victim are in the same uniformed service, the victim is a “superior commissioned officer” of the accused when either superior in rank or command to the accused; howev- er, the victim is not a “superior commissioned offi- c e r ” o f t h e a c c u s e d i f t h e v i c t i m i s i n f e r i o r i n command, even though superior in rank. (b) Accused and victim in different uniformed service. If the accused and the victim are in different uniformed services, the victim is a “superior com- missioned officer” of the accused when the victim is a commissioned officer and superior in the chain of command over the accused or when the victim, not a medical officer or 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. The victim is not a “superior commis- sioned officer” of the accused merely because the victim is superior in grade to the accused. (c) Execution of office. It is not necessary that the “superior commissioned officer” be in the execu- t i o n o f o f f i c e a t t h e t i m e o f t h e d i s r e s p e c t f u l behavior. (2) Knowledge. If the accused did not know that the person against whom the acts or words were directed was the accused’s superior commissioned officer, the accused may not be convicted of a viola- tion of this article. Knowledge may be proved by circumstantial evidence. ( 3 ) D i s r e s p e c t . D i s r e s p e c t f u l b e h a v i o r i s t h a t which detracts from the respect due the authority and person of a superior commissioned officer. It may consist of acts or language, however expressed, and it is immaterial whether they refer to the supe- rior as an officer or as a private individual. Dis- r e s p e c t b y w o r d s m a y b e c o n v e y e d b y a b u s i v e epithets or other contemptuous or denunciatory lan- guage. Truth is no defense. Disrespect by acts in- cludes neglecting the customary salute, or showing a m a r k e d d i s d a i n , i n d i f f e r e n c e , i n s o l e n c e , i m p e r t i - nence, undue familiarity, or other rudeness in the presence of the superior officer. (4) Presence. It is not essential that the disre- spectful behavior be in the presence of the superior, but ordinarily one should not be held accountable IV-18 ¶12.c. Article 89
p. 320
under this article for what was said or done in a purely private conversation. (5) Special defense—unprotected victim. A supe- rior commissioned officer whose conduct in relation to the accused under all the circumstances departs substantially from the required standards appropriate to that officer’s rank or position under similar cir- cumstances loses the protection of this article. That accused may not be convicted of being disrespectful to the officer who has so lost the entitlement to respect protected by Article 89. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 1 year. f. Sample specification. I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , behave himself/herself with disrespect toward , his/her superior commissioned officer, then known by the said to be his/her superior commissioned officer, by (saying to him/her “ ,” or words to that effect) (contemptuously turning from and leaving him/her while he/she, the said , was talking to him/her, the said ) ( ). 14. Article 90—Assaulting or willfully disobeying superior commissioned officer a. Text of statute. Any person subject to this chapter who— (1) strikes his superior commissioned officer or draws or lifts up any weapon or offers any vio- lence against him while he is in the execution of his office; or (2) willfully disobeys a lawful command of his superior commissioned officer; shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, and if the offense is committed at any other time, by such punish- ment, other than death, as a court-martial may direct. b. Elements. (1) Striking or assaulting superior commissioned officer. (a) That the accused struck, drew, or lifted up a weapon against, or offered violence against, a cer- tain commissioned officer; (b) That the officer was the superior commis- sioned officer of the accused; (c) That the accused then knew that the officer was the accused’s superior commissioned officer; and (d) That the superior commissioned officer was then in the execution of office. (2) Disobeying superior commissioned officer. (a) That the accused received a lawful com- mand from a certain commissioned officer; (b) That this officer was the superior commis- sioned officer of the accused; (c) That the accused then knew that this officer was the accused’s superior commissioned officer; and (d) That the accused willfully disobeyed the lawful command. c. Explanation. (1) Striking or assaulting superior commissioned officer. (a) Definitions. (i) Superior commissioned officer. The defi- nitions in paragraph 13c(1)( a) and ( b) apply here and in subparagraph c(2). ( i i ) S t r i k e s . “ S t r i k e s ” m e a n s a n i n t e n t i o n a l blow, and includes any offensive touching of the person of an officer, however slight. (iii) Draws or lifts up any weapon against. The phrase “draws or lifts up any weapon against” covers any simple assault committed in the manner stated. The drawing of any weapon in an aggressive manner or the raising or brandishing of the same in a threatening manner in the presence of and at the superior is the sort of act proscribed. The raising in a threatening manner of a firearm, whether or not loaded, of a club, or of anything by which a serious blow or injury could be given is included in “lifts up.” (iv) Offers any violence against. The phrase “offers any violence against” includes any form of battery or of mere assault not embraced in the pre- ceding more specific terms “strikes” and “draws or lifts up.” If not executed, the violence must be phys- ically attempted or menaced. A mere threatening in words is not an offering of violence in the sense of this article. IV-19 ¶14.c.(1)(a)(iv)Article 90
p. 321
(b) Execution of office. An officer is in the execution of office when engaged in any act or serv- ice required or authorized by treaty, statute, regula- tion, the order of a superior, or military usage. In general, any striking or use of violence against any superior officer by a person over whom it is the duty of that officer to maintain discipline at the time, would be striking or using violence against the offi- cer in the execution of office. The commanding offi- cer on board a ship or the commanding officer of a unit in the field is generally considered to be on duty at all times. (c) Knowledge. If the accused did not know the officer was the accused’s superior commissioned of- ficer, the accused may not be convicted of this of- fense. Knowledge may be proved by circumstantial evidence. (d) Defenses. In a prosecution for striking or assaulting a superior commissioned officer in viola- tion of this article, it is a defense that the accused acted in the proper discharge of some duty, or that the victim behaved in a manner toward the accused such as to lose the protection of this article ( see paragraph 13c(5)). For example, if the victim initi- ated an unlawful attack on the accused, this would deprive the victim of the protection of this article, and, in addition, could excuse any lesser included offense of assault as done in self-defense, depending on the circumstances ( see paragraph 54c; R.C.M. 916(e)). (2) Disobeying superior commissioned officer. (a) Lawfulness of the order. (i) Inference of lawfulness. An order requir- ing the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime. (ii) Determination of lawfulness. The lawful- ness of an order is a question of law to be deter- mined by the military judge. (iii) Authority of issuing officer. The com- missioned officer issuing the order must have au- thority to give such an order. Authorization may be based on law, regulation, or custom of the service. (iv) Relationship to military duty. The order must relate to military duty, which includes all activ- ities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, disci- pline, and usefulness of members of a command and directly connected with the maintenance of good or- der in the service. The order may not, without such a valid military purpose, interfere with private rights or personal affairs. However, the dictates of a per- son’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an oth- erwise lawful order. Disobedience of an order which has for its sole object the attainment of some private end, or which is given for the sole purpose of in- creasing the penalty for an offense which it is ex- pected the accused may commit, is not punishable under this article. ( v ) R e l a t i o n s h i p t o s t a t u t o r y o r c o n s t i t u - tional rights. The order must not conflict with the statutory or constitutional rights of the person re- ceiving the order. (b) Personal nature of the order. The order must be directed specifically to the subordinate. Vio- lations of regulations, standing orders or directives, or failure to perform previously established duties are not punishable under this article, but may violate Article 92. (c) Form and transmission of the order. As long as the order is understandable, the form of the order is immaterial, as is the method by which it is transmitted to the accused. (d) Specificity of the order. The order must be a specific mandate to do or not to do a specific act. An exhortation to “obey the law” or to perform o n e ’ s m i l i t a r y d u t y d o e s n o t c o n s t i t u t e a n o r d e r under this article. (e) Knowledge. The accused must have actual knowledge of the order and of the fact that the person issuing the order was the accused’s superior c o m m i s s i o n e d o f f i c e r . A c t u a l k n o w l e d g e m a y b e proved by circumstantial evidence. (f) Nature of the disobedience. “Willful disobe- dience” is an intentional defiance of authority. Fail- ure to comply with an order through heedlessness, remissness, or forgetfulness is not a violation of this article but may violate Article 92. (g) Time for compliance. When an order re- quires immediate compliance, an accused’s declared intent not to obey and the failure to make any move to comply constitutes disobedience. Immediate com- pliance is required for any order that does not ex- p l i c i t l y o r i m p l i c i t l y i n d i c a t e t h a t d e l a y e d compliance is authorized or directed. If an order IV-20 ¶14.c.(1)(b) Article 90
p. 322
r e q u i r e s p e r f o r m a n c e i n t h e f u t u r e , a n a c c u s e d ’ s present statement of intention to disobey the order does not constitute disobedience of that order, al- though carrying out that intention may. ( 3 ) C i v i l i a n s a n d d i s c h a r g e d p r i s o n e r s . A d i s - charged prisoner or other civilian subject to military law ( see Article 2) and under the command of a commissioned officer is subject to the provisions of this article. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Striking, drawing, or lifting up any weapon or offering any violence to superior commissioned offi- c e r i n t h e e x e c u t i o n o f o f f i c e . D i s h o n o r a b l e d i s - charge, forfeiture of all pay and allowances, and confinement for 10 years. (2) Willfully disobeying a lawful order of supe- rior commissioned officer. Dishonorable discharge, forfeiture of all pay and allowances, and confine- ment for 5 years. (3) In time of war. Death or such other punish- ment as a court-martial may direct. f. Sample specifications. (1) Striking superior commissioned officer. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , (a time of war) strike , his/her superior c o m m i s s i o n e d o f f i c e r , t h e n k n o w n b y t h e s a i d to be his/her superior commissioned of- ficer, who was then in the execution of his/her of- f i c e , ( i n ) ( o n ) t h e w i t h ( a ) ( h i s / h e r ) . (2) Drawing or lifting up a weapon against supe- rior commissioned officer. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , (a time of war) (draw) lift up) a weapon, to wit: a , against , his/her superior c o m m i s s i o n e d o f f i c e r , t h e n k n o w n b y t h e s a i d to be his/her superior commissioned of- f i c e r , w h o w a s t h e n i n t h e e x e c u t i o n o f h i s / h e r office. (3) Offering violence to superior commissioned officer. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , (a time of war) offer violence against , his/ her superior commissioned officer, then known by the said to be his/her superior commis- sioned officer, who was then in the execution of his/ her office, by . ( 4 ) W i l l f u l d i s o b e d i e n c e o f s u p e r i o r c o m m i s - sioned officer. In that (personal jurisdiction data), h a v i n g r e c e i v e d a l a w f u l c o m m a n d f r o m , his/her superior commissioned officer, then known by the said to be his/her superior commissioned officer, to , or words to that effect, did, (at/on board—location), on or about 20 , willfully disobey the same. 15. Article 91—Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer a. Text of statute. Any warrant officer or enlisted member who— (1) strikes or assaults a warrant officer, non- commissioned officer, or petty officer, while that officer is in the execution of his office; (2) willfully disobeys the lawful order of a war- rant officer, noncommissioned officer, or petty officer; or (3) treats with contempt or is disrespectful in language or deportment toward a warrant offi- c e r , n o n c o m m i s s i o n e d o f f i c e r , o r p e t t y o f f i c e r while that officer is in the execution of his office; shall be punished as a court-martial may direct. b. Elements. (1) Striking or assaulting warrant, noncommis- sioned, or petty officer. (a) That the accused was a warrant officer or enlisted member; (b) That the accused struck or assaulted a cer- tain warrant, noncommissioned, or petty officer; (c) That the striking or assault was committed while the victim was in the execution of office; and (d) That the accused then knew that the person struck or assaulted was a warrant, noncommissioned, or petty officer. [Note: If the victim was the superior noncommissioned or petty officer of the accused, add the following elements] (e) That the victim was the superior noncom- missioned, or petty officer of the accused; and (f) That the accused then knew that the person IV-21 ¶15.b.(1)(f)Article 91
p. 323
struck or assaulted was the accused’s superior non- commissioned, or petty officer. (2) Disobeying a warrant, noncommissioned, or petty officer. (a) That the accused was a warrant officer or enlisted member; (b) That the accused received a certain lawful order from a certain warrant, noncommissioned, or petty officer; (c) That the accused then knew that the person giving the order was a warrant, noncommissioned, or petty officer; (d) That the accused had a duty to obey the order; and ( e ) T h a t t h e a c c u s e d w i l l f u l l y d i s o b e y e d t h e order. (3) Treating with contempt or being disrespectful in language or deportment toward a warrant, non- commissioned, or petty officer. (a) That the accused was a warrant officer or enlisted member; ( b ) T h a t t h e a c c u s e d d i d o r o m i t t e d c e r t a i n acts, or used certain language; (c) That such behavior or language was used toward and within sight or hearing of a certain war- rant, noncommissioned, or petty officer; (d) That the accused then knew that the person toward whom the behavior or language was directed was a warrant, noncommissioned, or petty officer; (e) That the victim was then in the execution of office; and (f) That under the circumstances the accused, by such behavior or language, treated with contempt or was disrespectful to said warrant, noncommis- sioned, or petty officer. [Note: If the victim was the superior noncommissioned, or petty officer of the accused, add the following elements] (g) That the victim was the superior noncom- missioned, or petty officer of the accused; and (h) That the accused then knew that the person toward whom the behavior or language was directed w a s t h e a c c u s e d ’ s s u p e r i o r n o n c o m m i s s i o n e d , o r petty officer. c. Explanation. (1) In general. Article 91 has the same general objects with respect to warrant, noncommissioned, and petty officers as Articles 89 and 90 have with respect to commissioned officers, namely, to ensure obedience to their lawful orders, and to protect them from violence, insult, or disrespect. Unlike Articles 89 and 90, however, this article does not require a superior-subordinate relationship as an element of any of the offenses denounced. This article does not protect an acting noncommissioned officer or acting petty officer, nor does it protect military police or members of the shore patrol who are not warrant, noncommissioned, or petty officers. (2) Knowledge. All of the offenses prohibited by A r t i c l e 9 1 r e q u i r e t h a t t h e a c c u s e d h a v e a c t u a l knowledge that the victim was a warrant, noncom- missioned, or petty officer. Actual knowledge may be proved by circumstantial evidence. (3) Striking or assaulting a warrant, noncommis- sioned, or petty officer. For a discussion of “strikes” and “in the execution of office,” see paragraph 14c. For a discussion of “assault,” see paragraph 54c. An assault by a prisoner who has been discharged from the service, or by any other civilian subject to mili- tary law, upon a warrant, noncommissioned, or petty officer should be charged under Article 128 or 134. (4) Disobeying a warrant, noncommissioned, or petty officer. See paragraph 14c(2) for a discussion of lawfulness, personal nature, form, transmission, and specificity of the order, nature of the disobedi- ence, and time for compliance with the order. (5) Treating with contempt or being disrespectful in language or deportment toward a warrant, non- commissioned, or petty officer. “Toward” requires that the behavior and language be within the sight or hearing of the warrant, noncommissioned, or petty officer concerned. For a discussion of “in the execu- tion of his office,” see paragraph 14c. For a discus- sion of disrespect, see paragraph 13c. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Striking or assaulting warrant officer. Dis- honorable discharge, forfeiture of all pay and allow- ances, and confinement for 5 years. ( 2 ) S t r i k i n g o r a s s a u l t i n g s u p e r i o r n o n c o m m i s - sioned or petty officer. Dishonorable discharge, for- feiture of all pay and allowances, and confinement for 3 years. (3) Striking or assaulting other noncommissioned or petty officer. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year. IV-22 ¶15.b.(1)(f) Article 91
p. 324
( 4 ) W i l l f u l l y d i s o b e y i n g t h e l a w f u l o r d e r o f a warrant officer. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. (5) Willfully disobeying the lawful order of a non- c o m m i s s i o n e d o r p e t t y o f f i c e r . B a d - c o n d u c t d i s - charge, forfeiture of all pay and allowances, and confinement for 1 year. ( 6 ) C o n t e m p t o r d i s r e s p e c t t o w a r r a n t o f f i c e r . Bad-conduct discharge, forfeiture of all pay and al- lowances, and confinement for 9 months. (7) Contempt or disrespect to superior noncom- missioned or petty officer. Bad-conduct discharge, forfeiture of all pay and allowances, and confine- ment for 6 months. (8) Contempt or disrespect to other noncommis- sioned or petty officer. Forfeiture of two-thirds pay per month for 3 months, and confinement for 3 months. f. Sample specifications. (1) Striking or assaulting warrant, noncommis- sioned, or petty officer. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , (strike) (assault) , a officer, then known to the said to be a (superi- or) officer who was then in the execu- tion of his/her office, by him/her (in) (on) (the ) with (a) (his/her) . (2) Willful disobedience of warrant, noncommis- sioned, or petty officer. In that (personal jurisdiction data), having received a lawful order from , a officer, then known by the said to be a officer, to , an order which it was his/ her duty to obey, did (at/on board—location), on or about 20 , willfully disobey the same. (3) Contempt or disrespect toward warrant, non- commissioned, or petty officer. In that (personal jurisdiction data) (at/on board—location), on or about 20 , [did treat with contempt] [was disrespectful in (lan- g u a g e ) ( d e p o r t m e n t ) t o w a r d ] , a o f f i c e r , t h e n k n o w n b y t h e s a i d to be a (superior) officer, who was then in the execution of his/her office, by (saying to him/her, “ ,” or words to that effect) (spitting at his/her feet) ( ) 16. Article 92—Failure to obey order or regulation a. Text of statute. Any person subject to this chapter who— (1) violates or fails to obey any lawful general order or regulation; (2) having knowledge of any other lawful or- der issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties; shall be punished as a court-martial may direct. b. Elements. (1) Violation of or failure to obey a lawful gen- eral order or regulation. (a) That there was in effect a certain lawful general order or regulation; (b) That the accused had a duty to obey it; and (c) That the accused violated or failed to obey the order or regulation. (2) Failure to obey other lawful order. (a) That a member of the armed forces issued a certain lawful order; ( b ) T h a t t h e a c c u s e d h a d k n o w l e d g e o f t h e order; (c) That the accused had a duty to obey the order; and (d) That the accused failed to obey the order. (3) Dereliction in the performance of duties. (a) That the accused had certain duties; ( b ) T h a t t h e a c c u s e d k n e w o r r e a s o n a b l y should have known of the duties; and (c) That the accused was (willfully) (through neglect or culpable inefficiency) derelict in the per- formance of those duties. [Note: In cases where the dereliction of duty re- sulted in death or grievous bodily harm, add the following as applicable] (d) That such dereliction of duty resulted in death or grievous bodily harm to a person other than the accused. c. Explanation. (1) Violation of or failure to obey a lawful gen- eral order or regulation. IV-23 ¶16.c.(1)Article 92
p. 325
(a) Authority to issue general orders and regu- lations. General orders or regulations are those or- ders or regulations generally applicable to an armed force which are properly published by the President or the Secretary of Defense, of Homeland Security, or of a military department, and those orders or regulations generally applicable to the command of the officer issuing them throughout the command or a particular subdivision thereof which are issued by: ( i ) a n o f f i c e r h a v i n g g e n e r a l c o u r t - m a r t i a l jurisdiction; (ii) a general or flag officer in command; or (iii) a commander superior to (i) or (ii). (b) Effect of change of command on validity of order. A general order or regulation issued by a commander with authority under Article 92(1) re- tains its character as a general order or regulation when another officer takes command, until it expires by its own terms or is rescinded by separate action, even if it is issued by an officer who is a general or flag officer in command and command is assumed b y a n o t h e r o f f i c e r w h o i s n o t a g e n e r a l o r f l a g officer. (c) Lawfulness. A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it. See the discussion of lawful- ness in paragraph 14c(2)(a). (d) Knowledge. Knowledge of a general order o r r e g u l a t i o n n e e d n o t b e a l l e g e d o r p r o v e d , a s knowledge is not an element of this offense and a lack of knowledge does not constitute a defense. (e) Enforceability. Not all provisions in general orders or regulations can be enforced under Article 92(1). Regulations which only supply general guide- l i n e s o r a d v i c e f o r c o n d u c t i n g m i l i t a r y f u n c t i o n s may not be enforceable under Article 92(1). (2) Violation of or failure to obey other lawful order. (a) Scope. Article 92(2) includes all other law- ful orders which may be issued by a member of the armed forces, violations of which are not chargeable under Article 90, 91, or 92(1). It includes the viola- tion of written regulations which are not general regulations. See also subparagraph (1)(e) above as applicable. (b) Knowledge. In order to be guilty of this offense, a person must have had actual knowledge of the order or regulation. Knowledge of the order may be proved by circumstantial evidence. (c) Duty to obey order. ( i ) F r o m a s u p e r i o r . A m e m b e r o f o n e armed force who is senior in rank to a member of another armed force is the superior of that member with authority to issue orders which that member has a duty to obey under the same circumstances as a commissioned officer of one armed force is the superior commissioned officer of a member of an- other armed force for the purposes of Articles 89 and 90. See paragraph 13c(1). (ii) From one not a superior. Failure to obey the lawful order of one not a superior is an offense under Article 92(2), provided the accused had a duty to obey the order, such as one issued by a sentinel or a member of the armed forces police. See para- graph 15b(2) if the order was issued by a warrant, noncommissioned, or petty officer in the execution of office. (3) Dereliction in the performance of duties. (a) Duty. A duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the service. ( b ) K n o w l e d g e . A c t u a l k n o w l e d g e o f d u t i e s may be proved by circumstantial evidence. Actual knowledge need not be shown if the individual rea- sonably should have known of the duties. This may be demonstrated by regulations, training or operating manuals, customs of the service, academic literature or testimony, testimony of persons who have held similar or superior positions, or similar evidence. (c) Derelict. A person is derelict in the per- formance of duties when that person willfully or negligently fails to perform that person’s duties or when that person performs them in a culpably ineffi- c i e n t m a n n e r . “ W i l l f u l l y ” m e a n s i n t e n t i o n a l l y . I t refers to the doing of an act knowingly and purpose- ly, specifically intending the natural and probable consequences of the act. “Negligently” means an act or omission of a person who is under a duty to use due care which exhibits a lack of that degree of care which a reasonably prudent person would have exer- cised under the same or similar circumstances. “Cul- pable inefficiency” is inefficiency for which there is no reasonable or just excuse. (d) Ineptitude. A person is not derelict in the performance of duties if the failure to perform those duties is caused by ineptitude rather than by willful- IV-24 ¶16.c.(1)(a) Article 92
p. 326
ness, negligence, or culpable inefficiency, and may not be charged under this article, or otherwise pun- ished. For example, a recruit who has tried earnestly during rifle training and throughout record firing is not derelict in the performance of duties if the re- cruit fails to qualify with the weapon. ( e ) G r i e v o u s b o d i l y h a r m . “ G r i e v o u s b o d i l y harm” means serious bodily injury. It does not in- clude minor injuries, such as a black eye or a bloody nose, but does include fractured or dislocated bones, deep cuts, torn members of the body, serious dam- a g e t o i n t e r n a l o r g a n s , a n d o t h e r s e r i o u s b o d i l y injuries. (f) Where the dereliction of duty resulted in death or grievous bodily harm, an intent to cause death or grievous bodily harm is not required. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Violation of or failure to obey lawful general order or regulation. Dishonorable discharge, forfei- ture of all pay and allowances, and confinement for 2 years. (2) Violation of or failure to obey other lawful order. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months. [Note: For (1) and (2), above, the punishment set forth does not apply in the following cases: if in the absence of the order or regulation which was vio- lated 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 if the violation or failure to obey is a breach of restraint imposed as a result of an order. In these instances, the maximum punishment is that specifi- c a l l y p r e s c r i b e d e l s e w h e r e f o r t h a t p a r t i c u l a r offense.] (3) Dereliction in the performance of duties. (A) Through neglect or culpable inefficiency. Forfeiture of two-thirds pay per month for 3 months and confinement for 3 months. ( B ) T h r o u g h n e g l e c t o r c u l p a b l e i n e f f i c i e n c y resulting in death or grievous bodily harm. Bad- conduct discharge, forfeiture of all pay and allow- ances, and confinement for 18 months. (C) Willful. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months. ( D ) W i l l f u l d e r e l i c t i o n o f d u t y r e s u l t i n g i n death or grievous bodily harm. Dishonorable dis- charge, forfeiture of all pay and allowances, and confinement for 2 years. [Note: For (1) and (2) above, the punishment set forth does not apply in the following cases: if, in the absence of the order or regulation that 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 if the violation or failure to obey is a breach of restraint imposed as a result of an order. In these instances, the maximum punishment is that specifically pre- scribed elsewhere for that particular offense.] Discussion If the dereliction of duty resulted in death, the accused may also be charged under Article 119 or Article 134 (negligent homi- cide), as applicable. f. Sample specifications. (1) Violation or failure to obey lawful general order or regulation. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , (violate) (fail to obey) a lawful general (order) (reg- u l a t i o n ) , t o w i t : ( p a r a g r a p h , ( A r m y ) (Air Force) Regulation , dated 20 ) ( A r t i c l e , U . S . N a v y R e g u l a t i o n s , d a t e d 20 ) (General Order No. , U.S. Navy, d a t e d 2 0 ) ( ) , b y (wrongfully) . (2) Violation or failure to obey other lawful writ- ten order. In that (personal jurisdiction data), h a v i n g k n o w l e d g e o f a l a w f u l o r d e r i s s u e d b y , to wit: (paragraph , ( the Combat Group Regulation No. ) (USS , Regulation ), dated ) ( ), an or- der which it was his/her duty to obey, did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about 20 , fail to obey the same by (wrongfully) . (3) Failure to obey other lawful order. In that , (personal jurisdiction data) h a v i n g k n o w l e d g e o f a l a w f u l o r d e r i s s u e d b y (to submit to certain medical treatment) (to ) (not to ) ( ), an order w h i c h i t w a s h i s / h e r d u t y t o o b e y , d i d ( a t / o n IV-25 ¶16.f.(3)Article 92
p. 327
board—location) (subject-matter jurisdiction data, if required), on or about 20 , fail to obey the same (by (wrongfully) .) (4) Dereliction in the performance of duties. In that , (personal jurisdiction da- ta), who (knew) (should have known) of his/her du- t i e s ( a t / o n b o a r d — l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , ( o n o r a b o u t 20 ) (from about 20 to about 20 ), was derelict in the performance of those duties in that he/she (negligently) (willfully) (by culpable inefficiency) failed , as it was his/her duty to do (, and that such dereliction of duty resulted in (grievous bodily harm, to wit: (bro- ken leg) (deep cut) (fractured skull) to) (the death of) ). 17. Article 93—Cruelty and maltreatment a. Text of statute. A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o i s g u i l t y o f c r u e l t y t o w a r d , o r o p p r e s s i o n o r maltreatment of, any person subject to his orders shall be punished as a court-martial may direct. b. Elements. (1) That a certain person was subject to the or- ders of the accused; and (2) That the accused was cruel toward, or op- pressed, or maltreated that person. c. Explanation. (1) Nature of victim. “Any person subject to his orders” means not only those persons under the di- rect or immediate command of the accused but ex- tends to all persons, subject to the code or not, who by reason of some duty are required to obey the lawful orders of the accused, regardless whether the accused is in the direct chain of command over the person. ( 2 ) N a t u r e o f a c t . T h e c r u e l t y , o p p r e s s i o n , o r m a l t r e a t m e n t , a l t h o u g h n o t n e c e s s a r i l y p h y s i c a l , must be measured by an objective standard. Assault, improper punishment, and sexual harassment may constitute this offense. Sexual harassment includes influencing, offering to influence, or threatening the career, pay, or job of another person in exchange for sexual favors, and deliberate or repeated offensive comments or gestures of a sexual nature. The impo- sition 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. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 2 years. f. Sample specification. In that (personal jurisdiction data), (at/on board—location) (subject-matter jurisdiction data, if required), on or about 20 , (was cruel toward) (did (oppress) (maltreat)) , a person subject to his/her orders, by (kicking him/ her in the stomach) (confining him/her for twenty- four hours without water) ( ). 18. Article 94—Mutiny and sedition a. Text of statute. Any person subject to this chapter who— (1) with intent to usurp or override lawful mil- itary authority, refuse, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny; (2) with intent to cause the overthrow or de- struction of lawful civil authority, creates, in con- cert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition; (3) fails to do his utmost to prevent and sup- press a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or com- manding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition. ( b ) A p e r s o n w h o i s f o u n d g u i l t y o f a t - tempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court-martial may direct. b. Elements. (1) Mutiny by creating violence or disturbance. (a) That the accused created violence or a dis- turbance; and (b) That the accused created this violence or IV-26 ¶16.f.(3) Article 94
p. 328
disturbance with intent to usurp or override lawful military authority. (2) Mutiny by refusing to obey orders or perform duty. (a) That the accused refused to obey orders or otherwise do the accused’s duty; (b) That the accused in refusing to obey orders or perform duty acted in concert with another person or persons; and (c) That the accused did so with intent to usurp or override lawful military authority. (3) Sedition. (a) That the accused created revolt, violence, or disturbance against lawful civil authority; (b) That the accused acted in concert with an- other person or persons; and (c) That the accused did so with the intent to cause the overthrow or destruction of that authority. (4) Failure to prevent and suppress a mutiny or sedition. (a) That an offense of mutiny or sedition was committed in the presence of the accused; and (b) That the accused failed to do the accused’s u t m o s t t o p r e v e n t a n d s u p p r e s s t h e m u t i n y o r sedition. (5) Failure to report a mutiny or sedition. ( a ) T h a t a n o f f e n s e o f m u t i n y o r s e d i t i o n occurred; (b) That the accused knew or had reason to believe that the offense was taking place; and (c) That the accused failed to take all reasona- ble means to inform the accused’s superior commis- sioned officer or commander of the offense. (6) Attempted mutiny. (a) That the accused committed a certain overt act; (b) That the act was done with specific intent to commit the offense of mutiny; (c) That the act amounted to more than mere preparation; and (d) That the act apparently tended to effect the commission of the offense of mutiny. c. Explanation. (1) Mutiny. Article 94( a)(1) defines two types of mutiny, both requiring an intent to usurp or override military authority. (a) Mutiny by creating violence or disturbance. Mutiny by creating violence or disturbance may be committed by one person acting alone or by more than one acting together. (b) Mutiny by refusing to obey orders or per- form duties. Mutiny by refusing to obey orders or p e r f o r m d u t i e s r e q u i r e s c o l l e c t i v e i n s u b o r d i n a t i o n and necessarily includes some combination of two or more persons in resisting lawful military authority. This concert of insubordination need not be precon- ceived, nor is it necessary that the insubordination be active or violent. It may consist simply of a persistent and concerted refusal or omission to obey orders, or to do duty, with an insubordinate intent, that is, with an intent to usurp or override lawful military authority. The intent may be declared in words or inferred from acts, omissions, or surround- ing circumstances. (2) Sedition. Sedition requires a concert of action in resistance to civil authority. This differs from mutiny by creating violence or disturbance. See sub- paragraph c(1)( a) above. (3) Failure to prevent and suppress a mutiny or sedition. “Utmost” means taking those measures to prevent and suppress a mutiny or sedition which may properly be called for by the circumstances, including the rank, responsibilities, or employment of the person concerned. “Utmost” includes the use of such force, including deadly force, as may be reasonably necessary under the circumstances to pre- vent and suppress a mutiny or sedition. (4) Failure to report a mutiny or sedition. Failure to “take all reasonable means to inform” includes failure to take the most expeditious means available. W h e n t h e c i r c u m s t a n c e s k n o w n t o t h e a c c u s e d would have caused a reasonable person in similar circumstances to believe that a mutiny or sedition was occurring, this may establish that the accused had such “reason to believe” that mutiny or sedition was occurring. Failure to report an impending mu- tiny or sedition is not an offense in violation of Article 94. But see paragraph 16c(3) (dereliction of duty). ( 5 ) A t t e m p t e d m u t i n y . F o r a d i s c u s s i o n o f a t - tempts, see paragraph 4. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. For all offenses under Ar- IV-27 ¶18.e.Article 94
p. 329
ticle 94, death or such other punishment as a court- martial may direct. f. Sample specifications. (1) Mutiny by creating violence or disturbance. In that (personal jurisdiction data), with intent to (usurp) (override) (usurp and override) lawful military authority, did, (at/on board—loca- tion) (subject-matter jurisdiction data, if required), on or about 20 , create (violence) (a dis- turbance) by (attacking the officers of the said ship) (barricading himself/herself in Barracks T7, firing his/her rifle at , and exhorting other per- sons to join him/her in defiance of ) ( ). (2) Mutiny by refusing to obey orders or perform duties. In that (personal jurisdiction data), with intent to (usurp) (override) (usurp and override) lawful military authority, did, (at/on board— loca- tion) on or about 20 , refuse, in concert with (and ) (others whose n a m e s a r e u n k n o w n ) , t o ( o b e y t h e o r d e r s o f to ) (perform his/her duty as ). (3) Sedition. In that (personal jurisdiction data), with intent to cause the (overthrow) (destruction) (overthrow and destruction) of lawful civil authority, t o w i t : , d i d , ( a t / o n b o a r d — l o c a t i o n ) (subject-matter jurisdiction data, if required), on or about 20 , in concert with ( ) and ( ) (others whose names are un- k n o w n ) , c r e a t e ( r e v o l t ) ( v i o l e n c e ) ( a d i s t u r b a n c e ) against such authority by (entering the Town Hall of a n d d e s t r o y i n g p r o p e r t y a n d r e c o r d s therein) (marching upon and compelling the surren- der of the police of ) ( ). (4) Failure to prevent and suppress a mutiny or sedition. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , fail to do his/her utmost to prevent and suppress a (muti- ny) (sedition) among the (soldiers) (sailors) (airmen) ( m a r i n e s ) ( ) o f , w h i c h (mutiny) (sedition) was being committed in his/her presence, in that (he/she took no means to compel the dispersal of the assembly) (he/she made no effort to assist who was attempting to quell the mutiny) ( ). (5) Failure to report a mutiny or sedition. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , fail to take all reasonable means to inform his/her supe- rior commissioned officer or his/her commander of a ( m u t i n y ) ( s e d i t i o n ) a m o n g t h e ( s o l d i e r s ) ( s a i l o r s ) (airmen) (marines) ( ) of , w h i c h ( m u t i n y ) ( s e d i t i o n ) h e / s h e , t h e s a i d (knew) (had reason to believe) was tak- ing place. (6) Attempted mutiny. In that (personal jurisdiction data), with intent to (usurp) (override) (usurp and override) lawful military authority, did, (at/on board— loca- tion) (subject-matter jurisdiction data, if required), on or about 20 , attempt to (create (vio- lence) (a disturbance) by ) ( ). 19. Article 95—Resistance, flight, breach of arrest, and escape a. Text of statute. Any person subject to this chapter who— (1) resists apprehension; (2) flees from apprehension; (3) breaks arrest; or (4) escapes from custody or confinement; shall be punished as a court-martial may direct. b. Elements. (1) Resisting apprehension. (a) That a certain person attempted to appre- hend the accused; (b) That said person was authorized to appre- hend the accused; and ( c ) T h a t t h e a c c u s e d a c t i v e l y r e s i s t e d t h e apprehension. (2) Flight from apprehension. (a) That a certain person attempted to appre- hend the accused; (b) That said person was authorized to appre- hend the accused; and ( c ) T h a t t h e a c c u s e d f l e d f r o m t h e a p p r e - hension. (3) Breaking arrest. (a) That a certain person ordered the accused into arrest; IV-28 ¶18.e. Article 95
p. 330
(b) That said person was authorized to order the accused into arrest; and (c) That the accused went beyond the limits of a r r e s t b e f o r e b e i n g r e l e a s e d f r o m t h a t a r r e s t b y proper authority. (4) Escape from custody. ( a ) T h a t a c e r t a i n p e r s o n a p p r e h e n d e d t h e accused; (b) That said person was authorized to appre- hend the accused; and (c) That the accused freed himself or herself f r o m c u s t o d y b e f o r e b e i n g r e l e a s e d b y p r o p e r authority. (5) Escape from confinement. (a) That a certain person ordered the accused into confinement; (b) That said person was authorized to order the accused into confinement; and (c) That the accused freed himself or herself from confinement before being released by proper authority. [Note: If the escape was post-trial confinement, add the following element] (d) That the confinement was the result of a court-martial conviction. c. Explanation. (1) Resisting apprehension. (a) Apprehension. Apprehension is the taking of a person into custody. See R.C.M. 302. (b) Authority to apprehend. See R.C.M. 302(b) concerning who may apprehend. Whether the status of a person authorized that person to apprehend the accused is a question of law to be decided by the military judge. Whether the person who attempted to make an apprehension had such a status is a ques- tion of fact to be decided by the factfinder. ( c ) N a t u r e o f t h e r e s i s t a n c e . T h e r e s i s t a n c e must be active, such as assaulting the person at- tempting to apprehend. Mere words of opposition, argument, or abuse, and attempts to escape from custody after the apprehension is complete, do not constitute the offense of resisting apprehension al- though they may constitute other offenses. (d) Mistake. It is a defense that the accused held a reasonable belief that the person attempting to apprehend did not have authority to do so. However, the accused’s belief at the time that no basis exists for the apprehension is not a defense. (e) Illegal apprehension. A person may not be convicted of resisting apprehension if the attempted apprehension is illegal, but may be convicted of other offenses, such as assault, depending on all the circumstances. An attempted apprehension by a per- son authorized to apprehend is presumed to be legal in the absence of evidence to the contrary. Ordinar- ily the legality of an apprehension is a question of law to be decided by the military judge. (2) Flight from apprehension. The flight must be active, such as running or driving away. (3) Breaking arrest. (a) Arrest. There are two types of arrest: pre- trial arrest under Article 9 ( see R.C.M. 304) and arrest under Article 15 ( see paragraph 5c(3), Part V, MCM). This article prohibits breaking any arrest. ( b ) A u t h o r i t y t o o r d e r a r r e s t . S e e R . C . M . 304(b) and paragraphs 2 and 5b, Part V, MCM con- cerning authority to order arrest. (c) Nature of restraint imposed by arrest. In arrest, the restraint is moral restraint imposed by orders fixing the limits of arrest. ( d ) B r e a k i n g . B r e a k i n g a r r e s t i s c o m m i t t e d when the person in arrest infringes the limits set by orders. The reason for the infringement is immateri- a l . F o r e x a m p l e , i n n o c e n c e o f t h e o f f e n s e w i t h respect to which an arrest may have been imposed is not a defense. (e) Illegal arrest. A person may not be con- victed of breaking arrest if the arrest is illegal. An arrest ordered by one authorized to do so is pre- sumed to be legal in the absence of some evidence to the contrary. Ordinarily, the legality of an arrest is a question of law to be decided by the military judge. (4) Escape from custody. (a) Custody. “Custody” is restraint of free loco- motion imposed by lawful apprehension. The re- straint may be physical or, once there has been a submission to apprehension or a forcible taking into custody, it may consist of control exercised in the presence of the prisoner by official acts or orders. Custody is temporary restraint intended to continue until other restraint (arrest, restriction, confinement) is imposed or the person is released. (b) Authority to apprehend. See subparagraph (1)(b) above. (c) Escape. For a discussion of escape, see sub- paragraph c(5)( c), below. IV-29 ¶19.c.(4)(c)Article 95
p. 331
(d) Illegal custody. A person may not be con- victed of this offense if the custody was illegal. An apprehension effected by one authorized to appre- hend is presumed to be lawful in the absence of evidence to the contrary. Ordinarily, the legality of an apprehension is a question of law to be decided by the military judge. (e) Correctional custody. See paragraph 70. (5) Escape from confinement. (a) Confinement. Confinement is physical re- straint imposed under R.C.M. 305, 1101, or para- g r a p h 5 b , P a r t V , M C M . F o r p u r p o s e s o f t h e e l e m e n t o f p o s t - t r i a l c o n f i n e m e n t ( s u b p a r a g r a p h b(5)(d), above) and increased punishment therefrom (subparagraph e(4), below), the confinement must have been imposed pursuant to an adjudged sentence of a court-martial and not as a result of pretrial restraint or nonjudicial punishment. (b) Authority to order confinement. See R.C.M. 304(b); 1101; and paragraphs 2 and 5b, Part V, MCM concerning who may order confinement. (c) Escape. An escape may be either with or without force or artifice, and either with or without the consent of the custodian. However, where a pris- oner is released by one with apparent authority to do so, the prisoner may not be convicted of escape f r o m c o n f i n e m e n t . S e e a l s o p a r a g r a p h 2 0 c ( 1 ) ( b ) . Any completed casting off of the restraint of con- finement, before release by proper authority, is an escape, and lack of effectiveness of the restraint imposed is immaterial. An escape is not complete until the prisoner is momentarily free from the re- straint. If the movement toward escape is opposed, or before it is completed, an immediate pursuit fol- lows, there is no escape until opposition is overcome or pursuit is eluded. ( d ) S t a t u s w h e n t e m p o r a r i l y o u t s i d e c o n f i n e - ment facility. A prisoner who is temporarily escorted outside a confinement facility for a work detail or other reason by a guard, who has both the duty and m e a n s t o p r e v e n t t h a t p r i s o n e r f r o m e s c a p i n g , remains in confinement. (e) Legality of confinement. A person may not be convicted of escape from confinement if the con- finement is illegal. Confinement ordered by one au- thorized to do so is presumed to be lawful in the absence of evidence to the contrary. Ordinarily, the legality of confinement is a question of law to be decided by the military judge. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. ( 1 ) R e s i s t i n g a p p r e h e n s i o n . B a d - c o n d u c t d i s - charge, forfeiture of all pay and allowances, and confinement for 1 year. (2) Flight from apprehension. Bad-conduct dis- charge, forfeiture of all pay and allowances, and confinement for 1 year. (3) Breaking arrest. Bad-conduct discharge, for- feiture of all pay and allowances, and confinement for 6 months. (4) Escape from custody, pretrial confinement, or confinement on bread and water or diminished ra- tions imposed pursuant to Article 15. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year. (5) Escape from post-trial confinement. Dishonor- able discharge, forfeiture of all pay and allowances, and confinement for 5 years. f. Sample specifications. (1) Resisting apprehension. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , resist being apprehended by , (an armed force policeman) ( ), a person author- ized to apprehend the accused. (2) Flight from apprehension. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , flee apprehension by , (an armed force policeman) ( ), a person authorized to apprehend the accused. (3) Breaking arrest. In that (personal jurisdiction data), having been placed in arrest (in quarters) (in his/her company area) ( ) by a person author- ized to order the accused into arrest, did, (at/on board—location) on or about 20 , break said arrest. (4) Escape from custody. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , escape from the custody of , a person authorized to apprehend the accused. (5) Escape from confinement. IV-30 ¶19.c.(4)(d) Article 95
p. 332
In that (personal jurisdiction data), having been placed in (post-trial) confinement in (place of confinement), by a person authorized to o r d e r s a i d a c c u s e d i n t o c o n f i n e m e n t d i d , ( a t / o n board—location) (subject-matter jurisdiction data, if required), on or about 20 , escape from confinement. 20. Article 96—Releasing prisoner without proper authority a. Text of statute. Any person subject to this chapter who, with- out proper authority, releases any prisoner com- mitted to his charge, or who through neglect or design suffers any such prisoner to escape, shall b e p u n i s h e d a s a c o u r t - m a r t i a l m a y d i r e c t , whether or not the prisoner was committed in strict compliance with law. b. Elements. (1) Releasing a prisoner without proper authori- ty. (a) That a certain prisoner was committed to the charge of the accused; and (b) That the accused released the prisoner with- out proper authority. (2) Suffering a prisoner to escape through neg- lect. (a) That a certain prisoner was committed to the charge of the accused; (b) That the prisoner escaped; (c) That the accused did not take such care to prevent the escape as a reasonably careful person, acting in the capacity in which the accused was acting, would have taken in the same or similar circumstances; and (d) That the escape was the proximate result of the neglect. (3) Suffering a prisoner to escape through design. (a) That a certain prisoner was committed to the charge of the accused; (b) That the design of the accused was to suf- fer the escape of that prisoner; and (c) That the prisoner escaped as a result of the carrying out of the design of the accused. c. Explanation. (1) Releasing a prisoner without proper authori- ty. (a) Prisoner. “Prisoner” includes a civilian or military person who has been confined. (b) Release. The release of a prisoner is re- moval of restraint by the custodian rather than by the prisoner. (c) Authority to release. See R.C.M. 305( g) as to who may release pretrial prisoners. Normally, the l o w e s t a u t h o r i t y c o m p e t e n t t o o r d e r r e l e a s e o f a post-trial prisoner is the commander who convened the court-martial which sentenced the prisoner or the officer exercising general court-martial jurisdiction over the prisoner. See also R.C.M. 1101. (d) Committed. Once a prisoner has been con- f i n e d , t h e p r i s o n e r h a s b e e n “ c o m m i t t e d ” i n t h e sense of Article 96, and only a competent authority (see subparagraph (c)) may order release, regardless of failure to follow procedures prescribed by the code, this Manual, or other law. (2) Suffering a prisoner to escape through neg- lect. (a) Suffer. “Suffer” means to allow or permit; not to forbid or hinder. (b) Neglect. “Neglect” is a relative term. It is t h e a b s e n c e o f c o n d u c t w h i c h w o u l d h a v e b e e n taken by a reasonably careful person in the same or similar circumstances. ( c ) E s c a p e . E s c a p e i s d e f i n e d i n p a r a g r a p h 19.c.(4)(c). (d) Status of prisoner after escape not a de- fense. After escape, the fact that a prisoner returns, i s c a p t u r e d , k i l l e d , o r o t h e r w i s e d i e s i s n o t a defense. (3) Suffering a prisoner to escape through design. An escape is suffered through design when it is intended. Such intent may be inferred from conduct so wantonly devoid of care that the only reasonable inference which may be drawn is that the escape was contemplated as a probable result. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Releasing a prisoner without proper authori- ty. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. (2) Suffering a prisoner to escape through neg- lect. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year. (3) Suffering a prisoner to escape through design. IV-31 ¶20.e.(3)Article 96
p. 333
Dishonorable discharge, forfeiture of all pay and al- lowances, and confinement for 2 years. f. Sample specifications. (1) Releasing a prisoner without proper authori- ty. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 2 0 , w i t h o u t p r o p e r a u t h o r i t y , r e l e a s e , a prisoner committed to his/her charge. (2) Suffering a prisoner to escape through neglect or design. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 2 0 , t h r o u g h ( n e g l e c t ) ( d e s i g n ) , s u f f e r , a prisoner committed to his/her charge, to escape. 21. Article 97—Unlawful detention a. Text of statute. Any person subject to this chapter who, except as provided by law, apprehends, arrests, or con- fines any person shall be punished as a court- martial may direct. b. Elements. ( 1 ) T h a t t h e a c c u s e d a p p r e h e n d e d , a r r e s t e d , o r confined a certain person; and (2) That the accused unlawfully exercised the ac- cused’s authority to do so. c. Explanation. (1) Scope. This article prohibits improper acts by those empowered by the code to arrest, apprehend, or confine. See Articles 7 and 9; R.C.M. 302, 304, 305, and 1101, and paragraphs 2 and 5b, Part V. It does not apply to private acts of false imprisonment or unlawful restraint of another’s freedom of move- ment by one not acting under such a delegation of authority under the code. (2) No force required. The apprehension, arrest, or confinement must be against the will of the per- son restrained, but force is not required. (3) Defense. A reasonable belief held by the per- son imposing restraint that it is lawful is a defense. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 3 years. f. Sample specification. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , unlawfully (apprehend ) (place in arrest) (confine in ). 22. Article 98—Noncompliance with procedural rules a. Text of statute. Any person subject to this chapter who— (1) is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this chapter; or ( 2 ) K n o w i n g l y a n d i n t e n t i o n a l l y f a i l s t o e n - force or comply with any provision of this chap- ter regulating the proceedings before, during, or after trial of an accused; shall be punished as a court-martial may direct. b. Elements. (1) Unnecessary delay in disposing of case. (a) That the accused was charged with a certain duty in connection with the disposition of a case of a person accused of an offense under the code; (b) That the accused knew that the accused was charged with this duty; (c) That delay occurred in the disposition of the case; (d) That the accused was responsible for the delay; and ( e ) T h a t , u n d e r t h e c i r c u m s t a n c e s , t h e d e l a y was unnecessary. (2) Knowingly and intentionally failing to enforce or comply with provisions of the code. (a) That the accused failed to enforce or com- ply with a certain provision of the code regulating a proceeding before, during, or after a trial; (b) That the accused had the duty of enforcing or complying with that provision of the code; (c) That the accused knew that the accused was charged with this duty; and ( d ) T h a t t h e a c c u s e d ’ s f a i l u r e t o e n f o r c e o r comply with that provision was intentional. c. Explanation. (1) Unnecessary delay in disposing of case. The purpose of section (1) of Article 98 is to ensure expeditious disposition of cases of persons accused of offenses under the code. A person may be respon- IV-32 ¶20.e.(3) Article 98
p. 334
sible for delay in the disposition of a case only when that person’s duties require action with respect to the disposition of that case. (2) Knowingly and intentionally failing to enforce or comply with provisions of the code. Section (2) of Article 98 does not apply to errors made in good faith before, during, or after trial. It is designed to punish intentional failure to enforce or comply with the provisions of the code regulating the proceedings before, during, and after trial. Unlawful command influence under Article 37 may be prosecuted under this Article. See also Article 31 and R.C.M. 104. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Unnecessary delay in disposing of case. Bad- conduct discharge, forfeiture of all pay and allow- ances, and confinement for 6 months. (2) Knowingly and intentionally failing to enforce or comply with provisions of the code. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. f. Sample specifications. (1) Unnecessary delay in disposing of case. In that (personal jurisdiction data), being charged with the duty of ((investigating) (tak- ing immediate steps to determine the proper disposi- tion of) charges preferred against , a person accused of an offense under the Uniform Code of Military Justice) ( ), was, (at/on board—location), on or about 20 , respon- sible for unnecessary delay in (investigating said charges) (determining the proper disposition of said charges ( ), in that he/she (did ) (failed to ) ( ). (2) Knowingly and intentionally failing to enforce or comply with provisions of the code. In that (personal jurisdiction data), being charged with the duty of , did, (at/on board—location), on or about 20 , knowingly and intentionally fail to (enforce) (com- p l y w i t h ) A r t i c l e , U n i f o r m C o d e o f Military Justice, in that he/she . 23. Article 99—Misbehavior before the enemy a. Text of statute. Any member of the armed forces who before or in the presence of the enemy— (1) runs away; ( 2 ) s h a m e f u l l y a b a n d o n s , s u r r e n d e r s , o r delivers up any command, unit, place, or military property which it is his duty to defend; ( 3 ) t h r o u g h d i s o b e d i e n c e , n e g l e c t , o r i n t e n - t i o n a l m i s c o n d u c t e n d a n g e r s t h e s a f e t y o f a n y such command, unit, place, or military property; (4) casts away his arms or ammunition; (5) is guilty of cowardly conduct; ( 6 ) q u i t s h i s p l a c e o f d u t y t o p l u n d e r o r pillage; (7) causes false alarms in any command, unit, or place under control of the armed forces; (8) willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, cap- ture, or destroy; or (9) does not afford all practicable relief and assistance to any troops, combatants, vessels, or a i r c r a f t o f t h e a r m e d f o r c e s b e l o n g i n g t o t h e United States or their allies when engaged in bat- tle; shall be punished by death or such other punishment as a court-martial may direct. b. Elements. (1) Running away. (a) That the accused was before or in the pres- ence of the enemy; (b) That the accused misbehaved by running away; and (c) That the accused intended to avoid actual or impending combat with the enemy by running away. ( 2 ) S h a m e f u l l y a b a n d o n i n g , s u r r e n d e r i n g , o r delivering up command. (a) That the accused was charged by orders or circumstances with the duty to defend a certain com- mand, unit, place, ship, or military property; ( b ) T h a t , w i t h o u t j u s t i f i c a t i o n , t h e a c c u s e d shamefully abandoned, surrendered, or delivered up that command, unit, place, ship, or military property; and IV-33 ¶23.b.(2)(b)Article 99
p. 335
(c) That this act occurred while the accused was before or in the presence of the enemy. ( 3 ) E n d a n g e r i n g s a f e t y o f a c o m m a n d , u n i t , place, ship, or military property. (a) That it was the duty of the accused to de- fend a certain command, unit, place, ship, or certain military property; (b) That the accused committed certain disobe- dience, neglect, or intentional misconduct; (c) That the accused thereby endangered the safety of the command, unit, place, ship, or military property; and (d) That this act occurred while the accused was before or in the presence of the enemy. (4) Casting away arms or ammunition. (a) That the accused was before or in the pres- ence of the enemy; and (b) That the accused cast away certain arms or ammunition. (5) Cowardly conduct. ( a ) T h a t t h e a c c u s e d c o m m i t t e d a n a c t o f cowardice; (b) That this conduct occurred while the ac- cused was before or in the presence of the enemy; and (c) That this conduct was the result of fear. (6) Quitting place of duty to plunder or pillage. (a) That the accused was before or in the pres- ence of the enemy; (b) That the accused quit the accused’s place of duty; and (c) That the accused’s intention in quitting was to plunder or pillage public or private property. (7) Causing false alarms. (a) That an alarm was caused in a certain com- mand, unit, or place under control of the armed forces of the United States; (b) That the accused caused the alarm; (c) That the alarm was caused without any rea- sonable or sufficient justification or excuse; and (d) That this act occurred while the accused was before or in the presence of the enemy. (8) Willfully failing to do utmost to encounter en- emy. (a) That the accused was serving before or in the presence of the enemy; (b) That the accused had a duty to encounter, engage, capture, or destroy certain enemy troops, combatants, vessels, aircraft, or a certain other thing; and (c) That the accused willfully failed to do the utmost to perform that duty. (9) Failing to afford relief and assistance. (a) That certain troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or an ally of the United States were engaged in battle and required relief and assistance; (b) That the accused was in a position and able to render relief and assistance to these troops, com- batants, vessels, or aircraft, without jeopardy to the accused’s mission; (c) That the accused failed to afford all practi- cable relief and assistance; and (d) That, at the time, the accused was before or in the presence of the enemy. c. Explanation. (1) Running away. (a) Running away. “Running away” means an unauthorized departure to avoid actual or impending combat. It need not, however, be the result of fear, and there is no requirement that the accused literally run. (b) Enemy. “Enemy” includes organized forces of the enemy in time of war, any hostile body that our forces may be opposing, such as a rebellious mob or a band of renegades, and includes civilians a s w e l l a s m e m b e r s o f m i l i t a r y o r g a n i z a t i o n s . “Enemy” is not restricted to the enemy government or its armed forces. All the citizens of one belliger- ent are enemies of the government and all the citi- zens of the other. ( c ) B e f o r e t h e e n e m y . W h e t h e r a p e r s o n i s “before the enemy” is a question of tactical relation, not distance. For example, a member of an antiair- craft gun crew charged with opposing anticipated attack from the air, or a member of a unit about to move into combat may be before the enemy al- though miles from the enemy lines. On the other hand, an organization some distance from the front or immediate area of combat which is not a part of a tactical operation then going on or in immediate prospect is not “before or in the presence of the enemy” within the meaning of this article. IV-34 ¶23.b.(2)(c) Article 99
p. 336
( 2 ) S h a m e f u l l y a b a n d o n i n g , s u r r e n d e r i n g , o r delivering up of command. ( a ) S c o p e . T h i s p r o v i s i o n c o n c e r n s p r i m a r i l y c o m m a n d e r s c h a r g e a b l e w i t h r e s p o n s i b i l i t y f o r defending a command, unit, place, ship or military property. Abandonment by a subordinate would or- dinarily be charged as running away. (b) Shameful. Surrender or abandonment with- out justification is shameful within the meaning of this article. ( c ) S u r r e n d e r ; d e l i v e r u p . “ S u r r e n d e r ” a n d “deliver up” are synonymous for the purposes of this article. (d) Justification. Surrender or abandonment of a command, unit, place, ship, or military property by a person charged with its can be justified only by the utmost necessity or extremity. ( 3 ) E n d a n g e r i n g s a f e t y o f a c o m m a n d , u n i t , place, ship, or military property. (a) Neglect. “Neglect” is the absence of con- duct which would have been taken by a reasonably careful person in the same or similar circumstances. ( b ) I n t e n t i o n a l m i s c o n d u c t . “ I n t e n t i o n a l m i s - conduct” does not include a mere error in judgment. (4) Casting away arms or ammunition. Self-ex- planatory. (5) Cowardly conduct. ( a ) C o w a r d i c e . “ C o w a r d i c e ” i s m i s b e h a v i o r motivated by fear. (b) Fear. Fear is a natural feeling of apprehen- sion when going into battle. The mere display of apprehension does not constitute this offense. (c) Nature of offense. Refusal or abandonment of a performance of duty before or in the presence of the enemy as a result of fear constitutes this offense. (d) Defense. Genuine and extreme illness, not generated by cowardice, is a defense. (6) Quitting place of duty to plunder or pillage. (a) Place of duty. “Place of duty” includes any p l a c e o f d u t y , w h e t h e r p e r m a n e n t o r t e m p o r a r y , fixed or mobile. ( b ) P l u n d e r o r p i l l a g e . “ P l u n d e r o r p i l l a g e ” means to seize or appropriate public or private prop- erty unlawfully. (c) Nature of offense. The essence of this of- fense is quitting the place of duty with intent to plunder or pillage. Merely quitting with that purpose is sufficient, even if the intended misconduct is not done. (7) Causing false alarms. This provision covers spreading of false or disturbing rumors or reports, as well as the false giving of established alarm signals. (8) Willfully failing to do utmost to encounter en- emy. Willfully refusing a lawful order to go on a combat patrol may violate this provision. (9) Failing to afford relief and assistance. (a) All practicable relief and assistance. “All practicable relief and assistance” means all relief and assistance which should be afforded within the limi- tations imposed upon a person by reason of that person’s own specific tasks or mission. (b) Nature of offense. This offense is limited to a failure to afford relief and assistance to forces “engaged in battle.” d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. All offenses under Article 99. Death or such other punishment as a court-mar- tial may direct. f. Sample specifications. (1) Running away. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , (before) (in the presence of) the ene- my, run away (from his/her company) (and hide) ( ), (and did not return until after the engage- ment had been concluded) ( ). ( 2 ) S h a m e f u l l y a b a n d o n i n g , s u r r e n d e r i n g , o r delivering up command. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , (before) (in the presence of) the ene- my, shamefully (abandon) (surrender) (deliver up) , which it was his/her duty to defend. ( 3 ) E n d a n g e r i n g s a f e t y o f a c o m m a n d , u n i t , place, ship, or military property. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , (before) (in the presence of) the ene- my, endanger the safety of , which it was his/her duty to defend, by (disobeying an order from to engage the enemy)(neglecting his/her duty as a sentinel by engaging in a card game while on his/her post) (intentional misconduct IV-35 ¶23.f.(3)Article 99
p. 337
in that he/she became drunk and fired flares, thus revealing the location of his/her unit) ( ). (4) Casting away arms or ammunition. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , (before) (in the presence of) the ene- my, cast away his/her (rifle) (ammunition) ( ). (5) Cowardly conduct. In that (personal jurisdiction data), (at/on board—location), on or about 20 , (before) (in the presence of) the enemy, was guilty o f c o w a r d l y c o n d u c t a s a r e s u l t o f f e a r , i n t h a t . (6) Quitting place of duty to plunder or pillage. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , (before) (in the presence of) the ene- my, quit his/her place of duty for the purpose of (plundering) (pillaging) (plundering and pillaging). (7) Causing false alarms. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , (before) (in the presence of) the ene- my, cause a false alarm in (Fort ) (the said ship) (the camp) ( ) by (needlessly and with- out authority (causing the call to arms to be soun- ded) (sounding the general alarm)) ( ). (8) Willfully failing to do utmost to encounter en- emy. In that (personal jurisdiction data), being (before) (in the presence of) the enemy, did, (at/on board—location), on or about 20 , by, (ordering his/her troops to halt their advance) ( ), willfully fail to do his/her utmost to (encounter) (engage) (capture) (destroy), as it was his/her duty to do, (certain enemy troops which were in retreat) ( ). (9) Failing to afford relief and assistance. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , (before) (in the presence of) the ene- my, fail to afford all practicable relief and assistance to (the USS , which was engaged in battle and had run aground, in that he/she failed to take her in tow) (certain troops of the ground forces of , which were engaged in battle and were pinned down by enemy fire, in that he/she failed to furnish air cover) ( ) as he/she properly should have done. 24. Article 100—Subordinate compelling surrender a. Text of statute. Any person subject to this chapter who com- pels or attempts to compel the commander of any place, vessel, aircraft, or other military property, or of any body of members of the armed forces, to give it up to an enemy or to abandon it, or who strikes the colors or flag to an enemy with- out proper authority, shall be punished by death or such other punishment as a court-martial may direct. b. Elements. (1) Compelling surrender. (a) That a certain person was in command of a certain place, vessel, aircraft, or other military prop- erty or of a body of members of the armed forces; (b) That the accused did an overt act which was intended to and did compel that commander to give it up to the enemy or abandon it; and (c) That the place, vessel, aircraft, or other mil- itary property or body of members of the armed f o r c e s w a s a c t u a l l y g i v e n u p t o t h e e n e m y o r abandoned. (2) Attempting to compel surrender. (a) That a certain person was in command of a certain place, vessel, aircraft, or other military prop- erty or of a body of members of the armed forces; (b) That the accused did a certain overt act; (c) That the act was done with the intent to compel that commander to give up to the enemy or abandon the place, vessel, aircraft, or other military property or body of members of the armed forces; (d) That the act amounted to more than mere preparation; and ( e ) T h a t t h e a c t a p p a r e n t l y t e n d e d t o b r i n g about the compelling of surrender or abandonment. (3) Striking the colors or flag. (a) That there was an offer of surrender to an enemy; (b) That this offer was made by striking the colors or flag to the enemy or in some other manner; (c) That the accused made or was responsible for the offer; and IV-36 ¶23.f.(3) Article 100
p. 338
(d) That the accused did not have proper au- thority to make the offer. c. Explanation. (1) Compelling surrender. (a) Nature of offense. The offenses under this article are similar to mutiny or attempted mutiny designed to bring about surrender or abandonment. Unlike some cases of mutiny, however, concert of action is not an essential element of the offenses under this article. The offense is not complete until the place, military property, or command is actually abandoned or given up to the enemy. (b) Surrender. “Surrender” and “to give it up to an enemy” are synonymous. (c) Acts required. The surrender or abandon- ment must be compelled or attempted to be com- pelled by acts rather than words. (2) Attempting to compel surrender. The offense of attempting to compel a surrender or abandonment does not require actual abandonment or surrender, but there must be some act done with this purpose in view, even if it does not accomplish the purpose. (3) Striking the colors or flag. (a) In general. To “strike the colors or flag” is to haul down the colors or flag in the face of the enemy or to make any other offer of surrender. It is traditional wording for an act of surrender. (b) Nature of offense. The offense is committed when one assumes the authority to surrender a mili- tary force or position when not authorized to do so either by competent authority or by the necessities of battle. If continued battle has become fruitless and it is impossible to communicate with higher authority, those facts will constitute proper authority to surrender. The offense may be committed when- ever there is sufficient contact with the enemy to give the opportunity of making an offer of surrender and it is not necessary that an engagement with the enemy be in progress. It is unnecessary to prove that the offer was received by the enemy or that it was rejected or accepted. The sending of an emissary charged with making the offer or surrender is an act sufficient to prove the offer, even though the emis- sary does not reach the enemy. (4) Enemy. For a discussion of “enemy,” see par- agraph 23c(1)( b). d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. All offenses under Article 100. Death or such other punishment as a court- martial may direct. f. Sample specifications. (1) Compelling surrender or attempting to com- pel surrender. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , (attempt to) compel , the commander of , (to give up to the ene- my) (to abandon) said , by . (2) Striking the colors or flag. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , without proper authority, offer to sur- render to the enemy by (striking the (colors) (flag)) ( ). 25. Article 101—Improper use of countersign a. Text of statute. Any person subject to this chapter who in time of war discloses the parole or countersign to any person not entitled to receive it or who gives to another who is entitled to receive and use the parole or countersign a different parole or coun- tersign from that which, to his knowledge, he was authorized and required to give, shall be pun- ished by death or such other punishment as a court-martial may direct. b. Elements. (1) Disclosing the parole or countersign to one not entitled to receive it. (a) That, in time of war, the accused disclosed the parole or countersign to a person, identified or unidentified; and (b) That this person was not entitled to receive it. (2) Giving a parole or countersign different from that authorized. (a) That, in time of war, the accused knew that the accused was authorized and required to give a certain parole or countersign; and (b) That the accused gave to a person entitled to receive and use this parole or countersign a differ- ent parole or countersign from that which the ac- cused was authorized and required to give. c. Explanation. (1) Countersign. A countersign is a word, signal, IV-37 ¶25.c.(1)Article 101
p. 339
or procedure given from the principal headquarters of a command to aid guards and sentinels in their scrutiny of persons who apply to pass the lines. It consists of a secret challenge and a password, signal, or procedure. (2) Parole. A parole is a word used as a check on the countersign; it is given only to those who are entitled to inspect guards and to commanders of guards. (3) Who may receive countersign. The class of persons entitled to receive the countersign or parole will expand and contract under the varying circum- stances of war. Who these persons are will be deter- mined largely, in any particular case, by the general or special orders under which the accused was act- ing. Before disclosing such a word, a person subject to military law must determine at that person’s peril that the recipient is a person authorized to receive it. (4) Intent, motive, negligence, mistake, ignorance not defense. The accused’s intent or motive in dis- closing the countersign or parole is immaterial to the issue of guilt, as is the fact that the disclosure was negligent or inadvertent. It is no defense that the accused did not know that the person to whom the countersign or parole was given was not entitled to receive it. (5) How accused received countersign or parole. It is immaterial whether the accused had received the countersign or parole in the regular course of duty or whether it was obtained in some other way. (6) In time of war. See R.C.M. 103(19). d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Death or such other pun- ishment as a court-martial may direct. f. Sample specifications. (1) Disclosing the parole or countersign to one not entitled to receive it. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , a time of war, disclose the (parole) (countersign), to wit: , to , a person who was not entitled to receive it. (2) Giving a parole or countersign different from that authorized. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , a time of war, give to , a person entitled to receive and use the (parole) (coun- t e r s i g n ) , a ( p a r o l e ) ( c o u n t e r s i g n ) , n a m e l y : which was different from that which, to his/her knowledge, he/she was authorized and re- quired to give, to wit: . 26. Article 102—Forcing a safeguard a. Text of statute. Any person subject to this chapter who forces a safeguard shall suffer death or such other pun- ishment as a court-martial may direct. b. Elements. (1) that a safeguard had been issued or posted for the protection of a certain person or persons, place, or property; (2) That the accused knew or should have known of the safeguard; and (3) That the accused forced the safeguard. c. Explanation. ( 1 ) S a f e g u a r d . A s a f e g u a r d i s a d e t a c h m e n t , guard, or detail posted by a commander for the pro- tection of persons, places, or property of the enemy, or of a neutral affected by the relationship of bellig- erent forces in their prosecution of war or during circumstances amounting to a state of belligerency. The term also includes a written order left by a commander with an enemy subject or posted upon enemy property for the protection of that person or property. A safeguard is not a device adopted by a belligerent to protect its own property or nationals or to ensure order within its own forces, even if those forces are in a theater of combat operations, and the posting of guards or of off-limits signs does not e s t a b l i s h a s a f e g u a r d u n l e s s a c o m m a n d e r t a k e s those actions to protect enemy or neutral persons or property. The effect of a safeguard is to pledge the honor of the nation that the person or property shall be respected by the national armed forces. (2) Forcing a safeguard. “Forcing a safeguard” means to perform an act or acts in violation of the protection of the safeguard. (3) Nature of offense. Any trespass on the protec- tion of the safeguard will constitute an offense under this article, whether the safeguard was imposed in time of war or in circumstances amounting to a state of belligerency short of a formal state of war. ( 4 ) K n o w l e d g e . A c t u a l k n o w l e d g e o f t h e safeguard is not required. It is sufficient if an ac- cused should have known of the existence of the safeguard. IV-38 ¶25.c.(1) Article 102
p. 340
d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Death or such other pun- ishment as a court-martial may direct. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location), on or about 20 , force a safeguard, (known by him/her to have been placed over the premises occu- pied by at by (overwhelm- ing the guard posted for the protection of the same) ( )) ( ). 27. Article 103—Captured or abandoned property a. Text of statute. (a) All persons subject to this chapter shall se- cure all public property taken from the enemy for the service of the United States, and shall give n o t i c e a n d t u r n o v e r t o t h e p r o p e r a u t h o r i t y without delay all captured or abandoned prop- erty in their possession, custody, or control. (b) Any person subject to this chapter who— (1) fails to carry out the duties prescribed in subsection ( a); (2) buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, whereby he receives or expects any profit, bene- fit, or advantage to himself or another directly or indirectly connected with himself; or (3) engages in looting or pillaging; shall be punished as a court-martial may direct. b. Elements. (1) Failing to secure public property taken from the enemy. (a) That certain public property was taken from the enemy; (b) That this property was of a certain value; and (c) That the accused failed to do what was rea- sonable under the circumstances to secure this prop- erty for the service of the United States. (2) Failing to report and turn over captured or abandoned property. (a) That certain captured or abandoned public or private property came into the possession, custo- dy, or control of the accused; (b) That this property was of a certain value; and (c) That the accused failed to give notice of its receipt and failed to turn over to proper authority, without delay, the captured or abandoned public or private property. (3) Dealing in captured or abandoned property. (a) That the accused bought, sold, traded, or otherwise dealt in or disposed of certain public or private captured or abandoned property; (b) That this property was of certain value; and (c) That by so doing the accused received or expected some profit, benefit, or advantage to the accused or to a certain person or persons connected directly or indirectly with the accused. (4) Looting or pillaging. (a) That the accused engaged in looting, pillag- ing, or looting and pillaging by unlawfully seizing or appropriating certain public or private property; (b) That this property was located in enemy or occupied territory, or that it was on board a seized or captured vessel; and (c) That this property was: (i) left behind, owned by, or in the custody of the enemy, an occupied state, an inhabitant of an occupied state, or a person under the protection of the enemy or occupied state, or who, immediately prior to the occupation of the place where the act occurred, was under the protection of the enemy or occupied state; or (ii) part of the equipment of a seized or cap- tured vessel; or (iii) owned by, or in the custody of the offi- cers, crew, or passengers on board a seized or cap- tured vessel. c. Explanation. (1) Failing to secure public property taken from the enemy. (a) Nature of property. Unlike the remaining offenses under this article, failing to secure public property taken from the enemy involves only public property. Immediately upon its capture from the en- emy public property becomes the property of the United States. Neither the person who takes it nor a n y o t h e r p e r s o n h a s a n y p r i v a t e r i g h t i n t h i s property. ( b ) N a t u r e o f d u t y . E v e r y p e r s o n s u b j e c t t o military law has an immediate duty to take such IV-39 ¶27.c.(1)(b)Article 103
p. 341
steps as are reasonably within that person’s power to secure public property for the service of the United States and to protect it from destruction or loss. (2) Failing to report and turn over captured or abandoned property. (a) Reports. Reports of receipt of captured or a b a n d o n e d p r o p e r t y a r e t o b e m a d e d i r e c t l y o r through such channels as are required by current regulations, orders, or the customs of the service. (b) Proper authority. “Proper authority” is any authority competent to order disposition of the prop- erty in question. (3) Dealing in captured or abandoned property. “Disposed of” includes destruction or abandonment. (4) Looting or pillaging. “Looting or pillaging” means unlawfully seizing or appropriating property which is located in enemy or occupied territory. (5) Enemy. For a discussion of “enemy,” see par- agraph 23c(1)(b). d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Failing to secure public property taken from the enemy; failing to secure, give notice and turn over, selling, or otherwise wrongfully dealing in or disposing of captured or abandoned property: (a) of a value of $500.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months. (b) of a value of more than $500.00 or any firearm or explosive. Dishonorable discharge, forfei- ture of all pay and allowances, and confinement for 5 years. (2) Looting or pillaging. Any punishment, other t h a n d e a t h , t h a t a c o u r t - m a r t i a l m a y d i r e c t . S e e R.C.M. 1003. f. Sample specifications. (1) Failing to secure public property taken from the enemy. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , fail to secure for the service of the United States certain public property taken from the enemy, to wit: , of a value of (about) $ . (2) Failing to report and turn over captured or abandoned property. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , fail to give notice and turn over to p r o p e r a u t h o r i t y w i t h o u t d e l a y c e r t a i n ( c a p t u r e d ) (abandoned) property which had come into his/her ( p o s s e s s i o n ) ( c u s t o d y ) ( c o n t r o l ) , t o w i t : , of a value of (about), $ . (3) Dealing in captured or abandoned property. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , (buy) (sell) (trade) (deal in) (dispose of) ( ) certain (captured) (abandoned) property, to wit: , (a firearm) (an explosive), of a value of (about) $ , thereby (receiving) (ex- pecting) a (profit) (benefit) (advantage) to (himself/ herself) ( , his/her accomplice) ( , his/ her brother) ( ). (4) Looting or pillaging. In that (personal jurisdiction data), did, (at/on- b o a r d — l o c a t i o n ) , o n o r a b o u t ( d a t e ) , e n g a g e i n (looting) (and) (pillaging) by unlawfully (seizing) ( a p p r o p r i a t i n g ) , ( p r o p e r t y w h i c h h a d been left behind) (the property of ), ((an inhabitant of ) ( )). 28. Article 104—Aiding the enemy a. Text of statute. Any person who— (1) aids, or attempts to aid, the enemy with a r m s , a m m u n i t i o n , s u p p l i e s , m o n e y , o r o t h e r things; or (2) without proper authority, knowingly har- bors or protects or gives intelligence to or com- m u n i c a t e s o r c o r r e s p o n d s w i t h o r h o l d s a n y intercourse with the enemy, either directly or in- directly; shall suffer death or such other punish- ment as a court-martial or military commission may direct. b. Elements. (1) Aiding the enemy. (a) That the accused aided the enemy; and (b) That the accused did so with certain arms, ammunition, supplies, money, or other things. (2) Attempting to aid the enemy. (a) That the accused did a certain overt act; (b) That the act was done with the intent to aid the enemy with certain arms, ammunition, supplies, money, or other things; (c) That the act amounted to more than mere preparation; and IV-40 ¶27.c.(1)(b) Article 104
p. 342
( d ) T h a t t h e a c t a p p a r e n t l y t e n d e d t o b r i n g about the offense of aiding the enemy with certain arms, ammunition, supplies, money, or other things. (3) Harboring or protecting the enemy. (a) That the accused, without proper authority, harbored or protected a person; (b) That the person so harbored or protected was the enemy; and (c) That the accused knew that the person so harbored or protected was an enemy. (4) Giving intelligence to the enemy. (a) That the accused, without proper authority, knowingly gave intelligence information to the ene- my; and (b) That the intelligence information was true, or implied the truth, at least in part. (5) Communicating with the enemy. (a) That the accused, without proper authority, c o m m u n i c a t e d , c o r r e s p o n d e d , o r h e l d i n t e r c o u r s e with the enemy; and; (b) That the accused knew that the accused was c o m m u n i c a t i n g , c o r r e s p o n d i n g , o r h o l d i n g i n t e r - course with the enemy. c. Explanation. (1) Scope of Article 104. This article denounces offenses by all persons whether or not otherwise subject to military law. Offenders may be tried by court-martial or by military commission. (2) Enemy. For a discussion of “enemy,” see par- agraph 23c(1)(b). (3) Aiding or attempting to aid the enemy. It is not a violation of this article to furnish prisoners of war subsistence, quarters, and other comforts or aid to which they are lawfully entitled. (4) Harboring or protecting the enemy. (a) Nature of offense. An enemy is harbored or protected when, without proper authority, that en- emy is shielded, either physically or by use of any artifice, aid, or representation from any injury or misfortune which in the chance of war may occur. (b) Knowledge. Actual knowledge is required, but may be proved by circumstantial evidence. (5) Giving intelligence to the enemy. (a) Nature of offense. Giving intelligence to the enemy is a particular case of corresponding with the enemy made more serious by the fact that the com- munication contains intelligence that may be useful to the enemy for any of the many reasons that make i n f o r m a t i o n v a l u a b l e t o b e l l i g e r e n t s . T h i s i n t e l l i - gence may be conveyed by direct or indirect means. (b) Intelligence. “Intelligence” imports that the information conveyed is true or implies the truth, at least in part. (c) Knowledge. Actual knowledge is required but may be proved by circumstantial evidence. (6) Communicating with the enemy. ( a ) N a t u r e o f t h e o f f e n s e . N o u n a u t h o r i z e d communication, correspondence, or intercourse with the enemy is permissible. The intent, content, and method of the communication, correspondence, or intercourse are immaterial. No response or receipt by the enemy is required. The offense is complete the moment the communication, correspondence, or intercourse issues from the accused. The communi- cation, correspondence, or intercourse may be con- veyed directly or indirectly. A prisoner of war may v i o l a t e t h i s A r t i c l e b y e n g a g i n g i n u n a u t h o r i z e d communications with the enemy. See also paragraph 29c(3). (b) Knowledge. Actual knowledge is required but may be proved by circumstantial evidence. (c) Citizens of neutral powers. Citizens of neu- tral powers resident in or visiting invaded or occu- p i e d t e r r i t o r y c a n c l a i m n o i m m u n i t y f r o m t h e customary laws of war relating to communication with the enemy. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Death or such other pun- ishment as a court-martial or military commission may direct. f. Sample specifications. (1) Aiding or attempting to aid the enemy. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 2 0 , ( a t t e m p t t o ) a i d t h e e n e m y w i t h (arms) (ammunition) (supplies) (money) ( ), by (furnishing and delivering to , members of the enemy’s armed forces ) ( ). (2) Harboring or protecting the enemy. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , without proper authority, knowingly (harbor) (protect) , an enemy, by (con- cealing the said in his/her house) ( ). (3) Giving intelligence to the enemy. IV-41 ¶28.f.(3)Article 104
p. 343
In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , without proper authority, knowingly give intelligence to the enemy, by (informing a pa- trol of the enemy’s forces of the whereabouts of a military patrol of the United States forces) ( ). (4) Communicating with the enemy. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , without proper authority, knowingly (communicate with) (correspond with) (hold inter- course with) the enemy (by writing and transmitting secretly through the lines to one , whom he/she, the said , knew to be (an officer of the enemy’s armed forces) ( ) a communi- cation in words and figures substantially as follows, to wit: )) ((indirectly by publishing in , a newspaper published at , a communication in words and figures as follows, to wit: , which communication was intended to reach the en- emy)) (( )). 29. Article 105—Misconduct as a prisoner a. Text of statute. Any person subject to this chapter who, while in the hands of the enemy in time of war— (1) for the purpose of securing favorable treat- ment by his captors acts without proper authority in a manner contrary to law, custom, or regula- tion, to the detriment of others of whatever na- tionality held by the enemy as civilian or military prisoners; or (2) while in a position of authority over such persons maltreats them without justifiable cause; shall be punished as a court-martial may direct. b. Elements. (1) Acting without authority to the detriment of another for the purpose of securing favorable treat- ment. (a) That without proper authority the accused a c t e d i n a m a n n e r c o n t r a r y t o l a w , c u s t o m , o r regulation; (b) That the act was committed while the ac- cused was in the hands of the enemy in time of war; (c) That the act was done for the purpose of securing favorable treatment of the accused by the captors; and (d) That other prisoners held by the enemy, either military or civilian, suffered some detriment because of the accused’s act. (2) Maltreating prisoners while in a position of authority. (a) That the accused maltreated a prisoner held by the enemy; (b) That the act occurred while the accused was in the hands of the enemy in time of war; (c) That the accused held a position of author- ity over the person maltreated; and (d) That the act was without justifiable cause. c. Explanation. (1) Enemy. For a discussion of “enemy,” see par- agraph 23c(1)(b). (2) In time of war. See R.C.M. 103(19). (3) Acting without authority to the detriment of another for the purpose of securing favorable treat- ment. (a) Nature of offense. Unauthorized conduct by a prisoner of war must be intended to result in im- provement by the enemy of the accused’s condition and must operate to the detriment of other prisoners either by way of closer confinement, reduced ra- tions, physical punishment, or other harm. Examples of this conduct include reporting plans of escape being prepared by others or reporting secret food caches, equipment, or arms. The conduct of the pris- oner must be contrary to law, custom, or regulation. (b) Escape. Escape from the enemy is author- ized by custom. An escape or escape attempt which r e s u l t s i n c l o s e r c o n f i n e m e n t o r o t h e r m e a s u r e s against fellow prisoners still in the hands of the enemy is not an offense under this article. (4) Maltreating prisoners while in a position of authority. (a) Authority. The source of authority is not material. It may arise from the military rank of the accused or—despite service regulations or customs to the contrary—designation by the captor authori- ties, or voluntary election or selection by other pris- oners for their self-government. ( b ) M a l t r e a t m e n t . T h e m a l t r e a t m e n t m u s t b e real, although not necessarily physical, and it must be without justifiable cause. Abuse of an inferior by inflammatory and derogatory words may, through mental anguish, constitute this offense. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. IV-42 ¶28.f.(3) Article 105
p. 344
e . M a x i m u m p u n i s h m e n t . A n y p u n i s h m e n t o t h e r t h a n d e a t h t h a t a c o u r t - m a r t i a l m a y d i r e c t . S e e R.C.M. 1003. f. Sample specifications. (1) Acting without authority to the detriment of another for the purpose of securing favorable treat- ment. In that (personal jurisdiction data), while in the hands of the enemy, did, (at/on board— location) on or about 20 , a time of war, without proper authority and for the purpose of se- curing favorable treatment by his/her captors, (report to the commander of Camp the prepara- tions by , a prisoner at said camp, to e s c a p e , a s a r e s u l t o f w h i c h r e p o r t t h e s a i d was placed in solitary confinement) ( ). (2) Maltreating prisoner while in a position of authority. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , a time of war, while in the hands of t h e e n e m y a n d i n a p o s i t i o n o f a u t h o r i t y o v e r , a prisoner at , as (officer in charge of prisoners at ) ( ), maltreat the said by (depriving him/her of ) ( ), without justifiable cause. 30. Article 106—Spies a. Text of statute. Any person who in time of war is found lurk- ing as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of any of the armed forces, or in or about any shipyard, any manufacturing or indus- trial plant, or any other place or institution en- gaged in work in aid of the prosecution of the war by the United States, or elsewhere, shall be tried by a general court-martial or by a military commission and on conviction shall be punished by death. b. Elements. (1) That the accused was found in, about, or in and about a certain place, vessel, or aircraft within the control or jurisdiction of an armed force of the United States, or a shipyard, manufacturing or indus- trial plant, or other place or institution engaged in work in aid of the prosecution of the war by the United States, or elsewhere; (2) That the accused was lurking, acting clandes- tinely or under false pretenses; (3) That the accused was collecting or attempting to collect certain information; (4) That the accused did so with the intent to convey this information to the enemy; and (5) That this was done in time of war. c. Explanation. (1) In time of war. See R.C.M. 103(19). (2) Enemy. For a discussion of “enemy,” see par- agraph 23c(1)(b). ( 3 ) S c o p e o f o f f e n s e . T h e w o r d s “ a n y p e r s o n ” bring within the jurisdiction of general courts-mar- tial and military commissions all persons of what- ever nationality or status who commit spying. (4) Nature of offense. A person can be a spy only when, acting clandestinely or under false pretenses, that person obtains or seeks to obtain information with the intent to convey it to a hostile party. It is not essential that the accused obtain the information sought or that it be communicated. The offense is c o m p l e t e w i t h l u r k i n g o r a c t i n g c l a n d e s t i n e l y o r under false pretenses with intent to accomplish these objects. (5) Intent. It is necessary to prove an intent to convey information to the enemy. This intent may be inferred from evidence of a deceptive insinuation of the accused among our forces, but evidence that the person had come within the lines for a compara- tively innocent purpose, as to visit family or to reach friendly lines by assuming a disguise, is admissible to rebut this inference. (6) Persons not included under “spying.” ( a ) M e m b e r s o f a m i l i t a r y o r g a n i z a t i o n n o t wearing a disguise, dispatch drivers, whether mem- bers of a military organization or civilians, and per- sons in ships or aircraft who carry out their missions openly and who have penetrated enemy lines are not spies because, while they may have resorted to con- cealment, they have not acted under false pretenses. (b) A spy who, after rejoining the armed forces to which the spy belongs, is later captured by the enemy incurs no responsibility for previous acts of espionage. (c) A person living in occupied territory who, w i t h o u t l u r k i n g , o r a c t i n g c l a n d e s t i n e l y o r u n d e r false pretenses, merely reports what is seen or heard through agents to the enemy may be charged under IV-43 ¶30.c.(6)(c)Article 106
p. 345
Article 104 with giving intelligence to or communi- c a t i n g w i t h t h e e n e m y , b u t m a y n o t b e c h a r g e d under this article as being a spy. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Mandatory punishment. Death. f. Sample specification. In that (personal jurisdiction data), was, (at/on board—location), on or about 20 , a time of war, found (lurking) (acting) as a spy (in) (about) (in and about) , (a (fortification) (port) (base) (vessel) (aircraft) ( ) within the (control)(jurisdiction) (control and jurisdiction) o f a n a r m e d f o r c e o f t h e U n i t e d S t a t e s , t o w i t : ) ( a ( s h i p y a r d ) ( m a n u f a c t u r i n g p l a n t ) (industrial plant) ( ) engaged in work in aid of the prosecution of the war by the United States) ( ), for the purpose of (collect- ing) (attempting to collect) information in regard to the ((numbers) (resources) (operations) ( ) of the armed forces of the United States) ((military produc- tion) ( ) of the United States) ( ), with intent to impart the same to the enemy. 30a. Article 106a—Espionage a. Text of statute. (a)(1) Any person subject to this chapter who, with intent or reason to believe that it is to be used to the injury of the United States or to the a d v a n t a g e o f a f o r e i g n n a t i o n , c o m m u n i c a t e s , delivers, or transmits, or attempts to communi- cate, deliver, or transmit, to any entity described in paragraph (2), either directly or indirectly, an- ything described in paragraph (3) shall be pun- ished as a court-martial may direct, except that if the accused is found guilty of an offense that directly concerns (A) nuclear weaponry, military spacecraft or satellites, early warning systems, or o t h e r m e a n s o f d e f e n s e o r r e t a l i a t i o n a g a i n s t large scale attack, (B) war plans, (C) communica- tions intelligence or cryptographic information, or (D) any other major weapons system or major element of defense strategy, the accused shall be punished by death or such other punishment as a court-martial may direct. (2) An entity referred to in paragraph (1) is— (A) a foreign government; (B) a faction or party or military or naval force within a foreign country, whether recog- nized or unrecognized by the United States; or ( C ) a r e p r e s e n t a t i v e , o f f i c e r , a g e n t , e m - ployee, subject, or citizen of such a government, faction, party, or force. (3) A thing referred to in paragraph (1) is a d o c u m e n t , w r i t i n g , c o d e b o o k , s i g n a l b o o k , sketch, photograph, photographic negative, blue- print, plan, map, model, note, instrument, appli- a n c e , o r i n f o r m a t i o n r e l a t i n g t o t h e n a t i o n a l defense. (b)(1) No person may be sentenced by court- martial to suffer death for an offense under this section (article) unless— ( A ) t h e m e m b e r s o f t h e c o u r t - m a r t i a l u n - animously find at least one of the aggravating factors set out in subsection (c); and ( B ) t h e m e m b e r s u n a n i m o u s l y d e t e r m i n e that any extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances, including the aggravating factors set out under subsection (c). ( 2 ) F i n d i n g s u n d e r t h i s s u b s e c t i o n m a y b e based on— (A) evidence introduced on the issue of guilt or innocence; (B) evidence introduced during the sentenc- ing proceeding; or (C) all such evidence. (3) The accused shall be given broad latitude to present matters in extenuation and mitigation. (c) A sentence of death may be adjudged by a court-martial for an offense under this section (article) only if the members unanimously find, beyond a reasonable doubt, one or more of the following aggravating factors: (1) The accused has been convicted of an- other offense involving espionage or treason for which either a sentence of death or imprisonment for life was authorized by statute. (2) In the commission of the offense, the ac- cused knowingly created a grave risk of substan- tial damage to the national security. (3) In the commission of the offense, the ac- cused knowingly created a grave risk of death to another person. (4) Any other factor that may be prescribed IV-44 ¶30.c.(6)(c) Article 106a
p. 346
by the President by regulations under section 836 of this title (Article 36). b. Elements. (1) Espionage. (a) That the accused communicated, delivered, or transmitted any document, writing, code book, signal book, sketch, photograph, photographic nega- tive, blueprint, plan, map, model, note, instrument, a p p l i a n c e , o r i n f o r m a t i o n r e l a t i n g t o t h e n a t i o n a l defense; ( b ) T h a t t h i s m a t t e r w a s c o m m u n i c a t e d , delivered, or transmitted to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or un- recognized by the United States, or to any represent- ative, officer, agent, employee, subject or citizen thereof, either directly or indirectly; and ( c ) T h a t t h e a c c u s e d d i d s o w i t h i n t e n t o r reason to believe that such matter would be used to the injury of the United States or to the advantage of a foreign nation. (2) Attempted espionage. (a) That the accused did a certain overt act; (b) That the act was done with the intent to commit the offense of espionage; (c) That the act amounted to more than mere preparation; and ( d ) T h a t t h e a c t a p p a r e n t l y t e n d e d t o b r i n g about the offense of espionage. (3) Espionage as a capital offense. (a) That the accused committed espionage or attempted espionage; and (b) That the offense directly concerned (1) nu- c l e a r w e a p o n r y , m i l i t a r y s p a c e c r a f t o r s a t e l l i t e s , early warning systems, or other means of defense or retaliation against large scale attack, (2) war plans, (3) communications intelligence or cryptographic in- formation, or (4) any other major weapons system or major element of defense strategy. c. Explanation. (1) Intent. “Intent or reason to believe” that the information “is to be used to the injury of the United S t a t e s o r t o t h e a d v a n t a g e o f a f o r e i g n n a t i o n ” means that the accused acted in bad faith and with- out lawful authority with respect to information that is not lawfully accessible to the public. ( 2 ) N a t i o n a l d e f e n s e i n f o r m a t i o n . “ I n s t r u m e n t , appliance, or information relating to the national de- fense” includes the full range of modern technology and matter that may be developed in the future, including chemical or biological agents, computer technology, and other matter related to the national defense. (3) Espionage as a capital offense. Capital pun- ishment is authorized if the government alleges and proves that the offense directly concerned (1) nu- c l e a r w e a p o n r y , m i l i t a r y s p a c e c r a f t o r s a t e l l i t e s , early warning systems, or other means of defense or retaliation against large scale attack, (2) war plans, (3) communications intelligence or cryptographic in- formation, or (4) any other major weapons system or major element of defense strategy. See R.C.M. 1004 concerning sentencing proceedings in capital cases. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Espionage as a capital offense. Death or such other punishment as a court-martial may direct. See R.C.M. 1003. (2) Espionage or attempted espionage. Any pun- ishment, other than death, that a court-martial may direct. See R.C.M. 1003. f. Sample specification. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , with intent or reason to believe it would be used to the injury of the United States or to the advantage of , a foreign nation, ( a t t e m p t t o ) ( c o m m u n i c a t e ) ( d e l i v e r ) ( t r a n s m i t ) (description of item), (a document) (a writing) (a code book) (a sketch) (a photograph) (a photographic negative) (a blueprint) (a plan) (a map) (a model) (a note) (an instrument) (an appliance) ( i n f o r m a t i o n ) r e l a t i n g t o t h e n a t i o n a l d e f e n s e , ((which directly concerned (nuclear weaponry) (mil- itary spacecraft) (military satellites) (early warning systems) ( , a means of defense or retal- iation against a large scale attack) (war plans) (com- m u n i c a t i o n s i n t e l l i g e n c e ) ( c r y p t o g r a p h i c information) ( , a major weapons system) ( , a major element of defense strategy)) to ((a representative of) (an officer of) (an agent of) (an employee of) (a subject of) (a citizen of)) ((a foreign government) (a faction within a for- eign country) (a party within a foreign country) (a military force within a foreign country) (a naval IV-45 ¶30a.f.Article 106a
p. 347
f o r c e w i t h i n a f o r e i g n c o u n t r y ) ) ( i n d i r e c t l y b y ). 31. Article 107—False official statements a. Text of statute. Any person subject to this chapter who, with intent to deceive, signs any false record, return, r e g u l a t i o n , o r d e r , o r o t h e r o f f i c i a l d o c u m e n t , knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct. b. Elements. (1) That the accused signed a certain official doc- ument or made a certain official statement; (2) That the document or statement was false in certain particulars; (3) That the accused knew it to be false at the time of signing it or making it; and ( 4 ) T h a t t h e f a l s e d o c u m e n t o r s t a t e m e n t w a s made with the intent to deceive. c. Explanation. ( 1 ) O f f i c i a l d o c u m e n t s a n d s t a t e m e n t s . O f f i c i a l documents and official statements include all docu- ments and statements made in the line of duty. (2) Status of victim of the deception. The rank of any person intended to be deceived is immaterial if that person was authorized in the execution of a particular duty to require or receive the statement or document from the accused. The government may be the victim of this offense. ( 3 ) I n t e n t t o d e c e i v e . T h e f a l s e r e p r e s e n t a t i o n must be made with the intent to deceive. It is not necessary that the false statement be material to the issue inquiry. If, however, the falsity is in respect to a material matter, it may be considered as some e v i d e n c e o f t h e i n t e n t t o d e c e i v e , w h i l e i m - materiality may tend to show an absence of this intent. ( 4 ) M a t e r i a l g a i n . T h e e x p e c t a t i o n o f m a t e r i a l gain is not an element of this offense. Such expecta- tion or lack of it, however, is circumstantial evi- dence bearing on the element of intent to deceive. ( 5 ) K n o w l e d g e t h a t t h e d o c u m e n t o r s t a t e m e n t w a s f a l s e . T h e f a l s e r e p r e s e n t a t i o n m u s t b e o n e which the accused actually knew was false. Actual knowledge may be proved by circumstantial evi- dence. An honest, although erroneous, belief that a statement made is true, is a defense. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 5 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location), (subject-matter jurisdic- tion data, if required), on or about 20 , with intent to deceive, (sign an official (record) (re- turn) ( ), to wit: ) (make to , an official statement, to wit: ), which (record) ( r e t u r n ) ( s t a t e m e n t ) ( ) w a s ( t o t a l l y f a l s e ) (false in that ), and was then known by the said to be so false. 32. Article 108—Military property of the United States—sale, loss, damage, destruction, or wrongful disposition a. Text of statute. Any person subject to this chapter who, with- out proper authority— (1) sells or otherwise disposes of; ( 2 ) w i l l f u l l y o r t h r o u g h n e g l e c t d a m a g e s , destroys, or loses; or (3) willfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully dis- p o s e d o f , a n y m i l i t a r y p r o p e r t y o f t h e U n i t e d States, shall be punished as a court-martial may direct. b. Elements. ( 1 ) S e l l i n g o r o t h e r w i s e d i s p o s i n g o f m i l i t a r y property. (a) That the accused sold or otherwise disposed o f c e r t a i n p r o p e r t y ( w h i c h w a s a f i r e a r m o r explosive); (b) That the sale or disposition was without proper authority; (c) That the property was military property of the United States; and (d) That the property was of a certain value. ( 2 ) D a m a g i n g , d e s t r o y i n g , o r l o s i n g m i l i t a r y property. (a) That the accused, without proper authority, damaged or destroyed certain property in a certain way, or lost certain property; (b) That the property was military property of the United States; IV-46 ¶30a.f. Article 108
p. 348
(c) That the damage, destruction, or loss was willfully caused by the accused or was the result of neglect by the accused; and (d) That the property was of a certain value or the damage was of a certain amount. (3) Suffering military property to be lost, dam- aged, destroyed, sold, or wrongfully disposed of. (a) That certain property (which was a firearm or explosive) was lost, damaged, destroyed, sold, or wrongfully disposed of; (b) That the property was military property of the United States; (c) That the loss, damage, destruction, sale, or wrongful disposition was suffered by the accused, without proper authority, through a certain omission of duty by the accused; (d) That the omission was willful or negligent; and (e) That the property was of a certain value or the damage was of a certain amount. c. Explanation. ( 1 ) M i l i t a r y p r o p e r t y . M i l i t a r y p r o p e r t y i s a l l property, real or personal, owned, held, or used by one of the armed forces of the United States. Mili- tary property is a term of art, and should not be confused with government property. The terms are not interchangeable. While all military property is government property, not all government property is military property. An item of government property is not military property unless the item in question meets the definition provided above. It is immaterial whether the property sold, disposed, destroyed, lost, o r d a m a g e d h a d b e e n i s s u e d t o t h e a c c u s e d , t o 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. (2) Suffering military property to be lost, dam- aged, destroyed, sold, or wrongfully disposed of. “To suffer” means to allow or permit. The willful or n e g l i g e n t s u f f e r a n c e s p e c i f i e d b y t h i s a r t i c l e i n - cludes: deliberate violation or intentional disregard of some specific law, regulation, or order; reckless or unwarranted personal use of the property; causing or allowing it to remain exposed to the weather, insecurely housed, or not guarded; permitting it to be consumed, wasted, or injured by other persons; or loaning it to a person, known to be irresponsible, by whom it is damaged. (3) Value and damage. In the case of loss, de- struction, sale, or wrongful disposition, the value of t h e p r o p e r t y c o n t r o l s t h e m a x i m u m p u n i s h m e n t 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. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. ( 1 ) S e l l i n g o r o t h e r w i s e d i s p o s i n g o f m i l i t a r y property. (a) Of a value of $500.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year. (b) Of a value of more than $500.00 or any firearm or explosive. Dishonorable discharge, forfei- ture of all pay and allowances, and confinement for 10 years. ( 2 ) T h r o u g h n e g l e c t d a m a g i n g , d e s t r o y i n g , o r losing, or through neglect suffering to be lost, dam- aged, destroyed, sold, or wrongfully disposed of, military property. (a) Of a value or damage of $500.00 or less. Confinement for 6 months, and forfeiture of two- thirds pay per month for 6 months. ( b ) O f a v a l u e o r d a m a g e o f m o r e t h a n $500.00. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year. (3) Willfully damaging, destroying, or losing, or willfully suffering to be lost, damaged, destroyed, sold, or wrongfully disposed of, military property. (a) Of a value or damage of $500.00 or less. Bad-conduct discharge, forfeiture of all pay and al- lowances, and confinement for 1 year. ( b ) O f a v a l u e o r d a m a g e o f m o r e t h a n $500.00, or of any firearm or explosive. Dishonora- ble discharge, forfeiture of all pay and allowances, and confinement for 10 years. f. Sample specifications. (1) Selling or disposing of military property. IV-47 ¶32.f.(1)Article 108
p. 349
In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , without proper authority,(sell to ) (dis- pose of by ) , ((a firearm) (an explosive)) of a value of (about) $ , military property of the United States. ( 2 ) D a m a g i n g , d e s t r o y i n g , o r l o s i n g m i l i t a r y property. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , without proper authority, ((willfully) (through neg- l e c t ) ) ( ( d a m a g e b y ) ( d e s t r o y b y ) ) ( l o s e ) ) ( o f a v a l u e o f ( a b o u t ) $ , ) m i l i t a r y p r o p e r t y o f t h e United States (the amount of said damage being in the sum of (about) $ ). (3) Suffering military property to be lost, dam- aged, destroyed, sold, or wrongfully disposed of. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , without proper authority, (willfully) (through neg- lect) suffer , ((a firearm) (an explosive)) (of a value of (about) $ ) military prop- erty of the United States, to be (lost) (damaged by ) (destroyed by ) (sold to ) ( w r o n g f u l l y d i s p o s e d o f b y ) (the amount of said damage being in the sum of (about $ ). 33. Article 109—Property other than military property of the United States—waste, spoilage, or destruction a. Text of statute. Any person subject to this chapter who will- f u l l y o r r e c k l e s s l y w a s t e s , s p o i l s , o r o t h e r w i s e willfully and wrongfully destroys or damages any p r o p e r t y o t h e r t h a n m i l i t a r y p r o p e r t y o f t h e United States shall be punished as a court-mar- tial may direct. b. Elements. (1) Wasting or spoiling of non-military property. ( a ) T h a t t h e a c c u s e d w i l l f u l l y o r r e c k l e s s l y wasted or spoiled certain real property in a certain manner; (b) That the property was that of another per- son; and (c) That the property was of a certain value. (2) Destroying or damaging non-military proper- ty. (a) That the accused willfully and wrongfully destroyed or damaged certain personal property in a certain manner; (b) That the property was that of another per- son; and (c) That the property was of a certain value or the damage was of a certain amount. c. Explanation. ( 1 ) W a s t i n g o r s p o i l i n g n o n - m i l i t a r y p r o p e r t y . This portion of Article 109 proscribes willful or reckless waste or spoliation of the real property of another. The terms “wastes” and “spoils” as used in this article refer 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. This destruction in punishable whether done willfully, that is inten- tionally, or recklessly, that is through a culpable disregard of the foreseeable consequences of some voluntary act. (2) Destroying or damaging non-military proper- ty. This portion of Article 109 proscribes the willful and wrongful destruction or damage of the personal property of another. To be destroyed, the property need not be completely demolished or annihilated, but must be sufficiently injured to be useless for its intended purpose. Damage consists of any physical injury to the property. To constitute an offense under this section, the destruction or damage of the prop- erty must have been willful and wrongful. As used in this section “willfully” means intentionally and “wrongfully” means contrary to law, regulation, law- ful order, or custom. Willfulness may be proved by c i r c u m s t a n t i a l e v i d e n c e , s u c h a s t h e m a n n e r i n which the acts were done. (3) Value and damage. In the case of destruction, t h e v a l u e o f t h e p r o p e r t y d e s t r o y e d c o n t r o l s t h e maximum punishment which may be adjudged. In the case of damage, the amount of the damage con- trols. As a general rule, the amount of damage is the estimated or actual cost of repair by artisans em- ployed in this work who are available to the commu- nity wherein the owner resides, or the replacement IV-48 ¶32.f.(1) Article 109
p. 350
c o s t , w h i c h e v e r i s l e s s . S e e a l s o p a r a g r a p h 46c(1)(g). d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Wasting, spoiling, destroy- ing, or damaging any property other than military property of the United States of a value or damage. (1) Of $500.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances, and confine- ment for 1 year. ( 2 ) O f m o r e t h a n $ 5 0 0 . 0 0 . D i s h o n o r a b l e d i s - charge, forfeiture of all pay and allowances, and confinement for 5 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , ((willfully) recklessly) waste) ((willfully) (reckless- ly) spoil) (willfully and wrongfully (destroy) (dam- age) by ) , (of a value of (about) $ ) (the amount of said damage being in the sum of (about $ ), the prop- erty of . 34. Article 110—Improper hazarding of vessel a. Text of statute. ( a ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o willfully and wrongfully hazards or suffers to be hazarded any vessel of the armed forces shall suffer death or such other punishment as a court- martial may direct. ( b ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o negligently hazards or suffers to be hazarded any vessel of the armed forces shall be punished as a court-martial may direct. b. Elements. (1) That a vessel of the armed forces was haz- arded in a certain manner; and (2) That the accused by certain acts or omissions, willfully and wrongfully, or negligently, caused or suffered the vessel to be hazarded. c. Explanation. (1) Hazard. “Hazard” means to put in danger of loss or injury. Actual damage to, or loss of, a vessel of the armed forces by collision, stranding, running upon a shoal or a rock, or by any other cause, is conclusive evidence that the vessel was hazarded but not of the fact of culpability on the part of any particular person. “Stranded” means run aground so t h a t t h e v e s s e l i s f a s t f o r a t i m e . I f t h e v e s s e l “ t o u c h e s a n d g o e s , ” s h e i s n o t s t r a n d e d ; i f s h e “touches and sticks,” she is. A shoal is a sand, mud, or gravel bank or bar that makes the water shallow. (2) Willfully and wrongfully. As used in this arti- cle, “willfully” means intentionally and “wrongful- ly” means contrary to law, regulation, lawful order, or custom. (3) Negligence. “Negligence” as used in this arti- cle means the failure to exercise the care, prudence, or attention to duties, which the interests of the government require a prudent and reasonable person to exercise under the circumstances. This negligence may consist of the omission to do something the prudent and reasonable person would have done, or the doing of something which such a person would not have done under the circumstances. No person is relieved of culpability who fails to perform such duties as are imposed by the general responsibilities of that person’s grade or rank, or by the customs of the service for the safety and protection of vessels of the armed forces, simply because these duties are not specifically enumerated in a regulation or order. However, a mere error in judgment that a reasonably able person might have committed under the same circumstances does not constitute an offense under this article. (4) Suffer. “To suffer” means to allow or permit. A ship is willfully suffered to be hazarded by one who, although not in direct control of the vessel, knows a danger to be imminent but takes no steps to prevent it, as by a plotting officer of a ship under way who fails to report to the officer of the deck a radar target which is observed to be on a collision course with, and dangerously close to, the ship. A s u f f e r i n g t h r o u g h n e g l e c t i m p l i e s a n o m i s s i o n t o take such measures as were appropriate under the circumstances to prevent a foreseeable danger. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Hazarding or suffering to be hazarded any vessel of the armed forces: (1) Willfully and wrongfully. Death or such other punishment as a court-martial may direct. ( 2 ) N e g l i g e n t l y . D i s h o n o r a b l e d i s c h a r g e , f o r f e i - ture of all pay and allowances, and confinement for 2 years. IV-49 ¶34.e.(2)Article 110
p. 351
f. Sample specifications. (1) Hazarding or suffering to be hazarded any vessel, willfully and wrongfully. In that (personal jurisdiction data), did, on 20 , while serving as aboard the in the vicinity of , willfully and wrongfully (hazard the said vessel) (suffer the said vessel to be hazarded) by (causing the said vessel to collide with ) (allowing the said vessel to run aground) ( ). (2) Hazarding of vessel, negligently. (a) Example 1. In that (personal jurisdiction data), on 20 , while serving in command of the , making entrance to (Boston Harbor), did negligently hazard the said vessel by failing and neglecting to maintain or cause to be maintained an accurate running plot of the true position of said vessel while making said approach, as a result of w h i c h n e g l e c t t h e s a i d , a t o r a b o u t , hours on the day aforesaid, became stranded in the vicinity of (Channel Buoy Number Three). (b) Example 2. In that (personal jurisdiction data), on 20 , while serving as navigator of the , c r u i s i n g o n s p e c i a l s e r v i c e i n t h e O c e a n o f f t h e c o a s t o f , n o t w i t h s t a n d i n g t h e f a c t t h a t a t a b o u t m i d n i g h t , 20 , the northeast point of Island bore abeam and was about six miles distant, the said ship being then under way and making a speed of about ten knots, and well knowing the position of the said ship at the time stated, and that the charts of the locality were unreliable and the currents therea- bouts uncertain, did then and there negligently haz- a r d t h e s a i d v e s s e l b y f a i l i n g a n d n e g l e c t i n g t o exercise proper care and attention in navigating said ship while approaching Island, in that h e / s h e n e g l e c t e d a n d f a i l e d t o l a y a c o u r s e t h a t would carry said ship clear of the last aforesaid island, and to change the course in due time to avoid disaster; and the said ship, as a result of said negli- gence on the part of said , ran upon a rock off the southwest coast of Island, a t a b o u t h o u r s , , 2 0 , i n c o n s e - quence of which the said was lost. (c) Example 3. In that (personal jurisdiction data), on 20 , while serving as navigator of the and well knowing that at about sunset of said day the said ship had nearly run her esti- mated distance from the position, ob- tained and plotted by him/her, to the position of , a n d w e l l k n o w i n g t h e d i f f i c u l t y o f sighting , from a safe distance after sun- set, did then and there negligently hazard the said vessel by failing and neglecting to advise his/her commanding officer to lay a safe course for said ship to the northward before continuing on a west- erly course, as it was the duty of said to do; in consequence of which the said ship was, at a b o u t h o u r s o n t h e d a y a b o v e m e n - tioned, run upon bank in the Sea, about latitude degrees, minutes, north, and l o n g i t u d e d e g r e e s , m i n u t e s , w e s t , a n d seriously injured. (3) Suffering a vessel to be hazarded, negligently. In that (personal jurisdiction data), while serving as combat intelligence center officer o n b o a r d t h e , m a k i n g p a s s a g e f r o m B o s t o n t o P h i l a d e l p h i a , a n d h a v i n g , b e t w e e n and hours on , 20 , been duly informed of decreasing radar ranges and constant r a d a r b e a r i n g i n d i c a t i n g t h a t t h e s a i d was upon a collision course approaching a radar target, did then and there negligently suffer the said vessel to be hazarded by failing and neglect- ing to report said collision course with said radar target to the officer of the deck, as it was his/her d u t y t o d o , a n d h e / s h e , t h e s a i d , t h r o u g h n e g l i g e n c e , d i d c a u s e t h e s a i d t o c o l l i d e w i t h t h e a t o r about hours on said date, with resultant damage to both vessels. 35. Article 111—Drunken or reckless operation of vehicle, aircraft, or vessel a. Text of statute. (a) Any person subject to this chapter who— (1) operates or physically controls any vehicle, aircraft, or vessel in a reckless or wanton manner or while impaired by a substance described in section 912a(b) of this title (Article 112a(b)); or (2) operates or is in actual physical control of any vehicle, aircraft, or vessel while drunk or when the alcohol concentration in the person’s blood or breath is equal to or exceeds the appli- IV-50 ¶34.f. Article 111
p. 352
cable limit under subsection (b), shall be pun- ished as a court-martial may direct. (b)(1) For purposes of subsection (a), the applica- ble limit on the alcohol concentration in a per- son’s blood or breath is as follows: (A) In the case of the operation or control of a vehicle, aircraft, or vessel in the United States, such limit is the lesser of— (i) the blood alcohol content limit under the law of the State in which the conduct occurred, except as may be provided under paragraph (2) for conduct on a military installation that is in more than one State; or (ii) the blood alcohol content limit specified in paragraph (3). (B) In the case of the operation or control of a v e h i c l e , a i r c r a f t , o r v e s s e l o u t s i d e t h e U n i t e d States, the applicable blood alcohol content limit is the blood alcohol content limit specified in par- agraph (3) or such lower limit as the Secretary of Defense may by regulation prescribe. (2) In the case of a military installation that is in more than one State, if those States have different blood alcohol content limits under their respec- tive State laws, the Secretary may select one such blood alcohol content limit to apply uniformly on that installation. (3) For purposes of paragraph (1), the blood alco- hol content limit with respect to alcohol concen- t r a t i o n i n a p e r s o n ’ s b l o o d i s 0 . 1 0 g r a m s o f a l c o h o l p e r 1 0 0 m i l l i l i t e r s o f b l o o d a n d w i t h r e s p e c t t o a l c o h o l c o n c e n t r a t i o n i n a p e r s o n ’ s breath is 0.10 grams of alcohol per 210 liters of breath, as shown by chemical analysis. (4) In this subsection: ( A ) T h e t e r m “ b l o o d a l c o h o l c o n t e n t l i m i t ” means the amount of alcohol concentration in a person’s blood or breath at which operation or c o n t r o l o f a v e h i c l e , a i r c r a f t , o r v e s s e l i s prohibited. (B) The term “United States” includes the Dis- trict of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American S a m o a a n d t h e t e r m “ S t a t e ” i n c l u d e s e a c h o f those jurisdictions. b. Elements. (1) That the accused was operating or in physical control of a vehicle, aircraft, or vessel; and (2) That while operating or in physical control of a vehicle, aircraft, or vessel, the accused: (a) did so in a wanton or reckless manner, or (b) was drunk or impaired, or (c) the alcohol concentration in the accused’s blood or breath equaled or exceeded the applicable limit under subparagraph (b) of paragraph 35a. [NOTE: If injury resulted add the following element] (3) That the accused thereby caused the vehicle, aircraft, or vessel to injure a person. c. Explanation. (1) Vehicle. See 1 U.S.C. § 4. (2) Vessel. See. 1 U.S.C. § 3. (3) Aircraft. Any contrivance used or designed for transportation in the air. (4) Operates. Operating a vehicle, aircraft, or ves- sel includes not only driving or guiding a vehicle, aircraft or vessel while it is in motion, either in person or through the agency of another, but also setting of its motive power in action or the manipu- lation of its controls so as to cause the particular vehicle, aircraft or vessel to move. (5) Physical control and actual physical control. These terms as used in the statute are synonymous. They describe the present capability and power to dominate, direct or regulate the vehicle, vessel, or aircraft, either in person or through the agency of another, regardless of whether such vehicle, aircraft, or vessel is operated. For example, the intoxicated person seated behind the steering wheel of a vehicle with the keys of the vehicle in or near the ignition but with the engine not turned on could be deemed in actual physical control of that vehicle. However, the person asleep in the back seat with the keys in his or her pocket would not be deemed in actual physical control. Physical control necessarily encom- passes operation. (6) Drunk or impaired. “Drunk” and “impaired” mean any intoxication which is sufficient to impair the rational and full exercise of the mental or physi- cal faculties. The term drunk is used in relation to intoxication by alcohol. The term impaired is used in relation to intoxication by a substance described in Article 112(a), Uniform Code of Military Justice. (7) Reckless. The operation or physical control of a vehicle, vessel, or aircraft is “reckless” when it exhibits a culpable disregard of foreseeable conse- quences to others from the act or omission involved. Recklessness is not determined solely by reason of IV-51 ¶35.c.(7)Article 111
p. 353
the happening of an injury, or the invasion of the rights of another, nor by proof alone of excessive speed or erratic operation, but all these factors may be admissible and relevant as bearing upon the ulti- mate question: whether, under all the circumstances, the accused’s manner of operation or physical con- trol of the vehicle, vessel, or aircraft was of that h e e d l e s s n a t u r e w h i c h m a d e i t a c t u a l l y o r i m - minently dangerous to the occupants, or to the rights or safety of others. It is operating or physically con- trolling a vehicle, vessel, or aircraft with such a high degree of negligence that if death were caused, the a c c u s e d w o u l d h a v e c o m m i t t e d i n v o l u n t a r y m a n - slaughter, at least. The nature of the conditions in which the vehicle, vessel, or aircraft is operated or controlled, the time of day or night, the proximity and number of other vehicles, vessels, or aircraft and the condition of the vehicle, vessel, or aircraft, are often matters of importance in the proof of an of- fense charged under this article and, where they are of importance, may properly be alleged. (8) Wanton. “Wanton” includes “reckless,” but in describing the operation or physical control of a vehicle, vessel, or aircraft “wanton” may, in a proper case, connote willfulness, or a disregard of probable consequences, and thus describe a more aggravated offense. (9) Causation. The accused’s drunken or reckless driving must be a proximate cause of injury for the accused to be guilty of drunken or reckless driving resulting in personal injury. To be proximate, the accused’s actions need not be the sole cause of the injury, nor must they be the immediate cause of the injury, that is, the latest in time and space preceding the injury. A contributing cause is deemed proxi- mate only if it plays a material role in the victim’s injury. (10) Separate offenses. While the same course of conduct may constitute violations of both subsec- tions (1) and (2) of the Article, e.g., both drunken and reckless operation or physical control, this arti- cle proscribes the conduct described in both subsec- tions as separate offenses, which may be charged separately. However, as recklessness is a relative m a t t e r , e v i d e n c e o f a l l t h e s u r r o u n d i n g c i r c u m - stances that made the operation dangerous, whether alleged or not, may be admissible. Thus, on a charge of reckless driving, for example, evidence of drunk- enness might be admissible as establishing one as- p e c t o f t h e r e c k l e s s n e s s , a n d e v i d e n c e t h a t t h e vehicle exceeded a safe speed, at a relevant prior point and time, might be admissible as corroborating other evidence of the specific recklessness charged. Similarly, on a charge of drunken driving, relevant evidence of recklessness might have probative value as corroborating other proof of drunkenness. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. ( 1 ) R e s u l t i n g i n p e r s o n a l i n j u r y . D i s h o n o r a b l e discharge, forfeiture of all pay and allowances, and confinement for 18 months. (2) No personal injury involved. Bad-conduct dis- charge, forfeiture of all pay and allowances, and confinement for 6 months. f. Sample specification. In that (personal jurisdiction data), did (at/on board location) (subject mat- ter jurisdiction data, if required), on or about , 20 , (in the motor pool area) (near the Officer’s C l u b ) ( a t t h e i n t e r s e c t i o n o f a n d ) (while in the Gulf of Mexico) (while in flight over North America) physically control [a vehicle, to wit: (a truck) (a passenger car) ( )] [an aircraft, to wit: (an AH-64 helicopter) (an F-14A fighter) (a KC-135 tanker) ( )] [a vessel, to w i t : ( t h e a i r c r a f t c a r r i e r U S S ) ( t h e Coast Guard Cutter ) ( )], [ w h i l e d r u n k ] [ w h i l e i m p a i r e d b y ] [while the alcohol concentration in his (blood or b r e a t h ) e q u a l e d o r e x c e e d e d t h e a p p l i c a b l e l i m i t under subparagraph (b) of the text of the statute in paragraph 35 as shown by chemical analysis] [in a (reckless) (wanton) manner by (attempting to pass another vehicle on a sharp curve) (ordering that the aircraft be flown below the authorized altitude)] [and did thereby cause said (vehicle) (aircraft) (vessel) to (strike and) (injure )]. 36. Article 112—Drunk on duty a. Text of statute. Any person subject to this chapter other than sentinel or look-out, who is found drunk on duty, shall be punished as a court-martial may direct. b. Elements. (1) That the accused was on a certain duty; and (2) That the accused was found drunk while on this duty. IV-52 ¶35.c.(7) Article 112
p. 354
c. Explanation. (1) Drunk. See paragraph 35c(6). (2) Duty. “Duty” as used in this article means military duty. Every duty which an officer or en- listed person may legally be required by superior authority to execute is necessarily a military duty. Within the meaning of this article, when in the ac- tual exercise of command, the commander of a post, or of a command, or of a detachment in the field is constantly on duty, as is the commanding officer on board a ship. In the case of other officers or enlisted persons, “on duty” relates to duties or routine or detail, in garrison, at a station, or in the field, and does not relate to those periods when, no duty being required of them by orders or regulations, officers and enlisted persons occupy the status of leisure known as “off duty” or “on liberty.” In a region of active hostilities, the circumstances are often such that all members of a command may properly be considered as being continuously on duty within the meaning of this article. So also, an officer of the day and members of the guard, or of the watch, are on duty during their entire tour within the meaning of this article. (3) Nature of offense. It is necessary that the ac- cused be found drunk while actually on the duty a l l e g e d , a n d t h e f a c t t h e a c c u s e d b e c a m e d r u n k before going on duty, although material in extenua- tion, does not affect the question of guilt. If, howev- er, the accused does not undertake the responsibility or enter upon the duty at all, the accused’s conduct does not fall within the terms of this article, nor does that of a person who absents himself or herself from duty and is found drunk while so absent. In- cluded within the article is drunkenness while on duty of an anticipatory nature such as that of an aircraft crew ordered to stand by for flight duty, or of an enlisted person ordered to stand by for guard duty. (4) Defenses. If the accused is known by superior authorities to be drunk at the time a duty is assigned, and the accused is thereafter allowed to assume that duty anyway, or if the drunkenness results from an accidental over dosage administered for medicinal purposes, the accused will have a defense to this offense. But see paragraph 76 (incapacitation for duty). d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 9 months. f. Sample specification. In that (personal jurisdiction data), w a s , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 2 0 , f o u n d d r u n k w h i l e o n d u t y a s . 37. Article 112a—Wrongful use, possession, etc., of controlled substances a. Text of statute. ( a ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o wrongfully uses, possesses, manufactures, distrib- utes, imports into the customs territory of the United States, exports from the United States, or introduces into an installation, vessel, vehicle, or a i r c r a f t u s e d b y o r u n d e r t h e c o n t r o l o f t h e armed forces a substance described in subsection ( b ) s h a l l b e p u n i s h e d a s a c o u r t - m a r t i a l m a y direct. (b) The substances referred to in subsection (a) are the following: ( 1 ) o p i u m , h e r o i n , c o c a i n e , a m p h e t a m i n e , l y s e r g i c a c i d d i e t h y l a m i d e , m e t h a m p h e t a m i n e , p h e n c y c l i d i n e , b a r b i t u r i c a c i d , a n d m a r i j u a n a , a n d a n y c o m p o u n d o r d e r i v a t i v e o f a n y s u c h substance. (2) Any substance not specified in clause (1) that is listed on a schedule of controlled sub- stances prescribed by the President for the pur- poses of this article. ( 3 ) A n y o t h e r s u b s t a n c e n o t s p e c i f i e d i n clause (1) or contained on a list prescribed by the President under clause (2) that is listed in Sched- ules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812). b. Elements. (1) Wrongful possession of controlled substance. ( a ) T h a t t h e a c c u s e d p o s s e s s e d a c e r t a i n amount of a controlled substance; and ( b ) T h a t t h e p o s s e s s i o n b y t h e a c c u s e d w a s wrongful. (2) Wrongful use of controlled substance. ( a ) T h a t t h e a c c u s e d u s e d a c o n t r o l l e d s u b - stance; and (b) That the use by the accused was wrongful. (3) Wrongful distribution of controlled substance. IV-53 ¶37.b.(3)Article 112a
p. 355
( a ) T h a t t h e a c c u s e d d i s t r i b u t e d a c e r t a i n amount of a controlled substance; and (b) That the distribution by the accused was wrongful. ( 4 ) W r o n g f u l i n t r o d u c t i o n o f a c o n t r o l l e d s u b - stance. (a) That the accused introduced onto a vessel, aircraft, vehicle, or installation used by the armed forces or under the control of the armed forces a certain amount of a controlled substance; and (b) That the introduction was wrongful. (5) Wrongful manufacture of a controlled sub- stance. ( a ) T h a t t h e a c c u s e d m a n u f a c t u r e d a c e r t a i n amount of a controlled substance; and (b) That the manufacture was wrongful. (6) Wrongful possession, manufacture, or intro- duction of a controlled substance with intent to dis- tribute. ( a ) T h a t t h e a c c u s e d ( p o s s e s s e d ) ( m a n u f a c - tured) (introduced) a certain amount of a controlled substance; (b) That the (possession) (manufacture) (intro- duction) was wrongful; and (c) That the (possession) (manufacture) (intro- duction) was with the intent to distribute. (7) Wrongful importation or exportation of a con- trolled substance. (a) That the accused (imported into the cus- toms territory of) (exported from) the United States a certain amount of a controlled substance; and ( b ) T h a t t h e ( i m p o r t a t i o n ) ( e x p o r t a t i o n ) w a s wrongful. [Note: When any of the aggravating circumstances listed in sub- paragraph e is alleged, it must be listed as an element.] c. Explanation. (1) Controlled substance. “Controlled substance” means amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, and barbituric acid, including pheno- b a r b i t a l a n d s e c o b a r b i t a l . “ C o n t r o l l e d s u b s t a n c e ” a l s o m e a n s a n y s u b s t a n c e w h i c h i s i n c l u d e d i n Schedules I through V established by the Controlled Substances Act of 1970 (21 U.S.C. 812). (2) Possess. “Possess” means to exercise control o f s o m e t h i n g . P o s s e s s i o n m a y b e d i r e c t p h y s i c a l custody like holding an item in one’s hand, or it may be constructive, as in the case of a person who hides an item in a locker or car to which that person may return to retrieve it. Possession must be know- ing and conscious. Possession inherently includes the power or authority to preclude control by others. It is possible, however, for more than one person to p o s s e s s a n i t e m s i m u l t a n e o u s l y , a s w h e n s e v e r a l people share control of an item. An accused may not be convicted of possession of a controlled substance if the accused did not know that the substance was present under the accused’s control. Awareness of the presence of a controlled substance may be in- ferred from circumstantial evidence. (3) Distribute. “Distribute” means to deliver to the possession of another. “Deliver” means the actu- al, constructive, or attempted transfer of an item, whether or not there exists an agency relationship. (4) Manufacture. “Manufacture” means the pro- duction, preparation, propagation, compounding, or p r o c e s s i n g o f a d r u g o r o t h e r s u b s t a n c e , e i t h e r d i r e c t l y o r i n d i r e c t l y o r b y e x t r a c t i o n f r o m s u b - stances of natural origin, or independently by means of chemical synthesis or by a combination of extrac- tion and chemical synthesis, and includes any pack- aging or repackaging of such substance or labeling or relabeling of its container. “Production,” as used in this subparagraph, includes the planting, cultivat- i n g , g r o w i n g , o r h a r v e s t i n g o f a d r u g o r o t h e r substance. (5) Wrongfulness. To be punishable under Article 112a, possession, use, distribution, introduction, or m a n u f a c t u r e o f a c o n t r o l l e d s u b s t a n c e m u s t b e wrongful. Possession, use, distribution, introduction, or manufacture of a controlled substance is wrongful if it is without legal justification or authorization. Possession, distribution, introduction, or manufac- ture of a controlled substance is not wrongful if such act or acts are: (A) done pursuant to legitimate law enforcement activities (for example, an informant who receives drugs as part of an undercover opera- tion is not in wrongful possession); (B) done by authorized personnel in the performance of medical duties; or (C) without knowledge of the contraband nature of the substance (for example, a person who possesses cocaine, but actually believes it to be sug- ar, is not guilty of wrongful possession of cocaine). Possession, use, distribution, introduction, or manu- facture of a controlled substance may be inferred to be wrongful in the absence of evidence to the con- trary. The burden of going forward with evidence with respect to any such exception in any court- IV-54 ¶37.b.(3)(a) Article 112a
p. 356
martial or other proceeding under the code shall be upon the person claiming its benefit. If such an issue is raised by the evidence presented, then the burden of proof is upon the United States to establish that the use, possession, distribution, manufacture, or in- troduction was wrongful. (6) Intent to distribute. 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 ac- cused is addicted to or is a heavy user of the sub- stance may tend to negate an inference of intent to distribute. (7) Certain amount. When a specific amount of a controlled substance is believed to have been pos- sessed, distributed, introduced, or manufactured by an accused, the specific amount should ordinarily be alleged in the specification. It is not necessary to allege a specific amount, however, and a specifica- tion is sufficient if it alleges that an accused pos- s e s s e d , d i s t r i b u t e d , i n t r o d u c e d , o r m a n u f a c t u r e d “some,” “traces of,” or “an unknown quantity of” a controlled substance. (8) Missile launch facility. A “missile launch fa- cility” includes the place from which missiles are fired and launch control facilities from which the launch of a missile is initiated or controlled after launch. (9) Customs territory of the United States. “Cus- toms territory of the United States” includes only the States, the District of Columbia, and Puerto Rico. (10) Use. “Use” means to inject, ingest, inhale, or otherwise introduce into the human body, any con- trolled substance. Knowledge of the presence of the controlled substance is a required component of use. Knowledge of the presence of the controlled sub- stance may be inferred from the presence of the controlled substance in the accused’s body or from other circumstantial evidence. This permissive infer- ence may be legally sufficient to satisfy the govern- ment’s burden of proof as to knowledge. (11) Deliberate ignorance. An accused who con- sciously avoids knowledge of the presence of a con- trolled substance or the contraband nature of the substance is subject to the same criminal liability as one who has actual knowledge. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishments. (1) Wrongful use, possession, manufacture, or in- troduction of controlled substance. ( a ) A m p h e t a m i n e , c o c a i n e , h e r o i n , l y s e r g i c acid diethylamide, marijuana (except possession of less than 30 grams or use of marijuana), metham- phetamine, opium, phencyclidine, secobarbital, and Schedule I, II, III controlled substances. Dishonora- ble discharge, forfeiture of all pay and allowances, and confinement 5 years. ( b ) M a r i j u a n a ( p o s s e s s i o n o f l e s s t h a n 3 0 grams or use), phenobarbital, and Schedule IV and V c o n t r o l l e d s u b s t a n c e s . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 2 years. ( 2 ) W r o n g f u l d i s t r i b u t i o n , p o s s e s s i o n , m a n u f a c - ture, or introduction of controlled substance with intent to distribute, or wrongful importation or ex- portation of a controlled substance. ( a ) A m p h e t a m i n e , c o c a i n e , h e r o i n , l y s e r g i c a c i d d i e t h y l a m i d e , m a r i j u a n a , m e t h a m p h e t a m i n e , opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances. Dishonorable dis- charge, forfeiture of all pay and allowances, and confinement for 15 years. (b) Phenobarbital and Schedule IV and V con- trolled substances. Dishonorable discharge, forfei- ture of all pay and allowances, and confinement for 10 years. When any offense under paragraph 37 is committed; while the accused is on duty as a sentinel or look- out; on board a vessel or aircraft used by or under the control of the armed forces; in or at a missile launch facility used by or under the control of the armed forces; while receiving special pay under 37 U.S.C. § 310; in time of war; or in a confinement facility used by or under the control of the armed forces, the maximum period of confinement author- ized for such offense shall be increased by 5 years. f. Sample specifications. (1) Wrongful possession, manufacture, or distri- bution of controlled substance. In that (personal jurisdiction data) did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about , 20 , IV-55 ¶37.f.(1)Article 112a
p. 357
w r o n g f u l l y ( p o s s e s s ) ( d i s t r i b u t e ) ( m a n u f a c t u r e ) ( g r a m s ) ( o u n c e s ) ( p o u n d s ) ( ) o f (a schedule ( ) controlled substance), (with the intent to distribute the said controlled sub- stance) (while on duty as a sentinel or lookout) (while (on board a vessel/aircraft) (in or at a missile launch facility) used by the armed forces or under t h e c o n t r o l o f t h e a r m e d f o r c e s , t o w i t : ) (while receiving special pay under 37 U.S.C. § 310) (during time of war). (2) Wrongful use of controlled substance. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about , 20 , w r o n g f u l l y u s e ( a S c h e d u l e c o n - trolled substance) (while on duty as a sentinel or lookout) (while (on board a vessel/aircraft) (in or at a missile launch facility) used by the armed forces or under the control of the armed forces, to wit: ) (while receiving special pay under 37 U.S.C. § 310) (during time of war). ( 3 ) W r o n g f u l i n t r o d u c t i o n o f c o n t r o l l e d s u b - stance. In that (personal jurisdiction data) did, (at/on board—location) on or about , 20 , wrongfully introduce (grams) (ounces) (pounds) ( ) of (a Schedule ( ) controlled substance) onto a vessel, aircraft, vehicle, or installation used by the armed forces or under control of the armed forces, to wit: (with the intent to distribute the said controlled substance) (while on duty as a senti- nel or lookout) (while receiving special pay under 37 U.S.C. § 310) (during a time of war). (4) Wrongful importation or exportation of con- trolled substance. In that (personal jurisdiction data) did, (at/on board—location) on or about , 20 , wrongfully (import) (export) (grams) (ounces) (pounds) ( ) of (a Schedule ( ) controlled substance) (into the cus- toms territory of) (from) the United States (while on board a vessel/aircraft used by the armed forces or u n d e r t h e c o n t r o l o f t h e a r m e d f o r c e s , t o w i t : ) (during time of war). 38. Article 113—Misbehavior of sentinel or lookout a. Text of statute. Any sentinel or look-out who is found drunk or sleeping upon his post, or leaves it before he is regularly relieved, shall be punished, if the of- fense is committed in time of war, by death or such other punishment as a court-martial may d i r e c t , b u t i f t h e o f f e n s e i s c o m m i t t e d a t a n y other time, by such punishment other than death as a court-martial may direct. b. Elements. (1) That the accused was posted or on post as a sentinel or lookout; (2) That the accused was found drunk while on post, was found sleeping while on post, or left post before being regularly relieved. [Note: If the offense was committed in time of war o r w h i l e t h e a c c u s e d w a s r e c e i v i n g s p e c i a l p a y under 37 U.S.C. § 310, add the following element] (3) That the offense was committed (in time of war) (while the accused was receiving special pay under 37 U.S.C. § 310). c. Explanation. (1) In general. This article defines three kinds of misbehavior committed by sentinels or lookouts: be- ing found drunk or sleeping upon post, or leaving it before being regularly relieved. This article does not include an officer or enlisted person of the guard, or of a ship’s watch, not posted or performing the du- ties of a sentinel or lookout, nor does it include a person whose duties as a watchman or attendant do not require constant alertness. (2) Post. “Post” is the area where the sentinel or lookout is required to be for the performance of duties. It is not limited by an imaginary line, but includes, according to orders or circumstances, such surrounding area as may be necessary for the proper performance of the duties for which the sentinel or lookout was posted. The offense of leaving post is not committed when a sentinel or lookout goes an immaterial distance from the post, unless it is such a distance that the ability to fully perform the duty for which posted is impaired. (3) On post. A sentinel or lookout becomes “on post” after having been given a lawful order to go “on post” as a sentinel or lookout and being for- mally or informally posted. The fact that a sentinel or lookout is not posted in the regular way is not a IV-56 ¶37.f.(1) Article 113
p. 358
defense. It is sufficient, for example, if the sentinel or lookout has taken the post in accordance with proper instruction, whether or not formally given. A sentinel or lookout is on post within the meaning of the article not only when at a post physically de- fined, as is ordinarily the case in garrison or aboard ship, but also, for example, when stationed in obser- vation against the approach of an enemy, or detailed to use any equipment designed to locate friend, foe, or possible danger, or at a designated place to main- tain internal discipline, or to guard stores, or to guard prisoners while in confinement or at work. (4) Sentinel or lookout. A sentinel or a lookout is a person whose duties include the requirement to maintain constant alertness, be vigilant, and remain awake, in order to observe for the possible approach of the enemy, or to guard persons, property, or a place and to sound the alert, if necessary. (5) Drunk. For an explanation of “drunk,” see paragraph 35c(3). (6) Sleeping. As used in this article, “sleeping” is that condition of insentience which is sufficient sen- sibly to impair the full exercise of the mental and physical faculties of a sentinel or lookout. It is not necessary to show that the accused was in a wholly c o m a t o s e c o n d i t i o n . T h e f a c t t h a t t h e a c c u s e d ’ s sleeping resulted from a physical incapacity caused by disease or accident is an affirmative defense. See R.C.M. 916(i). d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) In time of war. Death or such other punish- ment as a court-martial may direct. (2) While receiving special pay under 37 U.S.C. § 310. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. (3) In all other places. Dishonorable discharge, forfeiture of all pay and allowances, and confine- ment for 1 year. f. Sample specification. In that (personal jurisdiction data), on or about 20 (a time of war) (at/on board—location), (while receiving special pay under 37 U.S.C. § 310), being (posted) (on post) as a (sentinel) (lookout) at (warehouse no. 7) (post no. 1 1 ) ( f o r r a d a r o b s e r v a t i o n ) ( ) ( w a s f o u n d ( d r u n k ) ( s l e e p i n g ) u p o n h i s / h e r p o s t ) ( d i d l e a v e h i s / h e r p o s t b e f o r e h e / s h e w a s r e g u l a r l y relieved). 39. Article 114—Dueling a. Text of statute. Any person subject to this chapter who fights or promotes, or is concerned in or connives at fighting a duel, or who, having knowledge of a challenge sent or about to be sent, fails to report the fact promptly to the proper authority, shall be punished as a court-martial may direct. b. Elements. (1) Dueling. ( a ) T h a t t h e a c c u s e d f o u g h t a n o t h e r p e r s o n with deadly weapons; (b) That the combat was for private reasons; and (c) That the combat was by prior agreement. (2) Promoting a duel. (a) That the accused promoted a duel between certain persons; and ( b ) T h a t t h e a c c u s e d d i d s o i n a c e r t a i n manner. (3) Conniving at fighting a duel. (a) That certain persons intended to and were about to engage in a duel; ( b ) T h a t t h e a c c u s e d h a d k n o w l e d g e o f t h e planned duel; and (c) That the accused connived at the fighting of the duel in a certain manner. (4) Failure to report a duel. (a) That a challenge to fight a duel had been sent or was about to be sent; (b) That the accused had knowledge of this challenge; and (c) That the accused failed to report this fact promptly to proper authority. c. Explanation. (1) Duel. A duel is combat between two persons for private reasons fought with deadly weapons by prior agreement. (2) Promoting a duel. Urging or taunting another to challenge or to accept a challenge to duel, acting as a second or as carrier of a challenge or accept- ance, or otherwise furthering or contributing to the fighting of a duel are examples of promoting a duel. (3) Conniving at fighting a duel. Anyone who has IV-57 ¶39.c.(3)Article 114
p. 359
knowledge that steps are being taken or have been taken toward arranging or fighting a duel and who fails to take reasonable preventive action thereby connives at the fighting of a duel. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . F o r a l l A r t i c l e 1 1 4 o f - fenses: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year. f. Sample specifications. (1) Dueling. In that (personal jurisdiction data) ( a n d ) , d i d , ( a t / o n b o a r d — l o c a t i o n ) (subject-matter jurisdiction data, if required), on or a b o u t 2 0 , f i g h t a d u e l ( w i t h ), using as weapons therefor (pistols) (swords) ( ). (2) Promoting a duel. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , p r o m o t e a d u e l b e t w e e n a n d b y ( t e l l i n g s a i d h e / s h e would be a coward if he/she failed to challenge said t o a d u e l ) ( k n o w i n g l y c a r r y i n g f r o m said to said a challenge to fight a duel). (3) Conniving at fighting a duel. In that (personal jurisdiction data), h a v i n g k n o w l e d g e t h a t a n d were about to engage in a duel, did (at/ on board—location) (subject-matter jurisdiction data, if required), on or about 20 , connive at the fighting of said duel by (failing to take reasona- ble preventive action) ( ). (4) Failure to report a duel. In that (personal jurisdiction data), having knowledge that a challenge to fight a duel ( h a d b e e n s e n t ) ( w a s a b o u t t o b e s e n t ) b y to , did, (at/on board—loca- tion) (subject-matter jurisdiction data, if required), o n o r a b o u t 2 0 f a i l t o r e p o r t t h a t f a c t promptly to the proper authority. 40. Article 115—Malingering a. Text of statute. Any person subject to this chapter who for the purpose of avoiding work, duty, or service— (1) feigns illness, physical disablement, mental lapse or derangement; or (2) intentionally inflicts self-injury; shall be punished as a court-martial may direct. b. Elements. ( 1 ) T h a t t h e a c c u s e d w a s a s s i g n e d t o , o r w a s aware of prospective assignment to, or availability for, the performance of work, duty, or service; (2) That the accused feigned illness, physical dis- ablement, mental lapse or derangement, or intention- ally inflicted injury upon himself or herself; and (3) That the accused’s purpose or intent in doing so was to avoid the work, duty, or service. [Note: If the offense was committed in time of war or in a hostile fire pay zone, add the following element] (4) That the offense was committed (in time of war) (in a hostile fire pay zone). c. Explanation. (1) Nature of offense. 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 self- inflicted injury or feigned disability may, however, be relevant as a factor indicating the presence or absence of the purpose. Discussion Bona fide suicide attempts should not be charged as criminal offenses. When making a determination whether the injury by the service member was a bona fide suicide attempt, the convening authority should consider factors including, but not limited to, health conditions, personal stressors, and DoD policy related to suicide prevention. (2) How injury inflicted. The injury may be in- flicted by nonviolent as well as by violent means and may be accomplished by any act or omission which produces, prolongs, or aggravates any sick- ness or disability. Thus, voluntary starvation which results in debility is a self-inflicted injury and when done for the purpose of avoiding work, duty, or service constitutes a violation of this article. IV-58 ¶39.c.(3) Article 115
p. 360
d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Feigning illness, physical disablement, mental lapse, or derangement. Dishonorable discharge, for- feiture of all pay and allowances, and confinement for 1 year. (2) Feigning illness, physical disablement, mental lapse, or derangement in a hostile fire pay zone or in time of war. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. (3) Intentional self-inflicted injury. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. (4) Intentional self-inflicted injury in a hostile fire pay zone or in time of war. Dishonorable discharge, forfeiture of all pay and allowances, and confine- ment for 10 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (in a hostile fire pay zone) (subject-matter jurisdiction data, if required) ( o n o r a b o u t 2 0 ) ( f r o m a b o u t 20 to about 20 ), (a time of war) for the purpose of avoiding (his/her duty as officer of the day) (his/her duty as aircraft mechan- ic) (work in the mess hall) (service as an enlisted person) ( ) (feign (a headache) (a sore back) (illness) (mental lapse) (mental derange- ment) ( )) (intentionally injure himself/herself by ). 41. Article 116—Riot or breach of peace a. Text of statute. Any person subject to this chapter who causes or participates in any riot or breach of the peace shall be punished as a court-martial may direct. b. Elements. (1) Riot. (a) That the accused was a member of an as- sembly of three or more persons; (b) That the accused and at least two other members of this group mutually intended to assist one another against anyone who might oppose them in doing an act for some private purpose; (c) That the group or some of its members, in furtherance of such purpose, unlawfully committed a tumultuous disturbance of the peace in a violent or turbulent manner; and (d) That these acts terrorized the public in gen- eral in that they caused or were intended to cause public alarm or terror. (2) Breach of the peace. (a) That the accused caused or participated in a certain act of a violent or turbulent nature; and ( b ) T h a t t h e p e a c e w a s t h e r e b y u n l a w f u l l y disturbed. c. Explanation. (1) Riot. “Riot” is a tumultuous disturbance of the peace by three or more persons assembled together i n f u r t h e r a n c e o f a c o m m o n p u r p o s e t o e x e c u t e some enterprise of a private nature by concerted action against anyone who might oppose them, com- mitted in such a violent and turbulent manner as to cause or be calculated to cause public terror. The gravamen of the offense of riot is terrorization of the public. It is immaterial whether the act intended was l a w f u l . F u r t h e r m o r e , i t i s n o t n e c e s s a r y t h a t t h e common purpose be determined before the assem- bly. It is sufficient if the assembly begins to execute in a tumultuous manner a common purpose formed after it assembled. (2) Breach of the peace. A “breach of the peace” is an unlawful disturbance of the peace by an out- ward demonstration of a violent or turbulent nature. The acts or conduct contemplated by this article are those which disturb the public tranquility or impinge upon the peace and good order to which the commu- nity is entitled. Engaging in an affray and unlawful discharge of firearms in a public street are examples of conduct which may constitute a breach of the peace. Loud speech and unruly conduct may also constitute a breach of the peace by the speaker. A speaker may also be guilty of causing a breach of the peace if the speaker uses language which can reasonably be expected to produce a violent or tur- bulent response and a breach of the peace results. The fact that the words are true or used under prov- ocation is not a defense, nor is tumultuous conduct excusable because incited by others. ( 3 ) C o m m u n i t y a n d p u b l i c . “ C o m m u n i t y ” a n d “public” include a military organization, post, camp, ship, aircraft, or station. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. IV-59 ¶41.e.Article 116
p. 361
(1) Riot. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. ( 2 ) B r e a c h o f t h e p e a c e . C o n f i n e m e n t f o r 6 months and forfeiture of two-thirds pay per month for 6 months. f. Sample specifications. (1) Riot. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , (cause) (participate in) a riot by unlawfully assem- bling with (and ) (and) (others to the number of about whose names are unknown) for the purpose of (resisting the police of ) (assaulting passers-by) ( ), and in furtherance of said purpose did (fight with said police) (assault certain persons, to wit: ) ( ), to the terror and disturbance of . (2) Breach of the peace. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , (cause) (participate in) a breach of the peace by (wrongfully engaging in a fist fight in the dayroom with ) (using the following provoking l a n g u a g e ( t o w a r d ) , t o w i t : “ , ” o r words to that effect) (wrongfully shouting and sing- ing in a public place, to wit: ) ( ). 42. Article 117—Provoking speeches or gestures a. Text of statute. Any person subject to this chapter who uses provoking or reproachful words or gestures to- wards any other person subject to this chapter shall be punished as a court-martial may direct. b. Elements. (1) That the accused wrongfully used words or gestures toward a certain person; (2) That the words or gestures used were provok- ing or reproachful; and (3) That the person toward whom the words or gestures were used was a person subject to the code. c. Explanation. ( 1 ) I n g e n e r a l . A s u s e d i n t h i s a r t i c l e , “provoking” and “reproachful” describe those words or gestures which are used in the presence of the person to whom they are directed and which a rea- sonable person would expect to induce a breach of the peace under the circumstances. These words and gestures do not include reprimands, censures, re- proofs and the like which may properly be adminis- t e r e d i n t h e i n t e r e s t s o f t r a i n i n g , e f f i c i e n c y , o r discipline in the armed forces. (2) Knowledge. It is not necessary that the ac- cused have knowledge that the person toward whom the words or gestures are directed is a person subject to the code. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Confinement for 6 months and forfeiture of two-thirds pay per month for 6 months. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , wrongfully use (provoking) (reproachful) (words, to wit; “ :” or words to that effect) (and) (gestures, to wit: ) towards (Sergeant , U.S. Air Force) ( ). 43. Article 118—Murder a. Text of statute. Any person subject to this chapter who, with- out justification or excuse, unlawfully kills a hu- man being, when he— (1) has a premeditated design to kill; (2) intends to kill or inflict great bodily harm; (3) is engaged in an act that is inherently dan- gerous to another and evinces a wanton disregard of human life; or (4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, rape of a child, sexual assault, sexual assault of a child, a g g r a v a t e d s e x u a l c o n t a c t , s e x u a l a b u s e o f a child, robbery or aggravated arson; is guilty of murder, and shall suffer such punishment as a c o u r t - m a r t i a l m a y d i r e c t , e x c e p t t h a t i f f o u n d g u i l t y u n d e r c l a u s e ( 1 ) o r ( 4 ) , h e s h a l l s u f f e r death or imprisonment for life as a court-martial may direct. [Note: This statute was amended by Public Law 112-81 (FY12 NDAA), effective 28 June 2012, to reflect the modified names of sexual offenses in Articles 120 and 120b.] b. Elements. IV-60 ¶41.e.(1) Article 118
p. 362
(1) Premeditated murder. (a) That a certain named or described person is dead; ( b ) T h a t t h e d e a t h r e s u l t e d f r o m t h e a c t o r omission of the accused; (c) That the killing was unlawful; and (d) That, at the time of the killing, the accused had a premeditated design to kill. (2) Intent to kill or inflict great bodily harm. (a) That a certain named or described person is dead; ( b ) T h a t t h e d e a t h r e s u l t e d f r o m t h e a c t o r omission of the accused; (c) That the killing was unlawful; and (d) That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon a person. (3) Act inherently dangerous to another. (a) That a certain named or described person is dead; (b) That the death resulted from the intentional act of the accused; (c) That this act was inherently dangerous to another and showed a wanton disregard for human life; (d) That the accused knew that death or great bodily harm was a probable consequence of the act; and (e) That the killing was unlawful. (4) During certain offenses. (a) That a certain named or described person is dead; ( b ) T h a t t h e d e a t h r e s u l t e d f r o m t h e a c t o r omission of the accused; (c) That the killing was unlawful; and (d) That, at the time of the killing, the accused was engaged in the perpetration or attempted perpe- tration of burglary, sodomy, rape, rape of a child, aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual contact, aggravated sexual abuse of a child, aggravated sexual contact with a child, robbery, or aggravated arson. c. Explanation. (1) In general. Killing a human being is unlawful w h e n d o n e w i t h o u t j u s t i f i c a t i o n o r e x c u s e . S e e R.C.M. 916. Whether an unlawful killing constitutes murder or a lesser offense depends upon the circum- stances. The offense is committed at the place of the act or omission although the victim may have died elsewhere. Whether death occurs at the time of the accused’s act or omission, or at some time thereaf- ter, it must have followed from an injury received b y t h e v i c t i m w h i c h r e s u l t e d f r o m t h e a c t o r omission. (2) Premeditated murder. (a) Premeditation. A murder is not premedi- t a t e d u n l e s s t h e t h o u g h t o f t a k i n g l i f e w a s c o n - sciously conceived and the act or omission by which it was taken was intended. Premeditated murder is murder committed after the formation of a specific intent to kill someone and consideration of the act intended. It is not necessary that the intention to kill have been entertained for any particular or consider- able length of time. When a fixed purpose to kill has been deliberately formed, it is immaterial how soon afterwards it is put into execution. The existence of p r e m e d i t a t i o n m a y b e i n f e r r e d f r o m t h e circumstances. ( b ) T r a n s f e r r e d p r e m e d i t a t i o n . W h e n a n a c - cused with a premeditated design attempted to un- lawfully kill a certain person, but, by mistake or inadvertence, killed another person, the accused is still criminally responsible for a premeditated mur- der, because the premeditated design to kill is trans- ferred from the intended victim to the actual victim. ( c ) I n t o x i c a t i o n . V o l u n t a r y i n t o x i c a t i o n ( s e e R.C.M. 916(1)(2)) not amounting to legal insanity may reduce premeditated murder (Article 118(1)) to unpremeditated murder (Article 118(2) or (3)) but it does not reduce either premeditated murder or un- premeditated murder to manslaughter (Article 119) or any other lesser offense. (3) Intent to kill or inflict great bodily harm. ( a ) I n t e n t . A n u n l a w f u l k i l l i n g w i t h o u t premeditation is also murder when the accused had either an intent to kill or inflict great bodily harm. It may be inferred that a person intends the natural and probable consequences of an act purposely done. Hence, if a person does an intentional act likely to result in death or great bodily injury, it may be inferred that death or great bodily injury was in- tended. The intent need not be directed toward the person killed, or exist for any particular time before commission of the act, or have previously existed at all. It is sufficient that it existed at the time of the act or omission (except if death is inflicted in the h e a t o f a s u d d e n p a s s i o n c a u s e d b y a d e q u a t e IV-61 ¶43.c.(3)(a)Article 118
p. 363
provocation— see paragraph 44). For example, a person committing housebreaking who strikes and kills the householder attempting to prevent flight can be guilty of murder even if the householder was not seen until the moment before striking the fatal blow. (b) Great bodily harm. “Great bodily harm” means serious injury; it does not include minor inju- ries such as a black eye or a bloody nose, but it does include fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other serious bodily injuries. It is synon- ymous with the term “grievous bodily harm.” ( c ) I n t o x i c a t i o n . V o l u n t a r y i n t o x i c a t i o n n o t a m o u n t i n g t o l e g a l i n s a n i t y d o e s n o t r e d u c e u n - premeditated murder to manslaughter (Article 119) or any other lesser offense. (4) Act inherently dangerous to others. (a) Wanton disregard of human life. Intention- a l l y e n g a g i n g i n a n a c t i n h e r e n t l y d a n g e r o u s t o another—although without an intent to cause the death of or great bodily harm to any particular per- son, or even with a wish that death will not be caused—may also constitute murder if the act shows wanton disregard of human life. Such disregard is characterized by heedlessness of the probable conse- quences of the act or omission, or indifference to the likelihood of death or great bodily harm. Examples include throwing a live grenade toward another in jest or flying an aircraft very low over one or more persons to cause alarm. (b) Knowledge. The accused must know that death or great bodily harm was a probable conse- quence of the inherently dangerous act. Such knowl- edge may be proved by circumstantial evidence. (5) During certain offenses. (a) In general. The commission or attempted commission of any of the offenses listed in Article 118(4) is likely to result in homicide, and when an unlawful killing occurs as a consequence of the per- petration or attempted perpetration of one of these offenses, the killing is murder. Under these circum- stances it is not a defense that the killing was unin- tended or accidental. (b) Separate offenses. The perpetration or at- tempted perpetration of the burglary, forcible sod- omy, rape, robbery, or aggravated arson may be charged separately from the homicide. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Article 118(1) or (4)—death. Mandatory mini- m u m — i m p r i s o n m e n t f o r l i f e w i t h e l i g i b i l i t y f o r parole. (2) Article 118(2) or (3)—such punishment other than death as a court-martial may direct. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , (with premeditation) (while (perpetrating) (attempt- ing to perpetrate) ) murder by means of (shooting him/her with a rifle) ( ). 44. Article 119—Manslaughter a. Text of statute. (a) Any person subject to this chapter who, with an intent to kill or inflict great bodily harm, unlawfully kills a human being in the heat of sudden passion caused by adequate provocation is guilty of voluntary manslaughter and shall be punished as a court-martial may direct. (b) Any person subject to this chapter who, without an intent to kill or inflict great bodily harm, unlawfully kills a human being— (1) by culpable negligence; or (2) while perpetrating or attempting to per- petrate an offense, other than those named in clause (4) of section 918 of this title (article 118), directly affecting the person; is guilty of involuntary manslaughter and shall be punished as a court-martial may direct. b. Elements. (1) Voluntary manslaughter. (a) That a certain named or described person is dead; ( b ) T h a t t h e d e a t h r e s u l t e d f r o m t h e a c t o r omission of the accused; (c) That the killing was unlawful; and (d) That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon the person killed. [Note: Add the following if applicable] (e) That the person killed was a child under the age of 16 years. (2) Involuntary manslaughter. (a) That a certain named or described person is dead; IV-62 ¶43.c.(3)(a) Article 119
p. 364
( b ) T h a t t h e d e a t h r e s u l t e d f r o m t h e a c t o r omission of the accused; (c) That the killing was unlawful; and (d) That this act or omission of the accused constituted culpable negligence, or occurred while the accused was perpetrating or attempting to perpe- trate an offense directly affecting the person other than burglary, forcible sodomy, rape, robbery, or aggravated arson. [Note: Add the following if applicable] (e) That the person killed was a child under the age of 16 years. c. Explanation. (1) Voluntary manslaughter. (a) Nature of offense. An unlawful killing, al- though done with an intent to kill or inflict great bodily harm, is not murder but voluntary manslaugh- t e r i f c o m m i t t e d i n t h e h e a t o f s u d d e n p a s s i o n caused by adequate provocation. Heat of passion may result from fear or rage. A person may be provoked to such an extent that in the heat of sud- den passion caused by the provocation, although not in necessary defense of life or to prevent bodily harm, a fatal blow may be struck before self-control has returned. Although adequate provocation does not excuse the homicide, it does preclude conviction of murder. ( b ) N a t u r e o f p r o v o c a t i o n . T h e p r o v o c a t i o n must be adequate to excite uncontrollable passion in a reasonable person, and the act of killing must be committed under and because of the passion. How- ever, the provocation must not be sought or induced as an excuse for killing or doing harm. If, judged by the standard of a reasonable person, sufficient cool- ing time elapses between the provocation and the killing, the offense is murder, even if the accused’s p a s s i o n p e r s i s t s . E x a m p l e s o f a c t s w h i c h m a y , depending on the circumstances, constitute adequate provocation are the unlawful infliction of great bod- ily harm, unlawful imprisonment, and the sight by one spouse of an act of adultery committed by the other spouse. Insulting or abusive words or gestures, a slight blow with the hand or fist, and trespass or other injury to property are not, standing alone, ade- quate provocation. ( c ) W h e n c o m m i t t e d u p o n a c h i l d u n d e r 1 6 years of age. The maximum punishment is increased when voluntary manslaughter is committed upon a child under 16 years of age. The accused’s knowl- edge that the child was under 16 years of age at the time of the offense is not required for the increased maximum punishment. (2) Involuntary manslaughter. (a) Culpable negligence. (i) Nature of culpable negligence. Culpable negligence is a degree of carelessness greater than simple negligence. It is a negligent act or omission accompanied by a culpable disregard for the foresee- able consequences to others of that act or omission. Thus, the basis of a charge of involuntary man- slaughter may be a negligent act or omission which, w h e n v i e w e d i n t h e l i g h t o f h u m a n e x p e r i e n c e , might foreseeably result in the death of another, even though death would not necessarily be a natu- ral and probable consequence of the act or omission. Acts which may amount to culpable negligence in- clude negligently conducting target practice so that the bullets go in the direction of an inhabited house within range; pointing a pistol in jest at another and pulling the trigger, believing, but without taking rea- sonable precautions to ascertain, that it would not be dangerous; and carelessly leaving poisons or dan- gerous drugs where they may endanger life. (ii) Legal duty required. When there is no legal duty to act there can be no neglect. Thus, when a stranger makes no effort to save a drowning per- son, or a person allows a beggar to freeze or starve to death, no crime is committed. (b) Offense directly affecting the person. An “offense directly affecting the person” means one a f f e c t i n g s o m e p a r t i c u l a r p e r s o n a s d i s t i n g u i s h e d from an offense affecting society in general. Among offenses directly affecting the person are the various types of assault, battery, false imprisonment, volun- tary engagement in an affray, and maiming. ( c ) W h e n c o m m i t t e d u p o n a c h i l d u n d e r 1 6 years of age. The maximum punishment is increased when involuntary manslaughter is committed upon a child under 16 years of age. The accused’s knowl- edge that the child was under 16 years of age at the time of the offense is not required for the increased maximum punishment. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. ( 1 ) V o l u n t a r y m a n s l a u g h t e r . D i s h o n o r a b l e d i s - charge, forfeiture of all pay and allowances, and confinement for 15 years. IV-63 ¶44.e.(1)Article 119
p. 365
(2) Involuntary manslaughter. Dishonorable dis- charge, forfeiture of all pay and allowances, and confinement for 10 years. (3) Voluntary manslaughter of a child under 16 years of age. Dishonorable discharge, forfeiture of a l l p a y a n d a l l o w a n c e s , a n d c o n f i n e m e n t f o r 2 0 years. (4) Involuntary manslaughter of a child under 16 years of age. Dishonorable discharge, forfeiture of a l l p a y a n d a l l o w a n c e s , a n d c o n f i n e m e n t f o r 1 5 years. f. Sample specifications. (1) Voluntary manslaughter. In that (personal jurisdiction data), did, (at/on board – location) (subject matter juris- diction data, if required), on or about 20 , willfully and unlawfully kill , (a child under 16 years of age) by him/her (in) (on) the with a . (2) Involuntary manslaughter. In that (personal jurisdiction data), did, (at/on board location) (subject matter jurisdic- tion data, if required), on or about (by culpa- ble negligence) (while (perpetrating) (attempting to perpetrate) an offense directly affecting the person of , to wit: (maiming) (a battery) ( )) unlawfully kill (a child under 16 years of age) by him/her (in)(on) the with a . 44a. Article 119a—Death or injury of an unborn child a. Text of statute. (a)(1) Any person subject to this chapter who engages in conduct that violates any of the provi- sions of law listed in subsection (b) and thereby causes the death of, or bodily injury (as defined in section 1365 of title 18) to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense under this section and shall, u p o n c o n v i c t i o n , b e p u n i s h e d b y s u c h p u n i s h - ment, other than death, as a court-martial may direct, which shall be consistent with the punish- ments prescribed by the President for that con- duct had that injury or death occurred to the unborn child’s mother. (2) An offense under this section does not re- quire proof that— (i) the person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was preg- nant; or (ii) the accused intended to cause the death of, or bodily injury to, the unborn child. ( 3 ) I f t h e p e r s o n e n g a g i n g i n t h e c o n d u c t thereby intentionally kills or attempts to kill the unborn child, that person shall, instead of being punished under paragraph (1), be punished as provided under sections 880, 918, and 919(a) of this title (articles 80, 118, and 119(a)) for inten- t i o n a l l y k i l l i n g o r a t t e m p t i n g t o k i l l a h u m a n being. ( 4 ) N o t w i t h s t a n d i n g a n y o t h e r p r o v i s i o n o f law, the death penalty shall not be imposed for an offense under this section. (b) The provisions referred to in subsection (a) are sections 918, 919(a), 919(b)(2), 920(a), 922, 924, 926, and 928 of this title (articles 118, 119(a), 119(b)(2), 120(a), 122, 124, 126, and 128). (c) Nothing in this section shall be construed to permit the prosecution— (1) of any person authorized by state or fed- eral law to perform abortions for conduct relat- ing 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) of any person for any medical treatment of the pregnant woman or her unborn child; or (3) of any woman with respect to her un- born child. (d) As used in this section, the term “unborn c h i l d ” m e a n s a c h i l d i n u t e r o , a n d t h e t e r m “child in utero” or “child, who is in utero” means a member of the species homo sapiens, at any s t a g e o f d e v e l o p m e n t , w h o i s c a r r i e d i n t h e womb. b. Elements. (1) Injuring an unborn child. ( a ) T h a t t h e a c c u s e d w a s e n g a g e d i n t h e [(murder (article 118)), (voluntary manslaughter (ar- t i c l e 1 1 9 ( a ) ) ) , ( i n v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e 1 1 9 ( b ) ( 2 ) ) ) , ( r a p e ( a r t i c l e 1 2 0 ) ) , ( r o b b e r y ( a r t i c l e 1 2 2 ) ) , ( m a i m i n g ( a r t i c l e 1 2 4 ) ) , ( a s s a u l t ( a r t i c l e 128)), of] or [burning or setting afire, as arson (arti- cle 126), of (a dwelling inhabited by) (a structure or IV-64 ¶44.e.(2) Article 119a
p. 366
property (known to be occupied by) (belonging to))] a woman; (b) That the woman was then pregnant; and (c) That the accused thereby caused bodily in- jury to the unborn child of that woman. (2) Killing an unborn child. ( a ) T h a t t h e a c c u s e d w a s e n g a g e d i n t h e [(murder (article 118)), (voluntary manslaughter (ar- t i c l e 1 1 9 ( a ) ) ) , ( i n v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e 1 1 9 ( b ) ( 2 ) ) ) , ( r a p e ( a r t i c l e 1 2 0 ) ) , ( r o b b e r y ( a r t i c l e 1 2 2 ) ) , ( m a i m i n g ( a r t i c l e 1 2 4 ) ) , ( a s s a u l t ( a r t i c l e 128)), of ] or [burning or setting afire, as arson (article 126), of (a dwelling inhabited by) (a struc- ture or property known to (be occupied by) (belong to))] a woman; (b) That the woman was then pregnant; and (c) That the accused thereby caused the death of the unborn child of that woman. (3) Attempting to kill an unborn child. ( a ) T h a t t h e a c c u s e d w a s e n g a g e d i n t h e [(murder (article 118)), (voluntary manslaughter (ar- t i c l e 1 1 9 ( a ) ) ) , ( i n v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e 1 1 9 ( b ) ( 2 ) ) ) , ( r a p e ( a r t i c l e 1 2 0 ) ) , ( r o b b e r y ( a r t i c l e 1 2 2 ) ) , ( m a i m i n g ( a r t i c l e 1 2 4 ) ) , ( a s s a u l t ( a r t i c l e 128)), of] or [burning or setting afire, as arson (arti- cle 126), of (a dwelling inhabited by) (a structure or property (known to be occupied by) (belonging to))] a woman; (b) That the woman was then pregnant; and (c) That the accused thereby intended and at- tempted to kill the unborn child of that woman. (4) Intentionally killing an unborn child. ( a ) T h a t t h e a c c u s e d w a s e n g a g e d i n t h e [(murder (article 118)), (voluntary manslaughter (ar- t i c l e 1 1 9 ( a ) ) ) , ( i n v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e 1 1 9 ( b ) ( 2 ) ) ) , ( r a p e ( a r t i c l e 1 2 0 ) ) , ( r o b b e r y ( a r t i c l e 1 2 2 ) ) , ( m a i m i n g ( a r t i c l e 1 2 4 ) ) , ( a s s a u l t ( a r t i c l e 128)), of] or [burning or setting afire, as arson (arti- cle 126), of (a dwelling inhabited by) (a structure or property (known to be occupied by) (belonging to))] a woman; (b) That the woman was then pregnant; and (c) That the accused thereby intentionally kil- led the unborn child of that woman. c. Explanation. (1) Nature of offense. This article makes it a sep- arate, punishable crime to cause the death of or bodily injury to an unborn child while engaged in a r s o n ( a r t i c l e 1 2 6 , U C M J ) ; m u r d e r ( a r t i c l e 1 1 8 , U C M J ) ; v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e 1 1 9 ( a ) , UCMJ); involuntary manslaughter (article 119(b)(2), UCMJ); rape (article 120(a), UCMJ); robbery (arti- cle 122, UCMJ); maiming (article 124, UCMJ); or assault (article 128, UCMJ) against a pregnant wom- an. For all underlying offenses, except arson, this article requires that the victim of the underlying of- fense be the pregnant mother. For purposes of arson, the pregnant mother must have some nexus to the arson such that she sustained some “bodily injury” due to the arson. For the purposes of this article the term “woman” means a female of any age. This article does not permit the prosecution of any— (a) person 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; ( b ) p e r s o n f o r a n y m e d i c a l t r e a t m e n t o f t h e pregnant woman or her unborn child; or (c) woman with respect to her unborn child. (2) The offenses of “injuring an unborn child” and “killing an unborn child” do not require proof that— (a) the person engaging in the conduct (the ac- cused) had knowledge or should have had knowl- edge that the victim of the underlying offense was pregnant; or (b) the accused intended to cause the death of, or bodily injury to, the unborn child. (3) The offense of “attempting to kill an unborn child” requires that the accused intended by his con- duct to cause the death of the unborn child (See paragraph b(3)(c) above). (4) Bodily injury. For the purpose of this offense, the term “bodily injury” is that which is provided by section 1365 of title 18, to wit: a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of the function of a bodily member, or- gan, or mental faculty; or any other injury to the body, no matter how temporary. (5) Unborn child. “Unborn child” means a child in utero or a member of the species homo sapiens who is carried in the womb, at any stage of develop- ment, from conception to birth. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. IV-65 ¶44a.e.Article 119a
p. 367
The maximum punishment for (1) Injuring an un- born child; (2) Killing an unborn child; (3) Attempt- i n g t o k i l l a n u n b o r n c h i l d ; o r ( 4 ) I n t e n t i o n a l l y killing an unborn child is such punishment, other than death, as a court-martial may direct, but shall be consistent with the punishment had the bodily injury, death, attempt to kill, or intentional killing occurred to the unborn child’s mother. f. Sample specifications. (1) Injuring an unborn child. In that (personal jurisdiction data), did (at/on board—location), (subject-matter jurisdic- tion data, if required), on or about 20 , cause bodily injury to the unborn child of , a preg- nant woman, by engaging in the [(murder) (volun- tary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman. (2) Killing an unborn child. In that (personal jurisdiction data), did (at/on board—location), (subject-matter jurisdic- tion data, if required), on or about 20 , cause the death of the unborn child of , a pregnant w o m a n , b y e n g a g i n g i n t h e [ ( m u r d e r ) ( v o l u n t a r y m a n s l a u g h t e r ) ( i n v o l u n t a r y m a n s l a u g h t e r ) ( r a p e ) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman. (3) Attempting to kill an unborn child. In that (personal jurisdiction data), did (at/on board—location), (subject-matter jurisdic- tion data, if required), on or about 20 , attempt to kill the unborn child of , a pregnant wom- an, by engaging in the [(murder) (voluntary man- s l a u g h t e r ) ( i n v o l u n t a r y m a n s l a u g h t e r ) ( r a p e ) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman. (4) Intentionally killing an unborn child. In that (personal jurisdiction data), did (at/on board—location), (subject-matter jurisdic- tion data, if required), on or about 20 , intentionally kill the unborn child of , a pregnant w o m a n , b y e n g a g i n g i n t h e [ ( m u r d e r ) ( v o l u n t a r y m a n s l a u g h t e r ) ( i n v o l u n t a r y m a n s l a u g h t e r ) ( r a p e ) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman. 45. Article 120—Rape and sexual assault generally [Note: This statute applies to offenses committed on or after 28 June 2012. Previous versions of Arti- cle 120 are located as follows: for offenses commit- ted on or before 30 September 2007, see Appendix 27; for offenses committed during the period 1 Oc- tober 2007 through 27 June 2012, see Appendix 28.] a. Text of statute. (a) Rape. Any person subject to this chapter who commits a sexual act upon another person by— (1) using unlawful force against that other person; ( 2 ) u s i n g f o r c e c a u s i n g o r l i k e l y t o c a u s e death or grievous bodily harm to any person; (3) threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping; (4) first rendering that other person uncon- scious; or ( 5 ) a d m i n i s t e r i n g t o t h a t o t h e r p e r s o n b y force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to ap- praise or control conduct; is guilty of rape and shall be punished as a court- martial may direct. (b) Sexual Assault . Any person subject to this chapter who— (1) commits a sexual act upon another per- son by— (A) threatening or placing that other per- son in fear; ( B ) c a u s i n g b o d i l y h a r m t o t h a t o t h e r person; ( C ) m a k i n g a f r a u d u l e n t r e p r e s e n t a t i o n that the sexual act serves a professional purpose; or (D) inducing a belief by any artifice, pre- tense, or concealment that the person is another person; IV-66 ¶44a.e. Article 120
p. 368
(2) commits a sexual act upon another per- son when the person knows or reasonably should k n o w t h a t t h e o t h e r p e r s o n i s a s l e e p , u n c o n - scious, or otherwise unaware that the sexual act is occurring; or (3) commits a sexual act upon another per- son when the other person is incapable of consen- ting to the sexual act due to— (A) impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person; or (B) a mental disease or defect, or physical disability, and that condition is known or reason- ably should be known by the person; is guilty of sexual assault and shall be punished as a court-martial may direct. ( c ) A g g r a v a t e d S e x u a l C o n t a c t . A n y p e r s o n 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 ag- gravated sexual contact and shall be punished as a court-martial may direct. (d) Abusive Sexual Contact . 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. (e) Proof of Threat . In a prosecution under this section, in proving that a person made a threat, it need not be proven that the person actually in- tended to carry out the threat or had the ability to carry out the threat. (f) Defenses. An accused may raise any appli- cable defenses available under this chapter or the Rules for Court-Martial. Marriage is not a de- fense for any conduct in issue in any prosecution under this section. (g) Definitions. In this section: ( 1 ) S e x u a l a c t . T h e t e r m ‘ s e x u a l a c t ’ means— ( A ) c o n t a c t b e t w e e n t h e p e n i s a n d t h e vulva or anus or mouth, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or (B) the penetration, however slight, of the vulva or anus or mouth of another by any part of t h e b o d y o r b y a n y o b j e c t , w i t h a n i n t e n t t o abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (2) Sexual contact. The term ‘sexual contact’ means— (A) touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or but- tocks of any person, with an intent to abuse, hu- miliate, or degrade any person; or (B) any touching, or causing another per- son to touch, either directly or through the cloth- ing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body. ( 3 ) B o d i l y h a r m . T h e t e r m ‘ b o d i l y h a r m ’ means any offensive touching of another, how- ever slight, including any nonconsensual sexual act or nonconsensual sexual contact. (4) Grievous bodily harm . The term ‘grievous bodily harm’ means serious bodily injury. It in- cludes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose. (5) Force. The term ‘force’ means— (A) the use of a weapon; (B) the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or (C) inflicting physical harm sufficient to coerce or compel submission by the victim. ( 6 ) U n l a w f u l F o r c e . T h e t e r m ‘ u n l a w f u l force’ means an act of force done without legal justification or excuse. (7) Threatening or placing that other person in fear . The term ‘threatening or placing that other person in fear’ means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to the wrongful action contemplated by the commu- nication or action. IV-67 ¶45.a.(g)(7)Article 120
p. 369
(8) Consent. ( A ) T h e t e r m ‘ c o n s e n t ’ m e a n s a f r e e l y given agreement to the conduct at issue by a com- petent person. An expression of lack of consent through words or conduct means there is no con- sent. Lack of verbal or physical resistance or sub- mission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue shall not consti- tute consent. (B) A sleeping, unconscious, or incompe- tent person cannot consent. A person cannot con- sent to force causing or likely to cause death or grievous bodily harm or to being rendered un- conscious. A person cannot consent while under threat or fear or under the circumstances de- scribed in subparagraph (C) or (D) of subsection (b)(1). ( C ) L a c k o f c o n s e n t m a y b e i n f e r r e d based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person’s actions. b. Elements. ( 1 ) R a p e i n v o l v i n g c o n t a c t b e t w e e n p e n i s a n d vulva or anus or mouth. (a) By unlawful force (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth by the penis; and (ii) That the accused did so with unlawful force. (b) By force causing or likely to cause death or grievous bodily harm (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth by the penis; and (ii) That the accused did so by using force causing or likely to cause death or grievous bodily harm to any person. (c) By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth by the penis; and (ii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping. (d) By first rendering that other person uncon- scious (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth by the penis; and (ii) That the accused did so by first render- ing that other person unconscious. ( e ) B y a d m i n i s t e r i n g a d r u g , i n t o x i c a n t , o r other similar substance (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth by the penis; and (ii) That the accused did so by administering to that other person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct. (2) Rape involving penetration of the vulva or anus or mouth by any part of the body or any object. (a) By force (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth of another person by any part of the body or by any object; (ii) That the accused did so with unlawful force; and (iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (b) By force causing or likely to cause death or grievous bodily harm (i) That the accused committed a sexual act upon another person by causing penetration, how- IV-68 ¶45.a.(g)(8) Article 120
p. 370
ever slight, of the vulva or anus or mouth of another person by any part of the body or by any object; (ii) That the accused did so by using force causing or likely to cause death or grievous bodily harm to any person; and (iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (c) By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth of another person by any part of the body or by any object; (ii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping; and (iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (d) By first rendering that other person uncon- scious (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth of another person by any part of the body or by any object; (ii) That the accused did so by first render- ing that other person unconscious; and (iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. ( e ) B y a d m i n i s t e r i n g a d r u g , i n t o x i c a n t , o r other similar substance (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth of another person by any part of the body or by any object; (ii) That the accused did so by administering to that other person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct; and (iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (3) Sexual assault involving contact between pe- nis and vulva or anus or mouth. (a) By threatening or placing that other person in fear (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth by the penis; and (ii) That the accused did so by threatening or placing that other person in fear. (b) By causing bodily harm (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth by the penis; and (ii) That the accused did so by causing bod- ily harm to that other person. (c) By fraudulent representation (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth by the penis; and (ii) That the accused did so by making a fraudulent representation that the sexual act served a professional purpose. (d) By false pretense (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth by the penis; and (ii) That the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused is another person. (e) Of a person who is asleep, unconscious, or otherwise unaware the act is occurring (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth by the penis; (ii) That the other person was asleep, uncon- scious, or otherwise unaware that the sexual act was occurring; and ( i i i ) T h a t t h e a c c u s e d k n e w o r r e a s o n a b l y should have known that the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring. (f) When the other person is incapable of con- senting IV-69 ¶45.b.(3)(f)Article 120
p. 371
(i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth by the penis; (ii) That the other person was incapable of consenting to the sexual act due to: (A) Impairment by any drug, intoxicant or other similar substance; or (B) A mental disease or defect, or physi- cal disability; and ( i i i ) T h a t t h e a c c u s e d k n e w o r r e a s o n a b l y should have known of the impairment, mental dis- ease or defect, or physical disability of the other person. ( 4 ) S e x u a l a s s a u l t i n v o l v i n g p e n e t r a t i o n o f t h e vulva or anus or mouth by any part of the body or any object. (a) By threatening or placing that other person in fear (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth by any part of the body or by any object; (ii) That the accused did so by threatening or placing that other person in fear; and (iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (b) By causing bodily harm (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth by any part of the body or by any object; (ii) That the accused did so by causing bod- ily harm to that other person; and (iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (c) By fraudulent representation (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth by any part of the body or by any object; (ii) That the accused did so by making a fraudulent representation that the sexual act served a professional purpose when it served no professional purpose; and (iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (d) By false pretense (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth by any part of the body or by any object; (ii) That the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused is another person; and (iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (e) Of a person who is asleep, unconscious, or otherwise unaware the act is occurring (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth by any part of the body or by any object; (ii) That the other person was asleep, uncon- scious, or otherwise unaware that the sexual act was occurring; ( i i i ) T h a t t h e a c c u s e d k n e w o r r e a s o n a b l y should have known that the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring. (iv) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (f) When the other person is incapable of con- senting (i) That the accused committed a sexual act upon another person by causing penetration, how- ever slight, of the vulva or anus or mouth by any part of the body or by any object; (ii) That the other person was incapable of consenting to the sexual act due to: (A) Impairment by any drug, intoxicant or other similar substance; or (B) A mental disease or defect, or physi- cal disability; ( i i i ) T h a t t h e a c c u s e d k n e w o r r e a s o n a b l y should have known of the impairment, mental dis- ease or defect, or physical disability of the other person; and (iv) That the accused did so with intent to IV-70 ¶45.b.(3)(f)(i) Article 120
p. 372
abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. ( 5 ) A g g r a v a t e d s e x u a l c o n t a c t i n v o l v i n g t h e touching of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person. (a) By force (i) That the accused committed sexual con- tact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person; (ii) That the accused did so with unlawful force; and (iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (b) By force causing or likely to cause death or grievous bodily harm (i) That the accused committed sexual con- tact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person; (ii) That the accused did so by using force causing or likely to cause death or grievous bodily harm to any person; and (iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (c) By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping (i) That the accused committed sexual con- tact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person; (ii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping; and (iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (d) By first rendering that other person uncon- scious (i) That the accused committed sexual con- tact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person; (ii) That the accused did so by first render- ing that other person unconscious; and (iii) That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. ( e ) B y a d m i n i s t e r i n g a d r u g , i n t o x i c a n t , o r other similar substance (i) That the accused committed sexual con- tact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person; (ii) That the accused did so by administering to that other person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct; and (iii) That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. ( 6 ) A g g r a v a t e d s e x u a l c o n t a c t i n v o l v i n g t h e touching of any body part of any person. (a) By force (i) That the accused committed sexual con- tact upon another person by touching, or causing a n o t h e r p e r s o n t o t o u c h , a n y b o d y p a r t o f a n y person; (ii) That the accused did so with unlawful force; and (iii) That the accused did so with intent to arouse or gratify the sexual desire of any person. (b) By force causing or likely to cause death or grievous bodily harm (i) That the accused committed sexual con- tact upon another person by touching, or causing a n o t h e r p e r s o n t o t o u c h , a n y b o d y p a r t o f a n y person; (ii) That the accused did so by using force causing or likely to cause death or grievous bodily harm to any person; and (iii) That the accused did so with intent to arouse or gratify the sexual desire of any person. (c) By threatening or placing that other person IV-71 ¶45.b.(6)(c)Article 120
p. 373
in fear that any person would be subjected to death, grievous bodily harm, or kidnapping (i) That the accused committed sexual con- tact upon another person by touching, or causing a n o t h e r p e r s o n t o t o u c h , a n y b o d y p a r t o f a n y person; (ii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping; and (iii) That the accused did so with intent to arouse or gratify the sexual desire of any person. (d) By first rendering that other person uncon- scious (i) That the accused committed sexual con- tact upon another person by touching, or causing a n o t h e r p e r s o n t o t o u c h , a n y b o d y p a r t o f a n y person; (ii) That the accused did so by first render- ing that other person unconscious; and (iii) That the accused did so with intent to arouse or gratify the sexual desire of any person. ( e ) B y a d m i n i s t e r i n g a d r u g , i n t o x i c a n t , o r other similar substance (i) That the accused committed sexual con- tact upon another person by touching, or causing a n o t h e r p e r s o n t o t o u c h , a n y b o d y p a r t o f a n y person; (ii) That the accused did so by administering to that other person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct; and (iii) That the accused did so with intent to arouse or gratify the sexual desire of any person. (7) Abusive sexual contact involving the touching of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person. (a) By threatening or placing that other person in fear (i) That the accused committed sexual con- tact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person; (ii) That the accused did so by threatening or placing that other person in fear; and (iii) That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (b) By causing bodily harm (i) That the accused committed sexual con- tact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person; (ii) That the accused did so by causing bod- ily harm to that other person; and (iii) That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (c) By fraudulent representation (i) That the accused committed sexual con- tact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person; (ii) That the accused did so by making a fraudulent representation that the sexual act served a professional purpose; and (iii) That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (d) By false pretense (i) That the accused committed sexual con- tact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person; (ii) That the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused is another person; and (iii) That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (e) Of a person who is asleep, unconscious, or otherwise unaware the act is occurring (i) That the accused committed sexual con- tact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person; (ii) That the other person was asleep, uncon- scious, or otherwise unaware that the sexual act was occurring; IV-72 ¶45.b.(6)(c) Article 120
p. 374
( i i i ) T h a t t h e a c c u s e d k n e w o r r e a s o n a b l y should have known that the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring; and (iv) That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (f) When the other person is incapable of con- senting (i) That the accused committed sexual con- tact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person; (ii) That the other person was incapable of consenting to the sexual act due to: (A) Impairment by any drug, intoxicant or other similar substance; or (B) A mental disease or defect, or physi- cal disability; ( i i i ) T h a t t h e a c c u s e d k n e w o r r e a s o n a b l y should have known of the impairment, mental dis- ease or defect, or physical disability of the other person; and (iv) That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (8) Abusive sexual contact involving the touching of any body part of any person. (a) By threatening or placing that other person in fear (i) That the accused committed sexual con- tact upon another person by touching, or causing a n o t h e r p e r s o n t o t o u c h , a n y b o d y p a r t o f a n y person; (ii) That the accused did so by threatening or placing that other person in fear; and (iii) That the accused did so with intent to arouse or gratify the sexual desire of any person. (b) By causing bodily harm (i) That the accused committed sexual con- tact upon another person by touching, or causing a n o t h e r p e r s o n t o t o u c h , a n y b o d y p a r t o f a n y person; (ii) That the accused did so by causing bod- ily harm to that other person; and (iii) That the accused did so with intent to arouse or gratify the sexual desire of any person. (c) By fraudulent representation (i) That the accused committed sexual con- tact upon another person by touching, or causing a n o t h e r p e r s o n t o t o u c h , a n y b o d y p a r t o f a n y person; (ii) That the accused did so by making a fraudulent representation that the sexual act served a professional purpose when it served no professional purpose; and (iii) That the accused did so with intent to arouse or gratify the sexual desire of any person. (d) By false pretense (i) That the accused committed sexual con- tact upon another person by touching, or causing a n o t h e r p e r s o n t o t o u c h , a n y b o d y p a r t o f a n y person; (ii) That the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused is another person; and (iii) That the accused did so with intent to arouse or gratify the sexual desire of any person. (e) Of a person who is asleep, unconscious, or otherwise unaware the act is occurring (i) That the accused committed sexual con- tact upon another person by touching, or causing a n o t h e r p e r s o n t o t o u c h , a n y b o d y p a r t o f a n y person; (ii) That the other person was asleep, uncon- scious, or otherwise unaware that the sexual act was occurring; ( i i i ) T h a t t h e a c c u s e d k n e w o r r e a s o n a b l y should have known that the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring; and (iv) That the accused did so with intent to arouse or gratify the sexual desire of any person. (f) When the other person is incapable of con- senting (i) That the accused committed sexual con- tact upon another person by touching, or causing a n o t h e r p e r s o n t o t o u c h , a n y b o d y p a r t o f a n y person; (ii) That the other person was incapable of consenting to the sexual act due to: (A) Impairment by any drug, intoxicant, or other similar substance; or IV-73 ¶45.b.(8)(f)(ii)Article 120
p. 375
(B) A mental disease or defect, or physi- cal disability; ( i i i ) T h a t t h e a c c u s e d k n e w o r r e a s o n a b l y should have known of the impairment, mental dis- ease or defect, or physical disability of the other person; and (iv) That the accused did so with intent to arouse or gratify the sexual desire of any person. c. Explanation. (1) In general. Sexual offenses have been sepa- r a t e d i n t o t h r e e s t a t u t e s : a d u l t s ( 1 2 0 ) , c h i l d r e n (120b), and other offenses (120c). (2) Definitions. The terms are defined in Para- graph 45.a.(g). (3) Victim character and privilege. See Mil. R. Evid. 412 concerning rules of evidence relating to the character of the victim of an alleged sexual of- fense. See Mil. R. Evid. 514 concerning rules of evidence relating to privileged communications be- tween the victim and victim advocate. (4) Consent as an element. Lack of consent is not an element of any offense under this paragraph un- less expressly stated. Consent may be relevant for other purposes. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishments. (1) Rape. Forfeiture of all pay and allowances, and confinement for life without eligibility for pa- role. Mandatory minimum – Dismissal or dishonora- ble discharge. (2) Sexual assault. Forfeiture of all pay and al- lowances and confinement for 30 years. Mandatory minimum – Dismissal or dishonorable discharge. (3) Aggravated sexual contact. Dishonorable dis- charge, forfeiture of all pay and allowances, and confinement for 20 years. ( 4 ) A b u s i v e s e x u a l c o n t a c t . D i s h o n o r a b l e d i s - charge, forfeiture of all pay and allowances, and confinement for 7 years. f. Sample specifications. ( 1 ) R a p e i n v o l v i n g c o n t a c t b e t w e e n p e n i s a n d vulva or anus or mouth. (a) By force. In that (personal jurisdiction da- ta), did (at/on board location), on or about _____, commit a sexual act upon ____________ by causing p e n e t r a t i o n o f _ _ _ _ _ _ _ _ _ _ _ ’ s ( v u l v a ) ( a n u s ) (mouth) with _________’s penis, by using unlawful force. (b) By force causing or likely to cause death or grievous bodily harm. In that (personal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon ____________ by causing penetration of ___________’s (vulva) (anus) (mouth) with _______’s penis, by using force likely to cause death or grievous bodily harm to ________ _, to wit: _____________. (c) By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping. In that (per- sonal jurisdiction data), did (at/on board location), on or about _____ 20 ___, commit a sexual act upon _ _ _ _ _ _ _ b y c a u s i n g p e n e t r a t i o n o f _ _ _ _ _ _ _ ’ s ( v u l v a ) ( a n u s ) ( m o u t h ) w i t h _ _ _ _ _ ’ s p e n i s , b y (threatening _______) (placing _______ in fear) that _______ would be subjected to (death) (grievous bodily harm) (kidnapping). (d) By first rendering that other person uncon- scious. In that (personal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon __________ by causing penetration of __________’s (vulva) (anus) (mouth) with _____ ___’s penis, by first rendering __________ uncon- scious by __________________. ( e ) B y a d m i n i s t e r i n g a d r u g , i n t o x i c a n t , o r other similar substance. In that (personal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon ____________ by causing penetration of ___________’s (vulva) (anus) (mouth) with _________’s penis, by administering t o _ _ _ _ _ _ _ _ _ _ _ _ ( b y f o r c e ) ( b y t h r e a t o f f o r c e ) (without the knowledge or permission of _________ _ _ ) a ( d r u g ) ( i n t o x i c a n t ) ( l i s t o t h e r s i m i l a r s u b - stance), to wit: ________, thereby substantially im- pairing the ability of ___________ to appraise or control his/her conduct. (2) Rape involving penetration of genital opening by any part of the body or any object. (a) By force. In that (personal jurisdiction da- ta), did (at/on board location), on or about ____ 20_ _ , c o m m i t a s e x u a l a c t u p o n _ _ _ _ _ _ _ _ _ , b y penetrating the (vulva) (anus) (mouth) of _________ ___ with (list body part or object) by using unlawful force, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse/gratify the sexual desire of) _____ _______. IV-74 ¶45.b.(8)(f)(ii) Article 120
p. 376
(b) By force causing or likely to cause death or grievous bodily injury. In that (personal jurisdiction data), did (at/on board location), on or about _____ 2 0 _ _ , c o m m i t a s e x u a l a c t u p o n _ _ _ _ _ _ _ _ _ , b y penetrating the (vulva) (anus) (mouth) of _________ _ with (list body part or object) by using force likely to cause death or grievous bodily harm to ________, t o w i t : _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ , w i t h a n i n t e n t t o (abuse) (humiliate) (harass) (degrade) (arouse/gratify the sexual desire of) ____________. (c) By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping. In that (per- sonal jurisdiction data), did (at/on board location), on or about ___ 20__, commit a sexual act upon ___ _____, by penetrating the (vulva) (anus) (mouth) of _ _ _ _ _ _ _ _ _ _ w i t h ( l i s t b o d y p a r t o r o b j e c t ) b y (threatening ______) (placing ______ in fear) that _ _________ would be subjected to (death) (grievous bodily harm) (kidnapping), with an intent to (abuse) ( h u m i l i a t e ) ( h a r a s s ) ( d e g r a d e ) ( a r o u s e / g r a t i f y t h e sexual desire of) ____________. (d) By first rendering that other person uncon- scious. In that (personal jurisdiction data), did (at/on board location), on or about ____ 20__, commit a s e x u a l a c t u p o n _ _ _ _ _ _ _ _ , b y p e n e t r a t i n g t h e (vulva) (anus) (mouth) of ________ with (list body part or object) by first rendering ________ uncon- scious, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse/gratify the sexual desire of) _____ _______. ( e ) B y a d m i n i s t e r i n g a d r u g , i n t o x i c a n t , o r other similar substance. In that (personal jurisdiction data), did (at/on board location), on or about ____ 2 0 _ _ , c o m m i t a s e x u a l a c t u p o n _ _ _ _ _ _ _ _ _ , b y penetrating the (vulva) (anus) (mouth) of _________ ___ with (list body part or object) by administering t o _ _ _ _ _ _ _ _ _ _ _ _ ( b y f o r c e ) ( b y t h r e a t o f f o r c e ) (without the knowledge or permission of _________ _ _ ) a ( d r u g ) ( i n t o x i c a n t ) ( l i s t o t h e r s i m i l a r s u b - stance), to wit: ________, thereby substantially im- pairing the ability of ___________ to appraise or control his/her conduct, with an intent to (abuse) ( h u m i l i a t e ) ( h a r a s s ) ( d e g r a d e ) ( a r o u s e / g r a t i f y t h e sexual desire of) ____________. (3) Sexual assault involving contact between pe- nis and vulva or anus or mouth. (a) By threatening or placing that other person in fear. In that (personal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon _________, by causing penetration of _________’s (vulva) (anus) (mouth) with ______ ___’s penis, by (threatening _________) (placing __ _______ in fear). (b) By causing bodily harm. In that (personal jurisdiction data), did (at/on board location), on or about ____ 20__, commit a sexual act upon _______ , by causing penetration of __________’s (vulva) ( a n u s ) ( m o u t h ) w i t h _ _ _ _ _ _ _ ’ s p e n i s b y c a u s i n g bodily harm to _________, to wit: _________. (c) By fraudulent representation. In that (per- sonal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon _ _________, by causing penetration of _________’s (vulva) (anus) (mouth) with _________’s penis by making a fraudulent representation that the sexual act served a professional purpose, to wit: _________ _. (d) By false pretense. In that (personal jurisdic- tion data), did (at/on board location), on or about __ ___ 20__, commit a sexual act upon __________, b y c a u s i n g p e n e t r a t i o n o f _ _ _ _ _ _ _ _ _ ’ s ( v u l v a ) (anus) (mouth) with _________’s penis by inducing a belief by (artifice) (pretense) (concealment) that the said accused was another person. (e) Of a person who is asleep, unconscious, or otherwise unaware the act is occurring. In that (per- sonal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon _ ________, by causing penetration of __________’s (vulva) (anus) (mouth) with ________’s penis when he/she knew or reasonably should have known that _ _______ was (asleep) (unconscious) (unaware the sexual act was occurring due to _________). (f) When the other person is incapable of con- senting. In that (personal jurisdiction data), did (at/ on board location), on or about _____ 20__, commit a sexual act upon _________, by causing penetration of __________’s (vulva) (anus) (mouth) with _____ __’s penis, when _________ was incapable of con- senting to the sexual act because he/she [was im- paired by (a drug, to wit: ______) (an intoxicant, to wit: __________) ( )] [had a (mental disease, to wit: ________) (mental defect, to wit: _________) (physical disability, to wit: _________)], a condition that was known or reasonably should have been known by the said accused. (4) Sexual assault involving penetration of vulva IV-75 ¶45.f.(4)Article 120
p. 377
or anus or mouth by any part of the body or any object. (a) By threatening or placing that other person in fear. In that (personal jurisdiction data), did (at/on board location), on or about ____ 20__, commit a s e x u a l a c t u p o n _ _ _ _ _ _ _ _ _ _ , b y p e n e t r a t i n g t h e (vulva) (anus) (mouth) of ______________ with (list body part or object), by (threatening __________) ( p l a c i n g _ _ _ _ _ _ _ _ _ _ i n f e a r ) , w i t h a n i n t e n t t o (abuse) (humiliate) (harass) (degrade) (arouse) (grat- ify the sexual desire of) ____________. (b) By causing bodily harm. In that (personal jurisdiction data), did (at/on board location), on or about ____ 20__, commit a sexual act upon _______ ___, by penetrating the (vulva) (anus) (mouth) of __ ____________ with (list body part or object), by causing bodily harm to __________, to wit:_______ __ with an intent to (abuse) (humiliate) (harass) (de- grade) (arouse) (gratify the sexual desire of) ______ ______. (c) By fraudulent representation. In that (per- sonal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon _ _ _ _ _ _ _ _ _ _ , b y p e n e t r a t i n g t h e ( v u l v a ) ( a n u s ) (mouth) of ______________ with (list body part or object), by making a fraudulent representation that the sexual act served a professional purpose, to wit: __________, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (gratify the sexual desire of) ____________. (d) By false pretense. In that (personal jurisdic- tion data), did (at/on board location), on or about __ __ 20__, commit a sexual act upon _________, by penetrating the (vulva) (anus) (mouth) of _________ ____ with (list body part or object), by inducing a belief by (artifice) (pretense) (concealment) that the said accused was another person, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (grat- ify the sexual desire of) ____________. (e) Of a person who is asleep, unconscious, or otherwise unaware the act is occurring. In that (per- sonal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon _ _ _ _ _ _ _ _ _ _ , b y p e n e t r a t i n g t h e ( v u l v a ) ( a n u s ) (mouth) of _____________ with (list body part or o b j e c t ) , w h e n h e / s h e k n e w o r r e a s o n a b l y s h o u l d have known that _________ was (asleep) (uncon- scious) (unaware the sexual act was occurring due to _ _ _ _ _ _ _ _ ) , w i t h a n i n t e n t t o ( a b u s e ) ( h u m i l i a t e ) (harass) (degrade) (arouse) (gratify the sexual desire of) ___________. (f) When the other person is incapable of con- senting. In that (personal jurisdiction data), did (at/ on board location), on or about ____ 20__, commit a s e x u a l a c t u p o n _ _ _ _ _ _ _ _ _ _ , b y p e n e t r a t i n g t h e (vulva) (anus) ( mouth) of ______________ with (list body part or object), when ____________ was incapable of consenting to the sexual act because he/ she [was impaired by (a drug, to wit: ______) (an intoxicant, to wit: __________) ( )] [had a (mental disease, to wit: ________) (mental defect, to wit: __ _______) (physical disability, to wit: _________)], a condition that was known or reasonably should have been known by the said accused, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (grat- ify the sexual desire of) _____. ( 5 ) A g g r a v a t e d s e x u a l c o n t a c t i n v o l v i n g t h e touching of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person. (a) By force. In that (personal jurisdiction da- ta), did (at/on board location), on or about _____ 20__, [(touch) (cause _______ to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (buttocks) of _______, by us- ing unlawful force, with an intent to (abuse) (humili- ate) (degrade) (arouse) (gratify the sexual desire of) __________. (b) By force causing or likely to cause death or grievous bodily harm. In that (personal jurisdiction data), did (at/on board location), on or about ____ 2 0 _ _ , [ ( t o u c h ) ( c a u s e _ _ _ _ _ _ _ _ _ t o t o u c h ) ] [ ( d i r e c t l y ) ( t h r o u g h t h e c l o t h i n g ) ] t h e ( g e n i t a l i a ) (anus) (groin) (breast) (inner thigh) (buttocks) of ___ ____, by using force likely to cause death or griev- ous bodily harm to _________, to wit: _________, w i t h a n i n t e n t t o ( a b u s e ) ( h u m i l i a t e ) ( d e g r a d e ) (arouse) (gratify the sexual desire of) __________. (c) By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping. In that (per- sonal jurisdiction data), did (at/on board location), on or about _____ 20__, [(touch) (cause _________ t o t o u c h ) ] [ ( d i r e c t l y ) ( t h r o u g h t h e c l o t h i n g ) ] t h e (genitalia) (anus) (groin) (breast) (inner thigh) (but- tocks) of ______, by (threatening ________) (plac- i n g _ _ _ _ _ _ i n f e a r ) t h a t _ _ _ _ _ _ _ _ _ w o u l d b e subjected to (death) (grievous bodily harm) (kidnap- ping), with an intent to (abuse) (humiliate) (degrade) (arouse) (gratify the sexual desire of) __________. IV-76 ¶45.f.(4) Article 120
p. 378
(d) By first rendering that other person uncon- scious. In that (personal jurisdiction data), did (at/on board location), on or about ______ 20__, [(touch) (cause ________ to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (in- ner thigh) (buttocks) of _______, by rendering ____ ___ unconscious by __________, with an intent to (abuse) (humiliate) (degrade) (arouse) (gratify the sexual desire of) _______. ( e ) B y a d m i n i s t e r i n g a d r u g , i n t o x i c a n t , o r other similar substance. In that (personal jurisdiction data), did (at/on board location), on or about _____ 2 0 _ _ , [ ( t o u c h ) ( c a u s e _ _ _ _ _ _ _ _ _ _ t o t o u c h ) ] [ ( d i r e c t l y ) ( t h r o u g h t h e c l o t h i n g ) ] t h e ( g e n i t a l i a ) (anus) (groin) (breast) (inner thigh) (buttocks) of ___ _ _ _ _ _ _ _ , b y a d m i n i s t e r i n g t o _ _ _ _ _ _ _ _ _ _ _ _ ( b y force) (by threat of force) (without the knowledge or p e r m i s s i o n o f _ _ _ _ ) a ( d r u g ) ( i n t o x i c a n t ) ( _ _ _ ) thereby substantially impairing the ability of ______ _____ to appraise or control his/her conduct, with an intent to (abuse) (humiliate) (degrade) (arouse) (grat- ify the sexual desire of) __________. ( 6 ) A g g r a v a t e d s e x u a l c o n t a c t i n v o l v i n g t h e touching of any body part of any person. (a) By force. In that (personal jurisdiction da- ta), did (at/on board location), on or about _____ 20__, [(touch) (cause ________ to touch)] [(directly) (through the clothing)] (name of body part) of _____ _ _ , b y u s i n g u n l a w f u l f o r c e , w i t h a n i n t e n t t o (arouse) (gratify the sexual desire of) __________. (b) By force causing or likely to cause death or grievous bodily harm. In that (personal jurisdiction data), did (at/on board location), on or about _____ 2 0 _ _ , [ ( t o u c h ) ( c a u s e _ _ _ _ _ _ _ _ _ t o t o u c h ) ] [(directly) (through the clothing)] (name of body part) of _______, by using force likely to cause death or grievous bodily harm to ________, to wit: _____________, with an intent to (arouse) (gratify the sexual desire of) __________. (c) By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping. In that (per- sonal jurisdiction data), did (at/on board location), on or about ______ 20__, [(touch) (cause ________ to touch)] [(directly) (through the clothing)] (name of body part) of _______, by (threatening ________ _) (placing _______ in fear) that _____________ w o u l d b e s u b j e c t e d t o ( d e a t h ) ( g r i e v o u s b o d i l y harm) (kidnapping), with an intent to (arouse) (grati- fy the sexual desire of) __________. (d) By first rendering that other person uncon- scious. In that (personal jurisdiction data), did (at/on board location), on or about _____ 20__, [(touch) (cause _________ to touch)] [(directly) (through the c l o t h i n g ) ] ( n a m e o f b o d y p a r t ) o f _ _ _ _ _ _ _ , b y rendering __________ unconscious by ___________ _____, with an intent to (arouse) (gratify the sexual desire of) __________. ( e ) B y a d m i n i s t e r i n g a d r u g , i n t o x i c a n t , o r other similar substance. In that (personal jurisdiction data), did (at/on board location), on or about _____ 2 0 _ _ , [ ( t o u c h ) ( c a u s e _ _ _ _ _ _ _ _ _ t o t o u c h ) ] [(directly) (through the clothing)] (name of body part) of ______, by administering to _________ (by force) (by threat of force) (without the knowledge or permission of __________) a (drug) (intoxicant) (__ __) and thereby substantially impairing the ability of ___________ to appraise or control his/her conduct, with an intent to (arouse) (gratify the sexual desire of) __________. (7) Abusive sexual contact involving the touching of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person. (a) By threatening or placing that other person in fear. In that (personal jurisdiction data), did (at/on board location), on or about ____ 20__, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (buttocks) of _______ by (threatening _ _______) (placing _________ in fear), with an in- tent to (abuse) (humiliate) (degrade) (arouse) (gratify the sexual desire of) __________. (b) By causing bodily harm. In that (personal jurisdiction data), did (at/on board location), on or about _____ 20__, [(touch) (cause another person to t o u c h ) ] [ ( d i r e c t l y ) ( t h r o u g h t h e c l o t h i n g ) ] t h e (genitalia) (anus) (groin) (breast) (inner thigh) (but- tocks) of _______ by causing bodily harm to _____ _____, to wit: ___________________, with an in- tent to (abuse) (humiliate) (degrade) (arouse) (gratify the sexual desire of) __________. (c) By fraudulent representation. In that (per- sonal jurisdiction data), did (at/on board location), on or about ____ 20__, [(touch) (cause another per- son to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (but- tocks) of __________ by making a fraudulent repre- s e n t a t i o n t h a t t h e s e x u a l c o n t a c t s e r v e d a IV-77 ¶45.f.(7)(c)Article 120
p. 379
professional purpose, to wit: __________, with an intent to (abuse) (humiliate) (degrade) (arouse) (grat- ify the sexual desire of) __________. (d) By false pretense. In that (personal jurisdic- tion data), did (at/on board location), on or about __ ___ 20__, [(touch) (cause another person to touch)] [ ( d i r e c t l y ) ( t h r o u g h t h e c l o t h i n g ) ] t h e ( g e n i t a l i a ) (anus) (groin) (breast) (inner thigh) (buttocks) of ___ _______ by inducing a belief by (artifice) (pretense) (concealment) that the said accused was another per- son, with an intent to (abuse) (humiliate) (degrade) (arouse) (gratify the sexual desire of) __________. (e) Of a person who is asleep, unconscious, or otherwise unaware the act is occurring. In that (per- sonal jurisdiction data), did (at/on board location), on or about ___ 20__, [(touch) (cause another per- son to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (but- tocks) of _______ when he/she knew or reasonably should have known that _______ was (asleep) (un- conscious) (unaware the sexual contact was occur- ring due to _________), with an intent to (abuse) (humiliate) (degrade) (arouse) (gratify the sexual de- sire of) __________. (f) When that person is incapable of consent- ing. In that (personal jurisdiction data), did (at/on board location), on or about ____ 20__, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (buttocks) of ______ when _________ was incapable of consenting to the sexual contact because he/she [was impaired by (a drug, to wit: ___ ___) (an intoxicant, to wit: __________) ( )] [had a (mental disease, to wit: ________) (mental defect, to wit: _________) (physical disability, to wit: ____ _____)] and this condition was known or reasonably should have been known by ___________, with an intent to (abuse) (humiliate) (degrade) (arouse) (grat- ify the sexual desire of) __________. (8) Abusive sexual contact involving the touching of any body part of any person. (a) By threatening or placing that other person in fear. In that (personal jurisdiction data), did (at/on board location), on or about ____ 20__, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (name of body part) of _______ by (threatening _________) (placing __________ in fear), with an intent to (arouse) (gratify the sexual desire of) _________. (b) By causing bodily harm. In that (personal jurisdiction data), did (at/on board location), on or about ____ 20__, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (name of body part) of _______ by causing bodily harm to __________, to wit: _____________, with an intent to (arouse) (gratify the sexual desire of) __________ . (c) By fraudulent representation. In that (per- sonal jurisdiction data), did (at/on board location), on or about ____ 20__, [(touch) (cause another per- son to touch)] [(directly) (through the clothing)] the (name of body part) of _______ by making a fraud- ulent representation that the sexual contact served a professional purpose, to wit: __________, with an intent to (arouse) (gratify the sexual desire of) _____ _____. (d) By false pretense. In that (personal jurisdic- tion data), did (at/on board location), on or about __ __ 20__, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (name of body part) of _______ by inducing a belief by (artifice) (pretense) (concealment) that the said accused was another person, with an intent to (arouse) (gratify the sexual desire of) __________. (e) Of a person who is asleep, unconscious, or otherwise unaware the act is occurring. In that (per- sonal jurisdiction data), did (at/on board location), on or about ____ 20__, [(touch) (cause another per- son to touch)] [(directly) (through the clothing)] the (name of body part) of _______ when he/she knew or reasonably should have known that _________ was (asleep) (unconscious) (unaware the sexual con- tact was occurring due to _________), with an intent to (arouse) (gratify the sexual desire of) __________ . (f) When that person is incapable of consent- ing. In that (personal jurisdiction data), did (at/on board location), on or about _______ 20__, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (name of body part) of _______ when ____________ was incapable of consenting to the sexual contact because he/she [was impaired by (a drug, to wit: ______) (an intoxicant, to wit: _____ _____) ( )] [had a (mental disease, to wit: ______ __) (mental defect, to wit: _________) (physical dis- ability, to wit: _________)], a condition that was known or reasonably should have been known by __ IV-78 ¶45.f.(7)(c) Article 120
p. 380
___________, with an intent to (arouse) (gratify the sexual desire of) __________. 45a. Article 120a—Stalking a. Text of statute. (a) Any person subject to this section: (1) who wrongfully engages in a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm, including sexual assault, to himself or her- self or a member of his or her immediate family; ( 2 ) w h o h a s k n o w l e d g e , o r s h o u l d h a v e knowledge, that the specific person will be placed in reasonable fear of death or bodily harm, in- cluding sexual assault, to himself or herself or a member of his or her immediate family; and (3) whose acts induce reasonable fear in the specific person of death or bodily harm, including sexual assault, to himself or herself or to a mem- ber of his or her immediate family; is guilty of stalking and shall be punished as a court-martial may direct. (b) In this section: (1) The term “course of conduct” means: (A) a repeated maintenance of visual or physical proximity to a specific person; or ( B ) a r e p e a t e d c o n v e y a n c e o f v e r b a l threat, written threats, or threats implied by con- duct, or a combination of such threats, directed at or towards a specific person. (2) The term “repeated,” with respect to conduct, means two or more occasions of such conduct. (3) The term “immediate family,” in the case of a specific person, means a spouse, parent, child, or sibling of the person, or any other fam- ily member, relative, or intimate partner of the person who regularly resides in the household of the person or who within the six months preced- ing the commencement of the course of conduct regularly resided in the household of the person. b. Elements. ( 1 ) T h a t t h e a c c u s e d w r o n g f u l l y e n g a g e d i n 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 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. c. Explanation. See Paragraph 54c(1)(a) for an ex- planation of “bodily harm”. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 3 years. f. Sample Specification. In that (personal jurisdiction data), who (knew)(should have known) that would be placed in reasonable fear of (death)(bodily harm) to (himself) (herself) ( , a member of his or her immediate family) did (at/on board—location), (subject-matter jurisdiction data, if required), (on or a b o u t 2 0 ) ( f r o m a b o u t t o a b o u t 20 ), wrongfully engage in a course of conduct directed at , to wit: thereby i n d u c i n g i n , a r e a s o n a b l e f e a r o f (death)(bodily harm) to (himself)(herself) ( , a member of his or her immediate family). 45b. Article 120b—Rape and sexual assault of a child [Note: This statute applies to offenses commit- ted on or after 28 June 2012. Article 120b is a new statute designed to address only child sexual of- fenses. Previous versions of child sexual offenses are located as follows: for offenses committed on or before 30 September 2007, see Appendix 27; for o f f e n s e s c o m m i t t e d d u r i n g t h e p e r i o d 1 O c t o b e r 2007 through 27 June 2012, see Appendix 28.] a. Text of Statute (a) Rape of a Child . Any person subject to this chapter who— (1) commits a sexual act upon a child who has not attained the age of 12 years; or (2) commits a sexual act upon a child who has attained the age of 12 years by— (A) using force against any person; IV-79 ¶45b.a.(a)(2)(A)Article 120b
p. 381
( B ) t h r e a t e n i n g o r p l a c i n g t h a t c h i l d i n fear; (C) rendering that child unconscious; or (D) administering to that child a drug, in- toxicant, or other similar substance; is guilty of rape of a child and shall be punished as a court-martial may direct. (b) Sexual Assault of a Child . Any person sub- ject to this chapter who commits a sexual act upon a child who has attained the age of 12 years is guilty of sexual assault of a child and shall be punished as a court-martial may direct. (c) Sexual Abuse of a Child . Any person sub- ject to this chapter who commits a lewd act upon a child is guilty of sexual abuse of a child and shall be punished as a court-martial may direct. (d) Age of Child . (1) Under 12 years . In a prosecution under this section, it need not be proven that the ac- cused knew the age of the other person engaging in the sexual act or lewd act. It is not a defense t h a t t h e a c c u s e d r e a s o n a b l y b e l i e v e d t h a t t h e child had attained the age of 12 years. (2) Under 16 years . In a prosecution under this section, it need not be proven that the ac- cused knew that the other person engaging in the sexual act or lewd act had not attained the age of 16 years, but it is a defense in a prosecution under subsection (b) (sexual assault of a child) or subsection (c) (sexual abuse of a child), which the accused must prove by a preponderance of the e v i d e n c e , t h a t t h e a c c u s e d r e a s o n a b l y b e l i e v e d that the child had attained the age of 16 years, if the child had in fact attained at least the age of 12 years. (e) Proof of Threat . In a prosecution under this section, in proving that a person made a threat, it need not be proven that the person actually in- tended to carry out the threat or had the ability to carry out the threat. (f) Marriage. In a prosecution under subsection (b) (sexual assault of a child) or subsection (c) (sexual abuse of a child), it is a defense, which the accused must prove by a preponderance of the evidence, that the persons engaging in the sexual act or lewd act were at that time married to each other, except where the accused commits a sexual act upon the person when the accused knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring or when the other person is incapable of consenting to the sexual act due to impairment by any drug, intoxicant, or other similar substance, and that condition was known or reasonably should have been known by the accused. (g) Consent. Lack of consent is not an element and need not be proven in any prosecution under this section. A child not legally married to the person committing the sexual act, lewd act, or use of force cannot consent to any sexual act, lewd act, or use of force. (h) Definitions. In this section: (1) Sexual act and sexual contact . The terms ‘sexual act’ and ‘sexual contact’ have the mean- ings given those terms in section 920(g) of this title (article 120(g)). (2) Force. The term ‘force’ means— (A) the use of a weapon; (B) the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a child; or (C) inflicting physical harm. In the case of a parent-child or similar relation- ship, the use or abuse of parental or similar au- thority is sufficient to constitute the use of force. (3) Threatening or placing that child in fear . The term ‘threatening or placing that child in fear’ means a communication or action that is of sufficient consequence to cause the child to fear that non-compliance will result in the child or another person being subjected to the action con- templated by the communication or action. (4) Child. The term ‘child’ means any per- son who has not attained the age of 16 years. (5) Lewd act . The term ‘lewd act’ means— (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 communi- cation technology, with an intent to abuse, humil- i a t e , o r d e g r a d e a n y p e r s o n , o r t o a r o u s e o r 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 IV-80 ¶45b.a.(a)(2)(B) Article 120b
p. 382
arouse or gratify the sexual desire of any person; or ( D ) a n y i n d e c e n t c o n d u c t , i n t e n t i o n a l l y done with or in the presence of a child, including via any communication technology, that amounts to a form of immorality relating to sexual impu- rity which is grossly vulgar, obscene, and repug- nant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations. b. Elements. (1) Rape of a child involving contact between pe- nis and vulva or anus or mouth. (a) Rape of a child who has not attained the age of 12. (i) That the accused committed a sexual act upon a child causing penetration, however slight, by the penis of the vulva or anus or mouth; and (ii) That at the time of the sexual act the child had not attained the age of 12 years. (b) Rape by force of a child who has attained the age of 12. (i) That the accused committed a sexual act upon a child causing penetration, however slight, by the penis of the vulva or anus or mouth; and (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years, and (iii) That the accused did so by using force against that child or any other person. (c) Rape by threatening or placing in fear a child who has attained the age of 12. (i) That the accused committed a sexual act upon a child causing penetration, however slight, by the penis of the vulva or anus or mouth; (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and (iii) That the accused did so by threatening the child or another person or placing that child in fear. (d) Rape by rendering unconscious a child who has attained the age of 12. (i) That the accused committed a sexual act upon a child causing penetration, however slight, by the penis of the vulva or anus or mouth; (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and (iii) That the accused did so by rendering that child unconscious. (e) Rape by administering a drug, intoxicant, or other similar substance to a child who has at- tained the age of 12. (i) That the accused committed a sexual act upon a child causing penetration, however slight, by the penis of the vulva or anus or mouth; (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and (iii) That the accused did so by administer- ing to that child a drug, intoxicant, or other similar substance. (2) Rape of a child involving penetration of vulva or anus or mouth by any part of the body or any object. (a) Rape of a child who has not attained the age of 12. (i) That the accused committed a sexual act upon a child by causing penetration, however slight, of the vulva or anus or mouth of the child by any part of the body or by any object; (ii) That at the time of the sexual act the child had not attained the age of 12 years; and (iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (b) Rape by force of a child who has attained the age of 12. (i) That the accused committed a sexual act upon a child by causing penetration, however slight, of the vulva, anus, or mouth of the child by any part of the body or by any object; (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; (iii) That the accused did so by using force against that child or any other person; and (iv) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (c) Rape by threatening or placing in fear a child who has attained the age of 12. (i) That the accused committed a sexual act upon a child by causing penetration, however slight, IV-81 ¶45b.b.(2)(c)(i)Article 120b
p. 383
of the vulva or anus or mouth of the child by any part of the body or by any object; (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; (iii) That the accused did so by threatening the child or another person or placing that child in fear; and (iv) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (d) Rape by rendering unconscious a child who has attained the age of 12. (i) That the accused committed a sexual act upon a child by causing penetration, however slight, of the vulva or anus or mouth of the child by any part of the body or by any object; (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; (iii) That the accused did so by rendering that child unconscious; and (iv) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (e) Rape by administering a drug, intoxicant, or other similar substance to a child who has at- tained the age of 12. (i) That the accused committed a sexual act upon a child by causing penetration, however slight, of the vulva or anus or mouth of the child by any part of the body or by any object; (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; (iii) That the accused did so by administer- ing to that child a drug, intoxicant, or other similar substance; and (iv) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (3) Sexual assault of a child. (a) Sexual assault of a child who has attained the age of 12 involving contact between penis and vulva or anus or mouth. (i) That the accused committed a sexual act u p o n a c h i l d c a u s i n g c o n t a c t b e t w e e n p e n i s a n d vulva or anus or mouth; and (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years. (b) Sexual assault of a child who has attained the age of 12 involving penetration of vulva or anus or mouth by any part of the body or any object. (i) That the accused committed a sexual act upon a child by causing penetration, however slight, of the vulva or anus or mouth of the child by any part of the body or by any object; (ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and (iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (4) Sexual abuse of a child. (a) Sexual abuse of a child by sexual contact involving the touching of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person. (i) That the accused committed sexual con- tact upon a child by touching, or causing another person to touch, either directly or through the cloth- ing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person; and (ii) that the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (b) Sexual abuse of a child by sexual contact involving the touching of any body part. (i) That the accused committed sexual con- tact upon a child by touching, or causing another person to touch, either directly or through the cloth- ing, any body part of any person; and (ii) That the accused did so with intent to arouse or gratify the sexual desire of any person. (c) Sexual abuse of a child by indecent expo- sure. ( i ) T h a t t h e a c c u s e d i n t e n t i o n a l l y e x p o s e d his or her genitalia, anus, buttocks, or female areola or nipple to a child by any means; and (ii) That the accused did so with an intent to abuse, humiliate or degrade any person, or to arouse or gratify the sexual desire of any person. (d) Sexual abuse of a child by indecent commu- nication. IV-82 ¶45b.b.(2)(c)(i) Article 120b
p. 384
(i) That the accused intentionally communi- cated indecent language to a child by any means; and (ii) That the accused did so with an intent to abuse, humiliate or degrade any person, or to arouse or gratify the sexual desire of any person. (e) Sexual abuse of a child by indecent con- duct. ( i ) T h a t t h e a c c u s e d e n g a g e d i n i n d e c e n t conduct, intentionally done with or in the presence of a child; and (ii) That the indecent conduct amounted to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to com- mon propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations. c. Explanation. (1) In general. Sexual offenses have been sepa- r a t e d i n t o t h r e e s t a t u t e s : a d u l t s ( 1 2 0 ) , c h i l d r e n (120b), and other offenses (120c). (2) Definitions. Terms not defined in this para- graph are defined in paragraph 45b.a.(h), supra. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Rape of a child. Forfeiture of all pay and allowances, and confinement for life without eligi- bility for parole. Mandatory minimum – Dismissal or dishonorable discharge. (2) Sexual assault of a child. Forfeiture of all pay and allowances, and confinement for 30 years. Man- d a t o r y m i n i m u m – D i s m i s s a l o r d i s h o n o r a b l e discharge. (3) Sexual abuse of a child. (a) Cases involving sexual contact. Dishonora- ble discharge, forfeiture of all pay and allowances, and confinement for 20 years. (b) Other cases. Dishonorable discharge, for- feiture of all pay and allowances, and confinement for 15 years. f. Sample specifications. (1) Rape of a child involving contact between pe- nis and vulva or anus or mouth. (a) Rape of a child who has not attained the age of 12. In that (personal jurisdiction data), did (at/on board location), on or about _______ 20__, commit a sexual act upon __________, a child who had not attained the age of 12 years, by causing penetration of _________’s (vulva) (anus) (mouth) with _________’s penis. (b) Rape by force of a child who has attained the age of 12 years. In that (personal jurisdiction data), did (at/on board location), on or about ______ _ 20__, commit a sexual act upon __________, a child who had attained the age of 12 years but had not attained the age of 16 years, by causing penetra- tion of _________’s (vulva) (anus) (mouth) with ___ ______’s penis, by using force against ________, to wit: ______________. (c) Rape by threatening or placing in fear a child who has attained the age of 12 years. In that (personal jurisdiction data), did (at/on board loca- tion), on or about ______ 20__, commit a sexual act upon __________, a child who had attained the age of 12 years but had not attained the age of 16 years, b y c a u s i n g p e n e t r a t i o n o f _ _ _ _ _ _ _ _ _ ’ s ( v u l v a ) (anus) (mouth) with _______’s penis by (threatening ______) (placing _______ in fear). (d) Rape by rendering unconscious of a child who has attained the age of 12 years. In that (per- sonal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon _ _______, a child who had attained the age of 12 years but had not attained the age of 16 years, by c a u s i n g p e n e t r a t i o n o f _ _ _ _ _ _ _ _ ’ s ( v u l v a ) ( a n u s ) (mouth) with _________’s penis by rendering _____ _____ unconscious by ___________________. (e) Rape by administering a drug, intoxicant, or other similar substance to a child who has at- tained the age of 12 years. In that (personal jurisdic- tion data), did (at/on board location), on or about __ ____ 20__, commit a sexual act upon __________, a child who had attained the age of 12 years but had not attained the age of 16 years, by causing penetra- tion of __________’s (vulva) (anus) (mouth) with __ ______’s penis by administering to ____________ a (drug) (intoxicant) (____), to wit: _____________. (2) Rape of a child involving penetration of the vulva or anus or mouth by any part of the body or any object. (a) Rape of a child who has not attained the age of 12. In that (personal jurisdiction data), did (at/on board location), on or about ______ 20__, commit a sexual act upon _________, a child who had not attained the age of 12 years, by penetrating the (vulva) (anus) (mouth) of ____________ with (list body part or object), with an intent to (abuse) IV-83 ¶45b.f.(2)(a)Article 120b
p. 385
(humiliate) (harass) (degrade) (arouse) (gratify the sexual desire of) ____________. (b) Rape by force of a child who has attained the age of 12 years. In that (personal jurisdiction data), did (at/on board location), on or about ______ 20__, commit a sexual act upon __________, a child who had attained the age of 12 years but had not a t t a i n e d t h e a g e o f 1 6 y e a r s , b y p e n e t r a t i n g t h e (vulva) (anus) (mouth) of ____________ with (list body part or object), by using force against _______ _, with an intent to (abuse) (humiliate) (harass) (de- grade) (arouse) (gratify the sexual desire of) ______ ______. (c) Rape by threatening or placing in fear a child who has attained the age of 12 years. In that (personal jurisdiction data), did (at/on board loca- tion), on or about _____ 20__, commit a sexual act upon __________, a child who had attained the age of 12 years but had not attained the age of 16 years, by penetrating the (vulva) (anus) (mouth) of ______ ______ with (list body part or object), by (threaten- ing __________) (placing _______ in fear), with an i n t e n t t o ( a b u s e ) ( h u m i l i a t e ) ( h a r a s s ) ( d e g r a d e ) (arouse) (gratify the sexual desire of) ____________ . (d) Rape by rendering unconscious of a child who has attained the age of 12 years. In that (per- sonal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon _ _________, a child who had attained the age of 12 years but had not attained the age of 16 years, by penetrating the (vulva) (anus) (mouth) of _________ ___ with (list body part or object), by rendering ___ _______ unconscious, with an intent to (abuse) (hu- miliate) (harass) (degrade) (arouse) (gratify the sex- ual desire of) ____________. (e) Rape by administering a drug, intoxicant, or other similar substance to a child who has at- tained the age of 12 years. In that (personal jurisdic- tion data), did (at/on board location), on or about __ ____ 20__, commit a sexual act upon __________, a child who had attained the age of 12 years but had not attained the age of 16 years, by penetrating the (vulva) (anus) (mouth) of ____________ with (list body part or object), by administering to _________ ___ a (drug) (intoxicant) (____), to wit: __________ , with an intent to (abuse) (humiliate) (harass) (de- grade) (arouse) (gratify the sexual desire of) ______ ______. (3) Sexual assault of a child. (a) Sexual assault of a child who has attained the age of 12 years involving contact between penis and vulva or anus or mouth. In that (personal juris- diction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon _______, a child who had attained the age of 12 years but had not attained the age of 16 years, by causing penetra- tion of ___________’s (vulva) (anus) (mouth) with _ ________’s penis. (b) Sexual assault of a child who has attained the age of 12 years involving penetration of vulva or anus or mouth by any part of the body or any object. In that (personal jurisdiction data), did (at/on board location), on or about ______ 20__, commit a sexual act upon __________, a child who had at- tained the age of 12 years but had not attained the age of 16 years, by penetrating the (vulva) (anus) (mouth) of ____________ with (list body part or object), with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (gratify the sexual desire of) ____ ________. (4) Sexual abuse of a child. (a) Sexual abuse of a child involving sexual contact involving the touching of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person. In that (personal jurisdiction data), did (at/on board location), on or about ______ 20__, commit a lewd act upon __________, a child who had not attained t h e a g e o f 1 6 y e a r s , b y i n t e n t i o n a l l y [ ( t o u c h i n g ) (causing _________ to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (buttocks) of _______, with an intent to (abuse) (humiliate) (degrade) __________. (b) Sexual abuse of a child involving sexual contact involving the touching of any body part of any person. In that (personal jurisdiction data), did (at/on board location), on or about ______ 20__, commit a lewd act upon __________, a child who had not attained the age of 16 years, by intentionally e x p o s i n g [ h i s ( g e n i t a l i a ) ( a n u s ) ( b u t t o c k s ) ] [ h e r (genitalia) (anus) (buttocks) (areola) (nipple)] to ___ ________, with an intent to (abuse) (humiliate) (har- ass) (degrade) (arouse) (gratify the sexual desire of) ____________. (c) Sexual abuse of a child involving indecent exposure. In that (personal jurisdiction data), did (at/ on board location), on or about ____ 20__, commit a lewd act upon _______, a child who had not at- t a i n e d t h e a g e o f 1 6 y e a r s , b y i n t e n t i o n a l l y IV-84 ¶45b.f.(2)(a) Article 120b
p. 386
[ ( t o u c h i n g ) ( c a u s i n g _ _ _ _ _ _ _ _ _ t o t o u c h ) ] [(directly) (through the clothing)] (name of body part) of _______, with an intent to (arouse) (gratify the sexual desire of) __________. (d) Sexual abuse of a child involving indecent communication. In that (personal jurisdiction data), did (at/on board location), on or about _______ 20_ _, commit a lewd act upon __________, a child who had not attained the age of 16 years, by intentionally communicating to ________ indecent language to wit: ___________, with an intent to (abuse) (humili- ate) (harass) (degrade) (arouse) (gratify the sexual desire of) ____________. (e) Sexual abuse of a child involving indecent conduct. In that (personal jurisdiction data), did (at/ on board location), on or about _______ 20__, com- mit a lewd act upon __________, a child who had not attained the age of 16 years, by engaging in indecent conduct, to wit: __________, intentionally done (with) (in the presence of) _______, which conduct amounted 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. 45c. Article 120c—Other sexual misconduct [Note: This statute applies to offenses committed on or after 28 June 2012. Article 120c is a new s t a t u t e d e s i g n e d t o a d d r e s s m i s c e l l a n e o u s s e x u a l misconduct. Previous versions of these offenses are located as follows: for offenses committed on or before 30 September 2007, see Appendix 27; for o f f e n s e s c o m m i t t e d d u r i n g t h e p e r i o d 1 O c t o b e r 2007 through 27 June 2012, see Appendix 28.] a. Text of Statute ( a ) I n d e c e n t V i e w i n g , V i s u a l R e c o r d i n g , o r Broadcasting. Any person subject to this chapter w h o , w i t h o u t l e g a l j u s t i f i c a t i o n o r l a w f u l authorization— (1) knowingly and wrongfully views the pri- vate area of another person, without that other p e r s o n ’ s c o n s e n t a n d u n d e r c i r c u m s t a n c e s i n which that other person has a reasonable expec- tation of privacy; ( 2 ) k n o w i n g l y p h o t o g r a p h s , v i d e o t a p e s , films, or records by any means the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of pri- vacy; or (3) knowingly broadcasts or distributes any such recording that the person knew or reasona- bly should have known was made under the cir- cumstances proscribed in paragraphs (1) and (2); is guilty of an offense under this section and shall be punished as a court-martial may direct. (b) Forcible Pandering . Any person subject to this chapter who compels another person to en- gage in an act of prostitution with any person is guilty of forcible pandering and shall be punished as a court-martial may direct. (c) Indecent Exposure . Any person subject to this chapter who intentionally exposes, in an in- decent manner, the genitalia, anus, buttocks, or female areola or nipple is guilty of indecent expo- sure and shall by punished as a court-martial may direct. (d) Definitions. In this section: (1) Act of prostitution . The term ‘act of pros- titution’ means a sexual act or sexual contact (as d e f i n e d i n s e c t i o n 9 2 0 ( g ) o f t h i s t i t l e ( a r t i c l e 120(g))) on account of which anything of value is given to, or received by, any person. ( 2 ) P r i v a t e a r e a . T h e t e r m ‘ p r i v a t e a r e a ’ m e a n s t h e n a k e d o r u n d e r w e a r - c l a d g e n i t a l i a , anus, buttocks, or female areola or nipple. ( 3 ) R e a s o n a b l e e x p e c t a t i o n o f p r i v a c y . T h e term ‘under circumstances in which that other person has a reasonable expectation of privacy’ means— (A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an im- age of a private area of the person was being captured; or (B) circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public. (4) Broadcast. The term ‘broadcast’ means to electronically transmit a visual image with the intent that it be viewed by a person or persons. (5) Distribute. The term ‘distribute’ means delivering to the actual or constructive possession of another, including transmission by electronic means. ( 6 ) I n d e c e n t m a n n e r . T h e t e r m ‘ i n d e c e n t manner’ means conduct that amounts to a form IV-85 ¶45c.a.(d)(6)Article 120c
p. 387
of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to com- mon propriety, and tends to excite sexual desire o r d e p r a v e m o r a l s w i t h r e s p e c t t o s e x u a l relations. b. Elements. (1) Indecent viewing. (a) That the accused knowingly and wrongfully viewed the private area of another person; (b) That said viewing was without the other person’s consent; and (c) That said viewing took place under circum- stances in which the other person had a reasonable expectation of privacy. (2) Indecent recording. (a) That the accused knowingly recorded (pho- tographed, videotaped, filmed, or recorded by any means) the private area of another person; (b) That said recording was without the other person’s consent; and (c) That said recording was made under cir- cumstances in which the other person had a reasona- ble expectation of privacy. (3) Broadcasting of an indecent recording. ( a ) T h a t t h e a c c u s e d k n o w i n g l y b r o a d c a s t a certain recording of another person’s private area; (b) That said recording was made or broadcast without the other person’s consent; ( c ) T h a t t h e a c c u s e d k n e w o r r e a s o n a b l y should have known that the recording was made or broadcast without the other person’s consent; (d) That said recording was made under cir- cumstances in which the other person had a reasona- ble expectation of privacy; and ( e ) T h a t t h e a c c u s e d k n e w o r r e a s o n a b l y should have known that said recording was made under circumstances in which the other person had a reasonable expectation of privacy. (4) Distribution of an indecent visual recording. (a) That the accused knowingly distributed a certain recording of another person’s private area; (b) That said recording was made or distributed without the other person’s consent; ( c ) T h a t t h e a c c u s e d k n e w o r r e a s o n a b l y should have known that said recording was made or distributed without the other person’s consent; (d) That said recording was made under cir- cumstances in which the other person had a reasona- ble expectation of privacy; and ( e ) T h a t t h e a c c u s e d k n e w o r r e a s o n a b l y should have known that said recording was made under circumstances in which the other person had a reasonable expectation of privacy. (5) Forcible pandering. That the accused com- pelled another person to engage in an act of prostitu- tion with any person. (6) Indecent exposure. ( a ) T h a t t h e a c c u s e d e x p o s e d h i s o r h e r genitalia, anus, buttocks, or female areola or nipple; (b) That the exposure was in an indecent man- ner; and (c) That the exposure was intentional. c. Explanation. (1) In general. Sexual offenses have been sepa- r a t e d i n t o t h r e e s t a t u t e s : a d u l t s ( 1 2 0 ) , c h i l d r e n (120b), and other offenses (120c). (2) Definitions. (a) Recording. A “recording” is a still or mov- ing visual image captured or recorded by any means. ( b ) O t h e r t e r m s a r e d e f i n e d i n p a r a g r a p h 45c.a.(d), supra. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. ( 1 ) I n d e c e n t v i e w i n g . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 1 year. (2) Indecent visual recording. Dishonorable dis- charge, forfeiture of all pay and allowances, and confinement for 5 years. (3) Broadcasting or distribution of an indecent visual recording. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 7 years. (4) Forcible pandering. Dishonorable discharge, forfeiture of all pay and allowances, and confine- ment for 12 years. ( 5 ) I n d e c e n t e x p o s u r e . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 1 year. f. Sample specifications. (1) Indecent viewing, visual recording, or broad- casting. (a) Indecent viewing. In that (personal jurisdic- IV-86 ¶45c.a.(d)(6) Article 120c
p. 388
tion data), did (at/on board location), on or about __ _____ 20__, knowingly and wrongfully view the private area of __________, without (his) (her) con- sent and under circumstances in which (he) (she) had a reasonable expectation of privacy. (b) Indecent visual recording. In that (personal jurisdiction data), did (at/on board location), on or a b o u t _ _ _ _ _ _ _ 2 0 _ _ , k n o w i n g l y ( p h o t o g r a p h ) (videotape) (film) (make a recording of) the private area of __________, without (his) (her) consent and under circumstances in which (he) (she) had a rea- sonable expectation of privacy. ( c ) B r o a d c a s t i n g o r d i s t r i b u t i n g a n i n d e c e n t visual recording. In that (personal jurisdiction data), did (at/on board location), on or about _______ 20_ _, knowingly (broadcast) (distribute) a recording of the private area of __________, when the said ac- cused knew or reasonably should have known that the said recording was (made) (and/or) (distributed/ broadcast) without the consent of ______________ and under circumstances in which (he) (she) had a reasonable expectation of privacy. (2) Forcible pandering. In that (personal jurisdic- tion data), did (at/on board location), on or about __ _____ 20__, wrongfully compel __________ to en- gage in (a sexual act) (sexual contact) with _______ ____, to wit: ____________, for the purpose of re- ceiving (money) (other compensation) (_______). (3) Indecent exposure. In that (personal jurisdic- tion data), did (at/on board location), on or about __ _ _ _ _ _ 2 0 _ _ , i n t e n t i o n a l l y e x p o s e [ h i s ( g e n i t a l i a ) (anus) (buttocks)] [her (genitalia) (anus) (buttocks) (areola) (nipple)] in an indecent manner, to wit: ___ ________. 46. Article 121—Larceny and wrongful appropriation a. Text of statute. ( a ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind— (1) with intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty of larceny; or (2) with intent temporarily to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, is guilty of wrongful appropriation. ( b ) A n y p e r s o n f o u n d g u i l t y o f l a r c e n y o r wrongful appropriation shall be punished as a court-martial may direct. b. Elements. (1) Larceny. (a) That the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person; ( b ) T h a t t h e p r o p e r t y b e l o n g e d t o a c e r t a i n person; (c) That the property was of a certain value, or of some value; and (d) 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. [Note: If the property is alleged to be military property, as de- fined in paragraph 46c(1)(h), add the following element] (e) That the property was military property. (2) Wrongful appropriation. (a) That the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person; ( b ) T h a t t h e p r o p e r t y b e l o n g e d t o a c e r t a i n person; (c) That the property was of a certain value, or of some value; and (d) 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. c. Explanation. (1) Larceny. (a) In general. A wrongful taking with intent permanently to deprive includes the common law offense of larceny; a wrongful obtaining with intent p e r m a n e n t l y t o d e f r a u d i n c l u d e s t h e o f f e n s e formerly known as obtaining by false pretense; and a wrongful withholding with intent permanently to appropriate includes the offense formerly known as IV-87 ¶46.c.(1)(a)Article 121
p. 389
embezzlement. Any of the various types of larceny under Article 121 may be charged and proved under a specification alleging that the accused “did steal” the property in question. ( b ) T a k i n g , o b t a i n i n g , o r w i t h h o l d i n g . T h e r e must be a taking, obtaining, or withholding of the property by the thief. For instance, there is no taking if the property is connected to a building by a chain and the property has not been disconnected from the building; property is not “obtained” by merely ac- quiring title thereto without exercising some posses- sory control over it. As a general rule, however, any movement of the property or any exercise of domin- ion over it is sufficient if accompanied by the requi- site intent. Thus, if an accused enticed another’s horse into the accused’s stable without touching the animal, or procured a railroad company to deliver another’s trunk by changing the check on it, or ob- tained the delivery of another’s goods to a person or place designated by the accused, or had the funds of another transferred to the accused’s bank account, the accused is guilty of larceny if the other elements of the offense have been proved. A person may “obtain” the property of another by acquiring pos- session without title, and one who already has pos- session of the property of another may “obtain” it by later acquiring title to it. A “withholding” may arise as a result of a failure to return, account for, or deliver property to its owner when a return, account- ing, 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 per- son withholding the property acquired it lawfully or unlawfully. See subparagraph c(1)(f) below. Howev- er, acts which constitute the offense of unlawfully receiving, buying, or concealing stolen property or of being an accessory after the fact are not included within the meaning of “withholds.” Therefore, nei- ther a receiver of stolen property nor an accessory after the fact can be convicted of larceny on that basis alone. The taking, obtaining, or withholding must be of specific property. A debtor does not withhold specific property from the possession of a creditor by failing or refusing to pay a debt, for the relationship of debtor and creditor does not give the creditor a possessory right in any specific money or other property of the debtor. (c) Ownership of the property. (i) In general. Article 121 requires that the taking, obtaining, or withholding be from the posses- sion of the owner or of any other person. Care, custody, management, and control are among the definitions of possession. ( i i ) O w n e r . “ O w n e r ” r e f e r s t o t h e p e r s o n who, at the time of the taking, obtaining, or with- holding, had the superior right to possession of the p r o p e r t y i n t h e l i g h t o f a l l c o n f l i c t i n g i n t e r e s t s therein which may be involved in the particular case. For instance, an organization is the true owner of its funds as against the custodian of the funds charged with the larceny thereof. (iii) Any other person. “Any other person” means any person—even a person who has stolen the property—who has possession or a greater right to possession than the accused. In pleading a viola- tion of this article, the ownership of the property may be alleged to have been in any person, other than the accused, who at the time of the theft was a general owner or a special owner thereof. A general owner of property is a person who has title to it, whether or not that person has possession of it; a special owner, such as a borrower or hirer, is one who does not have title but who does have posses- sion, or the right of possession, of the property. (iv) Person. “Person,” as used in referring to one from whose possession property has been taken, obtained, or withheld, and to any owner of property, includes (in addition to a natural person) a govern- ment, a corporation, an association, an organization, and an estate. Such a person need not be a legal entity. (d) Wrongfulness of the taking, obtaining, or withholding. The taking, obtaining, or withholding of the property must be wrongful. As a general rule, a taking or withholding of property from the posses- sion of another is wrongful if done without the con- sent of the other, and an obtaining of property from the possession of another is wrongful if the obtain- ing is by false pretense. However, such an act is not wrongful if it is authorized by law or apparently lawful superior orders, or, generally, if done by a person who has a right to the possession of the property either equal to or greater than the right of one from whose possession the property is taken, obtained, or withheld. An owner of property who takes or withholds it from the possession of another, without the consent of the other, or who obtains it therefrom by false pretense, does so wrongfully if the other has a superior right—such as a lien—to IV-88 ¶46.c.(1)(a) Article 121
p. 390
possession of the property. A person who takes, ob- tains, or withholds property as the agent of another has the same rights and liabilities as does the princi- pal, but may not be charged with a guilty knowledge or intent of the principal which that person does not share. (e) False pretense. With respect to obtaining property by false pretense, the false pretense may be made by means of any act, word, symbol, or token. The pretense must be in fact false when made and when the property is obtained, and it must be know- ingly false in the sense that it is made without a belief in its truth. A false pretense is a false repre- sentation of past or existing fact. In addition to other kinds of facts, the fact falsely represented by a per- son may be that person’s or another’s power, author- ity, or intention. Thus, a false representation by a person that person presently intends to perform a certain act in the future is a false representation of an existing fact—the intention—and thus a false pre- tense. 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 o b t a i n i n g . A f a l s e r e p r e s e n t a t i o n m a d e a f t e r t h e property was obtained will not result in a violation of Article 121. A larceny is committed when a per- son obtains the property of another by false pretense and with intent to steal, even though the owner nei- ther intended nor was requested to part with title to t h e p r o p e r t y . T h u s , a p e r s o n w h o g e t s a n o t h e r ’ s watch by pretending that it will be borrowed briefly and then returned, but who really intends to sell it, is guilty of larceny. (f) Intent. ( i ) I n g e n e r a l . T h e o f f e n s e o f l a r c e n y r e - quires that the taking, obtaining, or withholding by the thief be accompanied by an intent permanently to deprive or defraud another of the use and benefit of property or permanently to appropriate the prop- erty to the thief’s own use or the use of any person other than the owner. These intents are collectively called an intent to steal. 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. For example, if a person rents another’s vehi- cle, later decides to keep it permanently, and then either fails to return it at the appointed time or uses it for a purpose not authorized by the terms of the rental, larceny has been committed, even though at the time the vehicle was rented, the person intended to return it after using it according to the agreement. ( i i ) I n f e r e n c e o f i n t e n t . A n i n t e n t t o s t e a l may be proved by circumstantial evidence. Thus, if a person secretly takes property, hides it, and denies knowing anything about it, an intent to steal may be inferred; if the property was taken openly and re- turned, this would tend to negate such an intent. Proof of sale of the property may show an intent to steal, and therefore, evidence of such a sale may be introduced to support a charge of larceny. An intent to steal may be inferred from a wrongful and inten- tional dealing with the property of another in a man- ner likely to cause that person to suffer a permanent loss thereof. (iii) Special situations. (A) Motive does not negate intent. The ac- cused’s purpose in taking an item ordinarily is irrel- evant to the accused’s guilt as long as the accused had the intent required under subparagraph c(1)(f)(i) above. For example, if the accused wrongfully took property as a “joke” or “to teach the owner a lesson” this would not be a defense, although if the accused intended to return the property, the accused would b e g u i l t y o f w r o n g f u l a p p r o p r i a t i o n , n o t l a r c e n y . When a person takes property intending only to re- turn it to its lawful owner, as when stolen property is taken from a thief in order to return it to its o w n e r , l a r c e n y o r w r o n g f u l a p p r o p r i a t i o n i s n o t committed. (B) Intent to pay for or replace property not a defense. An intent to pay for or replace the stolen property is not a defense, even if that intent existed at the time of the theft. If, however, the accused takes money or a negotiable instrument hav- ing no special value above its face value, with the intent to return an equivalent amount of money, the offense of larceny is not committed although wrong- ful appropriation may be. ( C ) R e t u r n o f p r o p e r t y n o t a d e f e n s e . Once a larceny is committed, a return of the prop- e r t y o r p a y m e n t f o r i t i s n o d e f e n s e . S e e s u b - paragraph c(2) below when the taking, obtaining, or withholding is with the intent to return. (g) Value. (i) In general. Value is a question of fact to IV-89 ¶46.c.(1)(g)(i)Article 121
p. 391
be determined on the basis of all of the evidence admitted. (ii) Government property. When the stolen property is an item issued or procured from Govern- ment sources, the price listed in an official publica- tion for that property at the time of the theft is admissible as evidence of its value. See Mil. R. Evid. 803(17). However, the stolen item must be shown to have been, at the time of the theft, in the condition upon which the value indicated in the offi- cial price list is based. The price listed in the official publication is not conclusive as to the value of the item, and other evidence may be admitted on the question of its condition and value. (iii) Other property. As a general rule, the v a l u e o f o t h e r s t o l e n p r o p e r t y i s i t s l e g i t i m a t e market value at the time and place of the theft. If this property, because of its character or the place where it was stolen, had no legitimate market value at the time and place of the theft or if that value cannot readily be ascertained, its value may be de- termined by its legitimate market value in the United States at the time of the theft, or by its replacement cost at that time, whichever is less. Market value may be established by proof of the recent purchase price paid for the article in the legitimate market involved or by testimony or other admissible evi- d e n c e f r o m a n y p e r s o n w h o i s f a m i l i a r t h r o u g h training or experience with the market value in ques- tion. The owner of the property may testify as to its market value if familiar with its quality and condi- tion. The fact that the owner is not an expert of the market value of the property goes only to the weight to be given that testimony, and not to its admissibili- ty. See Mil. R. Evid. 701. When the character of the property clearly appears in evidence—for instance, when it is exhibited to the court-martial—the court- martial, from its own experience, may infer that it has some value. If as a matter of common knowl- edge the property is obviously of a value substan- tially in excess of $500.00, the court-martial may f i n d a v a l u e o f m o r e t h a n $ 5 0 0 . 0 0 . W r i t i n g s representing value may be considered to have the value—even though contingent—which they repre- sented at the time of the theft. (iv) Limited interest in property. If an owner of property or someone acting in the owner’s behalf steals it from a person who has a superior, but limit- ed, interest in the property, such as a lien, the value for punishment purposes shall be that of the limited interest. (h) Military Property. Military property is all property, real or personal, owned, held, or used by one of the armed forces of the United States. Mili- tary property is a term of art, and should not be confused with government property. The terms are not interchangeable. While all military property is government property, not all government property is military property. An item of government property is not military property unless the item in question m e e t s t h e d e f i n i t i o n p r o v i d e d a b o v e . R e t a i l m e r - chandise of service exchange stores is not military property under this article. (i) Miscellaneous considerations. (i) Lost property. A taking or withholding of lost property by the finder is larceny if accompanied by an intent to steal and if a clue to the identity of the general or special owner, or through which such identity may be traced, is furnished by the character, location, or marketing of the property, or by other circumstances. (ii) Multiple article larceny. 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. Thus, if a thief steals a suitcase containing the property of several persons or goes into a room and takes prop- erty belonging to various persons, there is but one l a r c e n y , w h i c h s h o u l d b e a l l e g e d i n b u t o n e specification. ( i i i ) S p e c i a l k i n d s o f p r o p e r t y w h i c h m a y also be the subject of larceny. Included in property which may be the subject of larceny is property which is taken, obtained, or withheld by severing it from real estate and writings which represent value such as commercial paper. (iv) Services. Theft of services may not be charged under this paragraph, but see paragraph 78. (vi) Credit, Debit, and Electronic Transac- t i o n s . W r o n g f u l l y e n g a g i n g i n a c r e d i t , d e b i t , o r 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. Such use to obtain money or a negotiable instrument (e.g., withdrawing cash from an automated teller or a cash advance from a bank) is usually a larceny of money from the entity presenting the money or a negotiable instru- IV-90 ¶46.c.(1)(g)(i) Article 121
p. 392
m e n t . F o r t h e p u r p o s e o f t h i s s e c t i o n , t h e t e r m ‘credit, debit, or electronic transaction’ includes the use of an instrument or device, whether known as a c r e d i t c a r d , d e b i t c a r d , a u t o m a t e d t e l l e r m a c h i n e (ATM) card or by any other name, including access devices such as code, account number, electronic serial number or personal identification number, is- sued for the use in obtaining money, goods, or any- thing else of value. (2) Wrongful appropriation. (a) In general. Wrongful appropriation requires a n i n t e n t t o t e m p o r a r i l y — a s o p p o s e d t o p e r - manently—deprive the owner of the use and benefit of, or appropriate to the use of another, the property wrongfully taken, withheld, or obtained. In all other r e s p e c t s w r o n g f u l a p p r o p r i a t i o n a n d l a r c e n y a r e identical. (b) Examples. Wrongful appropriation includes: taking another’s automobile without permission or lawful authority with intent to drive it a short dis- tance and then return it or cause it to be returned to the owner; obtaining a service weapon by falsely pretending to be about to go on guard duty with intent to use it on a hunting trip and later return it; and while driving a government vehicle on a mis- s i o n t o d e l i v e r s u p p l i e s , w i t h h o l d i n g t h e v e h i c l e from government service by deviating from the as- signed route without authority, to visit a friend in a nearby town and later restore the vehicle to its law- ful use. An inadvertent exercise of control over the property of another will not result in wrongful ap- propriation. For example, a person who fails to re- t u r n a b o r r o w e d b o a t a t t h e t i m e a g r e e d u p o n because the boat inadvertently went aground is not guilty of this offense. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Larceny. (a) Military property of a value of $500 or less. Bad-conduct discharge, forfeiture of all pay and al- lowances, and confinement for 1 year. (b) Property other than military property of a value of $500 or less. Bad-conduct discharge, forfei- ture of all pay and allowances, and confinement for 6 months. (c) Military property of a value of more than $500 or of any military motor vehicle, aircraft, ves- sel, firearm, or explosive. Dishonorable discharge, forfeiture of all pay and allowances, and confine- ment for 10 years. (d) Property other than military property of a value of more than $500 or any motor vehicle, air- craft, vessel, firearm, or explosive not included in subparagraph e(1)(c). Dishonorable discharge, for- feiture of all pay and allowances, and confinement for 5 years. (2) Wrongful appropriation. (a) Of a value of $500.00 or less. Confinement for 3 months, and forfeiture of two-thirds pay per month for 3 months. (b) Of a value of more than $500.00. Bad-con- duct discharge, forfeiture of all pay and allowances, and confinement for 6 months. (c) Of any motor vehicle, aircraft, vessel, fire- arm, or explosive. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. f. Sample specifications. (1) Larceny. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , steal , (military property), of a value of (about) $ , the property of . (2) Wrongful appropriation. In that (personal jurisdiction data), did, (at/on board—location) (subject matter jurisdic- tion data, if required), on or about 20 , wrongfully appropriate , of a value of (about) $ , the property of . 47. Article 122—Robbery a. Text of statute. Any person subject to this chapter who with intent to steal takes anything of value from the person or in the presence of another, against his will, by means of force or violence or fear of immediate or future injury to his person or prop- erty or to the person or property of a relative or member of his family or of anyone in his com- pany at the time of the robbery, is guilty of rob- bery and shall be punished as a court-martial may direct. b. Elements. ( 1 ) T h a t t h e a c c u s e d w r o n g f u l l y t o o k c e r t a i n IV-91 ¶47.b.(1)Article 122
p. 393
property from the person or from the possession and in the presence of a person named or described; (2) That the taking was against the will of that person; (3) That the taking was by means of force, vio- lence, 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; (4) That the property belonged to a person named or described; (5) That the property was of a certain or of some value; and (6) That the taking of the property by the accused was with the intent permanently to deprive the per- son robbed of the use and benefit of the property. [Note: If the robbery was committed with a firearm, add the following element] (7) That the means of force or violence or of putting the person in fear was a firearm. c. Explanation. (1) Taking in the presence of the victim. It is not necessary that the property taken be located within any certain distance of the victim. If persons enter a house and force the owner by threats to disclose the hiding place of valuables in an adjoining room, and, leaving the owner tied, go into that room and steal the valuables, they have committed robbery. (2) Force or violence. For a robbery to be com- mitted by force or violence, there must be actual force or violence to the person, preceding or accom- panying the taking against the person’s will, and it is immaterial that there is no fear engendered in the victim. Any amount of force is enough to constitute robbery if the force overcomes the actual resistance of the person robbed, puts the person in such a position that no resistance is made, or suffices to overcome the resistance offered by a chain or other fastening by which the article is attached to the person. The offense is not robbery if an article is merely snatched from the hand of another or a po- cket is picked by stealth, no other force is used, and the owner is not put in fear. But if resistance is overcome in snatching the article, there is sufficient violence, as when an earring is torn from a person’s ear. There is sufficient violence when a person’s attention is diverted by being jostled by a confeder- ate of a pickpocket, who is thus enabled to steal the p e r s o n ’ s w a t c h , e v e n t h o u g h t h e p e r s o n h a d n o knowledge of the act; or when a person is knocked insensible and that person’s pockets rifled; or when a guard steals property from the person of a prisoner in the guard’s charge after handcuffing the prisoner on the pretext of preventing escape. (3) Fear. For a robbery to be committed by put- ting the victim in fear, there need be no actual force or violence, but there must be a demonstration of force or menace by which the victim is placed in such fear that the victim is warranted in making no resistance. The fear must be a reasonable apprehen- sion of present or future injury, and the taking must occur while the apprehension exists. The injury ap- prehended may be death or bodily injury to the per- son or to a relative or family member, or to anyone in the person’s company at the time, or it may be the destruction of the person’s habitation or other property or that of a relative or family member or anyone in the person’s company at the time of suffi- c i e n t g r a v i t y t o w a r r a n t g i v i n g u p t h e p r o p e r t y demanded by the assailant. (4) Larceny by taking. Robbery includes “taking with intent to steal”; hence, a larceny by taking is an integral part of a charge of robbery and must be proved at the trial. See paragraph 46c(1). (5) Multiple-victim robberies. Robberies of differ- ent persons at the same time and place are separate offenses and each such robbery should be alleged in a separate specification. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) When committed with a firearm. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years. (2) Other cases. Dishonorable discharge, forfei- ture of all pay and allowances, and confinement for 10 years. f. Sample specifications. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , by m e a n s o f ( f o r c e ) ( v i o l e n c e ) ( f o r c e a n d v i o l e n c e ) (and) (putting him/her in fear) (with a firearm) steal from the (person) (presence) of , against IV-92 ¶47.b.(1) Article 122
p. 394
his/her will, (a watch) ( ) of value of (about) $ , the property of . 48. Article 123—Forgery a. Text of statute. Any person subject to this chapter who, with intent to defraud— (1) falsely makes or alters any signature to, or any part of, any writing which would, if genuine, apparently impose a legal liability on another or change his legal right or liability to his prejudice; or (2) utters, offers, issues, or transfers such a writing, known by him to be so made or altered; is guilty of forgery and shall be punished as a court-martial may direct. b. Elements. (1) Forgery—making or altering. (a) That the accused falsely made or altered a certain signature or writing; (b) That the signature or writing was of a na- ture 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 (c) That the false making or altering was with the intent to defraud. (2) Forgery—uttering. ( a ) T h a t a c e r t a i n s i g n a t u r e o r w r i t i n g w a s falsely made or altered; (b) That the signature or writing was of a na- ture which would, if genuine, apparently impose a legal liability on another or change another’s legal rights or liabilities to that person’s prejudice; (c) That the accused uttered, offered, issued, or transferred the signature or writing; (d) That at such time the accused knew that the signature or writing had been falsely made or al- tered; and (e) That the uttering, offering, issuing or trans- ferring was with the intent to defraud. c. Explanation. (1) In general. Forgery may be committed either by falsely making a writing or by knowingly utter- ing a falsely made writing. There are three elements common to both aspects of forgery: a writing falsely made or altered; and apparent capability of the writ- ing as falsely made or altered to impose a legal l i a b i l i t y o n a n o t h e r o r t o c h a n g e a n o t h e r ’ s l e g a l rights or liabilities to that person’s prejudice; and an intent to defraud. (2) False. “False” refers not to the contents of the writing or to the facts stated therein but to the mak- ing or altering of it. Hence, forgery is not committed by the genuine making of a false instrument even when made with intent to defraud. A person who, with intent to defraud, signs that person’s own sig- nature as the maker of a check drawn on a bank in which that person does not have money or credit does not commit forgery. Although the check falsely represents the existence of the account, it is what it purports to be, a check drawn by the actual maker, and therefore it is not falsely made. See, however, paragraph 49. Likewise, if a person makes a false signature of another to an instrument, but adds the word “by” with that person’s own signature thus indicating authority to sign, the offense is not for- gery even if no such authority exists. False recitals of fact in a genuine document, as an aircraft flight report which is “padded” by the one preparing it, do not make the writing a forgery. But see paragraph 31 concerning false official statements. (3) Signatures. Signing the name of another to an instrument having apparent legal efficacy without authority and with intent to defraud is forgery as the signature is falsely made. The distinction is that in this case the falsely made signature purports to be the act of one other than the actual signer. Likewise, a forgery may be committed by a person signing that person’s own name to an instrument. For example, when a check payable to the order of a certain per- son comes into the hands of another of the same name, forgery is committed if, knowing the check to be another’s, that person indorses it with that per- son’s own name intending to defraud. Forgery may also be committed by signing a fictitious name, as when Roe makes a check payable to Roe and signs it with a fictitious name—Doe—as drawer. (4) Nature of writing. The writing must be one which would, if genuine, apparently impose a legal liability on another, as a check or promissory note, or change that person’s legal rights or liabilities to that person’s prejudice, as a receipt. Some other instruments which may be the subject of forgery are orders for the delivery of money or goods, railroad tickets, and military orders directing travel. A writ- ing falsely “made” includes an instrument that may be partially or entirely printed, engraved, written IV-93 ¶48.c.(4)Article 123
p. 395
with a pencil, or made by photography or other device. A writing may be falsely “made” by materi- ally altering an existing writing, by filling in a paper signed in blank, or by signing an instrument already written. With respect to the apparent legal efficacy of the writing falsely made or altered, the writing must appear either on its face or from extrinsic facts to impose a legal liability on another, or to change a legal right or liability to the prejudice of another. If under all the circumstances the instrument has nei- ther real nor apparent legal efficacy, there is no forgery. Thus, the false making with intent to de- fraud of an instrument affirmatively invalid on its face is not forgery nor is the false making or alter- ing, with intent to defraud, of a writing which could not impose a legal liability, as a mere letter of intro- duction. However, the false making of another’s sig- nature on an instrument with intent to defraud is forgery, even if there is no resemblance to the genu- ine signature and the name is misspelled. (5) Intent to defraud. See paragraph 49c(14). The intent to defraud need not be directed toward anyone in particular nor be for the advantage of the of- fender. It is immaterial that nobody was actually defrauded, or that no further step was made toward carrying out the intent to defraud other than the false making or altering of a writing. (6) Alteration. The alteration must effect a mate- rial change in the legal tenor of the writing. Thus, an alteration which apparently increases, diminishes, or discharges any obligation is material. Examples of material alterations in the case of a promissory note are changing the date, amount, or place of payment. If a genuine writing has been delivered to the ac- cused and while in the accused’s possession is later found to be altered, it may be inferred that the writ- ing was altered by the accused. (7) Uttering. See paragraph 49c(4). d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 5 years. f. Sample specifications. (1) Forgery—making or altering. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , with intent to defraud, falsely [make (in its entirety) (the signature of as an indorsement to) (the signature of to) ( ) a certain (che- ck) (writing) ( ) in the following words and figures, to wit: ] [alter a certain (check) (writ- ing) ( ) in the following words and figures, to wit: , by (adding thereto ) ( )], which said (check) (writing) ( ) would, if gen- uine, apparently operate to the legal harm of another [ * a n d w h i c h ( c o u l d b e ) ( w a s ) u s e d t o t h e legal harm of , in that ]. [*Note: This allegation should be used when the document speci- fied is not one which by its nature would clearly operate to the legal prejudice of another—for example, an insurance application. The manner in which the document could be or was used to prejudice the legal rights of another should be alleged in the last blank.] (2) Forgery—uttering. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , with intent to defraud, (utter) (offer) (issue) (trans- fer) a certain (check) (writing) ( ) in the following words and figures, to wit: , a writing which would, if genuine, apparently operate to the legal harm of another, (which said (check) ( w r i t i n g ) ( ) ) ( t h e s i g n a t u r e t o w h i c h s a i d (check) (writing) ( )) ( ) was, as he/she, the said , then well knew, falsely (made) (al- tered) (*and which (could be) (was) used to the legal harm of , in that ). [*Note: See the note following (1), above] 49. Article 123a—Making, drawing, or uttering check, draft, or order without sufficient funds a. Text of statute. Any person subject to this chapter who— (1) for the procurement of any article or thing of value, with intent to defraud; or (2) for the payment of any past due obligation, or for any other purpose, with intent to deceive; m a k e s , d r a w s , u t t e r s , o r d e l i v e r s a n y c h e c k , draft, or order for the payment of money upon any bank or other depository, knowing at the time that the maker or drawer has not or will not have sufficient funds in, or credit with, the bank or other depository for the payment of that che- ck, draft, or order in full upon its presentment, shall be punished as a court-martial may direct. The making, drawing, uttering, or delivering by a IV-94 ¶48.c.(4) Article 123a
p. 396
maker or drawer of a check, draft, or order, payment of which is refused by the drawee be- c a u s e o f i n s u f f i c i e n t f u n d s o f t h e m a k e r o r drawer in the drawee’s possession or control, is prima facie evidence of his intent to defraud or deceive and of his knowledge of insufficient funds in, or credit with, that bank or other depository, unless the maker or drawer pays the holder the amount due within five days after receiving no- tice, orally or in writing, that the check, draft, or order was not paid on presentment. In this sec- tion, the word “credit” means an arrangement or understanding, express or implied, with the bank or other depository for the payment of that che- ck, draft, or order. b. Elements. (1) For the procurement of any article or thing of value, with intent to defraud. (a) That the accused made, drew, uttered, or delivered a check, draft, or order for the payment of money payable to a named person or organization; (b) That the accused did so for the purpose of procuring an article or thing of value; (c) That the act was committed with intent to defraud; and (d) That at the time of making, drawing, utter- ing, or delivery of the instrument the accused knew that the accused or the maker or drawer had not or would not have sufficient funds in, or credit with, the bank or other depository for the payment thereof upon presentment. (2) For the payment of any past due obligation, or for any other purpose, with intent to deceive. (a) That the accused made, drew, uttered, or delivered a check, draft, or order for the payment of money payable to a named person or organization; (b) That the accused did so for the purpose or purported purpose of effecting the payment of a past due obligation or for some other purpose; (c) That the act was committed with intent to deceive; and (d) That at the time of making, drawing, utter- ing, or delivering of the instrument, the accused knew that the accused or the maker or drawer had not or would not have sufficient funds in, or credit with, the bank or other depository for the payment thereof upon presentment. c. Explanation. (1) Written instruments. The written instruments covered by this article include any check, draft (in- cluding share drafts), or order for the payment of money drawn upon any bank or other depository, whether or not the drawer bank or depository is actually in existence. It may be inferred that every check, draft, or order carries with it a representation that the instrument will be paid in full by the bank or other depository upon presentment by a holder when due. (2) Bank or other depository. “Bank or other de- pository” includes any business regularly but not necessarily exclusively engaged in public banking activities. (3) Making or drawing. “Making” and “drawing” are synonymous and refer to the act of writing and signing the instrument. ( 4 ) U t t e r i n g o r d e l i v e r i n g . “ U t t e r i n g ” a n d “ d e l i v e r i n g ” h a v e s i m i l a r m e a n i n g s . B o t h m e a n transferring the instrument to another, but “uttering” has the additional meaning of offering to transfer. A person need not personally be the maker or drawer of an instrument in order to violate this article if that person utters or delivers it. For example, if a person holds a check which that person knows is worthless, and utters or delivers the check to another, that per- son may be guilty of an offense under this article despite the fact that the person did not personally draw the check. (5) For the procurement. “For the procurement” means for the purpose of obtaining any article or thing of value. It is not necessary that an article or thing of value actually be obtained, and the purpose of the obtaining may be for the accused’s own use or benefit or for the use or benefit of another. (6) For the payment. “For the payment” means for the purpose or purported purpose of satisfying in whole or in part any past due obligation. Payment need not be legally effected. (7) For any other purpose. “For any other pur- pose” includes all purposes other than the payment of a past due obligation or the procurement of any article or thing of value. For example, it includes paying or purporting to pay an obligation which is not yet past due. The check, draft, or order, whether made or negotiated for the procurement of an article or thing of value or for the payment of a past due obligation or for some other purpose, need not be intended or represented as payable immediately. For example, the making of a postdated check, delivered IV-95 ¶49.c.(7)Article 123a
p. 397
at the time of entering into an installment purchase contract and intended as payment for a future install- ment, would, if made with the requisite intent and knowledge, be a violation of this article. (8) Article or thing of value. “Article or thing of value” extends to every kind of right or interest in property, or derived from contract, including inter- ests and rights which are intangible or contingent or which mature in the future. (9) Past due obligation. A “past due obligation” is an obligation to pay money, which obligation has legally matured before making, drawing, uttering, or delivering the instrument. (10) Knowledge. The accused must have knowl- edge, at the time the accused makes, draws, utters, or delivers the instrument, that the maker or drawer, whether the accused or another, has not or will not have sufficient funds in, or credit with, the bank or other depository for the payment of the instrument in full upon its presentment. Such knowledge may be proved by circumstantial evidence. (11) Sufficient funds. “Sufficient funds” refers to a condition in which the account balance of the maker or drawer in the bank or other depository at the time of the presentment of the instrument for payment is not less than the face amount of the instrument and has not been rendered unavailable for payment by garnishment, attachment, or other legal procedures. (12) Credit. “Credit” means an arrangement or understanding, express or implied, with the bank or other depository for the payment of the check, draft, or order. An absence of credit includes those situa- tions in which an accused writes a check on a non- existent bank or on a bank in which the accused has no account. ( 1 3 ) U p o n i t s p r e s e n t m e n t . “ U p o n i t s p r e s e n t - ment” refers to the time the demand for payment is made upon presentation of the instrument to the bank or other depository on which it was drawn. (14) Intent to defraud. “Intent to defraud” means 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. (15) Intent to deceive. “Intent to deceive” means a n i n t e n t t o m i s l e a d , c h e a t , o r t r i c k a n o t h e r b y means of a misrepresentation made for the purpose of gaining an advantage for oneself or for a third person, or of bringing about a disadvantage to the interests of the person to whom the representation was made or to interests represented by that person. (16) The relationship of time and intent. Under this article, two times are involved: (a) when the accused makes, draws, utters, or delivers the instru- ment; and (b) when the instrument is presented to t h e b a n k o r o t h e r d e p o s i t o r y f o r p a y m e n t . W i t h respect to (a), the accused must possess the requisite intent and must know that the maker or drawer does not have or will not have sufficient funds in, or credit with, the bank or the depository for payment of the instrument in full upon its presentment when d u e . W i t h r e s p e c t t o ( b ) , i f i t c a n o t h e r w i s e b e shown that the accused possessed the requisite intent and knowledge at the time the accused made, drew, uttered, or delivered the instrument, neither proof of presentment nor refusal of payment is necessary, as when the instrument is one drawn on a nonexistent bank. (17) Statutory rule of evidence. The provision of this article with respect to establishing prima facie evidence of knowledge and intent by proof of notice and nonpayment within 5 days is a statutory rule of evidence. The failure of an accused who is a maker or drawer to pay the holder the amount due within 5 d a y s a f t e r r e c e i v i n g e i t h e r o r a l o r w r i t t e n n o t i c e from the holder of a check, draft, or order, or from any other person having knowledge that such check, draft, or order was returned unpaid because of insuf- ficient funds, is prima facie evidence (a) that the accused had the intent to defraud or deceive as al- leged; and (b) that the accused knew at the time the accused made, drew, uttered, or delivered the check, draft, or order that the accused did not have or would not have sufficient funds in, or credit with, the bank or other depository for the payment of such check, draft, or order upon its presentment for pay- ment. Prima facie evidence is that evidence from which the accused’s intent to defraud or deceive and the accused’s knowledge of insufficient funds in or credit with the bank or other depository may be inferred, depending on all the circumstances. The failure to give notice referred to in the article, or payment by the accused, maker, or drawer to the holder of the amount due within 5 days after such n o t i c e h a s b e e n g i v e n , p r e c l u d e s t h e p r o s e c u t i o n from using the statutory rule of evidence but does not preclude conviction of this offense if all the elements are otherwise proved. IV-96 ¶49.c.(7) Article 123a
p. 398
(18) Affirmative defense. Honest mistake is an af- firmative defense to offenses under this article. See R.C.M. 916(j). d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) For the procurement of any article or thing of value, with intent to defraud, in the face amount of: ( a ) $ 5 0 0 . 0 0 o r l e s s . B a d - c o n d u c t d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 6 months. ( b ) M o r e t h a n $ 5 0 0 . 0 0 . D i s h o n o r a b l e d i s - charge, forfeiture of all pay and allowances, and confinement for 5 years. (2) For the payment of any past due obligation, or for any other purpose, with intent to deceive. Bad-conduct discharge, forfeiture of all pay and al- lowances, and confinement for 6 months. f. Sample specifications. (1) For the procurement of any article or thing of value, with intent to defraud. I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , with intent to defraud and for the procurement of (lawful currency) (and) ( (an article) (a thing) of value), wrongfully and unlawfully ((make (draw)) (utter) (deliver) to ,) a certain (check) (draft) (money order) upon the ( Bank) ( de- pository) in words and figures as follows, to wit: , then knowing that (he/she) ( ), the (maker) (drawer) thereof, did not or would not have sufficient funds in or credit with such (bank) (depos- itory) for the payment of the said (check) (draft) (order) in full upon its presentment. (2) For the payment of any past due obligation, or for any other purpose, with intent to deceive. I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , with intent to deceive and for the payment of a past due obligation, to wit: (for the purpose of ) wrongfully and unlawfully ((make) (draw)) (utter) (deliver) to , a certain (check) (draft) (money order) for the payment of money upon ( Bank) ( depository), in words and figures as follows, to wit: , then knowing that (he/she) ( ), the (maker) (draw- er) thereof, did not or would not have sufficient funds in or credit with such (bank) (depository) for the payment of the said (check) (draft) (order) in full upon its presentment. 50. Article 124—Maiming a. Text of statute. Any person subject to this chapter who, with intent to injure, disfigure, or disable, inflicts upon the person of another an injury which— (1) seriously disfigures his person by any muti- lation thereof; (2) destroys or disables any member or organ of his body; or (3) seriously diminishes his physical vigor by the injury of any member or organ; is guilty of maiming and shall be punished as a court-martial may direct. b. Elements. ( 1 ) T h a t t h e a c c u s e d i n f l i c t e d a c e r t a i n i n j u r y upon a certain person; (2) That this injury seriously disfigured the per- son’s body, destroyed or disabled an organ or mem- ber, 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. c. Explanation. (1) Nature of offense. It is maiming to put out a person’s eye, to cut off a hand, foot, or finger, or to knock out a tooth, as these injuries destroy or disa- ble those members or organs. It is also maiming to injure an internal organ so as to seriously diminish the physical vigor of a person. Likewise, it is maim- ing to cut off an ear or to scar a face with acid, as these injuries seriously disfigure a person. A disfig- urement need not mutilate any entire member to come within the article, or be of any particular type, but must be such as to impair perceptibly and mate- rially the victim’s comeliness. 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 of- fense 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. (2) Means of inflicting injury. To prove the of- fense it is not necessary to prove the specific means by which the injury was inflicted. However, such IV-97 ¶50.c.(2)Article 124
p. 399
e v i d e n c e m a y b e c o n s i d e r e d o n t h e q u e s t i o n o f intent. (3) Intent. Maiming requires a specific intent to injure generally but not a specific intent to maim. Thus, one commits the offense who intends only a slight injury, if in fact there is infliction of an injury of the type specified in this article. Infliction of the type of injuries specified in this article upon the person of another may support an inference of the intent to injure, disfigure, or disable. (4) Defenses. If the injury is done under circum- stances which would justify or excuse homicide, the offense of maiming is not committed. See R.C.M. 916. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 20 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required) on or about 20 , maim by (crushing his/her foot with a sledge hammer) ( ). 51. Article 125—Forcible sodomy; bestiality a. Text of statute. ( a ) F o r c i b l e S o d o m y . – A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o e n g a g e s i n u n n a t u r a l c a r n a l copulation with another person of the same or opposite sex by unlawful force or without the consent of the other person is guilty of forcible sodomy and shall be punished as a court-martial may direct. (b) Bestiality.–Any person subject to this chap- ter who engages in unnatural carnal copulation with an animal is guilty of bestiality and shall be punished as a court-martial may direct. ( c ) S c o p e o f O f f e n s e s . – P e n e t r a t i o n , h o w e v e r slight, is sufficient to complete an offense under subsection (a) or (b). b. Elements. (1) Forcible sodomy. (a) That the accused engaged in unnatural car- nal copulation with a certain other person. (b) That the act was done by force or without the consent of the other person. (2) Bestiality. (a) That the accused engaged in unnatural car- nal copulation with an animal. c. Explanation. (1) It is unnatural carnal copulation for a person to take into that person’s mouth or anus the sexual organ of another person or of an animal; or to place that person’s sexual organ in the mouth or anus of another person or of an animal; or to have carnal copulation in any opening of the body, except the sexual parts, with another person; or to have carnal copulation with an animal. (2) For purposes of this Article, the term “unlaw- ful force” means an act of force done without legal justification or excuse. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Forcible sodomy. Dishonorable discharge, for- feiture of all pay and allowances, and confinement f o r l i f e w i t h o u t e l i g i b i l i t y f o r p a r o l e . M a n d a t o r y minimum – Dismissal or dishonorable discharge. (2) Bestiality. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. f. Sample specification. (1) Forcible sodomy. In that (personal jurisdiction data), did, (at/on board–location) (subject-matter ju- risdiction data, if required), on or about ________ 20__, engage in unnatural carnal copulation with __ _____, by unlawful force or without the consent of the said ______. (2) Bestiality. In that (personal jurisdiction data), did, (at/on board–location) (subject-matter jurisdic- tion data, if required), on or about ________20__, engage in unnatural carnal copulation with (type of animal). 52. Article 126—Arson a. Text of statute. ( a ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o willfully and maliciously burns or sets on fire an inhabited dwelling, or any other structure, mova- ble or immovable, wherein to the knowledge of the offender there is at the time a human being, is guilty of aggravated arson and shall be pun- ished as a court-martial may direct. ( b ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o IV-98 ¶50.c.(2) Article 126
p. 400
willfully and maliciously burns or sets fire to the property of another, except as provided in sub- section (a), is guilty of simple arson and shall be punished as a court-martial may direct. b. Elements. (1) Aggravated arson. (a) Inhabited dwelling. (i) That the accused burned or set on fire an inhabited dwelling; (ii) That this dwelling belonged to a certain person and was of a certain value; and (iii) That the act was willful and malicious. (b) Structure. (i) That the accused burned or set on fire a certain structure; (ii) That the act was willful and malicious; (iii) That there was a human being in the structure at the time; (iv) That the accused knew that there was a human being in the structure at the time; and (v) That this structure belonged to a certain person and was of a certain value. (2) Simple arson. (a) That the accused burned or set fire to cer- tain property of another; (b) That the property was of a certain value; and (c) That the act was willful and malicious. c. Explanation. (1) In general. In aggravated arson, danger to hu- man life is the essential element; in simple arson, it is injury to the property of another. In either case, it is immaterial that no one is, in fact, injured. It must be shown that the accused set the fire willfully and maliciously, that is, not merely by negligence or accident. (2) Aggravated arson. (a) Inhabited dwelling. An inhabited dwelling includes the outbuildings that form part of the clus- ter of buildings used as a residence. A shop or store is not an inhabited dwelling unless occupied as such, n o r i s a h o u s e t h a t h a s n e v e r b e e n o c c u p i e d o r which has been temporarily abandoned. A person may be guilty of aggravated arson of the person’s dwelling, whether as owner or tenant. (b) Structure. Aggravated arson may also be committed by burning or setting on fire any other structure, movable or immovable, such as a theater, church, boat, trailer, tent, auditorium, or any other sort of shelter or edifice, whether public or private, when the offender knows that there is a human be- ing inside at the time. It may be that the offender had this knowledge when the nature of the struc- ture—as a department store or theater during hours of business, or other circumstances—are shown to have been such that a reasonable person would have known that a human being was inside at the time. (c) Damage to property. It is not necessary that the dwelling or structure be consumed or materially injured; it is enough if fire is actually communicated to any part thereof. Any actual burning or charring is sufficient, but a mere scorching or discoloration by heat is not. (d) Value and ownership of property. For the offense of aggravated arson, the value and owner- ship of the dwelling or other structure are immateri- al, but should ordinarily be alleged and proved to permit the finding in an appropriate case of the in- cluded offense of simple arson. (3) Simple arson. “Simple arson” is the willful and malicious burning or setting fire to the property of another under circumstances not amounting to aggravated arson. The offense includes burning or setting fire to real or personal property of someone o t h e r t h a n t h e o f f e n d e r . S e e a l s o p a r a g r a p h 6 7 (Burning with intent to defraud). d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. ( 1 ) A g g r a v a t e d a r s o n . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 20 years. (2) Simple arson, where the property is— (a) Of a value of $500.00 or less. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year. (b) Of a value of more than $500.00. Dishonor- able discharge, forfeiture of all pay and allowances, and confinement for 5 years. f. Sample specifications. (1) Aggravated arson. (a) Inhabited dwelling. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about 20 , will- fully and maliciously (burn) (set on fire) an inhab- IV-99 ¶52.f.(1)(a)Article 126
p. 401
ited dwelling, to wit: (the residence of ) ( ), (the property of ) of a value of (about) $ . (b) Structure. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or 20 , willfully and maliciously (burn) (set on fire), knowing that a hu- man being was therein at the time, (the Post Thea- ter) ( , the property of ), of a value of (about) $ . (2) Simple arson. In that (personal jurisdiction data), did, (at/on board— location) (subject-matter jurisdiction data, if required), on or about 20 , will- fully and maliciously (burn) (set fire to) (an automo- bile) ( ), the property of , of a value of (about) $ . 53. Article 127—Extortion a. Text of statute. Any person subject to this chapter who com- municates threats to another person with the in- tention thereby to obtain anything of value or any acquittance, advantage, or immunity is guilty of extortion and shall be punished as a court- martial may direct. b. Elements. ( 1 ) T h a t t h e a c c u s e d c o m m u n i c a t e d a c e r t a i n threat to another; and (2) That the accused intended to unlawfully ob- tain something of value, or any acquittance, advan- tage, or immunity. c. Explanation. (1) In general. Extortion is complete upon com- munication of the threat with the requisite intent. The actual or probable success of the extortion need not be proved. (2) Threat. A threat may be communicated by any means but must be received by the intended victim. The threat may be: a threat to do any unlaw- ful injury to the person or property of the person threatened or to any member of that person’s family or any other person held dear to that person; a threat to accuse the person threatened, or any member of that persons’s family or any other person held dear to that person, of any crime; a threat to expose or i m p u t e a n y d e f o r m i t y o r d i s g r a c e t o t h e p e r s o n threatened or to any member of that person’s family or any other person held dear to that person; a threat to expose any secret affecting the person threatened or any member of that person’s family or any other person held dear to that person; or a threat to do any other harm. (3) Acquittance. An “acquittance” is a release or discharge from an obligation. ( 4 ) A d v a n t a g e o r i m m u n i t y . U n l e s s i t i s c l e a r from the circumstances, the advantage or immunity sought should be described in the specification. An intent to make a person do an act against that per- son’s will is not, by itself, sufficient to constitute extortion. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 3 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about 20 , with intent unlawfully to obtain (something of value) (an acquittance) (an advantage, to wit ) (an i m m u n i t y , t o w i t ) , c o m m u n i c a t e t o a threat to (here describe the threat). 54. Article 128—Assault a. Text of statute. (a) Any person subject to this chapter who at- tempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-mar- tial may direct. (b) Any person subject to this chapter who— ( 1 ) c o m m i t s a n a s s a u l t w i t h a d a n g e r o u s weapon or other means or force likely to produce death or grievous bodily harm; or (2) commits an assault and intentionally in- f l i c t s g r i e v o u s b o d i l y h a r m w i t h o r w i t h o u t a weapon; is guilty of aggravated assault and shall be pun- ished as a court-martial may direct. b. Elements. (1) Simple assault. IV-100 ¶52.f.(1)(a) Article 128
p. 402
(a) That the accused attempted or offered to do bodily harm to a certain person; and (b) That the attempt or offer was done with unlawful force or violence. (2) Assault consummated by a battery. (a) That the accused did bodily harm to a cer- tain person; and (b) That the bodily harm was done with unlaw- ful force or violence. ( 3 ) A s s a u l t s p e r m i t t i n g i n c r e a s e d p u n i s h m e n t based on status of victim. ( a ) A s s a u l t u p o n a c o m m i s s i o n e d , w a r r a n t , noncommissioned, or petty officer. (i) That the accused attempted to do, offered to do, or did bodily harm to a certain person; (ii) That the attempt, offer, or bodily harm was done with unlawful force or violence; (iii) That the person was a commissioned, warrant, noncommissioned, or petty officer; and (iv) That the accused then knew that the per- s o n w a s a c o m m i s s i o n e d , w a r r a n t , n o n c o m m i s - sioned, or petty officer. (b) Assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution of law enforcement duties. (i) That the accused attempted to do, offered to do, or did bodily harm to a certain person; (ii) That the attempt, offer, or bodily harm was done with unlawful force or violence; (iii) That the person was a sentinel or look- out in the execution of duty or was a person who then had and was in the execution of security police, military police, shore patrol, master at arms, or other military or civilian law enforcement duties; and (iv) That the accused then knew that the per- son was a sentinel or lookout in the execution of duty or was a person who then had and was in the execution of security police, military police, shore patrol, master at arms, or other military or civilian law enforcement duties. (c) Assault consummated by a battery upon a child under 16 years. (i) That the accused did bodily harm to a certain person; (ii) That the bodily harm was done with un- lawful force or violence; and (iii) That the person was then a child under the age of 16 years. (4) Aggravated assault. (a) Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm. (i) That the accused attempted to do, offered to do, or did bodily harm to a certain person; (ii) That the accused did so with a certain weapon, means, or force; (iii) That the attempt, offer, or bodily harm was done with unlawful force or violence; and (iv) That the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm. (Note: Add any of the following as applicable) (v) That the weapon was a loaded firearm. (vi) That the person was a child under the age of 16 years. (b) Assault in which grievous bodily harm is intentionally inflicted. ( i ) T h a t t h e a c c u s e d a s s a u l t e d a c e r t a i n person; (ii) That grievous bodily harm was thereby inflicted upon such person; (iii) That the grievous bodily harm was done with unlawful force or violence; and (iv) That the accused, at the time, had the specific intent to inflict grievous bodily harm. (Note: Add any of the following as applicable) (v) That the injury was inflicted with a loaded firearm. (vi) That the person was a child under the age of 16 years. c. Explanation. (1) Simple assault. (a) Definition of assault. An “assault” is an at- tempt or offer with unlawful force or violence to do bodily harm to another, whether or not the attempt or offer is consummated. It must be done without legal justification or excuse and without the lawful consent of the person affected. “Bodily harm” means any offensive touching of another, however slight. (b) Difference between “attempt” and “offer” type assaults. (i) Attempt type assault. An “attempt” type assault requires a specific intent to inflict bodily IV-101 ¶54.c.(1)(b)(i)Article 128
p. 403
harm, and an overt act—that is, an act that amounts to more than mere preparation and apparently tends to effect the intended bodily harm. An attempt type assault may be committed even though the victim had no knowledge of the incident at the time. (ii) Offer type assault. An “offer” type as- sault is an unlawful demonstration of violence, ei- ther by an intentional or by a culpably negligent act or omission, which creates in the mind of another a r e a s o n a b l e a p p r e h e n s i o n o f r e c e i v i n g i m m e d i a t e bodily harm. Specific intent to inflict bodily harm is not required. (iii) Examples. (A) If Doe swings a fist at Roe’s head intend- ing to hit Roe but misses, Doe has committed an attempt type assault, whether or not Roe is aware of the attempt. (B) If Doe swings a fist in the direct of Roe’s head either intentionally or as a result of culpable negligence, and Roe sees the blow coming and is thereby put in apprehension of being struck, Doe has committed an offer type assault whether or not Doe intended to hit Roe. (C) If Doe swings at Roe’s head, intending to hit it, and Roe sees the blow coming and is thereby put in apprehension of being struck, Doe has com- mitted both on offer and an attempt type assault. (D) If Doe swings at Roe’s head simply to frighten Roe, not intending to hit Roe, and Roe does not see the blow and is not placed in fear, then no assault of any type has been committed. (c) Situations not amounting to assault. ( i ) M e r e p r e p a r a t i o n . P r e p a r a t i o n n o t amounting to an overt act, such as picking up a stone without any attempt or offer to throw it, does not constitute an assault. (ii) Threatening words. The use of threaten- ing words alone does not constitute an assault. How- ever, if the threatening words are accompanied by a menacing act or gesture, there may be an assault, since the combination constitutes a demonstration of violence. (iii) Circumstances negating intent to harm. If the circumstances known to the person menaced clearly negate an intent to do bodily harm there is no assault. Thus, if a person accompanies an appar- ent attempt to strike another by an unequivocal an- nouncement in some form of an intention not to strike, there is no assault. For example, if Doe raises a stick and shakes it at Roe within striking distance saying, “If you weren’t an old man, I would knock you down,” Doe has committed no assault. Howev- er, an offer to inflict bodily injury upon another i n s t a n t l y i f t h a t p e r s o n d o e s n o t c o m p l y w i t h a demand which the assailant has no lawful right to make is an assault. Thus, if Doe points a pistol at Roe and says, “If you don’t hand over your watch, I will shoot you,” Doe has committed an assault upon Roe. See also paragraph 47 (robbery) of this part. (d) Situations not constituting defenses to as- sault. (i) Assault attempt fails. It is not a defense to a charge of assault that for some reason unknown to the assailant, an assault attempt was bound to fail. Thus, if a person loads a rifle with what is believed to be a good cartridge and, pointing it at another, pulls the trigger, that person may be guilty of assault although the cartridge was defective and did not fire. Likewise, if a person in a house shoots through the roof at a place where a policeman is believed to be, that person may be guilty of assault even though the policeman is at another place on the roof. (ii) Retreating victim. An assault is complete if there is a demonstration of violence and an appar- ent ability to inflict bodily injury causing the person at whom it was directed to reasonably apprehend that unless the person retreats bodily harm will be inflicted. This is true even though the victim re- treated and was never within actual striking distance of the assailant. There must, however, be an appar- ent present ability to inflict the injury. Thus, to aim a pistol at a person at such a distance that it clearly could not injure would not be an assault. (2) Battery. ( a ) I n g e n e r a l . A “ b a t t e r y ” i s a n a s s a u l t i n which the attempt or offer to do bodily harm is consummated by the infliction of that harm. (b) Application of force. The force applied in a battery may have been directly or indirectly applied. Thus, a battery can be committed by inflicting bod- ily injury on a person through striking the horse on which the person is mounted causing the horse to throw the person, as well as by striking the person directly. (c) Examples of battery. It may be a battery to spit on another, push a third person against another, set a dog at another which bites the person, cut another’s clothes while the person is wearing them IV-102 ¶54.c.(1)(b)(i) Article 128
p. 404
though without touching or intending to touch the p e r s o n , s h o o t a p e r s o n , c a u s e a p e r s o n t o t a k e poison, or drive an automobile into a person. A person who, although excused in using force, uses m o r e f o r c e t h a n i s r e q u i r e d , c o m m i t s a b a t t e r y . Throwing an object into a crowd may be a battery on anyone whom the object hits. (d) Situations not constituting battery. If bodily harm is inflicted unintentionally and without culpa- ble negligence, there is no battery. It is also not a battery to touch another to attract the other’s atten- tion or to prevent injury. ( 3 ) A s s a u l t s p e r m i t t i n g i n c r e a s e d p u n i s h m e n t based on status of victims. ( a ) A s s a u l t u p o n a c o m m i s s i o n e d , w a r r a n t , noncommissioned, or petty officer. The maximum punishment is increased when assault is committed upon a commissioned officer of the armed forces of the United States, or of a friendly foreign power, or upon a warrant, noncommissioned, or petty officer of the armed forces of the United States. Knowledge of the status of the victim is an essential element of the offense and may be proved by circumstantial evidence. It is not necessary that the victim be supe- rior in rank or command to the accused, that the victim be in the same armed force, or that the victim be in the execution of office at the time of the assault. (b) Assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution of law enforcement duties. The maximum punish- ment is increased when assault is committed upon a sentinel or lookout in the execution of duty or upon a person who was then performing security police, military police, shore patrol, master at arms, or other military or civilian law enforcement duties. Knowl- edge of the status of the victim is an essential ele- m e n t o f t h i s o f f e n s e a n d m a y b e p r o v e d b y circumstantial evidence. See paragraph 38c(4) for the definition of “sentinel or lookout.” (c) Assault consummated by a battery upon a child under 16 years of age. The maximum punish- ment is increased when assault consummated by a battery is committed upon a child under 16 years of age. Knowledge that the person assaulted was under 16 years of age is not an element of this offense. (4) Aggravated assault. (a) Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm. ( i ) D a n g e r o u s w e a p o n . A w e a p o n i s d a n - gerous when used in a manner likely to produce death or grievous bodily harm. (ii) Other means or force. The phrase “other means or force” may include any means or instru- mentality not normally considered a weapon. When the natural and probable consequence of a particular use of any means or force would be death or griev- ous bodily harm, it may be inferred that the means or force is “likely” to produce that result. The use to which a certain kind of instrument is ordinarily put is irrelevant to the question of its method of employ- ment in a particular case. Thus, a bottle, beer glass, a rock, a bunk adaptor, a piece of pipe, a piece of wood, boiling water, drugs, or a rifle butt may be used in a manner likely to inflict death or grievous bodily harm. On the other hand, an unloaded pistol, when presented as a firearm and not as a bludgeon, is not a dangerous weapon or a means of force likely to produce grievous bodily harm, whether or not the assailant knew it was unloaded. (iii) Grievous bodily harm. “Grievous bodily harm” means serious bodily injury. It does not in- clude minor injuries, such as a black eye or a bloody nose, but does include fractured or dislocated bones, deep cuts, torn members of the body, serious dam- a g e t o i n t e r n a l o r g a n s , a n d o t h e r s e r i o u s b o d i l y injuries. (iv) Death or injury not required. It is not necessary that death or grievous bodily harm be ac- tually inflicted to prove assault with a dangerous weapon or means likely to produce grievous bodily harm. (v) When committed upon a child under 16 years of age. The maximum punishment is increased when aggravated assault with a dangerous weapon or means likely to produce death or grievous bodily harm is inflicted upon a child under 16 years of age. Knowledge that the person assaulted was under the age of 16 years is not an element of the offense. (b) Assault in which grievous bodily harm is intentionally inflicted. (i) In general. It must be proved that the accused specifically intended to and did inflict griev- o u s b o d i l y h a r m . C u l p a b l e n e g l i g e n c e w i l l n o t suffice. (ii) Proving intent. Specific intent may be IV-103 ¶54.c.(4)(b)(ii)Article 128
p. 405
proved by circumstantial evidence. When grievous bodily harm has been inflicted by means of inten- tionally using force in a manner likely to achieve that result, it may be inferred that grievous bodily harm was intended. On the other hand, that infer- ence might not be drawn if a person struck another with a fist in a sidewalk fight even if the victim fell so that the victim’s head hit the curbstone and a skull fracture resulted. It is possible, however, to commit this kind of aggravated assault with the fists, as when the victim is held by one of several assail- ants while the others beat the victim with their fists and break a nose, jaw, or rib. (iii) Grievous bodily harm. See subparagraph (4)(a)(iii). (iv) When committed on a child under 16 years of age. The maximum punishment is increased when aggravated assault with intentional infliction of grievous bodily harm is inflicted upon a child under 16 years of age. Knowledge that the person assaulted was under the age of 16 years is not an element of the offense. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Simple assault. (A) Generally. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. (B) When committed with an unloaded firearm. Dishonorable discharge, forfeiture of all pay and al- lowances, and confinement for 3 years. (2) Assault consummated by a battery. Bad con- duct discharge, forfeiture of all pay and allowances, and confinement for 6 months. (3) Assault upon a commissioned officer of the armed forces of the United States or of a friendly foreign power, not in the execution of office. Dis- honorable discharge, forfeiture of all pay and allow- ances, and confinement for 3 years. (4) Assault upon a warrant officer, not in the execution of office. Dishonorable discharge, forfei- ture of all pay and allowances, and confinement for 18 months. (5) Assault upon a noncommissioned or petty offi- cer, not in the execution of office. Bad-conduct dis- charge, forfeiture of all pay and allowances, and confinement for 6 months. (6) Assault upon a sentinel or lookout in the exe- cution of duty, or upon any person who, in the execution of office, is performing security police, military police, shore patrol, master at arms, or other military or civilian law enforcement duties. Dishonorable discharge, forfeiture of all pay and al- lowances, and confinement for 3 years. ( 7 ) A s s a u l t c o n s u m m a t e d b y a b a t t e r y u p o n a child under 16 years. Dishonorable discharge, forfei- ture of all pay and allowances, and confinement for 2 years. (8) Aggravated assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm. ( a ) W h e n c o m m i t t e d w i t h a l o a d e d f i r e a r m . Dishonorable discharge, forfeiture of all pay and al- lowances, and confinement for 8 years. ( b ) A g g r a v a t e d a s s a u l t w i t h a d a n g e r o u s weapon or other means or force likely to produce death or grievous bodily harm when committed upon a child under the age of 16 years. Dishonorable discharge, total forfeitures, and confinement for 5 years. (c) Other cases. Dishonorable discharge, forfei- ture of all pay and allowances, and confinement for 3 years. (9) Aggravated assault in which grievous bodily harm is intentionally inflicted. (a) When the injury is inflicted with a loaded firearm. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. (b) Aggravated assault in which grievous bod- ily harm is intentionally inflicted when committed upon a child under the age of 16 years. Dishonora- ble discharge, total forfeitures, and confinement for 8 years. (c) Other cases. Dishonorable discharge, forfei- ture of all pay and allowances, and confinement for 5 years. f. Sample specifications. (1) Simple assault. In that (personal jurisdiction data), did, (at/on board—location), (subject-matter jurisdiction data, if required), on or about 20 , assault b y ( s t r i k i n g a t h i m / h e r w i t h a ) ( ). (2) Assault consummated by a battery. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about 20 , unlaw- IV-104 ¶54.c.(4)(b)(ii) Article 128
p. 406
fully (strike) ( ) (on) (in) the with . (3) Assault upon a commissioned officer. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about 20 , assault , who then was and was then known by the accused to be a commissioned officer of ( , a friendly foreign power) (the United States (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard)) by . (4) Assault upon a warrant, noncommissioned, or petty officer. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about 20 , assault , who then was and was then known by the accused to be a (warrant) (noncommissioned) (petty) officer of the United States (Army) (Navy) ( M a r i n e C o r p s ) ( A i r F o r c e ) ( C o a s t G u a r d ) , b y . (5) Assault upon a sentinel or lookout. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about 20 , assault , who then was and was then known by the accused to be a (sentinel) (lookout) in the execu- tion of his/her duty, ((in) (on) the ) by . (6) Assault upon a person in the execution of law enforcement duties. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about 20 , assault , who then was and was then known by the accused to be a person then having and in the execution of (Air Force security police) (military police) (shore patrol) (master at arms) ((military) (civilian) law enforcement)) duties, by . ( 7 ) A s s a u l t c o n s u m m a t e d b y a b a t t e r y u p o n a child under 16 years. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about 20 , unlaw- f u l l y ( s t r i k e ) ( ) a c h i l d under the age of 16 years, (in) (on) the with . (8) Assault, aggravated—with a dangerous weap- on, means or force. In that (personal jurisdiction data), did, (at/on board-location) (subject matter jurisdiction da- ta, if required), on or about 20 , commit an assault upon (a child under the age of 16 years) by (shooting) (pointing) (striking) (cut- ting) ( ) (at him/her) (him/her) (in) (on) (the ) w i t h ( a d a n g e r o u s w e a p o n ) ( a ( m e a n s ) (force) likely to produce death or grievous bodily harm), to wit: a (loaded firearm)(pickax) (bayonet) (club) ( ). (9) Assault, aggravated—inflicting grievous bod- ily harm. In that (personal jurisdiction data), did, (at/on board-location)(subject matter jurisdiction da- ta, if required), on or about 20 , commit an assault upon (a child under the age of 16 years) by (shooting) (striking) (cutting) ( ) ( h i m / h e r ) ( o n ) t h e w i t h a ( l o a d e d f i r e a r m ) (club) (rock) (brick) ( ) and did thereby intentionally inflict grievous bodily harm upon him/ h e r , t o w i t : a ( b r o k e n l e g ) ( d e e p c u t ) ( f r a c t u r e d skull) ( ). 55. Article 129—Burglary a. Text of statute. Any person subject to this chapter who, with intent to commit an offense punishable under sec- t i o n s 9 1 8 - 9 2 8 o f t h i s t i t l e ( a r t i c l e s 1 1 8 - 1 2 8 ) , breaks and enters, in the nighttime, the dwelling house of another, is guilty of burglary and shall be punished as a court-martial may direct. b. Elements. ( 1 ) T h a t t h e a c c u s e d u n l a w f u l l y b r o k e a n d entered the dwelling house of another; ( 2 ) T h a t b o t h t h e b r e a k i n g a n d e n t e r i n g w e r e done in the nighttime; and ( 3 ) T h a t t h e b r e a k i n g a n d e n t e r i n g w e r e d o n e w i t h t h e i n t e n t t o c o m m i t a n o f f e n s e p u n i s h a b l e under Article 118 through 128, except Article 123a. c. Explanation. (1) In general. “Burglary” is the breaking and entering in the nighttime of the dwelling house of another, with intent to commit an offense punishable under Articles 118 through 128, except 123a. In addition, an intent to commit an offense which, al- though not covered by Article 118 through 128, nec- e s s a r i l y i n c l u d e s a n o f f e n s e w i t h i n o n e o f t h e s e IV-105 ¶55.c.(1)Article 129
p. 407
articles, satisfies the intent element of this article. T h i s i n c l u d e s , f o r e x a m p l e , a s s a u l t s p u n i s h a b l e under Article 134 which necessarily include simple assault under Article 128. (2) Breaking. There must be a breaking, actual or constructive. Merely to enter through a hole left in the wall or roof or through an open window or door will not constitute a breaking; but if a person moves any obstruction to entry of the house without which movement the person could not have entered, the p e r s o n h a s c o m m i t t e d a “ b r e a k i n g . ” O p e n i n g a c l o s e d d o o r o r w i n d o w o r o t h e r s i m i l a r f i x t u r e , opening wider a door or window already partly open but insufficient for the entry, or cutting out the glass of a window or the netting of a screen is a sufficient breaking. The breaking of an inner door by one who has entered the house without breaking, or by a person lawfully within the house who has no author- ity to enter the particular room, is a sufficient break- ing, but unless such a breaking is followed by an entry into the particular room with the requisite in- tent, burglary is not committed. There is a construc- tive breaking when the entry is gained by a trick, such as concealing oneself in a box; under false pretense, such as impersonating a gas or telephone inspector; by intimidating the occupants through vio- lence or threats into opening the door; through collu- sion with a confederate, an occupant of the house; or by descending a chimney, even if only a partial descent is made and no room is entered. (3) Entry. An entry must be effected before the offense is complete, but the entry of any part of the body, even a finger, is sufficient. Insertion into the house of a tool or other instrument is also a suffi- cient entry, unless the insertion is solely to facilitate the breaking or entry. (4) Nighttime. Both the breaking and entry must be in the nighttime. “Nighttime” is the period be- tween sunset and sunrise when there is not sufficient daylight to discern a person’s face. (5) Dwelling house of another. To constitute bur- glary the house must be the dwelling house of an- o t h e r . “ D w e l l i n g h o u s e ” i n c l u d e s o u t b u i l d i n g s within the common inclosure, farmyard, or cluster of buildings used as a residence. Such an area is the “curtilage.” A store is not a dwelling house unless part of, or also used as, a dwelling house, as when the occupant uses another part of the same building as a dwelling, or when the store in habitually slept i n b y f a m i l y m e m b e r s o r e m p l o y e e s . T h e h o u s e must be used as a dwelling at the time of the break- ing and entering. It is not necessary that anyone actually be in it at the time of the breaking and entering, but if the house has never been occupied at all or has been left without any intention of return- ing, it is not a dwelling house. Separate dwellings within the same building, such as a barracks room, apartment, or a room in a hotel, are subjects of burglary by other residents or guests, and in general by the owner of the building. A tent is not a subject of burglary. (6) Intent to commit offense. Both the breaking and entry must be done with the intent to commit in the house an offense punishable under Articles 118 through 128, except 123a. If, after the breaking and entering, the accused commits one or more of these offenses, it may be inferred that the accused in- tended to commit the offense or offenses at the time of the breaking and entering. If the evidence war- r a n t s , t h e i n t e n d e d o f f e n s e m a y b e s e p a r a t e l y charged. It is immaterial whether the offense in- tended is committed or even attempted. If the of- f e n s e i s i n t e n d e d , i t i s n o d e f e n s e t h a t i t s commission was impossible. (7) Separate offense. If the evidence warrants, the intended offense in the burglary specification may be separately charged. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 10 years. f. Sample specification. In that (personal jurisdiction data), did, at , (subject-matter jurisdiction data, if required), on or about 20 , in the night- t i m e , u n l a w f u l l y b r e a k a n d e n t e r t h e ( d w e l l i n g h o u s e ) ( w i t h i n t h e c u r t i l a g e ) o f , with intent to commit (murder) (larce- ny) ( ) therein. 56. Article 130—Housebreaking a. Text of statute. Any person subject to this chapter who unlaw- fully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking and shall be punished as a court-martial may direct. b. Elements. IV-106 ¶55.c.(1) Article 130
p. 408
(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. Explanation. (1) Scope of offense. The offense of housebreak- ing is broader than burglary in that the place entered is not required to be a dwelling house; it is not necessary that the place be occupied; it is not essen- tial that there be a breaking; the entry may be either in the night or in the daytime; and the intent need not be to commit one of the offenses made punisha- ble under Articles 118 through 128. (2) Intent. The intent to commit some criminal offense is an essential element of housebreaking and must be alleged and proved to support a conviction of this offense. If, after the entry the accused com- m i t t e d a c r i m i n a l o f f e n s e i n s i d e t h e b u i l d i n g o r structure, it may be inferred that the accused in- tended to commit that offense at the time of the entry. (3) Criminal offense. Any act or omission which is punishable by courts-martial, except an act or omission constituting a purely military offense, is a “criminal offense.” ( 4 ) B u i l d i n g , s t r u c t u r e . “ B u i l d i n g ” i n c l u d e s a room, shop, store, office, or apartment in a building. “Structure” refers only to those structures which are in the nature of a building or dwelling. Examples of these structures are a stateroom, hold, or other com- partment of a vessel, an inhabitable trailer, an in- closed truck or freight car, a tent, and a houseboat. It is not necessary that the building or structure be in use at the time of the entry. (5) Entry. See paragraph 55c(3). (6) Separate offense. If the evidence warrants, the intended offense in the housebreaking specification may be separately charged. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 5 years. f. Sample specification. In that , (personal jurisdiction da- ta), did, (at/on board—location) (subject-matter ju- risdiction data, if required), on or about 20 , unlawfully enter a (dwelling) (room) (bank) ( s t o r e ) ( w a r e h o u s e ) ( s h o p ) ( t e n t ) ( s t a t e r o o m ) ( ), the property of , with in- t e n t t o c o m m i t a c r i m i n a l o f f e n s e , t o w i t : , therein. 57. Article 131—Perjury a. Text of statute. Any person subject to this chapter who in a judicial proceeding or in a course of justice will- fully and corruptly— (1) upon a lawful oath or in any form allowed by law to be substituted for an oath, gives any false testimony material to the issue or matter of inquiry; or (2) in any declaration, certificate, verification, or statement under penalty of perjury as permit- ted under section 1746 of title 28, United States Code, 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. Elements. (1) Giving false testimony. (a) That the accused took an oath or affirma- tion in a certain judicial proceeding or course of justice; (b) That the oath or affirmation was adminis- tered to the accused in a matter in which an oath or affirmation was required or authorized by law; (c) That the oath or affirmation was adminis- tered by a person having authority to do so; (d) That upon the oath or affirmation that ac- cused willfully gave certain testimony; (e) That the testimony was material; (f) That the testimony was false; and (g) That the accused did not then believe the testimony to be true. (2) Subscribing false statement. (a) That the accused subscribed a certain state- ment in a judicial proceeding or course of justice; (b) That in the declaration, certification, verifi- cation, or statement under penalty of perjury, the accused declared, certified, verified, or stated the truth of that certain statement; (c) That the accused willfully subscribed the statement; (d) That the statement was material; IV-107 ¶57.b.(2)(d)Article 131
p. 409
(e) That the statement was false; and (f) That the accused did not then believe the statement to be true. c. Explanation. (1) In general. “Judicial proceeding” includes a t r i a l b y c o u r t - m a r t i a l a n d “ c o u r s e o f j u s t i c e ” i n - cludes a preliminary hearing conducted under Arti- c l e 3 2 . I f t h e a c c u s e d i s c h a r g e d w i t h h a v i n g committed perjury before a court-martial, it must be shown that the court-martial was duly constituted. (2) Giving false testimony. (a) Nature. The testimony must be false and must be willfully and corruptly given; that is, it must be proved that the accused gave the false testimony willfully and did not believe it to be true. A witness may commit perjury by testifying to the truth of a matter when in fact the witness knows nothing about it at all or is not sure about it, whether the thing is true or false in fact. A witness may also commit perjury in testifying falsely as to a belief, remem- brance, or impression, or as to a judgment or opin- ion. It is no defense that the witness voluntarily appeared, that the witness was incompetent as a wit- ness, or that the testimony was given in response to questions that the witness could have declined to answer. (b) Material matter. The false testimony must be with respect to a material matter, but that matter need not be the main issue in the case. Thus, perjury may be committed by giving false testimony with respect to the credibility of a material witness or in an affidavit in support of a request for a continu- a n c e , a s w e l l a s b y g i v i n g f a l s e t e s t i m o n y w i t h respect to a fact from which a legitimate inference may be drawn as to the existence or nonexistence of a fact in issue. (c) Proof. The falsity of the allegedly perjured statement cannot be proved by circumstantial evi- dence alone, except with respect to matters which by their nature are not susceptible of direct proof. The falsity of the statement cannot be proved by the testimony of a single witness unless that testimony directly contradicts the statement and is corroborated by other evidence either direct or circumstantial, ten- ding to prove the falsity of the statement. However, documentary evidence directly disproving the truth of the statement charged to have been perjured need not be corroborated if: the document is an official record shown to have been well known to the ac- cused at the time the oath was taken; or the docu- mentary evidence originated from the accused—or had in any manner been recognized by the accused as containing the truth—before the allegedly per- jured statement was made. (d) Oath. The oath must be one recognized or authorized by law and must be duly administered by one authorized to administer it. When a form of oath has been prescribed, a literal following of that form is not essential; it is sufficient if the oath adminis- tered conforms in substance to the prescribed form. “Oath” includes an affirmation when the latter is authorized in lieu of an oath. (e) Belief of accused. The fact that the accused did not believe the statement to be true may be proved by testimony of one witness without corrobo- ration or by circumstantial evidence. ( 3 ) S u b s c r i b i n g f a l s e s t a t e m e n t . S e e s u b - paragraphs (1) and (2), above, as applicable. Section 1746 of title 28, United States Code, provides for subscribing to the truth of a document by signing it expressly subject to the penalty for perjury. The signing must take place in a judicial proceeding or course of justice—for example, if a witness signs u n d e r p e n a l t y o f p e r j u r y s u m m a r i z e d t e s t i m o n y given at an Article 32 preliminary hearing. It is not required that the document be sworn before a third party. Section 1746 does not change the requirement that a deposition be given under oath or alter the s i t u a t i o n w h e r e a n o a t h i s r e q u i r e d t o b e t a k e n before a specific person. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 5 years. f. Sample specifications. (1) Giving false testimony. In that (personal jurisdiction data), hav- ing taken a lawful (oath) (affirmation) in a (trial by court-martial of ) (trial by a c o u r t o f c o m p e t e n t j u r i s d i c t i o n , t o w i t : of ) (deposition for use in a trial by of ) ( ) that he/she would (testify) (depose) truly, did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about 20 , willfully, cor- r u p t l y , a n d c o n t r a r y t o s u c h ( o a t h ) ( a f f i r m a t i o n ) , ( t e s t i f y ) ( d e p o s e ) f a l s e l y i n s u b s t a n c e t h a t IV-108 ¶57.b.(2)(e) Article 131
p. 410
, w h i c h ( t e s t i m o n y ) ( d e p o s i t i o n ) w a s upon a material matter and which he/she did not then believe to be true. (2) Subscribing false statement. In that (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about 20 , in a (judicial proceeding) (course of justice), and in a (declaration) (certification) (verification) (statement) under penalty of perjury pursuant to section 1746 of title 28, United States Code, willfully and corruptly subscribed a false statement material to the (issue) (matter of inquiry), to wit: , which state- ment was false in that , and which state- ment he/she did not then believe to be true. 58. Article 132—Frauds against the United States a. Text of statute. Any person subject to this chapter— (1) who, knowing it to be false or fraudulent— ( a ) m a k e s a n y c l a i m a g a i n s t t h e U n i t e d States or any officer thereof; or (b) presents to any person in the civil or mil- itary service thereof, for approval or payment, any claim against the United States or any officer thereof; (2) who, for the purpose of obtaining the ap- p r o v a l , a l l o w a n c e , o r p a y m e n t o f a n y c l a i m against the United States or any officer thereof— (a) makes or uses any writing or other paper k n o w i n g i t t o c o n t a i n a n y f a l s e o r f r a u d u l e n t statements; (b) makes any oath to any fact or to any writing or other paper knowing the oath to be false; or (c) forges or counterfeits any signature upon any writing or other paper, or uses any such s i g n a t u r e k n o w i n g i t t o b e f o r g e d o r counterfeited; (3) who, having charge, possession, custody, or control of any money, or other property of the U n i t e d S t a t e s , f u r n i s h e d o r i n t e n d e d f o r t h e armed forces thereof, knowingly delivers to any person having authority to receive it, any amount thereof less than that for which he receives a certificate or receipt; or (4) who, being authorized to make or deliver any paper certifying the receipt of any property of the United States furnished or intended for the armed forces thereof, makes or delivers to any person such writing without having full knowl- edge of the truth of the statements therein con- t a i n e d a n d w i t h i n t e n t t o d e f r a u d t h e U n i t e d States; shall, upon conviction, be punished as a court- martial may direct. b. Elements. (1) Making a false or fraudulent claim. ( a ) T h a t t h e a c c u s e d m a d e a c e r t a i n c l a i m against the United States or an officer thereof; (b) That the claim was false or fraudulent in certain particulars; and (c) That the accused then knew that the claim was false or fraudulent in these particulars. (2) Presenting for approval or payment a false or fraudulent claim. (a) That the accused presented for approval or payment to a certain person in the civil or military service of the United States having authority to ap- prove or pay it a certain claim against the United States or an officer thereof; (b) That the claim was false or fraudulent in certain particulars; and (c) That the accused then knew that the claim was false or fraudulent in these particulars. ( 3 ) M a k i n g o r u s i n g a f a l s e w r i t i n g o r o t h e r paper in connection with claims. (a) That the accused made or used a certain writing or other paper; (b) That certain material statements in the writ- ing or other paper were false or fraudulent; (c) That the accused then knew the statements were false or fraudulent; and (d) That the act of the accused was for the p u r p o s e o f o b t a i n i n g t h e a p p r o v a l , a l l o w a n c e , o r payment of a certain claim or claims against the United States or an officer thereof. (4) False oath in connection with claims. (a) That the accused made an oath to a certain fact or to a certain writing or other paper; ( b ) T h a t t h e o a t h w a s f a l s e i n c e r t a i n particulars; (c) That the accused then knew it was false; and IV-109 ¶58.b.(4)(c)Article 132
p. 411
(d) That the act was for the purpose of obtain- ing the approval, allowance, or payment of a certain claim or claims against the United States or an offi- cer thereof. ( 5 ) F o r g e r y o f s i g n a t u r e i n c o n n e c t i o n w i t h claims. (a) That the accused forged or counterfeited the signature of a certain person on a certain writing or other paper; and (b) That the act was for the purpose of obtain- ing the approval, allowance, or payment of a certain claim against the United States or an officer thereof. ( 6 ) U s i n g f o r g e d s i g n a t u r e i n c o n n e c t i o n w i t h claims. (a) That the accused used the forged or coun- terfeited signature of a certain person; (b) That the accused then knew that the signa- ture was forged or counterfeited; and (c) That the act was for the purpose of obtain- ing the approval, allowance, or payment of a certain claim against the United States or an officer thereof. (7) Delivering less than amount called for by re- ceipt. (a) That the accused had charge, possession, custody, or control of certain money or property of t h e U n i t e d S t a t e s f u r n i s h e d o r i n t e n d e d f o r t h e armed forces thereof; (b) That the accused obtained a certificate or r e c e i p t f o r a c e r t a i n a m o u n t o r q u a n t i t y o f t h a t money or property; (c) That for the certificate or receipt the ac- cused knowingly delivered to a certain person hav- ing authority to receive it an amount or quantity of money or property less than the amount or quantity thereof specified in the certificate or receipt; and ( d ) T h a t t h e u n d e l i v e r e d m o n e y o r p r o p e r t y was of a certain value. (8) Making or delivering receipt without having full knowledge that it is true. (a) That the accused was authorized to make or deliver a paper certifying the receipt from a certain person of certain property of the United States fur- nished or intended for the armed forces thereof; (b) That the accused made or delivered to that person a certificate or receipt; (c) That the accused made or delivered the cer- tificate without having full knowledge of the truth of a certain material statement or statements therein; (d) That the act was done with intent to de- fraud the United States; and ( e ) T h a t t h e p r o p e r t y c e r t i f i e d a s b e i n g r e - ceived was of a certain value. c. Explanation. (1) Making a false or fraudulent claim. (a) Claim. A “claim” is a demand for a transfer of ownership of money or property and does not include requisitions for the mere use of property. This article applies only to claims against the United States or any officer thereof as such, and not to claims against an officer of the United States in that officer’s private capacity. (b) Making a claim. Making a claim is a dis- tinct act from presenting it. A claim may be made in one place and presented in another. The mere writ- ing of a paper in the form of a claim, without any further act to cause the paper to become a demand against the United States or an officer thereof, does not constitute making a claim. However, any act p l a c i n g t h e c l a i m i n o f f i c i a l c h a n n e l s c o n s t i t u t e s making a claim, even if that act does not amount to presenting a claim. It is not necessary that the claim be allowed or paid or that it be made by the person to be benefited by the allowance or payment. See also subparagraph (2), below. (c) Knowledge. The claim must be made with knowledge of its fictitious or dishonest character. T h i s a r t i c l e d o e s n o t p r o s c r i b e c l a i m s , h o w e v e r groundless they may be, that the maker believes to be valid, or claims that are merely made negligently or without ordinary prudence. (2) Presenting for approval or payment a false or fraudulent claim. (a) False and fraudulent. False and fraudulent claims include not only those containing some mate- rial false statement, but also claims which the claim- ant knows to have been paid or for some other reason the claimant knows the claimant is not au- t h o r i z e d t o p r e s e n t o r u p o n w h i c h t h e c l a i m a n t knows the claimant has no right to collect. ( b ) P r e s e n t i n g a c l a i m . T h e c l a i m m u s t b e presented, directly or indirectly, to some person hav- ing authority to pay it. The person to whom the claim is presented may be identified by position or authority to approve the claim, and need not be identified by name in the specification. A false claim IV-110 ¶58.b.(4)(d) Article 132
p. 412
may be tacitly presented, as when a person who knows that there is no entitlement to certain pay accepts it nevertheless without disclosing a disquali- fication, even though the person may not have made any representation of entitlement to the pay. For example, a person cashing a pay check which in- c l u d e s a n a m o u n t f o r a d e p e n d e n c y a l l o w a n c e , knowing at the time that the entitlement no longer exists because of a change in that dependency status, has tacitly presented a false claim. See also sub- paragraph (1), above. ( 3 ) M a k i n g o r u s i n g a f a l s e w r i t i n g o r o t h e r paper in connection with claims. The false or fraud- ulent statement must be material, that is, it must have a tendency to mislead governmental officials in their consideration or investigation of the claim. The offense of making a writing or other paper known to contain a false or fraudulent statement for the pur- pose of obtaining the approval, allowance, or pay- ment of a claim is complete when the writing or paper is made for that purpose, whether or not any use of the paper has been attempted and whether or not the claim has been presented. See also the expla- nation in subparagraph (1) and (2), above. ( 4 ) F a l s e o a t h i n c o n n e c t i o n w i t h c l a i m s . S e e subparagraphs (1) and (2), above. ( 5 ) F o r g e r y o f s i g n a t u r e i n c o n n e c t i o n w i t h claims. Any fraudulent making of the signature of another is forging or counterfeiting, whether or not an attempt is made to imitate the handwriting. See p a r a g r a p h 4 8 ( c ) a n d s u b p a r a g r a p h ( 1 ) a n d ( 2 ) , above. (6) Delivering less than amount called for by re- c e i p t . I t i s i m m a t e r i a l b y w h a t m e a n s — w h e t h e r deceit, collusion, or otherwise—the accused effected the transaction, or what was the accused’s purpose. (7) Making or delivering receipt without having full knowledge that it is true. When an officer or other person subject to military law is authorized to make or deliver any paper certifying the receipt of any property of the United States furnished or in- tended for the armed forces thereof, and a receipt or other paper is presented for signature stating that a certain amount of supplies has been furnished by a certain contractor, it is that person’s duty before signing the paper to know that the full amount of supplies therein stated to have been furnished has in fact been furnished, and that the statements con- tained in the paper are true. If the person signs the paper with intent to defraud the United States and without that knowledge, that person is guilty of a violation of this section of the article. If the person signs the paper with knowledge that the full amount was not received, it may be inferred that the person intended to defraud the United States. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. ( 1 ) A r t i c l e 1 3 2 ( 1 ) a n d ( 2 ) . D i s h o n o r a b l e d i s - charge, forfeiture of all pay and allowances, and confinement for 5 years. (2) Article 132(3) and (4). (a) When amount is $500.00 or less. Bad-con- duct discharge, forfeiture of all pay and allowances, and confinement for 6 months. (b) When amount is over $500.00. Dishonora- ble discharge, forfeiture of all pay and allowances, and confinement for 5 years. f. Sample specifications. (1) Making false claim. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , (by preparing (a voucher) ( ) for presentation for a p p r o v a l o r p a y m e n t ) ( ) , m a k e a c l a i m a g a i n s t t h e ( U n i t e d S t a t e s ) ( f i n a n c e o f f i c e r a t ) ( ) in the amount of $ for (pri- vate property alleged to have been (lost) (destroyed) in the military service) ( ), which claim was ( f a l s e ) ( f r a u d u l e n t ) ( f a l s e a n d f r a u d u l e n t ) i n t h e a m o u n t o f $ i n t h a t a n d w a s t h e n known by the said to be (false) (fraudulent) (false and fraudulent). (2) Presenting false claim. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , by presenting (a voucher)( ) to , an officer of the United States duly authorized to (approve) (pay) (approve and pay) such claim, present for (ap- proval) (payment) (approval and payment) a claim a g a i n s t t h e ( U n i t e d S t a t e s ) ( f i n a n c e o f f i c e r a t ) ( ) i n t h e a m o u n t o f $ f o r ( s e r v i c e s a l l e g e d t o h a v e b e e n r e n d e r e d t o t h e United States by during ) ( ), w h i c h c l a i m w a s ( f a l s e ) ( f r a u d u l e n t ) ( f a l s e a n d fraudulent) in the amount of $ in that , IV-111 ¶58.f.(2)Article 132
p. 413
and was then known by the said to be (false) (fraudulent) (false and fraudulent). (3) Making or using false writing. In that (personal jurisdiction data), for the purpose of obtaining the (approval) (allow- a n c e ) ( p a y m e n t ) ( a p p r o v a l , a l l o w a n c e , a n d p a y - ment), of a claim against the United States in the amount of $ , did (at/on board— location) (subject-matter jurisdiction data, if required), on or about 20 , (make) (use) (make and use) a certain (writing) (paper), to wit: , which s a i d ( w r i t i n g ) ( p a p e r ) , a s h e / s h e , t h e s a i d , then knew, contained a statement that , which statement was (false) (fraudu- lent) (false and fraudulent) in that , and w a s t h e n k n o w n b y t h e s a i d t o b e (false) (fraudulent) (false and fraudulent). (4) Making false oath. In that (personal jurisdiction data), for the purpose of obtaining the (approval) (allow- ance) (payment) (approval, allowance, and payment) of a claim against the United States, did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about 20 , make an oath (to the fact that ) (to a certain (writing) ( p a p e r ) , t o w i t : , t o t h e e f f e c t t h a t ) , w h i c h s a i d o a t h w a s f a l s e i n t h a t , a n d w a s t h e n k n o w n b y t h e s a i d to be false. (5) Forging or counterfeiting signature. In that (personal jurisdiction data), for the purpose of obtaining the (approval) (allow- ance) (payment) (approval, allowance, and payment) o f a c l a i m a g a i n s t t h e U n i t e d S t a t e s , d i d ( a t / o n board—location) (subject-matter jurisdiction data, if required), on or about 20 , (forge) (coun- t e r f e i t ) ( f o r g e a n d c o u n t e r f e i t ) t h e s i g n a t u r e o f upon a in words and figures as follows: . (6) Using forged signature. In that , for the purpose of obtain- ing the (approval) (allowance) (payment) (approval, a l l o w a n c e , a n d p a y m e n t ) o f a c l a i m a g a i n s t t h e United States, did, (at/on board—location) (subject- matter jurisdiction data, if required), on or about 20 , use the signature of on a certain (writing) (paper), to wit: , then k n o w i n g s u c h s i g n a t u r e t o b e ( f o r g e d ) ( c o u n t e r - feited) (forged and counterfeited). (7) Paying amount less than called for by receipt. In that (personal jurisdiction data), having (charge) (possession) (custody) (control) of (money) ( ) of the United States, (fur- nished) (intended) (furnished and intended) for the armed forces thereof, did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about 20 , knowingly deliver to , the said having authority to receive the same, (an amount) ( ), which, as he/she, , then knew, was ($ ) ( ) less than the (amount) ( ) for which he/she received a (cer- tificate) (receipt) from the said . ( 8 ) M a k i n g r e c e i p t w i t h o u t k n o w l e d g e o f t h e facts. In that (personal jurisdiction data), b e i n g a u t h o r i z e d t o ( m a k e ) ( d e l i v e r ) ( m a k e a n d deliver) a paper certifying the receipt of property of the United States (furnished) (intended) (furnished and intended) for the armed forces thereof, did, (at/ on board—location) (subject-matter jurisdiction data, if required), on or about 20 , without hav- ing full knowledge of the statement therein con- tained and with intent to defraud the United States, (make) (deliver) (make and deliver) to , such a writing, in words and figures as follows: , the property therein certified as re- ceived being of a value of about $ . 59. Article 133—Conduct unbecoming an officer and gentleman a. Text of statute. Any commissioned officer, cadet, or midship- man who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct. b. Elements. (1) That the accused did or omitted to do certain acts; and (2) That, under the circumstances, these acts or omissions constituted conduct unbecoming an offi- cer and gentleman. c. Explanation. ( 1 ) G e n t l e m a n . A s u s e d i n t h i s a r t i c l e , “gentleman” includes both male and female commis- sioned officers, cadets, and midshipmen. (2) Nature of offense. Conduct violative of this article is action or behavior in an official capacity which, in dishonoring or disgracing the person as an IV-112 ¶58.f.(2) Article 133
p. 414
officer, seriously compromises the officer’s charac- ter as a gentleman, or action or behavior in an unof- ficial or private capacity which, in dishonoring or disgracing the officer personally, seriously compro- mises the person’s standing as an officer. There are certain moral attributes common to the ideal officer and the perfect gentleman, a lack of which is indi- cated by acts of dishonesty, unfair dealing, indecen- cy, indecorum, lawlessness, injustice, or cruelty. Not everyone is or can be expected to meet unrealisti- cally high moral standards, but there is a limit of tolerance based on customs of the service and mili- tary necessity below which the personal standards of an officer, cadet, or midshipman cannot fall without seriously compromising the person’s standing as an officer, cadet, or midshipman or the person’s charac- ter as a gentleman. This article prohibits conduct by a c o m m i s s i o n e d o f f i c e r , c a d e t , o r m i d s h i p m a n which, taking all the circumstances into considera- tion, is thus compromising. This article includes acts made punishable by any other article, provided these acts amount to conduct unbecoming an officer and a gentleman. Thus, a commissioned officer who steals property violates both this article and Article 121. Whenever the offense charged is the same as a spe- cific offense set forth in this Manual, the elements of proof are the same as those set forth in the para- graph which treats that specific offense, with the additional requirement that the act or omission con- s t i t u t e s c o n d u c t u n b e c o m i n g a n o f f i c e r a n d gentleman. (3) Examples of offenses. Instances of violation of this article include knowingly making a false official statement; dishonorable failure to pay a debt; cheat- ing on an exam; opening and reading a letter of another without authority; using insulting or defama- t o r y l a n g u a g e t o a n o t h e r o f f i c e r i n t h a t o f f i c e r ’ s presence or about that officer to other military per- sons; being drunk and disorderly in a public place; public association with known prostitutes; commit- t i n g o r a t t e m p t i n g t o c o m m i t a c r i m e i n v o l v i n g moral turpitude; and failing without good cause to support the officer’s family. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Dismissal, forfeiture of all pay and allowances, and confinement for a period not in excess of that authorized for the most analo- gous offense for which a punishment is prescribed in this Manual, or, if none is prescribed, for 1 year. f. Sample specifications. (1) Copying or using examination paper. In that (personal jurisdiction data), did, (at/on board—location), on or about 20 , while undergoing a written examination on the sub- ject of , wrongfully and dishonorably ( r e c e i v e ) ( r e q u e s t ) u n a u t h o r i z e d a i d b y ( ( u s i n g ) (copying) the examination paper of )) ( ). (2) Drunk or disorderly. In that (personal jurisdiction data), was, (at/on board—location), on or about 20 , in a public place, to wit: , (drunk) (dis- orderly) (drunk and disorderly) while in uniform, to the disgrace of the armed forces. 60. Article 134—General article a. Text of statute. Though not specifically mentioned in this chap- ter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capi- tal, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a gener- al, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court. b. Elements. The proof required for conviction of an offense under Article 134 depends upon the nature of the misconduct charged. If the conduct is pun- ished as a crime or offense not capital, the proof must establish every element of the crime or offense as required by the applicable law. All offenses under Article 134 require proof of a single terminal ele- ment; however, the terminal element may be proven using any of three theories of liability corresponding to clause 1, 2, or 3 offenses. Discussion The terminal element is merely the expression of one of the clauses under Article 134. See paragraph c below for an explana- tion of the clauses and rules for drafting specifications. More than one clause may be alleged and proven; however, proof of only one clause will satisfy the terminal element. For clause 3 of- fenses, the military judge may judicially notice whether an of- fense is capital. See Mil. R. Evid. 202. (1) For clause 1 or 2 offenses under Article 134, the following proof is required: IV-113 ¶60.b.(1)Article 134
p. 415
(a) That the accused did or failed to do certain acts; and ( b ) T h a t , u n d e r t h e c i r c u m s t a n c e s , t h e a c - cused’s conduct 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) For clause 3 offenses under Article 134, the following proof is required: (a) That the accused did or failed to do certain acts that satisfy each element of the federal statute (including, in the case of a prosecution under 18 U.S.C. § 13, each element of the assimilated State, Territory, Possession, or District law); and (b) That the offense charged was an offense not capital. c. Explanation. (1) In general. Article 134 makes punishable acts in three categories of offenses not specifically cov- ered in any other article of the code. These are referred to as “clauses 1, 2, and 3” of Article 134. Clause 1 offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces. Clause 2 offenses involve conduct of a n a t u r e t o b r i n g d i s c r e d i t u p o n t h e a r m e d f o r c e s . Clause 3 offenses involve noncapital crimes or of- fenses which violate Federal law including law made applicable through the Federal Assimilative Crimes Act, see subsection (4) below. If any conduct of this nature is specifically made punishable by another article of the code, it must be charged as a violation of that article. See subparagraph (5)(a) below. How- ever, see paragraph 59 c for offenses committed by commissioned officers, cadets, and midshipmen. (2) Disorders and neglects to the prejudice of g o o d o r d e r a n d d i s c i p l i n e i n t h e a r m e d f o r c e s (clause 1). (a) To the prejudice of good order and disci- pline. “To the prejudice of good order and disci- pline” refers only to acts directly prejudicial to good order and discipline and not to acts which are preju- dicial only in a remote or indirect sense. Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this arti- cle does not include these distant effects. It is con- fined to cases in which the prejudice is reasonably direct and palpable. An act in violation of a local civil law or of a foreign law may be punished if it constitutes a disorder or neglect to the prejudice of good order and discipline in the armed forces. How- e v e r , s e e R . C . M . 2 0 3 c o n c e r n i n g s u b j e c t - m a t t e r jurisdiction. (b) Breach of custom of the service. A breach of a custom of the service may result in a violation of clause 1 of Article 134. In its legal sense, “cus- tom” means more than a method of procedure or a mode of conduct or behavior which is merely of frequent or usual occurrence. Custom arises out of long established practices which by common usage have attained the force of law in the military or other community affected by them. No custom may be contrary to existing law or regulation. A custom which has not been adopted by existing statute or regulation ceases to exist when its observance has b e e n g e n e r a l l y a b a n d o n e d . M a n y c u s t o m s o f t h e service are now set forth in regulations of the vari- o u s a r m e d f o r c e s . V i o l a t i o n s o f t h e s e c u s t o m s should be charged under Article 92 as violations of the regulations in which they appear if the regulation is punitive. See paragraph 16c. (3) Conduct of a nature to bring discredit upon the armed forces (clause 2). “Discredit” means to injure the reputation of. This clause of Article 134 makes punishable conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem. Acts in violation of a local civil law or a foreign law may be punished if they are of a nature to bring discredit upon the armed forces. However, see R.C.M. 203 concerning sub- ject-matter jurisdiction. (4) Crimes and offenses not capital (clause 3). (a) In general. State and foreign laws are not included within the crimes and offenses not capital referred to in this clause of Article 134 and viola- tions thereof may not be prosecuted as such except when State law becomes Federal law of local appli- cation under section 13 of title 18 of the United States Code (Federal Assimilative Crimes Act— see s u b p a r a g r a p h ( 4 ) ( c ) b e l o w ) . F o r t h e p u r p o s e o f court-martial jurisdiction, the laws which may be applied under clause 3 of Article 134 are divided into two groups: crimes and offenses of unlimited application (crimes which are punishable regardless where they may be committed), and crimes and of- fenses of local application (crimes which are punish- a b l e o n l y i f c o m m i t t e d i n a r e a s o f f e d e r a l jurisdiction). (b) Crimes and offenses of unlimited applica- tion. Certain noncapital crimes and offenses prohib- IV-114 ¶60.b.(1)(a) Article 134
p. 416
ited by the United States Code are made applicable under clause 3 of Article 134 to all persons subject to the code regardless where the wrongful act or omission occurred. Examples include: counterfeiting (18 U.S.C. § 471), and various frauds against the Government not covered by Article 132. (c) Crimes and offenses of local application. (i) In general. A person subject to the code may not be punished under clause 3 of Article 134 for an offense that occurred in a place where the law in question did not apply. For example, a person may not be punished under clause 3 of Article 134 when the act occurred in a foreign country merely because that act would have been an offense under the United States Code had the act occurred in the United States. Regardless where committed, such an act might be punishable under clauses 1 or 2 of Article 134. There are two types of congressional enactments of local application: specific federal stat- utes (defining particular crimes), and a general fed- eral statute, the Federal Assimilative Crimes Act (which adopts certain state criminal laws). ( i i ) F e d e r a l A s s i m i l a t i v e C r i m e s A c t ( 1 8 U.S.C. § 13). The Federal Assimilative Crimes Act is an adoption by Congress of state criminal laws for areas of exclusive or concurrent federal jurisdiction, provided federal criminal law, including the UCMJ, has not defined an applicable offense for the mis- conduct committed. The Act applies to state laws validly existing at the time of the offense without regard to when these laws were enacted, whether b e f o r e o r a f t e r p a s s a g e o f t h e A c t , a n d w h e t h e r before or after the acquisition of the land where the offense was committed. For example, if a person committed an act on a military installation in the United States at a certain location over which the United States had either exclusive or concurrent ju- risdiction, and it was not an offense specifically de- f i n e d b y f e d e r a l l a w ( i n c l u d i n g t h e U C M J ) , t h a t person could be punished for that act by a court- martial if it was a violation of a noncapital offense under the law of the State where the military instal- lation was located. This is possible because the Act adopts the criminal law of the state wherein the m i l i t a r y i n s t a l l a t i o n i s l o c a t e d a n d a p p l i e s i t a s though it were federal law. The text of the Act is as follows: Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the S t a t e , T e r r i t o r y , P o s s e s s i o n , o r D i s t r i c t i n w h i c h such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment. (5) Limitations on Article 134. (a) Preemption doctrine. The preemption doc- trine prohibits application of Article 134 to conduct covered by Articles 80 through 132. For example, larceny is covered in Article 121, and if an element of that offense is lacking—for example, intent— there can be no larceny or larceny-type offense, ei- ther under Article 121 or, because of preemption, under Article 134. Article 134 cannot be used to create a new kind of larceny offense, one without the required intent, where Congress has already set the minimum requirements for such an offense in Article 121. (b) Capital offense. A capital offense may not be tried under Article 134. ( 6 ) D r a f t i n g s p e c i f i c a t i o n s f o r A r t i c l e 1 3 4 o f - fenses. (a) Specifications under clause 1 or 2. When alleging a clause 1 or 2 violation, the specification must expressly allege that the conduct was “to the prejudice of good order and discipline” or that it was “ o f a n a t u r e t o b r i n g d i s c r e d i t u p o n t h e a r m e d forces.” The same conduct may be prejudicial to good order and discipline in the armed forces and at the same time be of a nature to bring discredit upon the armed forces. Both clauses may be alleged; how- ever, only one must be proven to satisfy the terminal element. If conduct by an accused does not fall under any of the enumerated Article 134 offenses (paragraphs 61 through 113 of this Part), a specifica- tion not listed in this Manual may be used to allege the offense. Discussion Clauses 1 and 2 are theories of liability that must be expressly alleged in a specification so that the accused will be given notice as to which clause or clauses to defend against. The words “to the prejudice of good order and discipline in the armed forces” en- compass both paragraph c.(2)(a), prejudice to good order and discipline, and paragraph c.(2)(b), breach of custom of the Serv- ice. A generic sample specification is provided below: “In that , (personal jurisdiction data), did (at/ on board location), on or about _____ 20__, (commit elements of Article 134 clause 1 or 2 offense), and that said conduct (was to IV-115 ¶60.c.(6)(a)Article 134
p. 417
the prejudice of good order and discipline in the armed forces) (and) (was of a nature to bring discredit upon the armed forces) .” If clauses 1 and 2 are alleged together in the terminal element, the word “and” should be used to separate them. Any clause not proven beyond a reasonable doubt should be excepted from the specification at findings. See R.C.M. 918(a)(1). See also Appen- dix 23 of this Manual, Art. 79. Although using the conjunctive “and” to connect the two theories of liability is recommended, a specification connecting the two theories with the disjunctive “or” i s s u f f i c i e n t t o p r o v i d e t h e a c c u s e d r e a s o n a b l e n o t i c e o f t h e charge against him. See Appendix 23 of this Manual, Art. 134. Lesser included offenses are defined and explained under Arti- cle 79; however, in 2010, the Court of Appeals for the Armed Forces examined Article 79 and clarified the legal test for lesser i n c l u d e d o f f e n s e s . S e e U n i t e d S t a t e s v . J o n e s , 6 8 M . J . 4 6 5 (C.A.A.F. 2010). Under Jones, an offense under Article 79 is “necessarily included” in the offense charged only if the elements of the lesser offense are a subset of the elements of the greater offense alleged. 68 M.J. at 472; see also discussion following paragraph 3b(1)(c) in this part and the related analysis in Appen- dix 23 of this Manual. Practitioners should carefully consider lesser included offenses using the elements test in conformity with Jones. See paragraph 3b(4) in Appendix 23 of this Manual. If it is uncertain whether an Article 134 offense is included within a charged offense, the government may plead in the alternative or, with the consent of the accused, the government may amend the c h a r g e s h e e t . J o n e s , 6 8 M . J . a t 4 7 2 - 7 3 ( r e f e r r i n g t o R . C . M . 603(d) for amending a charge sheet). (b) Specifications under clause 3. When alleg- ing a clause 3 violation, the specification must ex- pressly allege that the conduct was “an offense not capital,” and each element of the federal statute (in- cluding, in the case of a prosecution under 18 U.S.C. § 13, each element of the assimilated State, Territo- ry, Possession, or District law) must be alleged ex- pressly or by necessary implication. In addition, the federal statute should be identified. Discussion The words “an offense not capital” are sufficient to provide notice to the accused that a clause 3 offense has been charged and are meant to include all crimes and offenses not capital. A generic sample specification for clause 3 offenses is provided below: “In that _______, (personal jurisdiction data), did (at/on board location), on or about _____ 20__, (commit: address each ele- ment), an offense not capital, in violation of (name or citation of statute).” In addition to alleging each element of the federal statute, practi- tioners should consider including, when appropriate and neces- s a r y , w o r d s o f c r i m i n a l i t y ( e . g . , w r o n g f u l l y , k n o w i n g l y , o r willfully). 61. Article 134—(Animal abuse) a. Text of statute. See paragraph 60. b. Elements. (1) Abuse, neglect, or abandonment of an animal. (a) That the accused wrongfully abused, neg- lected, or abandoned a certain (public*) animal (and the accused caused the serious injury or death of the animal*); and (b) 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. (*Note: Add these elements as applicable.) (2) Sexual act with an animal. (a) That the accused engaged in a sexual act with a certain animal; and (b) 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. Explanation. (1) In general. This offense prohibits knowing, reckless, or negligent abuse, neglect, or abandon- ment of an animal. This offense does not include legal hunting, trapping, or fishing; reasonable and recognized acts of training, handling, or disciplining of an animal; normal and accepted farm or veteri- nary practices; research or testing conducted in ac- c o r d a n c e w i t h a p p r o v e d m i l i t a r y p r o t o c o l s ; protection of person or property from an unconfined animal; or authorized military operations or military training. (2) Definitions. As used in this paragraph: ( A ) “ A b u s e ” m e a n s i n t e n t i o n a l l y a n d u n j u s - tifiably: overdriving, overloading, overworking, tor- menting, beating, depriving of necessary sustenance, allowing to be housed in a manner that results in chronic or repeated serious physical harm, carrying or confining in or upon any vehicles in a cruel or reckless manner, or otherwise mistreating an animal. Abuse may include any sexual touching of an ani- mal if not included in the definition of “sexual act with an animal” below. (B) “Neglect” means allowing another to abuse an animal, or, having the charge or custody of any a n i m a l , i n t e n t i o n a l l y , k n o w i n g l y , r e c k l e s s l y , o r negligently failing to provide it with proper food, IV-116 ¶60.c.(6)(a) Article 134
p. 418
drink, or protection from the weather consistent with the species, breed, and type of animal involved. (C) “Abandon” means the intentional, know- ing, reckless or negligent leaving of an animal at a location without providing minimum care while hav- ing the charge or custody of that animal. (D) “Animal” means pets and animals of the t y p e t h a t a r e r a i s e d b y i n d i v i d u a l s f o r r e s a l e t o others, including but not limited to: cattle, horses, sheep, pigs, goats, chickens, dogs, cats, and similar animals owned or under the control of any person. Animal does not include reptiles, insects, arthropods, or any animal defined or declared to be a pest by the a d m i n i s t r a t o r o f t h e U n i t e d S t a t e s E n v i r o n m e n t a l Protection Agency. (E) “Public animal” means any animal owned or used by the United States or any animal owned or used by a local or State government in the United States, its territories or possessions. This would in- clude, for example, drug detector dogs used by the government. (F) “Sexual act with an animal” means contact between the sex organ, anus, or mouth of a person and an animal or between the sex organ, mouth, or anus of an animal and a person or object manipu- lated by a person if done with an intent to arouse or gratify the sexual desire of any person. (G) “Serious injury of an animal” means physi- cal harm that involves a temporary but substantial d i s f i g u r e m e n t ; c a u s e s a t e m p o r a r y b u t s u b s t a n t i a l loss or impairment of the function of any bodily part or organ; causes a fracture of any bodily part; causes permanent maiming; causes acute pain of a duration that results in suffering; or carries a substantial risk of death. Serious injury includes, but is not limited to, burning, torturing, poisoning, or maiming. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Abuse, neglect, or abandonment of an animal. Bad-conduct discharge, forfeiture of all pay and al- lowances, and confinement for 1 year. (2) Abuse, neglect, or abandonment of a public animal. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 2 years. (3) Sexual act with an animal or cases where the accused caused the serious injury or death of the animal. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about (date), (wrongful- ly [abuse] [neglect] [abandon]) (*engage in a sexual act, to wit: , with) a certain (*public) animal (*and caused [serious injury to] [the death of] the animal), and that said conduct was (to the prejudice of good order and discipline in the armed f o r c e s ) ( o f a n a t u r e t o b r i n g d i s c r e d i t u p o n t h e armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 62. Article 134—(Adultery) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused wrongfully had sexual inter- course with a certain person; (2) That, at the time, the accused or the other person was married to someone else; 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. Explanation. (1) Nature of offense. Adultery is clearly unac- ceptable conduct, and it reflects adversely on the service record of the military member. (2) Conduct prejudicial to good order and disci- pline or of a nature to bring discredit upon the armed forces. To constitute an offense under the U C M J , t h e a d u l t e r o u s c o n d u c t m u s t e i t h e r b e directly prejudicial to good order and discipline or s e r v i c e d i s c r e d i t i n g . A d u l t e r o u s c o n d u c t t h a t i s directly prejudicial includes conduct that has an ob- vious, and measurably divisive effect on unit or or- g a n i z a t i o n d i s c i p l i n e , m o r a l e , o r c o h e s i o n , o r i s clearly detrimental to the authority or stature of or respect toward a servicemember. Adultery may also be service discrediting, even though the conduct is only indirectly or remotely prejudicial to good order and discipline. Discredit means to injure the reputa- tion of the armed forces and includes adulterous conduct that has a tendency, because of its open or notorious nature, to bring the service into disrepute, make it subject to public ridicule, or lower it in IV-117 ¶62.c.(2)Article 134
p. 419
public esteem. While adulterous conduct that is pri- vate and discreet in nature may not be service dis- crediting by this standard, under the circumstances, it may be determined to be conduct prejudicial to good order and discipline. Commanders should con- sider all relevant circumstances, including but not limited to the following factors, when determining whether adulterous acts are prejudicial to good order and discipline or are of a nature to bring discredit upon the armed forces: (a) The accused’s marital status, military rank, grade, or position; (b) The co-actor’s marital status, military rank, grade, and position, or relationship to the armed forces; (c) The military status of the accused’s spouse or the spouse of co-actor, or their relationship to the armed forces; (d) The impact, if any, of the adulterous rela- tionship on the ability of the accused, the co-actor, or the spouse of either to perform their duties in support of the armed forces; (e) The misuse, if any, of government time and r e s o u r c e s t o f a c i l i t a t e t h e c o m m i s s i o n o f t h e conduct; (f) Whether the conduct persisted despite coun- seling or orders to desist; the flagrancy of the con- duct, such as whether any notoriety ensued; and w h e t h e r t h e a d u l t e r o u s a c t w a s a c c o m p a n i e d b y other violations of the UCMJ; (g) The negative impact of the conduct on the units or organizations of the accused, the co-actor or the spouse of either of them, such as a detrimental effect on unit or organization morale, teamwork, and efficiency; (h) Whether the accused or co-actor was le- gally separated; and (i) Whether the adulterous misconduct involves an ongoing or recent relationship or is remote in time. (3) Marriage. A marriage exists until it is dis- solved in accordance with the laws of a competent state or foreign jurisdiction. (4) Mistake of fact. A defense of mistake of fact exists if the accused had an honest and reasonable belief either that the accused and the co-actor were both unmarried, or that they were lawfully married to each other. If this defense is raised by the evi- dence, then the burden of proof is upon the United States to establish that the accused’s belief was un- reasonable or not honest. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 1 year. f. Sample specification. In that (personal jurisdiction data), ( a m a r r i e d m a n / a m a r r i e d w o m a n ) , d i d , ( a t / o n board—location) (subject-matter jurisdiction data, if r e q u i r e d ) , o n o r a b o u t 2 0 , w r o n g f u l l y have sexual intercourse with , a (mar- ried) (woman/man) not (his wife) (her husband), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the preju- dice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 63. Deleted—See Appendix 27 Indecent assault was deleted by Executive Order 13447, 72 Fed. Reg. 56179 (Oct. 2, 2007). See Ap- pendix 25. 64. Article 134—(Assault—with intent to commit murder, voluntary manslaughter, rape, robbery, forcible sodomy, arson, burglary, or housebreaking) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused assaulted a certain person; (2) That, at the time of the assault, the accused intended to kill (as required for murder or voluntary manslaughter) or intended to commit rape, robbery, forcible sodomy, arson, burglary, or housebreaking; 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. Explanation. (1) In general. An assault with intent to commit any of the offenses mentioned above is not necessar- ily the equivalent of an attempt to commit the in- tended offense, for an assault can be committed with IV-118 ¶62.c.(2) Article 134
p. 420
intent to commit an offense without achieving that proximity to consummation of an intended offense which is essential to an attempt. See paragraph 4. (2) Assault with intent to murder. Assault with intent to commit murder is assault with specific in- tent to kill. Actual infliction of injury is not neces- sary. To constitute an assault with intent to murder with a firearm, it is not necessary that the weapon be discharged. When the intent to kill exists, the fact that for some unknown reason the actual consumma- tion of the murder by the means employed is impos- sible is not a defense if the means are apparently adapted to the end in view. The intent to kill need not be directed against the person assaulted if the assault is committed with intent to kill some person. For example, if a person, intending to kill Jones, shoots Smith, mistaking Smith for Jones, that person is guilty of assaulting Smith with intent to murder. If a person fires into a group with intent to kill anyone in the group, that person is guilty of and assault with intent to murder each member of the group. (3) Assault with intent to commit voluntary man- slaughter. Assault with intent to commit voluntary manslaughter is an assault committed with a specific intent to kill under such circumstances that, if death resulted therefrom, the offense of voluntary man- slaughter would have been committed. There can be no assault with intent to commit involuntary man- slaughter, for it is not a crime capable of being intentionally committed. (4) Assault with intent to commit rape. In assault with intent to commit rape, the accused must have intended to complete the offense. Any lesser intent will not suffice. No actual touching is necessary, but indecent advances and importunities, however ear- nest, not accompanied by such an intent, do not constitute this offense, nor do mere preparations to rape not amounting to an assault. Once an assault with intent to commit rape is made, it is no defense that the accused voluntarily desisted. (5) Assault with intent to rob. For assault with intent to rob, the fact that the accused intended to take money and that the person the accused intended to rob had none is not a defense. (6) Assault with intent to commit forcible sodomy. Assault with intent to commit forcible sodomy is an assault against a human being and must be commit- ted with a specific intent to commit forcible sodomy. Any lesser intent, or different intent, will not suffice. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Assault with intent to commit murder or rape. Dishonorable discharge, forfeiture of all pay and al- lowances, and confinement for 20 years. (2) Assault with intent to commit voluntary man- slaughter, robbery, forcible sodomy, arson, or bur- glary. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. (3) Assault with intent to commit housebreaking. Dishonorable discharge, forfeiture of all pay and al- lowances, and confinement for 5 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , w i t h i n t e n t t o c o m m i t ( m u r d e r ) ( v o l u n t a r y m a n - slaughter) (rape) (robbery) (forcible sodomy) (arson) (burglary) (housebreaking), commit an assault upon by , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 65. Article 134—(Bigamy) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused had a living lawful spouse; (2) That while having such spouse the accused wrongfully married another person; 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. Explanation. Bigamy is contracting another mar- riage by one who already has a living lawful spouse. If a prior marriage was void, it will have created no status of “lawful spouse.” However, if it was only voidable and has not been voided by a competent court, this is no defense. A belief that a prior mar- riage has been terminated by divorce, death of the o t h e r s p o u s e , o r o t h e r w i s e , c o n s t i t u t e s a d e f e n s e o n l y i f t h e b e l i e f w a s r e a s o n a b l e . S e e R . C . M . 916(j)(1). IV-119 ¶65.c.Article 134
p. 421
d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 2 years. f. Sample specification. In that (personal jurisdiction data), did, at , (subject-matter jurisdiction da- ta, if required), on or about 20 , wrong- fully marry , having at the time of his/ her said marriage to a lawful wife/hus- band then living, to wit: , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 66. Article 134—(Bribery and graft) a. Text of statute. See paragraph 60. b. Elements. (1) Asking, accepting, or receiving. ( a ) T h a t t h e a c c u s e d w r o n g f u l l y a s k e d , a c - cepted, or received a thing of value from a certain person or organization; (b) That the accused then occupied a certain official position or had certain official duties; (c) That the accused asked, accepted, or re- ceived this thing of value (with the intent to have t h e a c c u s e d ’ s d e c i s i o n o r a c t i o n i n f l u e n c e d w i t h respect to a certain matter)* (as compensation for or in recognition of services rendered, to be rendered, o r b o t h , b y t h e a c c u s e d i n r e l a t i o n t o a c e r t a i n matter)**; (d) That this certain matter was an official mat- ter in which the United States was and is interested; 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. (*Note: This element is required for bribery.) (**Note: This element is required for graft.) (2) Promising, offering, or giving. (a) That the accused wrongfully promised, of- fered, or gave a thing of value to a certain person; (b) That this person then occupied a certain official position or had certain official duties; (c) That this thing of value was promised, of- fered, or given (with the intent to influence the deci- sion or action of this person)* (as compensation for or in recognition of services rendered, to be ren- dered, or both, by this person in relation to a certain matter)**; (d) That this matter was an official matter in which the United States was and is interested; 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. (*Note: This element is required for bribery.) (**Note: This element is required for graft.) c. Explanation. Bribery requires an intent to influ- ence or be influenced in an official matter; graft does not. Graft involves compensation for services performed in an official matter when no compensa- tion is due. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Bribery. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. (2) Graft. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. f. Sample specifications. (1) Asking, accepting, or receiving. In that (personal jurisdiction data), being at the time (a contracting officer for ) (the personnel officer of ) ( ), did, (at/ on board—location) (subject-matter jurisdiction data, if required), on or about 20 , wrongfully (ask) (accept) (receive) from , (a contracting company) engaged in ( ), (the sum of $ ) ( , of a value of (about) $ ) ( ), (*with intent to have his/her (decision) (action) influenced with respect to) ((as compensation for) (in recognition of)) service (ren- dered) (to be rendered) (**rendered and to be ren- dered) by him/her the said in relation to) an official matter in which the United States was and is interested, to wit: (the purchasing of military sup- plies from ) (the transfer of to duty with ( ) ( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon IV-120 ¶65.d. Article 134
p. 422
the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). [*Note: This language should be used to allege bribery.] [**Note: This language should be used to allege graft.] (2) Promising, offering, or giving. In that (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , wrongfully (promise) (offer) (give) to , (his/her commanding officer) (the claims officer of ) ( ), (the sum of $ ) ( , of a value of (about $ ) ( , (*with intent to i n f l u e n c e t h e ( d e c i s i o n ) ( a c t i o n ) o f t h e s a i d with respect to) ((as compensation for) (in recognition of)) services (rendered) (to be rendered) (**rendered and to be rendered) by the said in relation to) an official matter in which the United States was and is interested, to wit: (the granting of leave to ) (the processing of a claim against the United States in favor of ) ( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the preju- dice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). [*Note: This language should be used to allege bribery.] [**Note: This language should be used to allege graft.] 67. Article 134—(Burning with intent to defraud) a. Text of statute. See paragraph 60. b. Elements. ( 1 ) T h a t t h e a c c u s e d w i l l f u l l y a n d m a l i c i o u s l y burned or set fire to certain property owned by a certain person or organization; (2) That such burning or setting on fire was with the intent to defraud a certain person or organiza- tion; 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. Explanation. See paragraph 49c(14) for a discus- sion of “intent to defraud.” d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 10 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , w i l l f u l l y a n d m a l i c i o u s l y ( b u r n ) ( s e t f i r e t o ) ( a dwelling) (a barn) (an automobile), the property of , w i t h i n t e n t t o d e f r a u d ( t h e i n s u r e r thereof, to wit: ) ( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the preju- dice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 68. Article 134—(Check, worthless, making and uttering—by dishonorably failing to maintain funds) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused made and uttered a certain check; (2) That the check was made and uttered for the purchase of a certain thing, in payment of a debt, or for a certain purpose; (3) That the accused subsequently failed to place or maintain sufficient funds in or credit with the drawee bank for payment of the check in full upon its presentment for payment; (4) That this failure was dishonorable; and (5) 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. Explanation. This offense differs from an Article 123a offense (paragraph 49) in that there need be no intent to defraud or deceive at the time of making, drawing, uttering, or delivery, and that the accused need not know at that time that the accused did not or would not have sufficient funds for payment. The gist of the offense lies in the conduct of the accused a f t e r u t t e r i n g t h e i n s t r u m e n t . M e r e n e g l i g e n c e i n maintaining one’s bank balance is insufficient for this offense, for the accused’s conduct must reflect bad faith or gross indifference in this regard. As in the offense of dishonorable failure to pay debts ( see IV-121 ¶68.c.Article 134
p. 423
paragraph 71), dishonorable conduct of the accused is necessary, and the other principles discussed in paragraph 71 also apply here. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 6 months. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , make and utter to a certain check, in words and figures as follows, to wit: , (for the purchase of ) (in payment of a d e b t ) ( f o r t h e p u r p o s e o f ) , a n d d i d thereafter dishonorably fail to (place) (maintain) suf- ficient funds in the Bank for payment of such check in full upon its presentment for payment, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 68a. Article 134—(Child endangerment) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused had a duty for the care of a certain child; (2) That the child was under the age of 16 years; (3) That the accused endangered the child’s men- tal or physical health, safety, or welfare through design or culpable negligence; 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. c. Explanation. (1) In general. This offense is intended to pro- hibit and therefore deter child endangerment through design or culpable negligence. (2) Design. Design means on purpose, intention- ally, or according to plan and requires specific intent to endanger the child. (3) Culpable negligence. Culpable negligence is a d e g r e e o f c a r e l e s s n e s s g r e a t e r t h a n s i m p l e n e g l i - gence. It is a negligent act or omission accompanied by a culpable disregard for the foreseeable conse- quences to others of that act or omission. In the context of this offense, culpable negligence may in- clude acts that, when viewed in the light of human experience, might foreseeably result in harm to a child, even though such harm would not necessarily be the natural and probable consequences of such acts. In this regard, the age and maturity of the child, the conditions surrounding the neglectful con- duct, the proximity of assistance available, the na- ture of the environment in which the child may have been left, the provisions made for care of the child, and the location of the parent or adult responsible for the child relative to the location of the child, among others, may be considered in determining whether the conduct constituted culpable negligence. (4) Harm. Actual physical or mental harm to the child is not required. The offense requires that the a c c u s e d ’ s a c t i o n s r e a s o n a b l y c o u l d h a v e c a u s e d physical or mental harm or suffering. However, if the accused’s conduct does cause actual physical or mental harm, the potential maximum punishment in- creases. See Paragraph 54c(4)(a)(iii) for an explana- tion of “grievous bodily harm”. (5) Endanger. “Endanger” means to subject one to a reasonable probability of harm. (6) Age of victim as a factor. While this offense may be committed against any child under 16, the age of the victim is a factor in the culpable negli- gence determination. Leaving a teenager alone for an evening may not be culpable (or even simple) negligence; leaving an infant or toddler for the same period might constitute culpable negligence. On the other hand, leaving a teenager without supervision for an extended period while the accused was on temporary duty outside commuting distance might constitute culpable negligence. (7) Duty required. The duty of care is determined by the totality of the circumstances and may be established by statute, regulation, legal parent-child r e l a t i o n s h i p , m u t u a l a g r e e m e n t , o r a s s u m p t i o n o f control or custody by affirmative act. When there is no duty of care of a child, there is no offense under this paragraph. Thus, there is no offense when a stranger makes no effort to feed a starving child or an individual/neighbor not charged with the care of a child does not prevent the child from running and playing in the street. IV-122 ¶68.c. Article 134
p. 424
d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Endangerment by design resulting in grievous bodily harm. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 8 years. (2) Endangerment by design resulting in harm. Dishonorable discharge, forfeiture of all pay and al- lowances, and confinement for 5 years. ( 3 ) O t h e r c a s e s b y d e s i g n . D i s h o n o r a b l e d i s - charge, forfeiture of all pay and allowances and con- finement for 4 years. (4) Endangerment by culpable negligence result- i n g i n g r i e v o u s b o d i l y h a r m . D i s h o n o r a b l e d i s - charge, forfeiture of all pay and allowances, and confinement for 3 years. (5) Endangerment by culpable negligence result- ing in harm. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 2 years. (6) Other cases by culpable negligence. Bad-con- duct discharge, forfeiture of all pay and allowances, and confinement for 1 year. f. Sample specification. (1) Resulting in grievous bodily harm. In that (personal jurisdiction data), (at/on board-location) (subject matter jurisdiction da- ta, if required) on or about 20 , had a duty for the care of , a child under the age of 16 years and did endanger the (mental health) (physical health) (safety) (welfare) of said , by (leaving the said unattended in his quarters for over hours/days with no adult present in the home) ( b y f a i l i n g t o o b t a i n m e d i c a l c a r e f o r t h e s a i d ’ s d i a b e t i c c o n d i t i o n ) ( ) , and that such conduct (was by design) (constituted c u l p a b l e n e g l i g e n c e ) ( w h i c h r e s u l t e d i n g r i e v o u s bodily harm, to wit:) (broken leg) (deep cut) (frac- tured skull) ( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). (2) Resulting in harm. In that (personal jurisdiction data), (at/on board-location) (subject matter jurisdiction da- ta, if required) on or about 20 , had a duty for the care of , a child under the age of 16 years, and did endanger the (mental health) (physical health) (safety) (welfare) of said , by (leaving the said unattended in his quarters for over hours/days with no adult present in the home) ( b y f a i l i n g t o o b t a i n m e d i c a l c a r e f o r t h e s a i d ’s diabetic condition) ( ), and that such conduct (was by design) (constituted culpable negli- gence) (which resulted in (harm, to wit:) (a black eye) (bloody nose) (minor cut) ( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the preju- dice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). (3) Other cases. In that (personal jurisdiction data), (at/on board-location) (subject matter jurisdiction da- ta, if required) on or about 20 , was re- sponsible for the care of , a child under the age of 16 years, and did endanger the (mental health) (physical health) (safety) (welfare) of said , by (leaving the said unat- tended in his quarters for over hours/ days with no adult present in the home) (by failing to obtain medical care for the said ’s diabetic condition) ( ), and that such conduct (was by design) (constituted culpable negli- gence), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 68b. Article 134—(Child pornography) a. Text of Statute. See paragraph 60. b. Elements. (1) Possessing, receiving, or viewing child por- nography. (a) That the accused knowingly and wrongfully possessed, received, or viewed child pornography; and (b) 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) Possessing child pornography with intent to distribute. IV-123 ¶68b.b.(2)Article 134
p. 425
(a) That the accused knowingly and wrongfully possessed child pornography; (b) That the possession was with the intent to distribute; and (c) 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. (3) Distributing child pornography. (a) That the accused knowingly and wrongfully distributed child pornography to another; and (b) 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) Producing child pornography. (a) That the accused knowingly and wrongfully produced child pornography; and (b) 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. Explanation. (1) “Child Pornography” means material that con- tains either an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexually explicit conduct. (2) An accused may not be convicted of possess- ing, receiving, viewing, distributing, or producing child pornography if he was not aware that the im- ages were of minors, or what appeared to be minors, e n g a g e d i n s e x u a l l y e x p l i c i t c o n d u c t . A w a r e n e s s may be inferred from circumstantial evidence such as the name of a computer file or folder, the name of the host website from which a visual depiction was viewed or received, search terms used, and the number of images possessed. (3) “Distributing” means delivering to the actual or constructive possession of another. (4) “Minor” means any person under the age of 18 years. ( 5 ) “ P o s s e s s i n g ” m e a n s e x e r c i s i n g c o n t r o l o f something. Possession may be direct physical cus- tody like holding an item in one’s hand, or it may be constructive, as in the case of a person who hides something in a locker or a car to which that person may return to retrieve it. Possession must be know- ing and conscious. Possession inherently includes the power or authority to preclude control by others. It is possible for more than one person to possess an item simultaneously, as when several people share control over an item. (6) “Producing” means creating or manufacturing. As used in this paragraph, it refers to making child pornography that did not previously exist. It does not include reproducing or copying. (7) “Sexually explicit conduct” means actual or simulated: ( a ) s e x u a l i n t e r c o u r s e o r s o d o m y , i n c l u d i n g g e n i t a l - g e n i t a l , o r a l - g e n i t a l , a n a l - g e n i t a l , o r o r a l - anal, whether between persons of the same or oppo- site sex; (b) bestiality; (c) masturbation; (d) sadistic or masochistic abuse; or (e) lascivious exhibition of the genitals or pu- bic area of any person. (8) “Visual depiction” includes any developed or undeveloped photograph, picture, film or video; any digital or computer image, picture, film, or video made by any means, including those transmitted by any means including streaming media, even if not stored in a permanent format; or any digital or elec- t r o n i c d a t a c a p a b l e o f c o n v e r s i o n i n t o a v i s u a l image. (9) “Wrongfulness.” Any facts or circumstances that show that a visual depiction of child pornogra- phy was unintentionally or inadvertently acquired are relevant to wrongfulness, including, but not lim- ited to, the method by which the visual depiction was acquired, the length of time the visual depiction was maintained, and whether the visual depiction was promptly, and in good faith, destroyed or repor- ted to law enforcement. (10) On motion of the government, in any prose- cution under this paragraph, except for good cause shown, the name, address, social security number, or other nonphysical identifying information, other than the age or approximate age, of any minor who is depicted in any child pornography or visual depic- tion or copy thereof shall not be admissible and may be redacted from any otherwise admissible evidence, and the panel shall be instructed, upon request of the Government, that it can draw no inference from the absence of such evidence. IV-124 ¶68b.b.(2)(a) Article 134
p. 426
d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Possessing, receiving, or viewing child por- nography. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. (2) Possessing child pornography with intent to distribute. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years. (3) Distributing child pornography. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years. ( 4 ) P r o d u c i n g c h i l d p o r n o g r a p h y . D i s h o n o r a b l e discharge, forfeiture of all pay and allowances, and confinement for 30 years. f. Sample specification. Possessing, receiving, viewing, possessing with in- tent to distribute, distributing, or producing child pornography. In that (personal jurisdiction data), did ( a t / o n b o a r d - l o c a t i o n ) , o n o r a b o u t 2 0 k n o w i n g l y a n d w r o n g f u l l y ( p o s s e s s ) ( r e c e i v e ) (view) (distribute) (produce) child pornography, to wit: a (photograph) (picture) (film) (video) (digital image) (computer image) of a minor, or what ap- pears to be a minor, engaging in sexually explicit conduct (, with intent to distribute the said child pornography), and that said conduct was (to the prej- udice of good order and discipline in the armed f o r c e s ) ( o f a n a t u r e t o b r i n g d i s c r e d i t u p o n t h e armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 69. Article 134—(Cohabitation, wrongful) a. Text of statute. See paragraph 60. b. Elements. (1) That, during a certain period of time, the ac- cused and another person openly and publicly lived together as husband and wife, holding themselves out as such; (2) That the other person was not the spouse of the accused; (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. Explanation. This offense differs from adultery (see paragraph 62) in that it is not necessary to prove that one of the partners was married or that sexual intercourse took place. Public knowledge of the wrongfulness of the relationship is not required, but the partners must behave in a manner, as exhib- ited by conduct or language, that leads others to believe that a marital relationship exists. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Confinement for 4 months and forfeiture of two-thirds pay per month for 4 months. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), from about 20 , to about 20 , wrongfully cohabit with , (a woman not his wife) (a man not her husband), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the preju- dice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 70. Article 134—(Correctional custody— offenses against) a. Text of statute. See paragraph 60. b. Elements. (1) Escape from correctional custody. (a) That the accused was placed in correctional custody by a person authorized to do so; (b) That, while in such correctional custody, the accused was under physical restraint; (c) That the accused freed himself or herself from the physical restraint of this correctional cus- tody before being released therefrom by proper au- thority; 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) Breach of correctional custody. (a) That the accused was placed in correctional custody by a person authorized to do so; (b) That, while in correctional custody, a cer- tain restraint was imposed upon the accused; (c) That the accused went beyond the limits of IV-125 ¶70.b.(2)(c)Article 134
p. 427
the restraint imposed before having been released from the correctional custody or relieved of the re- straint by proper authority; 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. c. Explanation. ( 1 ) E s c a p e f r o m c o r r e c t i o n a l c u s t o d y . E s c a p e from correctional custody is the act of a person undergoing the punishment of correctional custody pursuant to Article 15, who, before being set at liberty by proper authority, casts off any physical restraint imposed by the custodian or by the place or conditions of custody. (2) Breach of correctional custody. Breach of re- straint during correctional custody is the act of a person undergoing the punishment who, in the ab- sence of physical restraint imposed by a custodian or by the place or conditions of custody, breaches any form of restraint imposed during this period. (3) Authority to impose correctional custody. See P a r t V c o n c e r n i n g w h o m a y i m p o s e c o r r e c t i o n a l custody. Whether the status of a person authorized that person to impose correctional custody is a ques- tion of law to be decided by the military judge. Whether the person who imposed correctional cus- tody had such a status is a question of fact to be decided by the factfinder. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Escape from correctional custody. Dishonora- ble discharge, forfeiture of all pay and allowances, and confinement for 1 year. (2) Breach of correctional custody. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months. f. Sample specifications. (1) Escape from correctional custody. In that (personal jurisdiction data), while undergoing the punishment of correctional custody imposed by a person authorized to do so, did, (at/on board—location), on or about 20 , escape from correctional custody, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). (2) Breach of correctional custody. In that (personal jurisdiction data), while duly undergoing the punishment of correc- tional custody imposed by a person authorized to do s o , d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , breach the restraint imposed there- under by , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 71. Article 134—(Debt, dishonorably failing to pay) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused was indebted to a certain person or entity in a certain sum; (2) That this debt became due and payable on or about a certain date; (3) That while the debt was still due and payable the accused dishonorably failed to pay this debt; 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. c. Explanation. More than negligence in nonpay- ment is necessary. The failure to pay must be char- acterized by deceit, evasion, false promises, or other distinctly culpable circumstances indicating a delib- erate nonpayment or grossly indifferent attitude to- ward one’s just obligations. For a debt to form the basis of this offense, the accused must not have had a defense, or an equivalent offset or counterclaim, either in fact or according to the accused’s belief, at the time alleged. The offense should not be charged if there was a genuine dispute between the parties as to the facts or law relating to the debt which would affect the obligation of the accused to pay. The offense is not committed if the creditor or creditors involved are satisfied with the conduct of the debtor with respect to payment. The length of the period of nonpayment and any denial of indebtedness which the accused may have made may tend to prove that t h e a c c u s e d ’ s c o n d u c t w a s d i s h o n o r a b l e , b u t t h e court-martial may convict only if it finds from all of IV-126 ¶70.b.(2)(c) Article 134
p. 428
t h e e v i d e n c e t h a t t h e c o n d u c t w a s i n f a c t dishonorable. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 6 months. f. Sample specification. In that (personal jurisdiction data), being indebted to in the sum of $ for , which amount became due and payable (on) ( a b o u t ) ( o n o r a b o u t ) 2 0 , d i d ( a t / o n board—location) (subject-matter jurisdiction data, if r e q u i r e d ) , f r o m 2 0 , t o 2 0 , dishonorably fail to pay said debt, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 72. Article 134—(Disloyal statements) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused made a certain statement; (2) That the statement was communicated to an- other person; (3) That the statement was disloyal to the United States; (4) That the statement was made with the intent t o p r o m o t e d i s l o y a l t y o r d i s a f f e c t i o n t o w a r d t h e United States by any member of the armed forces or to interfere with or impair the loyalty to the United States or good order and discipline of any member of the armed forces; and (5) 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. Explanation. Certain disloyal statements by mili- tary personnel may not constitute an offense under 18 U.S.C. §§ 2385, 2387, and 2388, but may, under the circumstances, be punishable under this article. Examples include praising the enemy, attacking the war aims of the United States, or denouncing our form of government with the intent to promote dis- loyalty or disaffection among members of the armed s e r v i c e s . A d e c l a r a t i o n o f p e r s o n a l b e l i e f c a n amount to a disloyal statement if it disavows alle- giance owed to the United States by the declarant. The disloyalty involved for this offense must be to the United States as a political entity and not merely to a department or other agency that is a part of its administration. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 3 years. f. Sample specification. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , with intent to (promote (disloyalty) (disaffection) (disloyalty and disaffection)) ((inter- fere with) (impair) the (loyalty) (good order and discipline)) of any member of the armed forces of the United States communicate to , the f o l l o w i n g s t a t e m e n t , t o w i t : “ , ” o r words to that effect, which statement was disloyal to the United States, and that said conduct was (to the prejudice of good order and discipline in the armed f o r c e s ) ( o f a n a t u r e t o b r i n g d i s c r e d i t u p o n t h e armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 73. Article 134—(Disorderly conduct, drunkenness) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused was drunk, disorderly, or drunk and disorderly on board ship or in some other place; and (2) 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. Explanation. (1) Drunkenness. See paragraph 35c(6) for a dis- cussion of intoxication. (2) Disorderly. Disorderly conduct is conduct of such a nature as to affect the peace and quiet of persons who may witness it and who may be dis- t u r b e d o r p r o v o k e d t o r e s e n t m e n t t h e r e b y . I t i n - c l u d e s c o n d u c t t h a t e n d a n g e r s p u b l i c m o r a l s o r IV-127 ¶73.c.(2)Article 134
p. 429
outrages public decency and any disturbance of a contentious or turbulent character. ( 3 ) S e r v i c e d i s c r e d i t i n g . U n l i k e m o s t o f f e n s e s under Article 134, “conduct of a nature to bring discredit upon the armed forces” must be included in the specification and proved in order to authorized the higher maximum punishment when the offense is service discrediting. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Disorderly conduct. (a) Under such circumstances as to bring dis- credit upon the military service. Confinement for 4 months and forfeiture of two-thirds pay per month for 4 months. (b) Other cases. Confinement for 1 month and forfeiture of two-thirds pay per month for 1 month. (2) Drunkenness. (a) Aboard ship or under such circumstances as to bring discredit upon the military service. Con- finement for 3 months and forfeiture of two-thirds pay per month for 3 months. (b) Other cases. Confinement for 1 month and forfeiture of two-thirds pay per month for 1 month. (3) Drunk and disorderly. (a) Aboard ship. Bad-conduct discharge, forfei- ture of all pay and allowances, and confinement for 6 months. (b) Under such circumstances as to bring dis- credit upon the military service. Confinement for 6 months and forfeiture of two-thirds pay per month for 6 months. (c) Other cases. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. f. Sample specification. In that (personal jurisdiction data), was, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , (drunk) (disorderly) (drunk and disorderly) (which conduct was of a nature to bring discredit upon the armed forces), and that said conduct was (to the prejudice of good order and discipline in the armed f o r c e s ) ( o f a n a t u r e t o b r i n g d i s c r e d i t u p o n t h e armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 74. Article 134—(Drinking liquor with prisoner) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused was a sentinel or in another assignment in charge of a prisoner; (2) That, while in such capacity, the accused un- lawfully drank intoxicating liquor with a prisoner; (3) That the prisoner was under the charge of the accused; (4) That the accused knew that the prisoner was a prisoner under the accused’s charge; and (5) 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. Explanation. (1) Prisoner. A “prisoner” is a person who is in confinement or custody imposed under R.C.M. 302, 304, or 305, or under sentence of a court-martial who has not been set free by proper authority. ( 2 ) L i q u o r . F o r t h e p u r p o s e s o f t h i s o f f e n s e , “liquor” includes any alcoholic beverage. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. f. Sample specification. I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , a (sentinel) ( ) in charge of prisoners, did, (at/on board—location), on or about 20 , unlaw- fully drink intoxicating liquor with , a prisoner under his/her charge, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 75. Article 134—(Drunk prisoner) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused was a prisoner; (2) That while in such status the accused was found drunk; and (3) That, under the circumstances, the conduct of IV-128 ¶73.c.(2) Article 134
p. 430
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. Explanation. (1) Prisoner. See paragraph 74c(1). (2) Drunk. See paragraph 35c(6) for a discussion of intoxication. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. f. Sample specification. In that (personal jurisdiction data), a prisoner, was (at/on board— location), on or about 20 , found drunk, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 76. Article 134—(Drunkenness— incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug) a. Text of statute. See paragraph 60. b. Elements. ( 1 ) T h a t t h e a c c u s e d h a d c e r t a i n d u t i e s t o perform; (2) That the accused was incapacitated for the proper performance of such duties; (3) That such incapacitation was the result of pre- vious wrongful indulgence in intoxicating liquor or any drug; 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. c. Explanation. (1) Liquor. See paragraph 74c(2). ( 2 ) I n c a p a c i t a t e d . I n c a p a c i t a t e d m e a n s u n f i t o r unable to perform properly. A person is “unfit” to perform duties if at the time the duties are to com- mence, the person is drunk, even though physically able to perform the duties. Illness resulting from p r e v i o u s o v e r i n d u l g e n c e i s a n e x a m p l e o f b e i n g “ u n a b l e ” t o p e r f o r m d u t i e s . F o r a d i s c u s s i o n o f “drunk” see paragraph 35 c(6). ( 3 ) A f f i r m a t i v e d e f e n s e . T h e a c c u s e d ’ s l a c k o f knowledge of the duties assigned is an affirmative defense to this offense. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. f. Sample specification. In that (personal jurisdiction data), w a s , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , as a result of wrongful previous over- indulgence in intoxicating liquor or drugs incapaci- tated for the proper performance of his/her duties, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 77. Article 134—(False or unauthorized pass offenses) a. Text of statute. See paragraph 60. b. Elements. (1) Wrongful making, altering, counterfeiting, or tampering with a military or official pass, permit, discharge certificate, or identification card. ( a ) T h a t t h e a c c u s e d w r o n g f u l l y a n d f a l s e l y made, altered, counterfeited, or tampered with a cer- tain military or official pass, permit, discharge certif- icate, or identification card; and (b) 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) Wrongful sale, gift, loan, or disposition of a military or official pass, permit, discharge certifi- cate, or identification card. ( a ) T h a t t h e a c c u s e d w r o n g f u l l y s o l d , g a v e , loaned, or disposed of a certain military or official pass, permit, discharge certificate, or identification card; (b) That the pass, permit, discharge certificate, or identification card was false or unauthorized; (c) That the accused then knew that the pass, IV-129 ¶77.b.(2)(c)Article 134
p. 431
permit, discharge certificate, or identification card was false or unauthorized; 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. (3) Wrongful use or possession of a false or un- a u t h o r i z e d m i l i t a r y o r o f f i c i a l p a s s , p e r m i t , d i s - charge certificate, or identification card. (a) That the accused wrongfully used or pos- sessed a certain military or official pass, permit, discharge certificate, or identification card; (b) That the pass, permit, discharge certificate, or identification card was false or unauthorized; (c) That the accused then knew that the pass, permit, discharge certificate, or identification card was false or unauthorized; 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. [Note: When there is intent to defraud or deceive, add the following element after (c) above: That the a c c u s e d u s e d o r p o s s e s s e d t h e p a s s , p e r m i t , d i s - charge certificate, or identification card with an in- tent to defraud or deceive.] c. Explanation. (1) In general. “Military or official pass, permit, discharge certificate, or identification card” includes, as well as the more usual forms of these documents, all documents issued by any governmental agency for the purpose of identification and copies thereof. (2) Intent to defraud or deceive. See paragraph 49c(14) and (15). d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Possessing or using with intent to defraud or deceive, or making, altering, counterfeiting, tamper- ing with, or selling. Dishonorable discharge, forfei- ture of all pay and allowances, and confinement for 3 years. (2) All other cases. Bad-conduct discharge, for- feiture of all pay and allowances, and confinement for 6 months. f. Sample specifications. (1) Wrongful making, altering, counterfeiting, or tampering with military or official pass, permit, dis- charge certificate, or identification card. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , w r o n g f u l l y a n d f a l s e l y ( m a k e ) ( f o r g e ) ( a l t e r b y ) ( c o u n t e r f e i t ) ( t a m p e r w i t h b y ) (a certain instrument purporting to be) (a) (an) (another’s) (naval) (military) (official) (pass) (permit) (discharge certificate) (identification card) ( ) i n w o r d s a n d f i g u r e s a s f o l l o w s : , and that said conduct was (to the prej- udice of good order and discipline in the armed f o r c e s ) ( o f a n a t u r e t o b r i n g d i s c r e d i t u p o n t h e armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). (2) Wrongful sale, gift, loan, or disposition of a military or official pass, permit, discharge certifi- cate, or identification card. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , wrongfully (sell to ) (give to ) (loan to ) (dispose of by ) (a certain instrument purporting to be) (a) (an) (another’s) (naval) (mili- tary) (official) (pass) (permit) (discharge certificate) (identification card) ( ) in words and figures as follows: , he/she, the said , then well knowing the same to be (false) (unauthorized), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the preju- dice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). (3) Wrongful use or possession of a false or un- a u t h o r i z e d m i l i t a r y o r o f f i c i a l p a s s , p e r m i t , d i s - charge certificate, or identification card. In that (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , wrongfully (use) (possess) (with intent to (defraud) (deceive)) (a certain instrument purporting to be) (a) (an) (another’s) (naval) (military) (official) (pass) ( p e r m i t ) ( d i s c h a r g e c e r t i f i c a t e ) ( i d e n t i f i c a t i o n card) ( ), he/she, the said , t h e n w e l l k n o w i n g t h e s a m e t o b e ( f a l s e ) ( u n - authorized), and that said conduct was (to the preju- d i c e o f g o o d o r d e r a n d d i s c i p l i n e i n t h e a r m e d IV-130 ¶77.b.(2)(c) Article 134
p. 432
f o r c e s ) ( o f a n a t u r e t o b r i n g d i s c r e d i t u p o n t h e armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 78. Article 134—(False pretenses, obtaining services under) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused wrongfully obtained certain services; (2) That the obtaining was done by using false pretenses; (3) That the accused then knew of the falsity of the pretenses; (4) That the obtaining was with intent to defraud; (5) That the services were of a certain value; and (6) 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. Explanation. This offense is similar to the of- f e n s e s o f l a r c e n y a n d w r o n g f u l a p p r o p r i a t i o n b y false pretenses, except that the object of the obtain- i n g i s s e r v i c e s ( f o r e x a m p l e , t e l e p h o n e s e r v i c e ) rather than money, personal property, or articles of value of any kind as under Article 121. See para- graph 46c. See paragraph 49c(14) for a definition of “intent to defraud.” d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Obtaining services under false pretenses. (1) Of a value of $500.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months. (2) Of a value of more than $500.00. Dishonora- ble discharge, forfeiture of all pay and allowances, and confinement for 5 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , w i t h i n t e n t t o d e f r a u d , f a l s e l y p r e t e n d t o that , then knowing that the p r e t e n s e s w e r e f a l s e , a n d b y m e a n s t h e r e o f d i d wrongfully obtain from services, of a value of (about) $ , to wit: , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 79. Article 134—(False swearing) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused took an oath or equivalent; (2) That the oath or equivalent was administered to the accused in a matter in which 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; (4) That upon this oath or equivalent the accused made or subscribed a certain statement; (5) That the statement was false; ( 6 ) T h a t t h e a c c u s e d d i d n o t t h e n b e l i e v e t h e 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. c. Explanation. (1) Nature of offense. False swearing is the mak- ing under a lawful oath or equivalent of any false statement, oral or written, not believing the state- ment to be true. It does not include such statements made in a judicial proceeding or course of justice, as these are under Article 131, perjury ( see paragraph 57). Unlike a false official statement under Article 107 ( see paragraph 31) there is no requirement that the statement be made with an intent to deceive or that the statement be official. See paragraphs 57c(1), c(2)(c) and c(2)( e) concerning “judicial proceeding or course of justice,” proof of the falsity, and the belief of the accused, respectively. (2) Oath. See Article 136 and R.C.M. 807 as to the authority to administer oaths, and see Section IX of Part III (Military Rules of Evidence) concerning proof of the signatures of persons authorized to ad- m i n i s t e r o a t h s . A n o a t h i n c l u d e s a n a f f i r m a t i o n when authorized in lieu of an oath. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , IV-131 ¶79.e.Article 134
p. 433
forfeiture of all pay and allowances, and confine- ment for 3 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , (in an affidavit) (in ), wrongfully and un- lawfully (make) (subscribe) under lawful (oath) (af- firmation) a false statement in substance as follows: , which statement he/she did not then believe to be true, and that said conduct was (to the prejudice of good order and discipline in the armed f o r c e s ) ( o f a n a t u r e t o b r i n g d i s c r e d i t u p o n t h e armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 80. Article 134—(Firearm, discharging— through negligence) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused discharged a firearm; (2) That such discharge was caused by the negli- gence of the accused; 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. Explanation. For a discussion of negligence, see paragraph 85c(2). d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , through negligence, discharge a (service rifle) ( ) i n t h e ( s q u a d r o n ) ( t e n t ) ( b a r r a c k s ) ( ) o f , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 81. Article 134—(Firearm, discharging— willfully, under such circumstances as to endanger human life) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused discharged a firearm; (2) That the discharge was willful and wrongful; (3) That the discharge was under circumstances such as to endanger human life; 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. c. Explanation. “Under circumstances such as to en- danger human life” refers to a reasonable potential- ity for harm to human beings in general. The test is not whether the life was in fact endangered but whether, considering the circumstances surrounding the wrongful discharge of the weapon, the act was unsafe to human life in general. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 1 year. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , wrongfully and willfully discharge a firearm, to wit: , (in the mess hall of ) ( ), under circumstances such as to endanger human life, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the preju- dice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 82. Article 134—(Fleeing scene of accident) a. Text of statute. See paragraph 60. b. Elements. (1) Driver. ( a ) T h a t t h e a c c u s e d w a s t h e d r i v e r o f a vehicle; (b) That while the accused was driving the ve- hicle was involved in an accident; IV-132 ¶79.e. Article 134
p. 434
(c) That the accused knew that the vehicle had been in an accident; (d) That the accused left the scene of the acci- dent without (providing assistance to the victim who had been struck (and injured) by the said vehicle) or (providing identification); (e) That such leaving was wrongful; 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. (2) Senior passenger. (a) That the accused was a passenger in a vehi- cle which was involved in an accident; (b) That the accused knew that said vehicle had been in an accident; (c) That the accused was the superior commis- sioned or noncommissioned officer of the driver, or commander of the vehicle, and wrongfully and un- lawfully ordered, caused, or permitted the driver to leave the scene of the accident without (providing assistance to the victim who had been struck (and injured) by the said vehicle) (or) (providing identifi- cation); 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. c. Explanation. (1) Nature of offense. This offense covers “hit and run” situations where there is damage to prop- e r t y o t h e r t h a n t h e d r i v e r ’ s v e h i c l e o r i n j u r y t o someone other than the driver or a passenger in the driver’s vehicle. It also covers accidents caused by the accused, even if the accused’s vehicle does not contact other people, vehicles, or property. (2) Knowledge. Actual knowledge that an acci- dent has occurred is an essential element of this offense. Actual knowledge may be proved by cir- cumstantial evidence. (3) Passenger. A passenger other than a senior passenger may also be liable under this paragraph. See paragraph 1 of this Part. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 6 months. f. Sample specification. In that (personal jurisdiction data), (the driver of) (*a passenger in) (the senior officer/ noncommissioned officer in) ( in) a vehicle at the time of an accident in which said vehicle was involved, and having knowledge of said accident, did, at (subject-matter jurisdiction data, if re- quired), on or about 20 (wrongfully leave) (*by , assist the driver of the said vehicle in wrongfully leaving) (wrongfully order, cause, or per- mit the driver to leave) the scene of the accident without (providing assistance to , who had been struck (and injured) by the said vehicle) (mak- ing his/her (the driver’s) identity known), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). [*Note: This language should be used when the accused was a passenger and is charged as a principal. See paragraph 1 of this part.] 83. Article 134—(Fraternization) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused was a commissioned or war- rant officer; (2) That the accused fraternized on terms of mili- tary equality with one or more certain enlisted mem- ber(s) in a certain manner; (3) That the accused then knew the person(s) to be (an) enlisted member(s); (4) That such fraternization violated the custom of the accused’s service that officers shall not frater- nize with enlisted members on terms of military equality; and (5) 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. Explanation. (1) In general. The gist of this offense is a viola- tion of the custom of the armed forces against frater- n i z a t i o n . N o t a l l c o n t a c t o r a s s o c i a t i o n b e t w e e n officers and enlisted persons is an offense. Whether the contact or association in question is an offense depends on the surrounding circumstances. Factors IV-133 ¶83.c.(1)Article 134
p. 435
to be considered include whether the conduct has compromised the chain of command, resulted in the appearance of partiality, or otherwise undermined good order, discipline, authority, or morale. The acts and circumstances must be such as to lead a reason- able person experienced in the problems of military leadership to conclude that the good order and disci- pline of the armed forces has been prejudiced by their tendency to compromise the respect of enlisted persons for the professionalism, integrity, and obli- gations of an officer. (2) Regulations. Regulations, directives, and or- ders may also govern conduct between officer and enlisted personnel on both a service-wide and a local basis. Relationships between enlisted persons of dif- ferent ranks, or between officers of different ranks may be similarly covered. Violations of such regula- tions, directives, or orders may be punishable under Article 92. See paragraph 16. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Dismissal, forfeiture of all pay and allowances, and confinement for 2 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter juris- diction data, if required), on or about 20 , knowingly fraternize with , an enlisted p e r s o n , o n t e r m s o f m i l i t a r y e q u a l i t y , t o w i t : , in violation of the custom of (the Na- val Service of the United States) (the United States Army) (the United States Air Force) (the United States Coast Guard) that officers shall not fraternize with enlisted persons on terms of military equality, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 84. Article 134—(Gambling with subordinate) a. Text of statute. See paragraph 60. b. Elements. ( 1 ) T h a t t h e a c c u s e d g a m b l e d w i t h a c e r t a i n servicemember; ( 2 ) T h a t t h e a c c u s e d w a s t h e n a n o n c o m m i s - sioned or petty officer; (3) That the servicemember was not then a non- commissioned or petty officer and was subordinate to the accused; (4) That the accused knew that the servicemem- ber was not then a noncommissioned or petty officer and was subordinate to the accused; and (5) 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. Explanation. This offense can only be committed by a noncommissioned or petty officer gambling with an enlisted person of less than noncommis- sioned or petty officer rank. Gambling by an officer with an enlisted person may be a violation of Article 133. See also paragraph 83. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. f. Sample specification. In that (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , gamble with , then knowing that the s a i d w a s n o t a n o n c o m m i s s i o n e d o r p e t t y o f f i c e r a n d w a s s u b o r d i n a t e t o t h e s a i d , and that said conduct was (to the prej- udice of good order and discipline in the armed f o r c e s ) ( o f a n a t u r e t o b r i n g d i s c r e d i t u p o n t h e armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 85. Article 134—(Homicide, negligent) a. Text of statute. See paragraph 60. b. Elements. (1) That a certain person is dead; (2) That this death resulted from the act or failure to act of the accused; (3) That the killing by the accused was unlawful; (4) That the act or failure to act of the accused which caused the death amounted to simple negli- gence; and (5) That, under the circumstances, the conduct of the accused was to the prejudice of good order and IV-134 ¶83.c.(1) Article 134
p. 436
discipline in the armed forces or was of a nature to bring discredit upon the armed forces. c. Explanation. (1) Nature of offense. Negligent homicide is any unlawful homicide which is the result of simple neg- ligence. An intent to kill or injure is not required. (2) Simple negligence. Simple negligence is the absence of due care, that is, an act or omission of a person who is under a duty to use due care which exhibits a lack of that degree of care of the safety of others which a reasonably careful person would have exercised under the same or similar circumstances. Simple negligence is a lesser degree of carelessness than culpable negligence. See paragraph 44c(2)( a). d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 3 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , u n l a w f u l l y k i l l , ( b y n e g l i g e n t l y t h e said (in) (on) the with a ) (by driving a (motor vehicle) ( ) against the said in a negligent manner) ( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 86. Article 134—(Impersonating a commissioned, warrant, noncommissioned, or petty officer, or an agent or official) a. Text of statute. See paragraph 60. b. Elements. ( 1 ) T h a t t h e a c c u s e d i m p e r s o n a t e d a c o m m i s - sioned, warrant, noncommissioned, or petty officer, or an agent of superior authority of one of the armed forces of the United States, or an official of a certain government, in a certain manner; ( 2 ) T h a t t h e i m p e r s o n a t i o n w a s w r o n g f u l a n d willful; 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. [Note 1: If intent to defraud is in issue, add the following addi- tional element after (2), above: That the accused did so with the intent to defraud a certain person or organization in a certain manner;]. [Note 2: If the accused is charged with impersonating an official of a certain government without an intent to defraud, use the following additional element after (2) above: That the accused committed one or more acts which exercised or asserted the authority of the office the accused claimed to have;]. c. Explanation. ( 1 ) N a t u r e o f o f f e n s e . I m p e r s o n a t i o n d o e s n o t depend upon the accused deriving a benefit from the deception or upon some third party being misled, although this is an aggravating factor. (2) Willfulness. “Willful” means with the knowl- edge that one is falsely holding one’s self out as such. (3) Intent to defraud. See paragraph 49c(14). d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Impersonating a commis- sioned, warrant, noncommissioned, or petty officer, or an agent or official. ( 1 ) W i t h i n t e n t t o d e f r a u d . D i s h o n o r a b l e d i s - charge, forfeiture of all pay and allowances, and confinement for 3 years. (2) All other cases. Bad-conduct discharge, for- feiture of all pay and allowances, and confinement for 6 months. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , wrongfully and willfully impersonate (a (commis- sioned officer) (warrant officer) (noncommissioned officer) (petty officer) (agent of superior authority) of the (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard)) (an official of the Government of ) by (publicly wearing the uniform and insignia of rank of a (lieutenant of the ) ( )) (showing the credentials of ) ( ) (*with intent to defraud by ) ( * * a n d ( e x e r c i s e d ) ( a s s e r t e d ) t h e a u t h o r i t y o f by ), and that said conduct was (to the prejudice of good order and discipline in the armed f o r c e s ) ( o f a n a t u r e t o b r i n g d i s c r e d i t u p o n t h e armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). IV-135 ¶86.f.Article 134
p. 437
[*See subsection b note 1.] [**See subsection b note 2.] 87. Deleted—See Appendix 27 Indecent acts or liberties with a child was deleted b y E x e c u t i v e O r d e r 1 3 4 4 7 , 7 2 F e d . R e g . 5 6 1 7 9 (Oct. 2, 2007). See Appendix 25. 88. Deleted—See Appendix 27 Indecent exposure was deleted by Executive Or- der 13447, 72 Fed. Reg. 56179 (Oct. 2, 2007). See Appendix 25. 89. Article 134—(Indecent language) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused orally or in writing commu- nicated to another person certain language; (2) That such language 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. [Note: In appropriate cases add the following ele- ment after element (1): That the person to whom the language was communicated was a child under the age of 16.] c. Explanation. “Indecent” language is that which is grossly offensive to modesty, decency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or disgusting nature, or its tendency to incite lustful thought. Language is indecent if it tends rea- s o n a b l y t o c o r r u p t m o r a l s o r i n c i t e l i b i d i n o u s t h o u g h t s . T h e l a n g u a g e m u s t v i o l a t e c o m m u n i t y standards. See paragraph 45 if the communication was made in the physical presence of a child. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . I n d e c e n t o r i n s u l t i n g language. (1) Communicated to any child under the age of 16 years. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. (2) Other cases. Bad-conduct discharge; forfei- ture of all pay and allowances, and confinement for 6 months. f. Sample specification. In that (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , (orally) (in writing) communicate to , (a child under the age of 16 years), certain indecent language, to wit: , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 90. Article 134—(Indecent conduct) a. Text of Statute. See paragraph 60. b. Elements. (1) That the accused engaged in certain conduct; (2) That the conduct 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. Explanation. (1) “Indecent” means that form of immorality re- lating 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. (2) Indecent conduct includes offenses previously proscribed by “Indecent acts with another” except that the presence of another person is no longer required. For purposes of this offense, the words “conduct” and “act” are synonymous. For child of- fenses, some indecent conduct may be included in the definition of lewd act and preempted by Article 120b(c). See paragraph 60c(5)(a). d. Lesser included offense. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 5 years. f. Sample specification. In that ______ (personal ju- risdiction data), did (at/on board – location) (subject- matter jurisdiction data, if required), on or about (date), (wrongfully commit indecent conduct, to wit: _________), and that said conduct was (to the preju- d i c e o f g o o d o r d e r a n d d i s c i p l i n e i n t h e a r m e d f o r c e s ) ( o f a n a t u r e t o b r i n g d i s c r e d i t u p o n t h e armed forces) (to the prejudice of good order and IV-136 ¶86.f. Article 134
p. 438
discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 91. Article 134—(Jumping from vessel into the water) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused jumped from a vessel in use by the armed forces into the water; (2) That such act by the accused was wrongful and intentional; 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. Explanation. “In use by” means any vessel oper- ated by or under the control of the armed forces. This offense may be committed at sea, at anchor, or in port. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 6 months. f. Sample specification. In that (personal jurisdiction data), did, on board , at (location), on or about 2 0 , w r o n g f u l l y a n d i n t e n t i o n a l l y j u m p from , a vessel in use by the armed forces, into the (sea) (lake) (river), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 92. Article 134—(Kidnapping) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused seized, confined, inveigled, decoyed, or carried away a certain person; ( 2 ) T h a t t h e a c c u s e d t h e n h e l d s u c h p e r s o n against that person’s will; (3) That the accused did so willfully and wrong- fully; 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. c. Explanation. (1) Inveigle, decoy. “Inveigle” means to lure, lead astray, or entice by false representations or other deceitful means. For example, a person who entices another to ride in a car with a false promise to take the person to a certain destination has inveigled the passenger into the car. “Decoy” means to entice or lure by means of some fraud, trick, or temptation. For example, one who lures a child into a trap with candy has decoyed the child. ( 2 ) H e l d . “ H e l d ” m e a n s d e t a i n e d . T h e h o l d i n g must be more than a momentary or incidental deten- tion. For example, a robber who holds the victim at gunpoint while the victim hands over a wallet, or a rapist who throws his victim to the ground, does not, by such acts, commit kidnapping. On the other hand, if, before or after such robbery or rape, the victim is involuntarily transported some substantial distance, as from a housing area to a remote area of the base or post, this may be kidnapping, in addition to rob- bery or rape. (3) Against the will. “Against that person’s will” means that the victim was held involuntarily. The involuntary nature of the detention may result from force, mental or physical coercion, or from other means, including false representations. If the victim is incapable of having a recognizable will, as in the case of a very young child or a mentally incompe- tent person, the holding must be against the will of the victim’s parents or legal guardian. Evidence of the availability or nonavailability to the victim of means of exit or escape is relevant to the voluntari- ness of the detention, as is evidence of threats or force, or lack thereof, by the accused to detain the victim. (4) Willfully. The accused must have specifically intended to hold the victim against the victim’s will to be guilty of kidnapping. An accidental detention will not suffice. The holding need not have been for financial or personal gain or for any other particular purpose. It may be an aggravating circumstance that t h e k i d n a p p i n g w a s f o r r a n s o m , h o w e v e r . S e e R.C.M. 1001(b)(4). (5) Wrongfully. “Wrongfully” means without jus- tification or excuse. For example, a law enforcement official may justifiably apprehend and detain, by force if necessary ( see R.C.M. 302(d)(3)), a person IV-137 ¶92.c.(5)Article 134
p. 439
reasonably believed to have committed an offense. An official who unlawfully uses the official’s au- thority to apprehend someone is not guilty of kid- napping, but may be guilty of unlawful detention. See paragraph 21. It is not wrongful under this para- graph and therefore not kidnapping for a parent or legal guardian to seize and hold that parent’s or legal guardian’s minor child. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for life without eligibility for parole. f. Sample specification. In that , (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about 20 , will- fully and wrongfully (seize) (confine) (inveigle) (de- coy) (carry away) and hold (a minor whose parent or legal guardian the accused was not) (a person not a minor) against his/her will, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 93. Article 134—(Mail: taking, opening, secreting, destroying, or stealing) a. Text of statute. See paragraph 60. b. Elements. (1) Taking. (a) That the accused took certain mail matter; (b) That such taking was wrongful; (c) That the mail matter was taken by the ac- cused before it was delivered to or received by the addressee; (d) That such taking was with the intent to obstruct the correspondence or pry into the business or secrets of any person or organization; 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) Opening, secreting, destroying, or stealing. ( a ) T h a t t h e a c c u s e d o p e n e d , s e c r e t e d , destroyed, or stole certain mail matter; (b) That such opening, secreting, destroying, or stealing was wrongful; (c) That the mail matter was opened, secreted, destroyed, or stolen by the accused before it was delivered to or received by the addressee; 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. c. Explanation. These offenses are intended to pro- tect the mail and mail system. “Mail matter” means any matter deposited in a postal system of any gov- ernment or any authorized depository thereof or in official mail channels of the United States or an a g e n c y t h e r e o f i n c l u d i n g t h e a r m e d f o r c e s . T h e value of the mail matter is not an element. See paragraph 46c(1) concerning “steal.” d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 5 years. f. Sample specifications. (1) Taking. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , wrongfully take certain mail matter, to wit: (a) (let- t e r ( s ) ) ( p o s t a l c a r d ( s ) ) ( p a c k a g e ( s ) ) , a d d r e s s e d t o , (out of the ( Post Office ) (orderly room of ) (unit m a i l b o x o f ) ( ) ) ( f r o m ) b e f o r e ( i t ) ( t h e y ) ( w a s ) ( w e r e ) (delivered) (actually received) (to) (by) the (address- ee) with intent to (obstruct the correspondence) (pry into the (business) (secrets)) of , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the preju- dice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). (2) Opening, secreting, destroying, or stealing. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about , 20 , (wrongfully (open) (secret) (destroy)) (steal) certain mail matter, to wit: (a) (letter(s)) (postal card(s)) (package(s)) addressed to , which said IV-138 ¶92.c.(5) Article 134
p. 440
(letters(s)) ( ) (was) (were) then (in (the Post Office ) (orderly room o f ) ( u n i t m a i l b o x o f ) ( c u s t o d y o f ) ( ) ) ( h a d previously been committed to , (a repre- sentative of ,) (an official agency for the transmission of communications)) before said (let- ter(s)) ( ) (was) (were) (delivered) (actu- ally received) (to) (by) the (addressee), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 94. Article 134—(Mails: depositing or causing to be deposited obscene matters in) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused deposited or caused to be deposited in the mails certain matter for mailing and delivery; ( 2 ) T h a t t h e a c t w a s d o n e w r o n g f u l l y a n d knowingly; (3) That the matter was obscene; 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. c. Explanation. Whether something is obscene is a question of fact. “Obscene” is synonymous with “in- decent” as the latter is defined in paragraph 89c. The matter must violate community standards of decency or obscenity and must go beyond customary limits of expression. “Knowingly” means the accused de- posited the material with knowledge of its nature. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 5 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , wrongfully and knowingly (deposit) (cause to be de- posited) in the (United States) ( ) mails, for mailing and delivery a (letter) (picture) ( ) (containing) (portraying) (suggesting) ( ) cer- tain obscene matters, to wit: , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 95. Article 134—(Misprision of serious offense) a. Text of statute. See paragraph 60. b. Elements. (1) That a certain serious offense was committed by a certain person; (2) That the accused knew that the said person had committed the serious offense; (3) That, thereafter, the accused concealed the se- rious offense and failed to make it known to civilian or military authorities as soon as possible; (4) That the concealing was wrongful; and (5) 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. Explanation. (1) In general. Misprision of a serious offense is the offense of concealing a serious offense commit- ted by another but without such previous concert with or subsequent assistance to the principal as would make the accused an accessory. See para- graph 3. An intent to benefit the principal is not necessary to this offense. (2) Serious offense. For purposes of this para- graph, a “serious offense” is any offense punishable under the authority of the code by death or by con- finement for a term exceeding 1 year. (3) Positive act of concealment. A mere failure or refusal to disclose the serious offense without some p o s i t i v e a c t o f c o n c e a l m e n t d o e s n o t m a k e o n e guilty of this offense. Making a false entry in an account book for the purpose of concealing a theft committed by another is an example of a positive act of concealment. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , IV-139 ¶95.e.Article 134
p. 441
forfeiture of all pay and allowances, and confine- ment for 3 years. f. Sample specification. In that (personal jurisdiction data), h a v i n g k n o w l e d g e t h a t h a d a c t u a l l y committed a serious offense to wit: (the murder of ) ( ), did, (at/on board—lo- cation) (subject-matter jurisdiction data, if required), from about 20 , to about 20 , w r o n g f u l l y c o n c e a l s u c h s e r i o u s o f f e n s e b y and fail to make the same known to the civil or military authorities as soon as possible, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the preju- dice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 96. Article 134—(Obstructing justice) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused wrongfully did a certain act; (2) That the accused did so in the case of a cer- tain person against whom the accused had reason to believe there were or would be criminal proceedings pending; (3) That the act was done with the intent to influ- ence, impede, or otherwise obstruct the due adminis- tration of justice; 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. c. Explanation. This offense may be based on con- duct that occurred before preferral of charges. Ac- tual obstruction of justice is not an element of this offense. For purposes of this paragraph “criminal p r o c e e d i n g s ” i n c l u d e s n o n j u d i c i a l p u n i s h m e n t proceedings under Part V of this Manual. Examples of obstruction of justice include wrongfully influenc- ing, intimidating, impeding, or injuring a witness, a person acting on charges under this chapter, an in- vestigating officer under R.C.M. 406, or a party; and by means of bribery, intimidation, misrepresentation, or force or threat of force delaying or preventing communication of information relating to a violation of any criminal statute of the United States to a person authorized by a department, agency, or armed force of the United States to conduct or engage in investigations or prosecutions of such offenses; or endeavoring to do so. See also paragraph 22 and Article 37. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 5 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , wrongfully (endeavor to) (impede (a trial by court- martial) (an investigation) (a preliminary hearing) ( )) [influence the actions of , (a trial counsel of the court-martial) (a defense counsel of the court-martial) (an officer responsible for making a r e c o m m e n d a t i o n c o n c e r n i n g d i s p o s i t i o n o f charges) ( )] [(influence) (alter) the testimony of as a witness before a (court-martial) (an i n v e s t i g a t i n g o f f i c e r ) ( a p r e l i m i n a r y h e a r i n g ) ( )] in the case of by [(promising) (offering) (giving) to the said , (the sum of $ ) ( , o f a v a l u e o f a b o u t $ ) ] [communicating to the said a threat to ] [ ], (if) (unless) he/she, the said , would [recommend dismissal of the charges against said ] [(wrongfully refuse to testify) (testify falsely concerning ) ( )] [(at such trial)(before such investigating officer)(before such preliminary hearing officer)] [ ], and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 96a. Art 134—(Wrongful interference with an adverse administrative proceeding) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused wrongfully did a certain act; (2) That the accused did so in the case of a cer- tain person against whom the accused had reason to believe there was or would be an adverse adminis- trative proceeding pending; (3) That the act was done with the intent to influ- ence, impede, or obstruct the conduct of such ad- IV-140 ¶95.e. Art 134
p. 442
ministrative proceeding, or otherwise obstruct the due administration of justice; (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. c. Explanation. For purposes of this paragraph “ad- verse administrative proceeding” includes any ad- ministrative proceeding or action, initiated against a servicemember, that could lead to discharge, loss of special or incentive pay, administrative reduction in grade, loss of a security clearance, bar to reenlist- ment, or reclassification. Examples of wrongful in- t e r f e r e n c e i n c l u d e w r o n g f u l l y i n f l u e n c i n g , intimidating, impeding, or injuring a witness, an in- vestigator, or other person acting on an adverse ad- m i n i s t r a t i v e a c t i o n ; b y m e a n s o f b r i b e r y , intimidation, misrepresentation, or force or threat of force delaying or preventing communication of in- formation relating to such administrative proceeding; and, the wrongful destruction or concealment of in- f o r m a t i o n r e l e v a n t t o s u c h a d v e r s e a d m i n i s t r a t i v e proceeding. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 5 years. f. Sample specification. In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , (wrong- fully endeavor to) [impede (an adverse administra- t i v e p r o c e e d i n g ) ( a n i n v e s t i g a t i o n ) ( ) ] [influence the actions of , (an officer responsi- ble for making a recommendation concerning the adverse administrative action) (an individual respon- sible for making a decision concerning an adverse administrative proceeding) (an individual responsible for processing an adverse administrative proceeding) ( ) ] [ ( i n f l u e n c e ) ( a l t e r ) t h e t e s t i m o n y o f a witness before (a board established to con- sider an administrative proceeding or elimination) (a preliminary hearing officer) ( )] in the case of , by ](promising) (offering) (giving) to the said , (the sum of $ ) ( , of a value of about $ )] [communicating to the said a threat to ] [ ], (if) (unless) the said , would [recommend dismissal of the action against said ] [(wrongfully refuse to testify) (testify falsely concerning ) ( )] [ ( a t s u c h a d m i n i s t r a t i v e p r o c e e d i n g ) ( b e f o r e s u c h preliminary hearing officer) (before such administra- tive board)] [ ], and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 97. Article 134—(Pandering and prostitution) a. Text of statute. See paragraph 60. b. Elements. (1) Prostitution. (a) That the accused engaged in a sexual act with another person not the accused’s spouse; (b) That the accused did so for the purpose of receiving money or other compensation; (c) That this act was wrongful; 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) Patronizing a prostitute. (a) That the accused engaged in a sexual act with another person not the accused’s spouse; (b) That the accused compelled, induced, en- ticed, or procured such person to engage in a sexual act in exchange for money or other compensation; and (c) That this act was wrongful; 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. (3) Pandering by inducing, enticing, or procuring act of prostitution. (a) That the accused induced, enticed, or pro- cured a certain person to engage in a sexual act for hire and reward with a person to be directed to said person by the accused; (b) That this inducing, enticing, or procuring was wrongful; (c) 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. IV-141 ¶97.b.(3)(c)Article 134
p. 443
(4) Pandering by arranging or receiving consid- eration for arranging for a sexual act. (a) That the accused arranged for, or received valuable consideration for arranging for, a certain p e r s o n t o e n g a g e i n a s e x u a l a c t w i t h a n o t h e r person; (b) That the arranging (and receipt of consider- ation) was wrongful; and (c) 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. Explanation. (1) Prostitution may be committed by males or females. (2) Sexual act. See paragraph 45.a.(g)(1). d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Prostitution and patronizing a prostitute. Dis- honorable discharge, forfeiture of all pay and allow- ances, and confinement for 1 year. (2) Pandering. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. f. Sample specifications. (1) Prostitution. In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdic- tion data, if required), on or about 20 , wrongfully engage in (a sexual act) (sexual acts) with , a person not his/her spouse, for the purpose of receiving (money) ( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). (2) Patronizing a prostitute. In that (personal jurisdiction data), did, (at/on board location) (subject-matter jurisdic- tion data, if required), on or about 20 , w r o n g f u l l y ( c o m p e l ) ( i n d u c e ) ( e n t i c e ) ( p r o c u r e ) , a person not his/her spouse, to engage in (a sexual act) (sexual acts) with the accused in exchange for (money) ( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). (3) Inducing, enticing, or procuring act of pros- titution. In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , wrong- f u l l y ( i n d u c e ) ( e n t i c e ) ( p r o c u r e ) t o e n - g a g e i n ( a s e x u a l a c t ) ( s e x u a l a c t s f o r h i r e a n d reward) with persons to be directed to him/her by the said , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). (4) Arranging, or receiving consideration for ar- ranging for sexual intercourse or sodomy. In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdic- tion data, if required), on or about 20 , wrongfully (arrange for) (receive valuable considera- tion, to wit: on account of arranging for) to engage in (an act) (acts) of (sex- u a l i n t e r c o u r s e ) ( s o d o m y ) w i t h , a n d that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the preju- dice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 97a. Article 134—(Parole, Violation of) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused was a prisoner as the result o f a c o u r t - m a r t i a l c o n v i c t i o n o r o t h e r c r i m i n a l proceeding; (2) That the accused was on parole; (3) That there were certain conditions of parole that the parolee was bound to obey; (4) That the accused violated the conditions of parole by doing an act or failing to do an act; and (5) That, under the circumstances, the conduct of the accused was to the prejudice of good order and IV-142 ¶97.b.(4) Article 134
p. 444
discipline in the armed forces or was of a nature to bring discredit upon the armed forces. c. Explanation. (1) “Prisoner” refers only to those in confinement resulting from conviction at a court-martial or other criminal proceeding. (2) “Parole” is defined as “word of honor.” A prisoner on parole, or parolee, has agreed to adhere to a parole plan and conditions of parole. A “parole plan” is a written or oral agreement made by the prisoner prior to parole to do or refrain from doing certain acts or activities. A parole plan may include a r e s i d e n c e r e q u i r e m e n t s t a t i n g w h e r e a n d w i t h whom a parolee will live, and a requirement that the prisoner have an offer of guaranteed employment. “Conditions of parole” include the parole plan and other reasonable and appropriate conditions of pa- role, such as paying restitution, beginning or contin- uing treatment for alcohol or drug abuse, or paying a fine ordered executed as part of the prisoner’s court- m a r t i a l s e n t e n c e . I n r e t u r n f o r g i v i n g h i s o r h e r “word of honor” to abide by a parole plan and con- ditions of parole, the prisoner is granted parole. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , confinement for 6 months, and forfeiture of two- thirds pay per month for 6 months. f. Sample specifications. In that (personal jurisdiction data), a prisoner on parole, did, (at/on board—location), on or about 20 , violate the conditions of his/ her parole by , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 98. Article 134—(Perjury: subornation of) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused induced and procured a cer- tain person to take an oath or its equivalent and to falsely testify, depose, or state upon such oath or its equivalent concerning a certain matter; (2) That the oath or its equivalent was adminis- tered to said person in a matter in which an oath or its equivalent was required or authorized by law; (3) That the oath or its equivalent was adminis- tered by a person having authority to do so; (4) That upon the oath or its equivalent said per- son willfully made or subscribed a certain statement; (5) That the statement was material; (6) That the statement was false; (7) That the accused and the said person did not then believe that the statement was true; and (8) 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 . E x p l a n a t i o n . S e e p a r a g r a p h 5 7 c f o r a p p l i c a b l e principles. “Induce and procure” means to influence, persuade, or cause. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 5 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , procure to commit perjury by inducing him/her, the said , to take a lawful (oath) (affirmation) in a (trial by court-martial of ) (trial by a court of competent jurisdiction, to wit: of ) (deposition for use in a trial by of ) ( ) that he/she, the said , would (testify) (depose) ( ) truly, and to (testify) (depose) ( ) willfully, corrupt- ly, and contrary to such (oath) (affirmation) in sub- stance that , which (testimony) (deposition) ( ) was upon a material matter and which the accused and the said did not then believe to be true, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). IV-143 ¶99.Article 134
p. 445
99. Article 134—(Public record: altering, concealing, removing, mutilating, obliterating, or destroying) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused altered, concealed, removed, mutilated, obliterated, destroyed, or took with the intent to alter, conceal, remove, mutilate, obliterate, or destroy, a certain public record; (2) That the act of the accused was willful and 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. c . E x p l a n a t i o n . “ P u b l i c r e c o r d s ” i n c l u d e r e c o r d s , r e p o r t s , s t a t e m e n t s , o r d a t a c o m p i l a t i o n s , i n a n y form, of public offices or agencies, setting forth the activities of the office or agency, or matters ob- served pursuant to duty imposed by law as to which matters there was a duty to report. “Public records” includes classified matters. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 3 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , willfully and unlawfully ((alter) (conceal) (remove) (mutilate) (obliterate) (destroy)) (take with intent to ( a l t e r ) ( c o n c e a l ) ( r e m o v e ) ( m u t i l a t e ) ( o b l i t e r a t e ) (destroy)) a public record, to wit: , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the preju- dice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 100. Article 134—(Quarantine: medical, breaking) a. Text of statute. See paragraph 60. b. Elements. (1) That a certain person ordered the accused into medical quarantine; (2) That the person was authorized to order the accused into medical quarantine; (3) That the accused knew of this medical quar- antine and the limits thereof; (4) That the accused went beyond the limits of the medical quarantine before being released there- from by proper authority; and (5) 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. Explanation. None. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Confinement for 6 months and forfeiture of two-thirds pay per month for 6 months. f. Sample specification. In that (personal jurisdiction data) having been placed in medical quarantine by a per- son authorized to order the accused into medical q u a r a n t i n e , d i d , ( a t / o n b o a r d — l o c a t i o n ) ( s u b j e c t - matter jurisdiction data, if required), on or about 20 , break said medical quarantine, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the preju- dice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 100a. Article 134—(Reckless endangerment) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused did engage in conduct; (2) That the conduct was wrongful and reckless or wanton; (3) That the conduct was likely to produce death or grievous bodily harm to another person; 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. c. Explanation. (1) In general. This offense is intended to pro- hibit and therefore deter reckless or wanton conduct IV-144 ¶99. Article 134
p. 446
that wrongfully creates a substantial risk of death or grievous bodily harm to others. (2) Wrongfulness. Conduct is wrongful when it is without legal justification or excuse. (3) Recklessness. “Reckless” conduct is conduct that exhibits a culpable disregard of foreseeable con- sequences to others from the act or omission in- volved. The accused need not intentionally cause a resulting harm or know that his conduct is substan- tially certain to cause that result. The ultimate ques- t i o n i s w h e t h e r , u n d e r a l l t h e c i r c u m s t a n c e s , t h e accused’s conduct was of that heedless nature that made it actually or imminently dangerous to the rights or safety of others. ( 4 ) W a n t o n n e s s . “ W a n t o n ” i n c l u d e s “ R e c k l e s s ” but may connote willfulness, or a disregard of prob- able consequences, and thus describe a more aggra- vated offense. (5) Likely to produce. When the natural or proba- b l e c o n s e q u e n c e o f p a r t i c u l a r c o n d u c t w o u l d b e death or grievous bodily harm, it may be inferred that the conduct is “likely” to produce that result. See paragraph 54c(4)(a)(ii). ( 6 ) G r i e v o u s b o d i l y h a r m . “ G r i e v o u s b o d i l y harm” means serious bodily injury. It does not in- clude minor injuries, such as a black eye or a bloody nose, but does include fractured or dislocated bones, deep cuts, torn members of the body, serious dam- a g e t o i n t e r n a l o r g a n s , a n d o t h e r s e r i o u s b o d i l y injuries. (7) Death or injury not required. It is not neces- sary that death or grievous bodily harm be actually inflicted to prove reckless endangerment. d. Lesser included offenses. None. e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 1 year. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , w r o n g f u l l y a n d ( r e c k l e s s l y ) ( w a n t o n l y ) e n g a g e i n conduct, to wit: (describe conduct), conduct likely to cause death or grievous bodily harm to , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 101. Deleted—See Executive Order 12708 Requesting commission of an offense was deleted pursuant to Executive Order 12708, effective 1 April 1990. 102. Article 134—(Restriction, breaking) a. Text of statute. See paragraph 60. b. Elements. (1) That a certain person ordered the accused to be restricted to certain limits; (2) That said person was authorized to order said restriction; (3) That the accused knew of the restriction and the limits thereof; (4) That the accused went beyond the limits of the restriction before being released therefrom by proper authority; and (5) 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. Explanation. Restriction is the moral restraint of a person imposed by an order directing a person to remain within certain specified limits. “Restriction” includes restriction under R.C.M. 304(a)(2), restric- tion resulting from imposition of either nonjudicial punishment ( see Part V) or the sentence of a court- martial ( see R.C.M. 1003(b)(6)), and administrative restriction in the interest of training, operations, se- curity, or safety. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Confinement for 1 month and forfeiture of two-thirds pay per month for 1 month. f. Sample specification. In that (personal jurisdiction data), having been restricted to the limits of , by a person authorized to do so, did, (at/on board— location), on or about 20 , break said re- striction, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the IV-145 ¶102.f.Article 134
p. 447
armed forces and was of a nature to bring discredit upon the armed forces). 103. Article 134—(Seizure: destruction, removal, or disposal of property to prevent) a. Text of statute. See paragraph 60. b. Elements. (1) That one or more persons authorized to make searches and seizures were seizing, about to seize, or endeavoring to seize certain property; (2) That the accused destroyed, removed, or oth- erwise disposed of that property with intent to pre- vent the seizure thereof; (3) That the accused then knew that person(s) au- thorized to make searches were seizing, about to seize, or endeavoring to seize the property; 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. c. Explanation. See Mil. R. Evid. 316( e) concerning military personnel who may make seizures. It is not a defense that a search or seizure was technically defective. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 1 year. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject matter jurisdic- tion data, if required), on or about 20 , with intent to prevent its seizure, (destroy) (remove) ( d i s p o s e o f ) , p r o p e r t y w h i c h , a s then knew, (a) person(s) authorized to make searches and seizures were (seizing) (about to seize) (endeavoring to seize), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 103a. Article 134—(Self-injury without intent to avoid service) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused intentionally inflicted injury upon himself or herself; (2) 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. [Note: If the offense was committed in time of war or in a hostile fire pay zone, add the following element] (3) That the offense was committed (in time of war) (in a hostile fire pay zone). c. Explanation. (1) Nature of offense. This offense differs from malingering (see paragraph 40) in that for this of- fense, the accused need not have harbored a design to avoid performance of any work, duty, or service which may properly or normally be expected of one in the military service. This offense is characterized by intentional self-injury under such circumstances as prejudice good order and discipline or discredit the armed forces. It is not required that the accused be unable to perform duties, or that the accused actually be absent from his or her place of duty as a result of the injury. For example, the accused may inflict the injury while on leave or pass. The circum- stances and extent of injury, however, are relevant to a determination that the accused’s conduct was prej- udicial to good order and discipline, or service-dis- crediting. Discussion Bona fide suicide attempts should not be charged as criminal offenses. When making a determination whether the injury by the service member was a bona fide suicide attempt, the convening authority should consider factors including, but not limited to, health conditions, personal stressors, and DoD policy related to suicide prevention. (2) How injury inflicted. The injury may be in- flicted by nonviolent as well as by violent means and may be accomplished by any act or omission that produces, prolongs, or aggravates a sickness or disability. Thus, voluntary starvation that results in a debility is a self-inflicted injury. Similarly, the in- jury may be inflicted by another at the accused’s request. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. IV-146 ¶102.f. Article 134
p. 448
(1) Intentional self-inflicted injury. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. (2) Intentional self-inflicted injury in time of war o r i n a h o s t i l e f i r e p a y z o n e . D i s h o n o r a b l e d i s - charge, forfeiture of all pay and allowances, and confinement for 5 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (in a hostile fire pay zone) on or about 20 , (a time of war,) i n t e n t i o n a l l y i n j u r e h i m s e l f / h e r s e l f b y ( n a t u r e a n d c i r c u m s t a n c e s o f i n j u r y ) , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 104. Article 134—(Sentinel or lookout: offenses against or by) a. Text of statute. See paragraph 60. b. Elements. (1) Disrespect to a sentinel or lookout. ( a ) T h a t a c e r t a i n p e r s o n w a s a s e n t i n e l o r lookout; (b) That the accused knew that said person was a sentinel or lookout; (c) That the accused used certain disrespectful l a n g u a g e o r b e h a v e d i n a c e r t a i n d i s r e s p e c t f u l manner; ( d ) T h a t s u c h l a n g u a g e o r b e h a v i o r w a s wrongful; ( e ) T h a t s u c h l a n g u a g e o r b e h a v i o r w a s d i - rected toward and within the sight or hearing of the sentinel or lookout; (f) That said person was at the time in the execution of duties as a sentinel or lookout; and (g) 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) Loitering or wrongfully sitting on post by a sentinel or lookout. (a) That the accused was posted as a sentinel or lookout; (b) That while so posted, the accused loitered or wrongfully sat down on post; and (c) 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. [Note: If the offense was committed in time of war o r w h i l e t h e a c c u s e d w a s r e c e i v i n g s p e c i a l p a y under 37 U.S.C. § 310, add the following element after element (a): That the accused was so posted (in time of war) (while receiving special pay under 37 U.S.C. § 310).] c. Explanation. (1) Disrespect. For a discussion of “disrespect,” see paragraph 13c(3). (2) Loitering or wrongfully sitting on post. (a) In general. The discussion set forth in para- graph 38c applies to loitering or sitting down while posted as a sentinel or lookout as well. (b) Loiter. “Loiter” means to stand around, to move about slowly, to linger, or to lag behind when that conduct is in violation of known instructions or accompanied by a failure to give complete attention to duty. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. (1) Disrespect to a sentinel or lookout. Confine- ment for 3 months and forfeiture of two-thirds pay per month for 3 months. (2) Loitering or wrongfully sitting on post by a sentinel or lookout. (a) In time of war or while receiving special pay under 37 U.S.C. § 310. Dishonorable discharge, forfeiture of all pay and allowances, and confine- ment for 2 years. (b) Other cases. Bad-conduct discharge, forfei- ture of all pay and allowances, and confinement for 6 months. f. Sample specifications. (1) Disrespect to a sentinel or lookout. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , then knowing that was a sentinel or lookout, (wrongfully use the following disrespectful language “ ,” or words to that effect, to ) (wrongfully behave in a d i s r e s p e c t f u l m a n n e r t o w a r d , b y IV-147 ¶104.f.(1)Article 134
p. 449
) a (sentinel) (lookout) in the execution of his/her duty, and that said conduct was (to the prejudice of good order and discipline in the armed f o r c e s ) ( o f a n a t u r e t o b r i n g d i s c r e d i t u p o n t h e armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). (2) Loitering or wrongfully sitting down on post by a sentinel or lookout. In that (personal jurisdiction data), while posted as a (sentinel) (lookout), did, (at/on board—location) (while receiving special pay under 37 U.S.C. § 310) on or about 20 , (a time of war) (loiter) (wrongfully sit down) on his/her post, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 105. Article 134—(Soliciting another to commit an offense) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused solicited or advised a certain person or persons to commit a certain offense under the code other than one of the four offenses named in Article 82; (2) That the accused did so with the intent that the offense actually be committed; 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 a nature to bring discredit upon the armed forces. c. Explanation. See paragraph 6c. If the offense so- licited was actually committed, see also paragraph 1. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Any person subject to the code who is found guilty of soliciting or advising another person to commit an offense which, if com- mitted by one subject to the code, would be punisha- ble under the code, shall be subject to the maximum punishment authorized for the offense solicited or advised, except that in no case shall the death pen- alty be imposed nor shall the period of confinement in any case, including offenses for which life im- prisonment may be adjudged, exceed 5 years. How- ever, any person subject to the code who is found guilty of soliciting or advising another person to commit the offense of espionage (Article 106a) shall be subject to any punishment, other than death, that a court-martial may direct. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , wrongfully (solicit) (advise) (to disobey a general regulation, to wit: ) (to steal , of a value of (about) $ , the property of ) (to ), by , and that said conduct was (to the prej- udice of good order and discipline in the armed f o r c e s ) ( o f a n a t u r e t o b r i n g d i s c r e d i t u p o n t h e armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 106. Article 134—(Stolen property: knowingly receiving, buying, concealing) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused wrongfully received, bought, or concealed certain property of some value; (2) That the property belonged to another person; (3) That the property had been stolen; (4) That the accused then knew that the property had been stolen; and (5) 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. Explanation. (1) In general. The actual thief is not criminally liable for receiving the property stolen; however a principal to the larceny ( see paragraph 1), when not the actual thief, may be found guilty of knowingly receiving the stolen property but may not be found guilty of both the larceny and receiving the property. (2) Knowledge. Actual knowledge that the prop- e r t y w a s s t o l e n i s r e q u i r e d . K n o w l e d g e m a y b e proved by circumstantial evidence. ( 3 ) W r o n g f u l n e s s . R e c e i v i n g s t o l e n p r o p e r t y i s wrongful if it is without justification or excuse. For example, it would not be wrongful for a person to IV-148 ¶104.f.(1) Article 134
p. 450
receive stolen property for the purpose of returning it to its rightful owner, or for a law enforcement officer to seize it as evidence. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . S t o l e n p r o p e r t y , k n o w - ingly receiving, buying, or concealing. (1) Of a value of $500.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months. (2) Of a value of more than $500.00. Dishonora- ble discharge, forfeiture of all pay and allowances, and confinement for 3 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , wrongfully (receive) (buy) (conceal) , of a value of (about) $ , the property of , w h i c h p r o p e r t y , a s h e / s h e , t h e s a i d , then knew, had been stolen, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 107. Article 134—(Straggling) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused, while accompanying the ac- cuse’s organization on a march, maneuvers, or simi- lar 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. c. Explanation. “Straggle” means to wander away, to stray, to become separated from, or to lag or linger behind. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e. Maximum punishment. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. f. Sample specification. In that (personal jurisdiction data), d i d , a t , o n o r a b o u t 2 0 , w h i l e a c c o m p a n y i n g h i s / h e r o r g a n i z a t i o n o n ( a m a r c h ) ( m a n e u v e r s ) ( ) , w r o n g f u l l y straggle, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 108. Article 134—(Testify: wrongful refusal) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused was in the presence of a court-martial, board of officer(s), military commis- sion, court of inquiry, an officer conducting an in- vestigation under Article 32, or an officer taking a deposition, of or for the United States, at which a certain person was presiding; (2) That the said person presiding directed the accused to qualify as a witness or, having so quali- fied, to answer a certain question; (3) That the accused refused to qualify as a wit- ness or answer said question; (4) That the refusal was wrongful; and (5) 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. Explanation. To “qualify as a witness” means that t h e w i t n e s s d e c l a r e s t h a t t h e w i t n e s s w i l l t e s t i f y truthfully. See R.C.M. 807; Mil. R. Evid. 603. A good faith but legally mistaken belief in the right to r e m a i n s i l e n t d o e s n o t c o n s t i t u t e a d e f e n s e t o a charge of wrongful to testify. See also Mil. R. Evid. 301 and Section V. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 5 years. f. Sample specification. In that (personal jurisdiction data), being in the presence of (a) (an) ((general) (special) (summary) court-martial) (board of officer(s)) (mili- tary commission) (court of inquiry) (officer conduct- ing a preliminary hearing under Article 32, Uniform Code of Military Justice) (officer taking a depo- IV-149 ¶108.f.Article 134
p. 451
s i t i o n ) ( ) ( o f ) ( f o r ) t h e U n i t e d S t a t e s , o f w h i c h w a s ( m i l i t a r y j u d g e ) ( p r e s i d e n t ) , ( ) , ( a n d h a v i n g b e e n d i r e c t e d b y t h e s a i d to qualify as a witness) (and having qualified as a witness and having been directed by the said t o a n s w e r t h e f o l l o w i n g q u e s t i o n ( s ) p u t t o him/her as a witness, “ ”), did, (at/on board— location), on or about 20 , wrongfully re- fuse (to qualify as a witness) (to answer said ques- tion(s)), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 109. Article 134—(Threat or hoax designed or intended to cause panic or public fear) a. Text of statute. See paragraph 60. b. Elements. (1) Threat. ( a ) T h a t t h e a c c u s e d c o m m u n i c a t e d c e r t a i n language; ( b ) T h a t t h e i n f o r m a t i o n c o m m u n i c a t e d amounted to a threat; (c) That the harm threatened was to be done by means of an explosive; weapon of mass destruction; biological or chemical agent, substance, or weapon; or hazardous material; (d) That the communication was wrongful; 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) Hoax. ( a ) T h a t t h e a c c u s e d c o m m u n i c a t e d o r c o n - veyed certain information; (b) That the information communicated or con- veyed concerned an attempt being made or to be made by means of an explosive; weapon of mass destruction; biological or chemical agent, substance, or weapon; or hazardous material, to unlawfully kill, injure, or intimidate a person or to unlawfully dam- age or destroy certain property; (c) That the information communicated or con- veyed by the accused was false and that the accused then knew it to be false; (d) That the communication of the information by the accused was malicious; 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. c. Explanation. (1) Threat. A “threat” means an expressed pres- ent determination or intent to kill, injure, or intimi- d a t e a p e r s o n o r t o d a m a g e o r d e s t r o y c e r t a i n property presently or in the future. Proof that the accused actually intended to kill, injure, intimidate, damage, or destroy is not required. ( 2 ) E x p l o s i v e . “ E x p l o s i v e ” m e a n s g u n p o w d e r , powders used for blasting, all forms of high explo- sives, blasting materials, fuses (other than electrical circuit breakers), detonators, and other detonating a g e n t s , s m o k e l e s s p o w d e r s , a n y e x p l o s i v e b o m b , grenade, missile, or similar device, and any incendi- ary bomb or grenade, fire bomb, or similar device, and any other explosive compound, mixture, or simi- lar material. (3) Weapon of mass destruction. A weapon of mass destruction means any device, explosive or otherwise, that is intended, or has the capability, to cause death or serious bodily injury to a significant number of people through the release, dissemination, or impact of: toxic or poisonous chemicals, or their p r e c u r s o r s ; a d i s e a s e o r g a n i s m ; o r r a d i a t i o n o r radioactivity. (4) Biological agent. The term “biological agent” m e a n s a n y m i c r o - o r g a n i s m ( i n c l u d i n g b a c t e r i a , viruses, fungi, rickettsiac, or protozoa), pathogen, or infectious substance, and any naturally occurring, b i o e n g i n e e r e d , o r s y n t h e s i z e d c o m p o n e n t o f a n y such micro-organism, pathogen, or infectious sub- stance, whatever its origin or method of production, that is capable of causing— (a) death, disease, or other biological malfunc- tion in a human, an animal, a plant, or another living organism; ( b ) d e t e r i o r a t i o n o f f o o d , w a t e r , e q u i p m e n t , supplies, or materials of any kind; or (c) deleterious alteration of the environment. ( 5 ) C h e m i c a l a g e n t , s u b s t a n c e , o r w e a p o n . A chemical agent, substance, or weapon refers to a toxic chemical and its precursors or a munition or device, specifically designed to cause death or other harm through toxic properties of those chemicals IV-150 ¶108.f. Article 134
p. 452
that would be released as a result of the employment of such munition or device, and any equipment spe- cifically designed for use directly in connection with the employment of such munitions or devices. (6) Hazardous material. A substance or material (including explosive, radioactive material, etiologic a g e n t , f l a m m a b l e o r c o m b u s t i b l e l i q u i d o r s o l i d , poison, oxidizing or corrosive material, and com- pressed gas, or mixture thereof) or a group or class of material designated as hazardous by the Secretary of Transportation. (7) Malicious. A communication is “malicious” if t h e a c c u s e d b e l i e v e d t h a t t h e i n f o r m a t i o n w o u l d probably interfere with the peaceful use of the build- ing, vehicle, aircraft, or other property concerned, or would cause fear or concern to one or more persons. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeitures of all pay and allowances, and confine- ment for 10 years. f. Sample specifications. (1) Threat. In that (personal jurisdiction data) d i d , ( a t / o n b o a r d — l o c a t i o n ) o n o r a b o u t 20 , wrongfully communicate certain in- formation, to wit: , which language con- stituted a threat to harm a person or property by means of a(n) [explosive; weapon of mass destruc- tion; biological agent, substance, or weapon; chemi- c a l a g e n t , s u b s t a n c e , o r w e a p o n ; a n d / o r ( a ) hazardous material(s)], and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). (2) Hoax. In that (personal jurisdiction data) d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 20 , maliciously (communicate) (convey) c e r t a i n i n f o r m a t i o n c o n c e r n i n g a n a t t e m p t b e i n g made or to be made to unlawfully [(kill) (injure) ( i n t i m i d a t e ) ] [ ( d a m a g e ) ( d e s t r o y ) ] by means of a(n) [explosive; weapon of mass destruction; biological agent, substance, or weapon; chemical agent, substance, or weapon; and/ or (a) hazardous material(s)], to wit: , which information was false and which the accused then knew to be false, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 110. Article 134—(Threat, communicating) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused communicated certain lan- guage expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future; (2) That the communication was made known to that person or to a third person; (3) That the communication was wrongful; 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. c. Explanation. For purposes of this paragraph, to establish that the communication was wrongful it is necessary that the accused transmitted the communi- cation for the purpose of issuing a threat, with the knowledge that the communication would be viewed a s a t h r e a t , o r a c t e d r e c k l e s s l y w i t h r e g a r d t o whether the communication would be viewed as a threat. However, it is not necessary to establish that the accused actually intended to do the injury threat- ened. Nor is the offense committed by the mere statement of intent to commit an unlawful act not involving injury to another. See also paragraph 109, Threat or hoax designed or intended to cause panic or public fear. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 3 years. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , wrongfully communicate to a threat (in- jure by ) (accuse of having com- mitted the offense of ) ( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring IV-151 ¶110.f.Article 134
p. 453
discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 111. Article 134—(Unlawful entry) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused entered the real property of a n o t h e r o r c e r t a i n p e r s o n a l p r o p e r t y o f a n o t h e r which amounts to a structure usually used for habi- tation 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. c. Explanation. See paragraph 55 for a discussion of “entry.” An entry is “unlawful” if made without the consent of any person authorized to consent to entry or without other lawful authority. No specific intent or breaking is required for this offense. See para- graph 56 for a discussion of housebreaking. The property protected against unlawful entry includes real property and the sort of personal property which amounts to a structure usually used for habitation or storage. It would usually not include an aircraft, automobile, tracked vehicle, or a person’s locker, even though used for storage purposes. However, depending on the circumstances, an intrusion into such property may be prejudicial to good order and discipline. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 6 months. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , u n l a w f u l l y e n t e r t h e ( d w e l l i n g h o u s e ) ( g a r a g e ) ( w a r e h o u s e ) ( t e n t ) ( v e g e t a b l e g a r d e n ) ( o r c h a r d ) (stateroom) ( ) of , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). 112. Article 134—(Weapon: concealed, carrying) a. Text of statute. See paragraph 60. b. Elements. ( 1 ) T h a t t h e a c c u s e d c a r r i e d a c e r t a i n w e a p o n concealed on or about the accused’s person; (2) That the carrying was unlawful; (3) That the weapon was a dangerous weapon; 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. c. Explanation. (1) Concealed weapon. A weapon is concealed when it is carried by a person and intentionally cov- ered or kept from sight. (2) Dangerous weapon. For purposes of this para- graph, a weapon is dangerous if it was specifically designed for the purpose of doing grievous bodily harm, or it was used or intended to be used by the accused to do grievous bodily harm. ( 3 ) O n o r a b o u t . “ O n o r a b o u t ” m e a n s t h e weapon was carried on the accused’s person or was within the immediate reach of the accused. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 1 year. f. Sample specification. In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdic- tion data, if required), on or about 20 , unlawfully carry on or about his/her person a con- cealed weapon, to wit: a , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). IV-152 ¶110.f. Article 134
p. 454
113. Article 134—(Wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button) a. Text of statute. See paragraph 60. b. Elements. (1) That the accused wore a certain insignia, dec- oration, badge, ribbon, device, or lapel button upon the accused’s uniform or civilian clothing; (2) That the accused was not authorized to wear the item; (3) That the wearing was wrongful; 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. c. Explanation. None. d. Lesser included offenses. See paragraph 3 of this part and Appendix 12A. e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e , forfeiture of all pay and allowances, and confine- ment for 6 months. f. Sample specification. In that (personal jurisdiction data), d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t 2 0 , w r o n g f u l l y a n d w i t h o u t a u t h o r i t y wear upon his/her (uniform) (civilian clothing) (the i n s i g n i a o r g r a d e o f a ( m a s t e r s e r g e a n t o f ) (chief gunner’s mate of )) ( C o m b a t I n f a n t r y m a n B a d g e ) ( t h e D i s t i n g u i s h e d Service Cross) (the ribbon representing the Silver Star) (the lapel button representing the Legion of Merit) ( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces). IV-153 ¶113.f.Article 134
p. 455
(no extractable text on this page)
p. 456
PART V NONJUDICIAL PUNISHMENT PROCEDURE 1. General a. Authority. Nonjudicial punishment in the United States Armed Forces is authorized by Article 15. b. Nature. Nonjudicial punishment is a disciplinary measure more serious than the administrative correc- tive measures discussed in paragraph 1g, but less serious than trial by court-martial. c. Purpose. Nonjudicial punishment provides com- m a n d e r s w i t h a n e s s e n t i a l a n d p r o m p t m e a n s o f m a i n t a i n i n g g o o d o r d e r a n d d i s c i p l i n e a n d a l s o promotes positive behavior changes in servicemem- b e r s w i t h o u t t h e s t i g m a o f a c o u r t - m a r t i a l conviction. d. Policy. (1) Commander’s responsibility. Commanders are responsible for good order and discipline in their commands. Generally, discipline can be maintained through effective leadership including, when neces- sary, administrative corrective measures. Nonjudicial punishment is ordinarily appropriate when adminis- trative corrective measures are inadequate due to the nature of the minor offense or the record of the servicemember, unless it is clear that only trial by court-martial will meet the needs of justice and dis- cipline. Nonjudicial punishment shall be considered o n a n i n d i v i d u a l b a s i s . C o m m a n d e r s c o n s i d e r i n g nonjudicial punishment should consider the nature of the offense, the record of the servicemember, the needs for good order and discipline, and the effect of nonjudicial punishment on the servicemember and the servicemember’s record. (2) Commander’s discretion. A commander who is considering a case for disposition under Article 15 will exercise personal discretion in evaluating each case, both as to whether nonjudicial punishment is appropriate, and, if so, as to the nature and amount of punishment appropriate. No superior may direct that a subordinate authority impose nonjudicial pun- ishment in a particular case, issue regulations, or- d e r s , o r “ g u i d e s ” w h i c h s u g g e s t t o s u b o r d i n a t e authorities that certain categories of minor offenses be disposed of by nonjudicial punishment instead of by court-martial or administrative corrective meas- ures, or that predetermined kinds or amounts of pun- ishments be imposed for certain classifications of offenses that the subordinate considers appropriate for disposition by nonjudicial punishment. ( 3 ) C o m m a n d e r ’ s s u s p e n s i o n a u t h o r i t y . C o m - manders should consider suspending all or part of any punishment selected under Article 15, particu- larly in the case of first offenders or when signifi- cant extenuating or mitigating matters are present. Suspension provides an incentive to the offender and gives an opportunity to the commander to evaluate the offender during the period of suspension. e. Minor offenses. Nonjudicial punishment may be imposed for acts or omissions that are minor of- f e n s e s u n d e r t h e p u n i t i v e a r t i c l e s ( s e e P a r t I V ) . Whether an offense is minor depends on several factors: the nature of the offense and the circum- stances surrounding its commission; the offender’s age, rank, duty assignment, record and experience; and the maximum sentence imposable for the of- fense if tried by general court-martial. Ordinarily, a minor offense is an offense which the maximum sentence imposable would not include a dishonora- ble discharge or confinement for longer than 1 year i f t r i e d b y g e n e r a l c o u r t - m a r t i a l . T h e d e c i s i o n whether an offense is “minor” is a matter of discre- tion for the commander imposing nonjudicial pun- ishment, but nonjudicial punishment for an offense other than a minor offense (even though thought by the commander to be minor) is not a bar to trial by court-martial for the same offense. See R.C.M. 90 7(b)(2)(D)(iv). However, the accused may show at trial that nonjudicial punishment was imposed, and if the accused does so, this fact must be considered in determining an appropriate sentence. See Article 15(f); R.C.M. 1001(c)(1)(B). f. Limitations on nonjudicial punishment. ( 1 ) D o u b l e p u n i s h m e n t p r o h i b i t e d . W h e n n o n - judicial punishment has been imposed for an of- fense, punishment may not again be imposed for the same offense under Article 15. But see paragraph 1e concerning trial by court-martial. (2) Increase in punishment prohibited. Once non- judicial punishment has been imposed, it may not be increased, upon appeal or otherwise. (3) Multiple punishment prohibited. When a com- mander determines that nonjudicial punishment is a p p r o p r i a t e f o r a p a r t i c u l a r s e r v i c e m e m b e r , a l l known offenses determined to be appropriate for dis- position by nonjudicial punishment and ready to be considered at that time, including all such offenses arising from a single incident or course of conduct, V-1