United
Federated Planets
Uniform
Code of Military Justice
Punitive
Articles of the UCMJ
Articles 77 - 134. Includes the text of the offense, explanations, maximum
punishments, and sample specifications.
Punitive Articles of the Uniform Code of Military
Justice (UCMJ)
The Uniform Code of Military
Justice (UCMJ) is the bedrock of military law. The UCMJ is a federal law,
enacted by Congress. Articles 77 through 134 of the UCMJ are known as the
"punitive offenses," -- that is, specific offenses which, if violated,
can result in punishment by court-martial.
The law authorizes the
Commander-in-Chief (The President of the United Federated Planets) to implement
the provisions of the UCMJ. The President does this via an executive order known
as the "Manual for Court Martial" (MCM). The MCM includes, and expands
on the punitive articles. The MCM divides the punitive articles into six parts:
The text, elements of the offense, an explanation, lesser included offenses,
maximum permissible punishments, and sample specifications.
The Text:
This is the exact text of the article, as Congress approved it in the UCMJ.
Elements:
These are the specifics of the offense. In order to support a finding of
"guilty," the government must prove each and every element of the
offense, beyond a reasonable doubt.
Explanation:
The explanation defines terms, and clarifies the elements, based on previous
court decisions.
Lesser Included Offense:
These are lesser offenses that a military court may still find an accused guilty
of, even if the court finds the accused not guilty of the originally charged
offense. For example, "Manslaughter," under Article 119 is a lesser
included offense of "Murder," under Article 118. If a military court
finds the accused not guilty of the crime of Murder, the court can still find
the accused guilty of Manslaughter, without the government having to amend the
charges.
Maximum Permissible
Punishments: These are
the *maximum* punishments that a general court martial can award toward a
particular offense. While not specifically stated, a general court martial can
also reduce a person's grade. Most general court martials reduce the convicted
person's grade to the lowest enlisted rank (E-1) when punishment includes time
in prison and/or a punitive discharge.
Sample Specifications:
These are samples of how the charges would be written when referred to court
martial.
NOTE 1: This
Uniform Code of Military Justice has been implemented to add realism to the
enjoyment of the United Federated Planets members who have selected the United
Federated Planets military forces to serve in and enjoy. All of this is for role
playing and is, therefore, not to be deemed as an actual document to be enforced
by any authority. There are other guidelines in specific United
Federated Planets documents that do pertain to personal behavior by United
Federated Planets members at official United Federated Planets functions and
activities, which are enforceable by United Federated Planets Chapter Presidents
and are upheld by the United Federated Planets, Incorporated as the sponsor for
the United Federated Planets fan club. So enjoy your selected fan interests.
NOTE 2:
For the purposes of the United Federated Planets military forces, any offense
against another person which is deemed a FELONY OFFENCE in the state or country
in which the criminal act occurs shall be tried by a court of that state or
country and during said trial, the United Federated Planets arrested and tried
for said FELONY OFFENCE shall be placed on administrative membership leave until
a verdict is returned concerning said FELONY OFFENCE.
If the United Federated Planets member is found guilty of said FELONY
OFFENCE, then said United Federated Planets member shall be removed from the
official United Federated Planets membership roster and if said United Federated
Planets member is found NOT GUILTY of said FELONY OFFENCE, said United Federated
Planets member shall retain their United Federated Planets lifetime membership.
Article
77—Principals
4.1.1 a. Text.
"Any person
punishable under this chapter who--
(1) commits an offense punishable by this chapter, or aids, abets, counsels,
commands, or procures its commission; or
(2) causes an act to be done which if directly performed by him would be
punishable by this chapter. is a principal."
4.1.2 b.
Explanation.
1) Purpose.
Article 77 does not define an offense. Its purpose is to make clear that a
person need not personally perform the acts necessary to constitute an offense
to be guilty of it. A person who aids, abets, counsels, commands, or procures
the commission of an offense, or who causes an act to be done which, if done by
that person directly, would be an offense is equally guilty of the offense as
one who commits it directly, and may be punished to the same extent.
Article 77 eliminates the common law distinctions between principal in the first
degree (“perpetrator"); principal in the second degree (one who aids,
counsels, commands, or encourages the commission of an offense and who is
present at the scene of the crime--commonly known as an "aider and
abettor"); and accessory before the fact (one who aids, counsels, commands,
or encourages the commission of an offense and who is not present at the scene
of the crime). All of these are now "principals."
(2) Who may be liable for an offense.
(a) Perpetrator. A perpetrator is one who actually commits the offense, either
by the perpetrator's own hand, or by causing an offense to be committed by
knowingly or intentionally inducing or setting in motion acts by an animate or
inanimate agency or instrumentality which result in the commission of an
offense. For example, a person who knowingly conceals contraband drugs in an
automobile, and then induces another person, who is unaware and has no 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, counsel, command, or procure another
to commit, or assist, encourage, advise, counsel, or command another in the
commission of the offense; and
(ii) Share in the criminal purpose of design.
One who, without knowledge of the criminal venture or plan, unwittingly
encourages or renders assistance to another in the commission of an offense is
not guilty of a crime. See the parentheticals in the examples in paragraph
1b(2)(a) above. In 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 interfere 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 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 perpetrator's. When an offense charged
requires proof of a specific intent or particular state of mind as an element,
the evidence must prove that the accused had that intent or state of mind,
whether the accused is charged as a perpetrator or an "other party" to
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 committed by the perpetrator. For
example, when a homicide is committed, the perpetrator may act in the heat of
sudden passion caused by adequate provocation 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) It must occur before the offense is committed;
(b) The assistance, encouragement, advice, instigation, counsel, command, or
procurement given by the person must be effectively countermanded or negated;
and
(c) The withdrawal must be clearly communicated to the would-be perpetrators or
to appropriate law enforcement authorities in time for the perpetrators to
abandon the plan or for law enforcement authorities to prevent the offense.
Article
78—Accessory after the fact
4.2.1 a. Text.
"Any person subject to this chapter who, knowing that an offense punishable
by this chapter has been committed, receives, comforts, or assists the offender
in order to hinder or prevent his apprehension, trial, or punishment shall be
punished as a court-martial may direct."
4.2.2 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) That thereafter the accused received, comforted, 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.
(1) In general. The assistance given a principal by an accessory after the fact
is not limited to assistance designed to effect the escape or concealment of the
principal, but also includes acts performed to conceal the commission of the
offense by the principal (for example, by concealing evidence of the offense).
(2) Failure to report offense. The mere failure to report a known offense will
not make one an accessory after the fact. Such failure may violate a general
order or regulation, however, and thus constitute an offense under Article 92.
See paragraph 16. If the offense involved is a serious offense, failure to
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 "offense punishable by this
chapter" in the text of the article means any offense described in the
code.
(4) Status of principal. The principal who committed the offense in question
need not be subject to the code, but the offense committed must be punishable by
the code.
(5) Conviction or acquittal of principal. The 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 accused may be convicted as an
accessory after the fact despite the acquittal in a separate trial of the
principal whom the accused allegedly comforted, received, 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 required but may be proved by
circumstantial evidence.
4.2.4 d. Lesser included offense.
Article 80- attempts
4.2.5 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 maximum confinement authorized
for that offense be adjudged, nor shall the period of confinement exceed 10
years in any case, including offenses for which life imprisonment may be
adjudged.
4.2.6 f. Sample specification.
In that __________ (personal jurisdiction data), knowing that (at/on
board--location), on or about __________ 19 __________ , __________ 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 __________ 19 __________ , in order to (hinder) (prevent)
the (apprehension) (trial) (punishment) of the said __________ , (receive)
(comfort) (assist) the said __________ by __________ .
Article 79—Conviction of
lesser included offenses
4.3.1 a. Text.
"An accused may be found guilty of an offense necessarily included in the
offense charged or of an attempt to commit either the offense charged or an
offense necessarily included therein."
4.3.2 b. Explanation.
(1) In general.:
A lesser offense is included in a charged offense when the specification
contains allegations which either expressly or by fair implication put the
accused on notice to be prepared to defend against it in addition to the offense
specifically charged. This requirement of notice may be met when:
(a) All of the elements of the lesser offense are 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 one or more elements is 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 offense, but the mental element is legally less serious (for
example, wrongful appropriation as a lesser included offense of larceny).
The notice requirement may also be met, depending on the allegations in the
specification, even though an included offense requires proof of an element not
required in the offense charged. For example, assault with a dangerous weapon
may be included in a robbery.
(2) Multiple lesser included offenses.:
When the offense charged is a compound offense comprising two or more included
offenses, an accused may be found guilty of any or all of the offenses included
in the offense charged. For example, robbery 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 appropriation and assault.
(3) 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 appropriate to the lesser included offense. For example, the accused is
charged with murder in violation of Article 118, but found guilty of voluntary
manslaughter in violation of Article 119. Such a finding may be worded as
follows:
Of the Specification: Guilty, except the word "murder," substituting
therefore the words "willfully and unlawfully kill," of the excepted
word, not guilty, of the substituted words, guilty.
Of the Charge: Not guilty, but guilty of a violation 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.
(4) Specific lesser included offenses.:
Specific lesser included offenses, if any, are listed for each offense discussed
in this Part, but the lists are not all-inclusive.
Article
80—Attempts
4.4.1 a. Text.
"(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 attempts 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 although it appears on the trial that the offense was
consummated."
4.4.2 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
(4) That the act apparently tended to effect the commission of the intended
offense.
4.4.3 c. Explanation.
(1) In general. To constitute an attempt there must be a specific intent to
commit the offense accompanied 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 necessary for the commission of the offense. The overt act
required goes beyond preparatory steps and is a direct movement toward the
commission of the offense. 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 applying a burning match to a haystack, even if no fire results.
The overt act need not be the last act essential to the consummation of the
offense. For example, an accused could commit an overt act, and then voluntarily
decide not to go through with the intended 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, constitutes the offense of attempt. Failure to complete the
offense, whatever the cause, is not a defense.
(3) Factual impossibility. A person who purposely engages in conduct which would
constitute the offense if the attendant circumstances were as that person
believed them to be is guilty of an attempt. 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 murder, even though, unknown to A, the
gun is defective and will not fire. Similarly, a person who 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 completely abandoned the intended crime, solely because 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 abandonment results, in
whole or in part, from other reasons, for example, the person feared detection
or apprehension, decided to await a better opportunity for success, was unable
to complete the crime, or encountered unanticipated difficulties or unexpected
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
person who voluntarily abandoned an attempted 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 paragraph 6 for a discussion of article 82, solicitation.
(6) Attempts not under Article 80. While most attempts should be charged under
Article 80, the following attempts are specifically addressed by some other
article, and should be charged 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 128--assault
(7) Regulations. An attempt to commit conduct which would violate a lawful
general order or regulation 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
the accused intended to commit the prohibited conduct.
4.4.4 d. Lesser
included offenses.
If the accused is charged with an attempt under Article 80, and the offense
attempted has a lesser included offense, then the offense of attempting to
commit the lesser included offense would ordinarily be a lesser included offense
to the charge of attempt. For example, if an accused was charged with attempted
larceny, the offense of attempted wrongful appropriation would be a lesser
included offense, although it, like the attempted larceny, would be a violation
of Article 80.
4.4.5 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 attempted,
except that in no case shall the death penalty be adjudged, nor shall any
mandatory minimum punishment provisions apply; and in no case, other than
attempted murder, shall confinement exceeding 20 years be adjudged.
4.4.6 f. Sample specification.
In that __________ (personal jurisdiction data) did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , attempt to (describe offense with sufficient detail to include
expressly or by necessary implication every element).
Article
81—Conspiracy
4.5.1 a. Text.
"Any person subject to this chapter who conspires with any other person to
commit an offense under this chapter shall, if one or more of the conspirators
does an act to effect the object of the conspiracy, be punished as a
court-martial may direct."
4.5.2 b. Elements.
(1) That the accused entered into an agreement with one or more persons to
commit an offense under the code; and
(2) That, while the agreement continued to exist, and while the accused remained
a party to the agreement, the accused or at least one of the co-conspirators
performed an overt act for the purpose of bringing about the object of the
conspiracy.
4.5.3 c.
Explanation.
(1) Co-conspirators. Two or more persons are required in order to have a
conspiracy. Knowledge of the identity of co-conspirators and their particular
connection with the criminal purpose need not be established. The accused must
be subject to the code, but the other co-conspirators need not be. A person may
be guilty of conspiracy although incapable of committing the intended offense.
For example, 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 affect 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 furtherance of the object of the agreement is
committed.
(2) Agreement. The agreement in a conspiracy 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 accomplish 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 commission 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 essential that the object offense be
committed. Any overt act is enough, no matter how preliminary or preparatory in
nature, as long as it is a manifestation that the agreement is being executed.
(c) An overt act by one conspirator becomes 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 execution of the conspiracy.
(5) Liability for offenses. Each conspirator is liable for all offenses
committed pursuant to the conspiracy by any of the co-conspirators while the
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 commit the offense before the commission of an overt act by any
conspirator is not guilty of conspiracy. An effective withdrawal or abandonment
must consist of affirmative conduct which is wholly inconsistent with adherence
to the unlawful agreement and which shows that the party has severed all
connection with the conspiracy. A conspirator who effectively 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.
However, a person who has abandoned or withdrawn from the conspiracy is not
liable for offenses committed thereafter by the remaining conspirators. The
withdrawal of a conspirator from the conspiracy 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 conspirators were not physically
able to accomplish their intended object.
(8) Conspiracy as a separate offense. A conspiracy 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 consummated 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 Federated Planets Code
prohibits conspiracies to commit certain specific offenses which do not require
an overt act. These conspiracies should be charged under Article 134. Examples
include conspiracies to impede or injure any Federal officer in the discharge of
duties under 18 U.F.P.C. § 372, conspiracies against civil rights under 18
U.F.P..C. § 241, and certain drug conspiracies under 21 U.F.P.C. § 846. See
paragraph 60c(4)(c)(ii).
4.5.4 d. Lesser
included offense.
Article 80--attempts
4.5.5 e. Maximum
punishment.
Any person subject to the code who is found guilty of conspiracy shall be
subject to the maximum punishment authorized for the offense which is the object
of the conspiracy, except that in no case shall the death penalty be imposed.
4.5.6 f. Sample
specification.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , conspire with __________ (and __________ ) to commit an offense
under the Uniform Code of Military Justice, to wit: (larceny of __________ , of
a value of (about) $ __________ , the property of __________ ), and in order to
effect the object of the conspiracy the said __________ (and __________ ) did
__________ .
Article
82—Solicitation
4.6.1 a. Text.
"(a) Any person subject to this chapter who solicits 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 advised is attempted or committed, be punished with the punishment
provided for the commission of the offense, but, if the offense solicited or
advised is not committed or attempted, he shall be punished as a court-martial
may direct.
(b) Any person subject to this chapter who solicits 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 committed, be
punished with the punishment provided for the commission of the offense, but, if
the offense solicited or advised is not committed, he shall be punished as a
court-martial may direct."
4.6.2 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 attempted or committed, add the
following element]
(3) That the offense solicited or advised was (committed) (attempted) as the
proximate result of the solicitation.
4.6.3 c.
Explanation.
(1) Instantaneous offense. The offense is complete when a solicitation is made
or advice is given with the specific wrongful intent to influence another 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 solicitation. 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. Solicitation to commit offenses
other than violations of the four offenses named in Article 82 may be 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 solicitations under Articles 82 and 134. When the
accused's act of solicitation constitutes, by itself, a separate offense, the
accused should be charged with that separate, distinct offense--for example,
pandering ( see paragraph 97) and obstruction of justice ( see paragraph 96) in
violation of Article 134.
4.6.4 d. Lesser
included offense.
Article 80--attempts
4.6.5 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) To mutiny--Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
(3) To commit an act of misbehavior before the enemy--Dishonorable discharge,
forfeiture of all 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.
4.6.6 f. Sample
specifications.
(1) For soliciting desertion (Article 85) or mutiny (Article 94).:
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , (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
Article 94)
[ Note: If the offense solicited or advised is attempted or committed, add the
following at the end of the specification:]
and, as a result of such (solicitation) (advice), the offense (solicited)
(advised) was, on or about __________ , 19 __________ , (at/on board--location),
(attempted) (committed) by __________ (and __________ ).
(2) For soliciting an act of misbehavior before the enemy (Article 99) or
sedition (Article 94).:
In that __________ (personal jurisdiction data) did, (at/on board--location), on
or about __________ 19 __________ , (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)
[ Note: If the offense solicited or advised is committed, add the following at
the end of the specification:]
and, as a result of such (solicitation) (advice), the offense (solicited)
(advised) was, on or about __________ 19 __________ , (at/on board--location),
committed by __________ (and __________ ).
Article
83—Fraudulent enlistment, appointment, or separation
4.7.1 a. Text.
"Any person who--
(1) procures his own enlistment or appointment in the armed forces by knowingly
false representation or deliberate concealment as to his qualifications for that
enlistment or appointment and receives pay or allowances there under; or
(2) procures his own separation from the 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."
4.7.2 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
enlistment or appointment;
(c) That the accused's enlistment or appointment 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.
4.7.3 c.
Explanation.
(1) In general.:
A fraudulent enlistment, appointment, or separation is one procured by either a
knowingly false representation as to any of the qualifications prescribed by
law, regulation, or orders for the specific enlistment, appointment, or
separation, or a deliberate concealment as to any of those disqualifications.
Matters that may be material to an enlistment, appointment, or separation
include any information used by the recruiting, appointing, or separating
officer in reaching a decision as to enlistment, appointment, or separation in
any particular case, and 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 appointment without being
regularly separated from a prior enlistment or appointment should be charged
under Article 83 only if that member has received pay or allowances under the
fraudulent enlistment or appointment. Acceptance of food, clothing, shelter, or
transportation from the government constitutes receipt 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
circumstantial evidence.
(3) One offense.:
One who procures one's own enlistment, appointment, or separation by several
misrepresentations or concealment as to qualifications for the one enlistment,
appointment, or separation so procured, commits only one offense under Article
83.
4.7.4 d. Lesser
included offense.
Article 80--attempts
4.7.5 e. Maximum
punishment.
(1) Fraudulent enlistment or appointment.:
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 2 years.
(2) Fraudulent separation.:
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 5 years.
4.7.6 f. Sample
specifications.
(1) For fraudulent enlistment or appointment.:
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , by means of (knowingly false
representations 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) (allowances) (pay and allowances) under the
enlistment) (appointment) so procured.
(2) For fraudulent separation.:
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , by means of (knowingly false
representations 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)) (deliberate concealment of the fact that (here state the fact or facts
concealed which made the accused ineligible for separation)), procure
himself/herself to be separated from the (here state the armed force from which
the accused procured his/her separation).
Article
84—Effecting unlawful enlistment, appointment, or separation
4.8.1 a. Text.
"Any person subject to this chapter who effects an enlistment or
appointment in or a separation from the armed forces of any person who is known
to him to be ineligible for that enlistment, appointment, or separation because
it is prohibited by law, regulation, or order shall be punished as a
court-martial may direct."
4.8.2 b.
Elements.
(1) That the accused effected the enlistment, appointment, or separation of the
person named;
(2) That this person was ineligible for this enlistment, appointment, or
separation because it was prohibited by law, regulation, or order; and
(3) That the accused knew of the ineligibility at the time of the enlistment,
appointment, or separation.
4.8.3 c.
Explanation.
It must be proved that the enlistment, appointment, or separation was prohibited
by law, regulation, or order when effected and that the accused then knew that
the person enlisted, appointed, or separated was ineligible for the enlistment,
appointment, or separation.
4.8.4 d. Lesser
included offense.
Article 80--attempts
4.8.5 e. Maximum
punishment.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 5 years.
4.8.6 f. Sample
specification.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , effect (the (enlistment) (appointment) of
__________ as a __________ in (here state the armed force in which the person
was enlisted or appointed)) (the separation of __________ from (here state the
armed force from which the person was separated)), then well knowing that the
said __________ was ineligible for such (enlistment) (appointment) (separation)
because (here state facts whereby the enlistment, appointment, or separation was
prohibited by law, regulation, or order).
Article
85—Desertion
4.9.1 a. Text.
"(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 there from 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 appointment in the same or another one of the armed forces without
fully disclosing the fact that he has not been regularly separated, or enters
any foreign armed service except when authorized by the United Federated Planets
[Note: This provision has been held not to state a separate offense by the
United Federated Planets Court of Military Appeals in United Federated Planets
v. Huff, 7 U.F.P.C.M.A. 247, 22 C.M.R. 37 (1956)];
is guilty of desertion.
(b) Any commissioned officer of the armed 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 there from permanently is guilty of
desertion.
(c) Any person found guilty of desertion or attempt 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 other time, by such punishment, other than death, as a court-martial may
direct."
4.9.2 b.
Elements.
(1) Desertion with intent to remain away permanently.
(a) That the accused absented himself or herself 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 apprehension, 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, organization, 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 hazardous 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 resignation.
(a) That the accused was a commissioned officer of an armed force of the United
Federated Planets, 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 apprehension, 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.
4.9.3 c.
Explanation.
(1) Desertion with intent to remain away permanently.:
(a) In general.:
Desertion with intent to remain away permanently is complete when the person
absents himself or herself without authority from his or her unit, organization,
or place of duty, with the intent to remain away there from permanently. A
prompt repentance and return, while material in extenuation, is no defense. It
is not necessary that the person be absent entirely from military jurisdiction
and control.
(b) Absence without authority--inception, duration, 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.
(ii) The accused must have intended to remain away permanently from the unit,
organization, 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 may be established by circumstantial
evidence. Among the circumstances from which an inference may be drawn that an
accused intended to remain absent permanently or; 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 considerable distance from the
accused's station; that the accused could have conveniently surrendered to
military control but did not; that the accused was dissatisfied with the
accused's unit, ship, or with military service; that the accused made remarks
indicating an intention to desert; that the accused was under 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 accused had not
been regularly separated, or entered any foreign armed service without being
authorized by the United Federated Planets. On the other hand, the following are
included in the circumstances which may tend to negate an inference that the
accused intended to remain away permanently: previous long and excellent
service; that the accused left valuable personal 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 unauthorized 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 appointment 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 accepts an appointment in the same or another armed
force, and deserts while serving the enlistment 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 important service.:
(a) Hazardous duty or important service.:
"Hazardous duty" or "important service" may include 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 disturbances; strike or riot duty; or employment in aid of the
civil power in, for example, protecting property, or quelling or preventing
disorder in times of great public disaster. Such services as drill, target
practice, maneuvers, and practice marches are not ordinarily "hazardous
duty or important service." Whether a duty is hazardous or a service is
important depends upon the circumstances of the particular 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 hazardous duty or important service. Actual knowledge may be proved
by circumstantial evidence.
(3) Attempting to desert.:
Once the attempt is 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 concerning intent to remain
away permanently, see subparagraph 9c(1)(c).
(4) Prisoner with executed punitive discharge.:
A prisoner whose dismissal or dishonorable or bad-conduct discharge has been
executed is not a "member of the armed forces" within the meaning of
Articles 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.
4.9.4 d. Lesser
included offense.
Article 86--absence without leave
4.9.5 e. Maximum
punishment.
(1) Completed or attempted desertion with intent to avoid hazardous duty or to
shirk important service. Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 5 years.
(2) Other cases of completed or attempted desertion.
(a) Terminated by apprehension. Dishonorable discharge, forfeiture of all pay
and allowances, and confinement for 3 years.
(b) Terminated otherwise. Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 2 years.
(3) In time of war. Death or such other punishment as a court-martial may
direct.
4.9.6 f. Sample
specifications.
(1) Desertion with intent to remain away permanently.:
In that __________ (personal jurisdiction data), did, on or about __________ 19
__________ , (a time of war) without authority and with intent to remain away
there from permanently, absent himself/herself from his/her (unit)
(organization) (place of duty), to wit: __________ , located at ( __________ ),
and did remain so absent in desertion until (he/she was apprehended) on or about
__________ 19 __________ .
(2) Desertion with intent to avoid hazardous duty or shirk important service.:
In that __________ (personal jurisdiction data), did, on or about __________ 19
__________ , (a time of war) with intent to (avoid hazardous duty) (shirk
important service), namely: __________ , quit his/her (unit) (organization)
(place of duty), to wit: __________ , located at ( __________ ), and did remain
so absent in desertion until on or about __________ 19 __________ .
(3) Desertion prior to acceptance of resignation.:
In that __________ (personal jurisdiction data) having tendered his/her
resignation and prior to due notice of the acceptance of the same, did, on or
about __________ 19 __________ , (a time of war) without leave and with intent
to remain away there from permanently, quit his/her (post) (proper duties), to
wit: __________ , and did remain so absent in desertion until (he/she was
apprehended) on or about __________ 19 __________ .
(4) Attempted desertion.:
In that __________ (personal jurisdiction data), did (at/on board-location), on
or about __________ 19 __________ , (a time of war) attempt to (absent
himself/herself from his/her (unit) (organization) (place of duty) to wit:
__________ , without authority and with intent to remain away there from
permanently) (quit his/her (unit) (organization) (place of duty), to wit:
__________ , located at __________ , with intent to (avoid hazardous duty)
(shirk important service) namely __________ ) ( __________ ).
Article 86 -
Absence without leave (AWOL)
4.10.1 a. Text.
"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."
4.10.2 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 reported at such place.
(3) Absence from unit, organization, or place of duty.:
(a) That the accused absented himself or herself from his or her unit,
organization, or place of duty at which he or she was required to be;
(b) That the absence was without authority 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) That the absence was terminated by 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 herself 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 exercises.:
(a) That the accused absented himself or herself 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 without authority;
(c) That the absence was for a certain period of time;
(d) That the accused knew that the absence 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.
4.10.3 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 member's own
fault not at the place where the member is required to be at a prescribed time.
It is not necessary that the person be absent entirely from military
jurisdiction and control. The first part of this article--relating to the
appointed place of duty--applies 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 require 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) Aggravated forms of unauthorized absence. 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 accused absents himself or herself, and a particular
specific intent which accompanies the absence. These circumstances are not
essential elements of a violation of Article 86. They simply constitute special
matters in aggravation. The following are aggravated unauthorized absences:
(a) Unauthorized absence for more than 3 days (duration).
(b) Unauthorized absence for more than 30 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) Unauthorized absence with the intent to 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 authorities 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 member's status as absent with
leave, or absent 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 probationary
period does not excuse any unauthorized absence, because the member's inability
to return was the result of willful misconduct. If a member is released by the
civilian authorities without trial, and was on authorized leave at the time of
arrest or detention, the member may be found guilty of unauthorized absence only
if it is proved that the member actually committed the offense for which
detained, thus establishing that the absence was the result of the member's own
misconduct.
(6) Inability to return. The status of absence 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 enforced 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 activities 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 absent
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 matter in aggravation for the
purpose of increasing the maximum punishment authorized for the offense. 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 continuous 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 example, 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 absence 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 control.
Such a surrender terminates the unauthorized absence.
(b) Apprehension by military authority. Apprehension 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 terminates 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 without 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 one specification. An accused may
properly be 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 exceed that
authorized if the accused had been found guilty as charged in the specification.
4.10.4 d. Lesser
included offense.
Article 80--attempts
4.10.5 e.
Maximum punishment.
(1) Failing to go to, or going from, the appointed place of duty. Confinement
for 1 month and forfeiture of two-thirds pay per month for 1 month.
(2) Absence from unit, organization, or other 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 discharge, 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 all pay and allowances, and confinement for 18 months.
(3) From guard or watch. Confinement for 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 allowances, and confinement for 6 months.
(5) With intent to avoid maneuvers or field exercises. Bad-conduct discharge,
forfeiture of all pay and allowances, and confinement for 6 months.
4.10.6 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 __________ 19 __________ , 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 data), did, on or about __________ 19
__________ , without authority, absent himself/herself from his/her (unit)
(organization) (place of duty at which he/she was required to be), to wit:
__________ , located at __________ , and did remain so absent until (he/she was
apprehended) on or about __________ 19 __________ .
(3) Absence from unit, organization, or place of duty with intent to avoid
maneuvers or field exercises.
In that __________ (personal jurisdiction data), did, on or about __________ 19
__________ , without authority and with intent to avoid (maneuvers) (field
exercises), absent himself/herself from his/her (unit) (organization) (place of
duty at which he/she was required to be), to wit: __________ located at (
__________ ), and did remain so absent until on or about __________ 19
__________ .
(4) Abandoning watch or guard.
In that __________ (personal jurisdiction data), being a member of the
__________ (guard) (watch) (duty section), did, (at/on board-location), on or
about __________ 19 __________ , without authority, go from his/her (guard)
(watch) (duty section) (with intent to abandon the same).
Article 87 -
Missing movement
4.11.1 a. Text.
"Any person subject to this chapter who 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."
4.11.2 b.
Elements.
(1) That the accused was required in the course of duty to move with a ship,
aircraft or unit;
(2) That the accused knew of the prospective movement of the ship, aircraft or
unit;
(3) That the accused missed the movement of the ship, aircraft or unit; and
(4) That the accused missed the movement through design or neglect.
4.11.3 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 not constitute a "movement" include practice 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 specific technical category such as those
listed in a table of organization and equipment, but also includes units which
are created before the movement with the intention that they have organizational
continuity 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 chartered,
then missing the particular sailing or flight is essential to establish the
offense of missing movement.
(3) Design. "Design" means on purpose, intentionally, or according to
plan and requires specific intent to miss the movement.
(4) Neglect. "Neglect" means the omission to take such measures as are
appropriate under the circumstances to assure presence with a ship, aircraft, or
unit at the time of a scheduled movement, or doing some act without giving
attention to its probable consequences in connection with the prospective
movement, such as a departure from the vicinity of the prospective movement to
such a distance as would make it likely that one could not return in time for
the movement.
(5) Actual knowledge. In order to be guilty of the offense, the accused must
have actually known of the prospective movement that was missed. Knowledge of
the exact hour or even of the exact date of the scheduled movement is not
required. It is sufficient if the approximate date was known by the accused as
long as there is a causal connection between 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 documentary 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.
4.11.4 d. Lesser
included offenses.
(1) Design.
(a) Article 87--missing movement through neglect
(b) Article 86--absence without authority
(c) Article 80--attempts
(2) Neglect. Article 86--absence without authority
4.11.5 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.
4.11.6 f. Sample
specification.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , through (neglect) (design) miss the
movement of (Aircraft No. __________ ) (Flight __________ ) (the USS __________
) (Company A, 1st Battalion, 7th Infantry) ( __________ ) with which he/she was
required in the course of duty to move.
Article 88 -
Contempt toward officials
4.12.1 a. Text.
"Any commissioned officer who uses contemptuous words against the
President, the Vice President, Congress, the Secretary of Defense, the Secretary
of a military department, the Secretary of Transportation, or the Governor or
legislature of any State, Territory, Commonwealth, or possession in which he is
on duty or present shall be punished as a court-martial may direct."
4.12.2 b.
Elements.
(1) That the accused was a commissioned officer of the United Federated Planets
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, either 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 Governor or legislature concerned.
4.12.3 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 Article 88 at the time
of the offense. Neither "Congress" nor "legislature"
includes its members individually. "Governor" does not include
"lieutenant governor." It is immaterial whether the words are used
against the official in an official or private capacity. If not personally
contemptuous, adverse criticism of one of the officials or legislatures named in
the article in the course of a political discussion, even though emphatically
expressed, may not be charged as a violation of the article. Similarly,
expressions of opinion made in a purely private conversation should not
ordinarily be charged. Giving broad circulation to a written publication
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.
4.12.4 d. Lesser
included offense.
Article 80--attempts
4.12.5 e.
Maximum punishment.
Dismissal, forfeiture of all pay and allowances, and confinement for 1 year.
4.12.6 f. Sample
specification.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , [use (orally and publicly) ( __________ )
the following contemptuous words] [in a contemptuous manner, use (orally and
publicly) ( __________ ) the following words] against the [(President) (Vice
President) (Congress) (Secretary of __________ )] [(Governor) (legislature) of
the (State of __________ ) (Territory of __________ ) ( __________ ), a (State)
(Territory) ( __________ ) in which he/she, the said ________ , was then (on
duty), (present)], to wit: "__________," or words to that effect.
Article 89 -
Disrespect toward a superior commissioned officer
4.13.1 a. Text.
"Any person subject to this chapter who behaves with disrespect toward his
superior commissioned officer shall be punished as a court-martial may
direct."
4.13.2 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, omissions, or words were directed was
the superior commissioned officer of the accused;
(4) That the accused then knew that the commissioned officer toward whom the
acts, omissions, or words were directed was the accused's superior commissioned
officer; and
(5) That, under the circumstances, the behavior or language was disrespectful to
that commissioned officer.
4.13.3 c.
Explanation.
(1) Superior commissioned officer.
(a) Accused and victim in same armed force. If the accused and the victim are in
the same armed force, the victim is a "superior commissioned officer"
of the accused when either superior in rank or command to the accused; however,
the victim is not a "superior commissioned officer” of the accused if the
victim is inferior in command, even though superior in rank.
(b) Accused and victim in different armed forces. If the accused and the victim
are in different armed forces, the victim is a "superior commissioned
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 commissioned 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 execution of office at the time of the
disrespectful 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 violation of this article. Knowledge may be
proved by circumstantial evidence.
(3) Disrespect. Disrespectful behavior is that 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 superior as an officer or as a private individual. Disrespect by words
may be conveyed by abusive epithets or other contemptuous or denunciatory
language. Truth is no defense. Disrespect by acts includes neglecting the
customary salute, or showing a marked disdain, indifference, insolence,
impertinence, undue familiarity, or other rudeness in the presence of the
superior officer.
(4) Presence. It is not essential that the disrespectful behavior be in the
presence of the superior, but ordinarily one should not be held accountable
under this article for what was said or done in a purely private conversation.
(5) Special defense--unprotected victim. A superior 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 circumstances 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.
4.13.4
d. Lesser included offenses.
(1) Article 117--provoking speeches or gestures
(2) Article 80--attempts
4.13.5 e.
Maximum punishment.
Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for
1 year.
4.13.6 f. Sample
specification.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , 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 __________ ) ( __________ ).
Article 90 -
Assaulting or willfully disobeying superior commissioned officer
4.14.1 a. Text.
"Any person subject to this chapter who--
(1) strikes his superior commissioned officer or draws or lifts up any weapon or
offers any violence 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 punishment, other than death, as a court-martial may
direct."
4.14.2 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 certain commissioned officer;
(b) That the officer was the superior commissioned 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 command from a certain commissioned
officer;
(b) That this officer was the superior commissioned 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.
4.14.3 c.
Explanation.
(1) Striking or assaulting superior commissioned officer.:
(a) Definitions.
(i) Superior commissioned officer.:
The definitions in paragraph 13c(1)( a) and( b) apply here and in subparagraph
c(2).
(ii) Strikes.:
"Strikes" means an intentional 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 preceding more specific terms
"strikes" and "draws or lifts up." If not executed, the
violence must be physically attempted or menaced. A mere threatening in words is
not an offering of violence in the sense of this article.
(b) Execution of office. An officer is in the execution of office when engaged
in any act or service required or authorized by treaty, statute, regulation, 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 officer in the execution of office. The commanding officer
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 officer, the accused may not be convicted of this offense.
Knowledge may be proved by circumstantial evidence.
(d) Defenses. In a prosecution for striking or assaulting a superior
commissioned officer in violation 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 initiated 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 requiring 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) Authority of issuing officer.:
The commissioned officer issuing the order must have authority to give such an
order. Authorization may be based on law, regulation, or custom of the service.
(iii) Relationship to military duty.:
The order must relate to military duty, which includes all activities reasonably
necessary to accomplish a military mission, or safeguard or promote the morale,
discipline, and usefulness of members of a command and directly connected with
the maintenance of good order 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 person's conscience, religion, or personal philosophy
cannot justify or excuse the disobedience of an otherwise 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 increasing the penalty
for an offense which it is expected the accused may commit, is not punishable
under this article.
(iv) Relationship to statutory or constitutional rights.:
The order must not conflict with the statutory or constitutional rights of the
person receiving the order.
(b) Personal nature of the order. The order must be directed specifically to the
subordinate. Violations 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
one's military duty does not constitute an order 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 commissioned
officer. Actual knowledge may be proved by circumstantial evidence.
(f) Nature of the disobedience. "Willful disobedience" is an
intentional defiance of authority. Failure 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 requires immediate compliance, an
accused's declared intent not to obey and the failure to make any move to comply
constitutes disobedience. If an order does not indicate the time within which it
is to be complied with, either expressly or by implication, then a reasonable
delay in compliance does not violate this article. If an order requires
performance in the future, an accused's present statement of intention to
disobey the order does not constitute disobedience of that order, although
carrying out that intention may.
(3) Civilians and discharged prisoners.:
A discharged 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.
4.14.4 d. Lesser
included offenses.
(1) Striking superior commissioned officer in execution of office.:
(a) Article 90--drawing or lifting up a weapon or offering violence to superior
commissioned officer in execution of office
(b) Article 128--assault; assault consummated by a battery; assault with a
dangerous weapon
(c) Article 128--assault or assault consummated by a battery upon commissioned
officer not in the execution of office
(d) Article 80--attempts
(2) Drawing or lifting up a weapon or offering violence to superior commissioned
officer in execution of office.:
(a) Article 128--assault, assault with dangerous weapon
(b) Article 128--assault upon a commissioned officer not in the execution of
office
(c) Article 80--attempts
(3) Willfully disobeying lawful order of superior commissioned officer.
(a) Article 92--failure to obey lawful order
(b) Article 89--disrespect to superior commissioned officer
(c) Article 80--attempts
4.14.5 e.
Maximum punishment.
(1) Striking, drawing, or lifting up any weapon or offering any violence to
superior commissioned officer in the execution of office.:
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 10 years.
(2) Willfully disobeying a lawful order of superior commissioned officer.:
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 5 years.
(3) In time of war.:
Death or such other punishment as a court-martial may direct.
4.14.6 f. Sample
specifications.
(1) Striking superior commissioned officer.:
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , (a time of war) strike __________ , his/her superior commissioned
officer, then known by the said __________ to be his/her superior commissioned
officer, who was then in the execution of his/her office, (in) (on) the
__________ with ( a) (his/her) __________ .
(2) Drawing or lifting up a weapon against superior commissioned officer.:
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , (a time of war) (draw) lift up) a weapon, to wit: a __________ ,
against __________ , his/her superior commissioned officer, then known by the
said __________ to be his/her superior commissioned officer, who was then in the
execution of his/her office.
(3) Offering violence to superior commissioned officer.:
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , (a time of war) offer violence against __________ , his/her
superior commissioned officer, then known by the said __________ to be his/her
superior commissioned officer, who was then in the execution of his/her office,
by __________ .
(4) Willful disobedience of superior commissioned officer.:
In that __________ (personal jurisdiction data), having received a lawful
command from __________ , 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 __________ 19
__________ , willfully disobey the same.
Article 91 -
Insubordinate conduct toward warrant officer, noncommissioned officer, or petty
officer
4.15.1 a. Text.
"Any warrant officer or enlisted member who--
(1) strikes or assaults a warrant officer, noncommissioned officer, or petty
officer, while that officer is in the execution of his office;
(2) willfully disobeys the lawful order of a warrant officer, noncommissioned
officer, or petty officer; or
(3) treats with contempt or is disrespectful in language or deportment toward a
warrant officer, noncommissioned officer, or petty officer while that officer is
in the execution of his office; shall be punished as a court-martial may
direct."
4.15.2 b.
Elements.
(1) Striking or assaulting warrant, noncommissioned, or petty officer.:
(a) That the accused was a warrant officer or enlisted member;
(b) That the accused struck or assaulted a certain 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 noncommissioned, or petty officer of the
accused; and
(f) That the accused then knew that the person struck or assaulted was the
accused's superior noncommissioned, 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) That the accused willfully disobeyed the order.
(3) Treating with contempt or being disrespectful in language or deportment
toward a warrant, noncommissioned, or petty officer.:
(a) That the accused was a warrant officer or enlisted member;
(b) That the accused did or omitted certain acts, or used certain language;
(c) That such behavior or language was used toward and within sight or hearing
of a certain warrant, 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, noncommissioned, 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 noncommissioned, or petty officer of the
accused; and
(h) That the accused then knew that the person toward whom the behavior or
language was directed was the accused's superior noncommissioned, or petty
officer.
4.15.3 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 Article 91 require that the
accused have actual knowledge that the victim was a warrant, noncommissioned, or
petty officer. Actual knowledge may be proved by circumstantial evidence.
(3) Striking or assaulting a warrant, noncommissioned, 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 military 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 disobedience, and time for compliance
with the order.
(5) Treating with contempt or being disrespectful in language or deportment
toward a warrant, noncommissioned, 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
execution of his office," see paragraph 14c. For a discussion of
disrespect, see paragraph 13c.
4.15.4 d. Lesser
included offenses.
(1) Striking or assaulting warrant, noncommissioned, or petty officer in the
execution of office.
(a) Article 128--assault; assault consummated by a battery; assault with a
dangerous weapon
(b) Article 128--assault upon warrant, noncommissioned, or petty officer not in
the execution of office
(c) Article 80--attempts
(2) Disobeying a warrant, noncommissioned, or petty officer.
(a) Article 92--failure to obey a lawful order
(b) Article 80--attempts
(3) Treating with contempt or being disrespectful in language or deportment
toward warrant, noncommissioned, or petty officer in the execution of office.
(a) Article 117--using provoking or reproachful speech
(b) Article 80--attempts
4.15.5 e.
Maximum punishment.
(1) Striking or assaulting warrant officer. Dishonorable discharge, forfeiture
of all pay and allowances, and confinement for 5 years.
(2) Striking or assaulting superior noncommissioned or petty officer.
Dishonorable discharge, forfeiture 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.
(4) Willfully disobeying the lawful order of a warrant officer. Dishonorable
discharge, forfeiture of all pay and allowances, and confinement for 2 years.
(5) Willfully disobeying the lawful order of a noncommissioned or petty officer.
Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for
1 year.
(6) Contempt or disrespect to warrant officer. Bad-conduct discharge, forfeiture
of all pay and allowances, and confinement for 9 months.
(7) Contempt or disrespect to superior noncommissioned or petty officer.
Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for
6 months.
(8) Contempt or disrespect to other noncommissioned or petty officer. Forfeiture
of two-thirds pay per month for 3 months, and confinement for 3 months.
4.15.6 f. Sample
specifications.
(1) Striking or assaulting warrant, noncommissioned, or petty officer.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , (strike) (assault) __________ , a __________ officer, then known to
the said __________ to be a (superior) __________ officer who was then in the
execution of his/her office, by __________ him/her (in) (on) (the __________ )
with ( a) __________ (his/her) __________ .
(2) Willful disobedience of warrant, noncommissioned, 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 __________ 19 __________ ,
willfully disobey the same.
(3) Contempt or disrespect toward warrant, noncommissioned, or petty officer.
In that __________ (personal jurisdiction data) (at/on board--location), on or
about __________ 19 __________ , [did treat with contempt] [was disrespectful in
(language) (deportment) toward] _____________ , a __________ officer, then known
by the said _____________ 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) ( __________ )
Article
92—Failure to obey order or regulation
4.16.1 a. Text.
"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 order 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."
4.16.2 b.
Elements.
(1) Violation of or failure to obey a lawful general 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) That the accused had knowledge of the 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) That the accused knew or reasonably should have known of the duties; and
(c) That the accused was (willfully) (through neglect or culpable inefficiency)
derelict in the performance of those duties.
4.16.3 c.
Explanation.
(1) Violation of or failure to obey a lawful general order or regulation.
(a)
General orders or regulations are those orders or regulations generally
applicable to an armed force which are properly published by the President or
the Secretary of Defense, of Transportation, 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) an officer having general court-martial jurisdiction;
(ii) a general or flag officer in command; or
(iii) a commander superior to (i) or (ii).
(b)
A general order or regulation issued by a commander with authority under Article
92(1) retains 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 by another officer who is not a
general or flag officer.
(c) A general order or regulation is lawful unless it is contrary to the
Constitution, the laws of the United Federated Planets, or lawful superior
orders or for some other reason is beyond the authority of the official issuing
it. See the discussion of lawfulness in paragraph 14c(2)(a).
(d) Knowledge. Knowledge of a general order or regulation need not be alleged or
proved, as 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 guidelines
or advice for conducting military functions 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 lawful 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 violation 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) From a superior.:
A member of one 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 another
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 paragraph
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) Knowledge. Actual knowledge of duties may be proved by circumstantial
evidence. Actual knowledge need not be shown if the individual reasonably 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 performance of duties when that person
willfully or negligently fails to perform that person's duties or when that
person performs them in a culpably inefficient manner. "Willfully"
means intentionally. It refers to the doing of an act knowingly and purposely,
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 exercised under the same or similar circumstances.
"Culpable 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
willfulness, negligence, or culpable inefficiency, and may not be charged under
this article, or otherwise punished. 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 recruit fails to qualify with the weapon.
4.16.4 d. Lesser
included offense.
Article 80--attempts
4.16.5 e.
Maximum punishment.
(1) Violation or failure to obey lawful general order or regulation.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 2 years.
(2) Violation of 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 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
prescribed elsewhere for that particular 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) Willful. Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
4.16.6 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 jurisdiction data, if required), on or about __________ 19
__________ , (violate) (fail to obey) a lawful general (order) (regulation), to
wit: (paragraph __________ , (Starfleet
Command) Regulation __________ , dated __________ 19 __________ ) (Article
__________ , U.F.P. Navy Regulations, dated __________ 19 __________ ) (General
Order No. __________ , U.F.P. Navy, dated __________ 19 __________ ) (
__________ ), by (wrongfully) __________ .
(2) Violation or failure to obey other lawful written order.
In that __________ (personal jurisdiction data), having knowledge of a lawful
order issued by __________ , to wit: (paragraph __________ , ( __________ the
Combat Group Regulation No. __________ ) (USS __________ , Instruction
__________ ), dated __________ ) ( __________ ), an order which it was his/her
duty to obey, did, (at/on board--location) (subject-matter jurisdiction data, if
required), on or about __________ 19 __________ , fail to obey the same by
(wrongfully) __________ .
(3) Failure to obey other lawful order.
In that __________ , (personal jurisdiction data) having knowledge of a lawful
order issued by __________ (to submit to certain medical treatment) (to
__________ ) (not to __________ ) ( __________ ), an order which it was his/her
duty to obey, did (at/on board--location) (subject-matter jurisdiction data, if
required), on or about __________ 19 __________ , fail to obey the same (by
(wrongfully) __________ .)
(4) Dereliction in the performance of duties.
In that __________ , (personal jurisdiction data), who (knew) (should have
known) of his/her duties (at/on board--location) (subject-matter jurisdiction
data, if required), (on or about __________ 19 __________ ) (from about
__________ 19 __________ to about __________ 19 __________ ), 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.
Article 93 -
Cruelty and maltreatment
4.17.1 a. Text.
"Any person subject to this chapter who is guilty of cruelty toward, or
oppression or maltreatment of, any person subject to his orders shall be
punished as a court-martial may direct."
4.17.2 b.
Elements.
(1) That a certain person was subject to the orders of the accused; and
(2) That the accused was cruel toward, or oppressed, or maltreated that person.
4.17.3 c.
Explanation.
(1) Nature of victim. "Any person subject to his orders" means not
only those persons under the direct or immediate command of the accused but
extends 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) Nature of act. The cruelty, oppression, or maltreatment, although not
necessarily physical, must be measured by an objective standard. Assault,
improper punishment, and sexual harassment may constitute this offense. 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
imposition of necessary or proper duties and the exaction of their performance
does not constitute this offense even though the duties are arduous or hazardous
or both.
4.17.4 d. Lesser
included offense.
Article 80--attempts
4.17.5 e.
Maximum punishment.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 1 year.
4.17.6 f. Sample
specification.
In that __________ (personal jurisdiction data), (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , (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) ( __________ ).
Article
94--Mutiny and sedition
4.18.1 a. Text.
"Any person subject to this chapter who--
(1) with intent to usurp or override lawful military 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 destruction of lawful civil authority,
creates, in concert 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 suppress a mutiny or sedition being
committed in his presence, or fails to take all reasonable means to inform his
superior commissioned officer or commanding 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 person who is found guilty of attempted 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."
4.18.2 b. Elements.
(1) Mutiny by creating violence or disturbance.
(a) That the accused created violence or a disturbance; and
(b) That the accused created this violence or 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 another 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 utmost to prevent and suppress
the mutiny or sedition.
(5) Failure to report a mutiny or sedition.
(a) That an offense of mutiny or sedition 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 reasonable means to inform the accused's
superior commissioned 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.
4.18.3 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 perform duties. Mutiny by refusing to
obey orders or perform duties requires collective insubordination and
necessarily includes some combination of two or more persons in resisting lawful
military authority. This concert of insubordination need not be preconceived,
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 surrounding circumstances.
(2) Sedition. Sedition requires a concert of action in resistance to civil
authority. This differs from mutiny by creating violence or disturbance. See
subparagraph 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 prevent 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. When the circumstances known to the accused 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 mutiny or sedition is not an offense in violation of Article 94. But
see paragraph 16c(3) (dereliction of duty).
(5) Attempted mutiny. For a discussion of attempts, see paragraph 4.
4.18.4 d. Lesser included offenses.
(1) Mutiny by creating violence or disturbance.
(a) Article 90--assault on commissioned officer
(b) Article 91--assault on warrant, noncommissioned, or petty officer
(c) Article 94--attempted mutiny
(d) Article 116--riot; breach of peace
(e) Article 128--assault
(f) Article 134--disorderly conduct
(2) Mutiny by refusing to obey orders or perform duties.
(a) Article 90--willful disobedience of commissioned officer
(b) Article 91--willful disobedience of warrant, noncommissioned, or petty
officer
(c) Article 92--failure to obey lawful order
(d) Article 94--attempted mutiny
(3) Sedition.
(a) Article 116--riot; breach of peace
(b) Article 128--assault
(c) Article 134--disorderly conduct
(d) Article 80--attempts
4.18.5 e.
Maximum punishment.
For all offenses under Article 94, death or such other punishment as a
court-martial may direct.
4.18.6 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--location) (subject-matter jurisdiction data, if required), on or about
__________ 19 __________ , create (violence) (a disturbance) by (attacking the
officers of the said ship) (barricading himself/herself in Barracks T7, firing
his/her rifle at __________ , and exhorting other persons 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--
location) on or about __________ 19 __________ , refuse, in concert with
__________ (and __________ ) (others whose names are unknown), to (obey the
orders of __________ 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,
to wit: __________ , did, (at/on board--location) (subject-matter jurisdiction
data, if required), on or about __________ 19 __________ , in concert with (
__________ ) and ( __________ ) (others whose names are unknown), create
(revolt) (violence) (a disturbance) against such authority by (entering the Town
Hall of __________ and destroying property and records therein) (marching upon
and compelling the surrender 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 jurisdiction data, if required), on or about __________ 19
__________ , fail to do his/her utmost to prevent and suppress a (mutiny)
(sedition) among the (soldiers) (sailors) (airmen) (marines) ( __________ ) of
__________ , which (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 jurisdiction data, if required), on or about __________ 19
__________ , fail to take all reasonable means to inform his/her superior
commissioned officer or his/her commander of a (mutiny) (sedition) among the
(soldiers) (sailors) (airmen) (marines) ( __________ ) of __________ , which
(mutiny) (sedition) he/she, the said __________ (knew) (had reason to believe)
was taking place.
(6) Attempted mutiny.
In that __________ (personal jurisdiction data), with intent to (usurp)
(override) (usurp and override) lawful military authority, did, (at/on board--
location) (subject-matter jurisdiction data, if required), on or about
__________ 19 __________ , attempt to (create (violence) (a disturbance) by
_____________ ) ( __________ ).
Article
95--Resistance, flight, breach of arrest, and escape
4.19.1 a. Text.
"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."
4.19.2 b. Elements.
(1) Resisting apprehension.:
(a) That a certain person attempted to apprehend the accused;
(b) That said person was authorized to apprehend the accused; and
(c) That the accused actively resisted the apprehension.
(2) Flight from apprehension.:
(a) That a certain person attempted to apprehend the accused;
(b) That said person was authorized to apprehend the accused; and
(c) That the accused fled from the apprehension.
(3) Breaking arrest.:
(a) That a certain person ordered the accused into arrest;
(b) That said person was authorized to order the accused into arrest; and
(c) That the accused went beyond the limits of arrest before being released from
that arrest by proper authority.
(4) Escape from custody.:
(a) That a certain person apprehended the accused;
(b) That said person was authorized to apprehend the accused; and
(c) That the accused freed himself or herself from custody before being released
by proper 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.
4.19.3 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 question of fact to be
decided by the fact finder.
(c) Nature of the resistance. The resistance must be active, such as assaulting
the person attempting 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 although 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 person authorized to apprehend is presumed to be
legal 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.
(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: pretrial 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) Authority to order arrest. See R.C.M. 304(b) and paragraphs 2 and 5b, Part
V, MCM concerning 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) Breaking. Breaking arrest is committed when the person in arrest infringes
the limits set by orders. The reason for the infringement is immaterial. For
example, innocence of the offense with respect to which an arrest may have been
imposed is not a defense.
(e) Illegal arrest. A person may not be convicted of breaking arrest if the
arrest is illegal. An arrest ordered by one authorized to do so is presumed 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 locomotion imposed by
lawful apprehension. The restraint 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 subparagraph c(5)( c), below.
(d) Illegal custody. A person may not be convicted of this offense if the
custody was illegal. An apprehension effected by one authorized to apprehend 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 restraint imposed under R.C.M. 305,
1101, or paragraph 5b, Part V, MCM. For purposes of the element of post-trial
confinement (subparagraph b(5)(d), above) and increased punishment there from
(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 prisoner
is released by one with apparent authority to do so, the prisoner may not be
convicted of escape from confinement. See also paragraph 20c(1)(b). Any
completed casting off of the restraint of confinement, 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 restraint. If the movement toward escape is opposed, or before it is
completed, an immediate pursuit follows, there is no escape until opposition is
overcome or pursuit is eluded.
(d) Status when temporarily outside confinement 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 means to prevent that prisoner from
escaping, remains in confinement.
(e) Legality of confinement. A person may not be convicted of escape from
confinement if the confinement is illegal. Confinement ordered by one authorized
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.
4.19.4 d. Lesser included offenses.
(1) Resisting apprehension.:
Article 128--assault; assault consummated by a battery
(2) Breaking arrest.:
(a) Article 134--breaking restriction
(b) Article 80--attempts
(3) Escape from custody.:
Article 80--attempts
(4) Escape from confinement.:
Article 80--attempts
4.19.5 e.
Maximum punishment.
(1) Resisting apprehension.:
Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for
1 year.
(2) Flight from apprehension.:
Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for
1 year.
(3) Breaking arrest.:
Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for
6 months.
(4) Escape from custody, pretrial confinement, or confinement on bread and water
or diminished rations imposed pursuant to Article 15.:
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 1 year.
(5) Escape from post-trial confinement.:
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 5 years.
4.19.6 f. Sample
specifications.
(1) Resisting apprehension.:
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , resist being apprehended by __________ , (an armed force policeman)
( __________ ), a person authorized to apprehend the accused.
(2) Flight from apprehension.:
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , 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 authorized to
order the accused into arrest, did, (at/on board--location) on or about
__________ 19 __________ , break said arrest.
(4) Escape from custody.:
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , escape from the custody of __________ , a person authorized to
apprehend the accused.
(5) Escape from confinement.:
In that __________ (personal jurisdiction data), having been placed in
(post-trial) confinement in (place of confinement), by a person authorized to
order said accused into confinement did, (at/on board--location) (subject-matter
jurisdiction data, if required), on or about __________ 19 __________ , escape
from confinement.
Article
96--Releasing prisoner without proper authority
4.20.1 a. Text.
"Any person subject to this chapter who, without proper authority, releases
any prisoner committed to his charge, or who through neglect or design suffers
any such prisoner to escape, shall be punished as a court-martial may direct,
whether or not the prisoner was committed in strict compliance with law.
4.20.2 b. Elements.
(1) Releasing a prisoner without proper authority.
(a) That a certain prisoner was committed to the charge of the accused; and
(b) That the accused released the prisoner without proper authority.
(2) Suffering a prisoner to escape through neglect.
(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 suffer the escape of that prisoner;
and
(c) That the prisoner escaped as a result of the carrying out of the design of
the accused.
4.20.3 c. Explanation.
(1) Releasing a prisoner without proper authority.
(a) Prisoner. "Prisoner" includes a civilian or military person who
has been confined.
(b) Release. The release of a prisoner is removal 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 lowest authority competent to order release of 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 confined, the prisoner has been
"committed" in the 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 neglect.
(a) Suffer. "Suffer" means to allow or permit; not to forbid or
hinder.
(b) Neglect. "Neglect" is a relative term. It is the absence of
conduct which would have been taken by a reasonably careful person in the same
or similar circumstances.
(c) Escape. Escape is defined in paragraph 19c(4)( c).
(d) Status of prisoner after escape not a defense. After escape, the fact that a
prisoner returns, is captured, killed, or otherwise dies is not 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.
4.20.4 d. Lesser included offenses.
(1) Releasing a prisoner without proper authority. Article 80--attempts
(2) Suffering a prisoner to escape through neglect. None
(3) Suffering a prisoner to escape through design.
(a) Article 96--suffering a prisoner to escape through neglect
(b) Article 80--attempts
4.20.5 e.
Maximum punishment.
(1) Releasing a prisoner without proper authority. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement for 2 years.
(2) Suffering a prisoner to escape through neglect. Bad-conduct discharge,
forfeiture of all pay and allowances, and confinement for 1 year.
(3) Suffering a prisoner to escape through design. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement for 2 years.
4.20.6 f. Sample
specifications.
(1) Releasing a prisoner without proper authority.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , without proper authority, release
__________ , a prisoner committed to his/her charge.
(2) Suffering a prisoner to escape through neglect or design.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , through (neglect) (design), suffer
__________ , a prisoner committed to his/her charge, to escape.
Article
97--Unlawful detention
4.21.1 a. Text.
"Any person subject to this chapter who, except as provided by law,
apprehends, arrests, or confines any person shall be punished as a court-martial
may direct."
4.21.2 b. Elements.
(1) That the accused apprehended, arrested, or confined a certain person; and
(2) That the accused unlawfully exercised the accused's authority to do so.
4.21.3 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 movement 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 person restrained, but force is not required.
(3) Defense. A reasonable belief held by the person imposing restraint that it
is lawful is a defense.
Article 80--attempts
4.21.5 e. Maximum punishment.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 3 years.
4.21.6 f. Sample
specification.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , unlawfully (apprehend __________ ) (place
__________ in arrest) (confine __________ in __________ ).
Article
98--Noncompliance with procedural rules
4.22.1 a. Text.
"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) Knowingly and intentionally fails to enforce or comply with any provision of
this chapter regulating the proceedings before, during, or after trial of an
accused; shall be punished as a court-martial may direct."
4.22.2 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) That, under the circumstances, the delay was unnecessary.
(2) Knowingly and intentionally failing to enforce or comply with provisions of
the code.
(a) That the accused failed to enforce or comply 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) That the accused's failure to enforce or comply with that provision was
intentional.
4.22.3 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 responsible 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.
4.22.4 d. Lesser included offense.
Article 80--attempts
4.22.5 e. Maximum punishment.
(1) Unnecessary delay in disposing of case. Bad-conduct discharge, forfeiture of
all pay and allowances, 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.
4.22.6 f. Sample
specifications.
(1) Unnecessary delay in disposing of case.
In that __________ (personal jurisdiction data), being charged with the duty of
((investigating) (taking immediate steps to determine the proper disposition 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 __________ 19 __________ , responsible 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 __________ 19 __________
, knowingly and intentionally fail to (enforce) (comply with) Article __________
, Uniform Code of Military Justice, in that he/she __________ .
Article
99--Misbehavior before the enemy
4.23.1 a. Text.
"Any member of the armed forces who before or in the presence of the
enemy--
(1) runs away;
(2) shamefully abandons, surrenders, or delivers up any command, unit, place, or
military property which it is his duty to defend;
(3) through disobedience, neglect, or intentional misconduct endangers the
safety of any such command, unit, place, or military property;
(4) casts away his arms or ammunition;
(5) is guilty of cowardly conduct;
(6) quits his place of duty to plunder or 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, capture, or destroy; or
(9) does not afford all practicable relief and assistance to any troops,
combatants, vessels, or aircraft of the armed forces belonging to the United
Federated Planets or their allies when engaged in battle; shall be punished by
death or such other punishment as a court-martial may direct."
4.23.2 b. Elements.
(1) Running away.
(a) That the accused was before or in the presence 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) Shamefully abandoning, surrendering, or delivering up command.
(a) That the accused was charged by orders or circumstances with the duty to
defend a certain command, unit, place, ship, or military property;
(b) That, without justification, the accused shamefully abandoned, surrendered,
or delivered up that command, unit, place, ship, or military property; and
(c) That this act occurred while the accused was before or in the presence of
the enemy.
(3) Endangering safety of a command, unit, place, ship, or military property.
(a) That it was the duty of the accused to defend a certain command, unit,
place, ship, or certain military property;
(b) That the accused committed certain disobedience, 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 presence of the enemy; and
(b) That the accused cast away certain arms or ammunition.
(5) Cowardly conduct.
(a) That the accused committed an act of cowardice;
(b) That this conduct occurred while the accused 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 presence 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 command, unit, or place under control
of the armed forces of the United Federated Planets;
(b) That the accused caused the alarm;
(c) That the alarm was caused without any reasonable 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 enemy.
(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 Federated Planets or an ally of the United Federated
Planets 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, combatants, vessels, or aircraft, without jeopardy to the
accused's mission;
(c) That the accused failed to afford all practicable relief and assistance; and
(d) That, at the time, the accused was before or in the presence of the enemy.
4.23.3 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 as well as members of military
organizations. "Enemy" is not restricted to the enemy government or
its armed forces. All the citizens of one belligerent are enemies of the
government and all the citizens of the other.
(c) Before the enemy. Whether a person is "before the enemy" is a
question of tactical relation, not distance. For example, a member of an
antiaircraft 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 although
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.
(2) Shamefully abandoning, surrendering, or delivering up of command.
(a) Scope. This provision concerns primarily commanders chargeable with
responsibility for defending a command, unit, place, ship or military property.
Abandonment by a subordinate would ordinarily be charged as running away.
(b) Shameful. Surrender or abandonment without justification is shameful within
the meaning of this article.
(c) Surrender. deliver up. "Surrender" and "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) Endangering safety of a command, unit, place, ship, or military property.
(a) Neglect. "Neglect" is the absence of conduct which would have been
taken by a reasonably careful person in the same or similar circumstances.
(b) Intentional misconduct. "Intentional misconduct" does not include
a mere error in judgment.
(4) Casting away arms or ammunition. Self-explanatory.
(5) Cowardly conduct.
(a) Cowardice. "Cowardice" is misbehavior motivated by fear.
(b) Fear. Fear is a natural feeling of apprehension 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 place of duty, whether
permanent or temporary, fixed or mobile.
(b) Plunder or pillage. "Plunder or pillage" means to seize or
appropriate public or private property unlawfully.
(c) Nature of offense. The essence of this offense 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 enemy. 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 limitations 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."
4.23.4 d. Lesser included offenses.
(1) Running away.
(a) Article 85--desertion with intent to avoid hazardous or important service
(b) Article 86--absence without authority; going from appointed place of duty
(c) Article 80--attempts
(2) Shamefully abandoning, surrendering, or delivering up command. Article
80--attempts
(3) Endangering safety of a command, unit, place, ship, or military property.
(a) Through disobedience of order. Article 92--failure to obey lawful order
(b) Article 80--attempts
(4) Casting away arms or ammunition.
(a) Article 108--military property of the United Federated Planets--loss,
damage, destruction, or wrongful disposition.
(b) Article 80--attempts
(5) Cowardly conduct.
(a) Article 85--desertion with intent to avoid hazardous duty or important
service
(b) Article 86--absence without authority
(c) Article 99--running away
(d) Article 80--attempts
(6) Quitting place of duty to plunder or pillage.
(a) Article 86(2)--going from appointed place of duty
(b) Article 80--attempts
(7) Causing false alarms. Article 80--attempts
(8) Willfully failing to do utmost to encounter enemy. Article 80--attempts
(9) Failing to afford relief and assistance. Article 80--attempts
4.23.5 e. Maximum punishment.
All offenses under Article 99. Death or such other punishment as a court-martial
may direct.
4.23.6 f. Sample
specifications.
(1) Running away.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , (before) (in the presence of) the enemy,
run away (from his/her company) (and hide) ( __________ ), (and did not return
until after the engagement had been concluded) ( __________ ).
(2) Shamefully abandoning, surrendering, or delivering up command.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , (before) (in the presence of) the enemy,
shamefully (abandon) (surrender) (deliver up) __________ , which it was his/her
duty to defend.
(3) Endangering safety of a command, unit, place, ship, or military property.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , (before) (in the presence of) the enemy,
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 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), did, (at/on board--location),
on or about __________ 19 __________ , (before) (in the presence of) the enemy,
cast away his/her (rifle) (ammunition) ( __________ ).
(5) Cowardly conduct.
In that __________ (personal jurisdiction data), (at/on board--location), on or
about __________ 19 __________ , (before) (in the presence of) the enemy, was
guilty of cowardly conduct as a result of fear, in that __________ .
(6) Quitting place of duty to plunder or pillage.
In that __________ (personal jurisdiction data), did, (at/on board-- location),
on or about __________ 19 __________ , (before) (in the presence of) the enemy,
quit his/her place of duty for the purpose of (plundering) (pillaging)
(plundering and pillaging).
(7) Causing false alarms.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , (before) (in the presence of) the enemy,
cause a false alarm in (Fort __________ ) (the said ship) (the camp)( __________
) by (needlessly and without authority (causing the call to arms to be sounded)
(sounding the general alarm)) ( __________ ).
(8) Willfully failing to do utmost to encounter enemy.
In that __________ (personal jurisdiction data), being (before) (in the presence
of) the enemy, did, (at/on board--location), on or about __________ 19
__________ , 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), did, (at/on board--location),
on or about __________ 19 __________ , (before) (in the presence of) the enemy,
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.
Article
100--Subordinate compelling surrender
4.24.1 a. Text.
"Any person subject to this chapter who compels 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 without proper authority, shall be
punished by death or such other punishment as a court-martial may direct."
4.24.2 b. Elements.
(1) Compelling surrender.
(a) That a certain person was in command of a certain place, vessel, aircraft,
or other military property 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 military property or body of
members of the armed forces was actually given up to the enemy or abandoned.
(2) Attempting to compel surrender.
(a) That a certain person was in command of a certain place, vessel, aircraft,
or other military property 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) That the act apparently tended to bring 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
(d) That the accused did not have proper authority to make the offer.
4.24.3 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 abandonment must be compelled or attempted
to be compelled 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 military 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 whenever 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 emissary does not reach the enemy.
(4) Enemy. For a discussion of "enemy," see paragraph 23c(1)( b).
4.24.4 d. Lesser included offense.
Striking the colors or flag. Article 80-- attempts
4.24.5 e. Maximum punishment.
All offenses under Article 100. Death or such other punishment as a
court-martial may direct.
4.24.6 f. Sample
specifications.
(1) Compelling surrender or attempting to compel surrender.
In that __________ (personal jurisdiction data), did, (at/on--board location),
on or about __________ 19 __________ , (attempt to) compel __________ , the
commander of __________ , (to give up to the enemy) (to abandon) said __________
, by __________ .
(2) Striking the colors or flag.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , without proper authority, offer to
surrender to the enemy by (striking the (colors)(flag)) ( __________ ).
Article
101--Improper use of countersign
4.25.1 a. Text.
"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 countersign from that which, to his knowledge, he was authorized and required
to give, shall be punished by death or such other punishment as a court-martial
may direct."
4.25.2 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 different parole or countersign from that which the accused was
authorized and required to give.
4.25.3 c.
Explanation.
(1) Countersign. A countersign is a word, signal, 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 circumstances
of war. Who these persons are will be determined largely, in any particular
case, by the general or special orders under which the accused was acting.
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 disclosing 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).
4.25.4 d. Lesser included offense.
Article 80--attempts
4.25.5 e. Maximum punishment.
Death or such other punishment as a court-martial may direct.
4.25.6 f. Sample
specifications.
(1) Disclosing the parole or countersign to one not entitled to receive it.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , 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), did, (at/on board--location),
on or about __________ 19 __________ , a time of war, give to __________ , a
person entitled to receive and use the (parole)(countersign), a (parole)
(countersign), namely: __________ which was different from that which, to
his/her knowledge, he/she was authorized and required to give, to wit:
__________ .
Article
102--Forcing a safeguard
4.26.1 a. Text.
"Any person subject to this chapter who forces a safeguard shall suffer
death or such other punishment as a court-martial may direct."
4.26.2 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.
4.26.3 c.
Explanation.
(1) Safeguard. A safeguard is a detachment, guard, or detail posted by a
commander for the protection of persons, places, or property of the enemy, or of
a neutral affected by the relationship of belligerent 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/planets 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 establish a safeguard unless a commander takes 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/planetary 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 protection 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) Knowledge. Actual knowledge of the safeguard is not required. It is
sufficient if an accused should have known of the existence of the safeguard.
4.26.4 d. Lesser included offense.
Article 80--attempts
4.26.5 e. Maximum punishment.
Death or such other punishment as a court-martial may direct.
4.26.6 f. Sample
specification.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , force a safeguard, (known by him/her to
have been placed over the premises occupied by __________ at __________ by
(overwhelming the guard posted for the protection of the same)
( __________ )) ( __________ ).
Article
103--Captured or abandoned property
4.27.1 a. Text.
"(a) All persons subject to this chapter shall secure all public property
taken from the enemy for the service of the United Federated Planets, and shall
give notice and turn over to the proper authority without delay all captured or
abandoned property 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, benefit, 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."
4.27.2 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 reasonable under the circumstances to
secure this property for the service of the United Federated Planets.
(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, custody, 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, pillaging, 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 captured vessel; or
(iii) owned by, or in the custody of the officers, crew, or passengers on board
a seized or captured vessel.
4.27.3 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 enemy public property becomes the property of the United
Federated Planets. Neither the person who takes it nor any other person has any
private right in this property.
(b) Nature of duty.:
Every person subject to military law has an immediate duty to take such steps as
are reasonably within that person's power to secure public property for the
service of the United Federated Planets 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 abandoned property are to be made
directly or 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 property 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 paragraph 23c(1)(b).
Article 80--attempts
4.27.5 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 $100.00 or less. Bad-conduct discharge, forfeiture of all pay
and allowances, and confinement for 6 months.
(b) of a value of more than $100.00. Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for 5 years.
(2) Looting or pillaging. Any punishment, other than death, that a court-martial
may direct. See R.C.M. 1003.
4.27.6 f. Sample
specifications.
(1) Failing to secure public property taken from the enemy.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , fail to secure for the service of the
United Federated Planets 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), did, (at/on board--location),
on or about __________ 19 __________ , fail to give notice and turn over to
proper authority without delay certain (captured) (abandoned) property which had
come into his/her (possession) (custody) (control), to wit: __________ , of a
value of (about),
$ __________ .
(3) Dealing in captured or abandoned property.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , (buy) (sell) (trade) (deal in) (dispose
of) ( __________ ) certain (captured) (abandoned) property, to wit: __________ ,
of a value of (about) $ __________ , thereby (receiving) (expecting) 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 board--location),
on or about __________ 19 __________ , engage in (looting) (pillage) (looting
and pillaging) by unlawfully (seizing) (appropriating) __________ , (property
which had been left behind) (the property of __________ ), (an inhabitant of
__________ ) ( __________ )).
Article
104--Aiding the enemy
4.28.1 a. Text.
"Any person who--
(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money,
or other things; or
(2) without proper authority, knowingly harbors or protects or gives
intelligence to or communicates or corresponds with or holds any intercourse
with the enemy, either directly or indirectly; shall suffer death or such other
punishment as a court-martial or military commission may direct."
4.28.2 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
(d) That the act apparently tended to bring 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 enemy; 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, communicated, corresponded, or
held intercourse with the enemy, and;
(b) That the accused knew that the accused was communicating, corresponding, or
holding intercourse with the enemy.
4.28.3 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 paragraph 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 enemy 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
communication contains intelligence that may be useful to the enemy for any of
the many reasons that make information valuable to belligerents. This
intelligence 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) Nature of the offense. No unauthorized 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
communication, correspondence, or intercourse may be conveyed directly or
indirectly. A prisoner of war may violate this Article by engaging in
unauthorized 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 neutral powers resident in or
visiting invaded or occupied territory can claim no immunity from the customary
laws of war relating to communication with the enemy.
Article 80--attempts
4.28.5 e. Maximum punishment.
Death or such other punishment as a court-martial or military commission may
direct.
4.28.6 f. Sample
specifications.
(1) Aiding or attempting to aid the enemy.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , (attempt to) aid the enemy with (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), did, (at/on board--location),
on or about __________ 19 __________ , without proper authority, knowingly
(harbor) (protect) __________ , an enemy, by (concealing the said __________ in
his/her house)
( __________ ).
(3) Giving intelligence to the enemy.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , without proper authority, knowingly give
intelligence to the enemy, by (informing a patrol of the enemy's forces of the
whereabouts of a military patrol of the United Federated Planets forces) (
__________ ).
(4) Communicating with the enemy.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , without proper authority, knowingly
(communicate with) (correspond with) (hold intercourse 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 communication 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
enemy))(( __________ )).
Article
105--Misconduct as a prisoner
4.29.1 a. Text.
"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 treatment by his captors acts without
proper authority in a manner contrary to law, custom, or regulation, to the
detriment of others of whatever nationality or planetary citizenship 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."
4.29.2 b. Elements.
(1) Acting without authority to the detriment of another for the purpose of
securing favorable treatment.
(a) That without proper authority the accused acted in a manner contrary to law,
custom, or regulation;
(b) That the act was committed while the accused 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 authority over the person maltreated;
and
(d) That the act was without justifiable cause.
4.29.3 c.
Explanation.
(1) Enemy. For a discussion of "enemy," see paragraph 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 treatment.
(a) Nature of offense. Unauthorized conduct by a prisoner of war must be
intended to result in improvement by the enemy of the accused's condition and
must operate to the detriment of other prisoners either by way of closer
confinement, reduced rations, 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 prisoner
must be contrary to law, custom, or regulation.
(b) Escape. Escape from the enemy is authorized by custom. An escape or escape
attempt which results in closer confinement or other measures 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 authorities, or voluntary election or
selection by other prisoners for their self-government.
(b) Maltreatment. The maltreatment must be 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.
Article 80--attempts
4.29.5 e. Maximum punishment.
Any punishment other than death that a court-martial may direct. See R.C.M. 1003
4.29.6 f. Sample
specifications.
(1) Acting without authority to the detriment of another for the purpose of
securing favorable treatment.
In that __________ (personal jurisdiction data), while in the hands of the
enemy, did, (at/on board--location) on or about __________ 19 __________ , a
time of war, without proper authority and for the purpose of securing favorable
treatment by his/her captors, (report to the commander of Camp __________ the
preparations by __________ , a prisoner at said camp, to escape, as a result of
which report the said __________ was placed in solitary confinement) (
__________ ).
(2) Maltreating prisoner while in a position of authority.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , a time of ward, while in the hands, of
the enemy and in a position of authority over __________ , a prisoner at
__________ , as (officer in charge of prisoners at __________ ) ( __________ ),
maltreat the said __________ by (depriving him/her of __________ )( __________
), without justifiable cause.
Article
106--Spies
4.30.1 a. Text.
"Any person who in time of war is found lurking 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
industrial plant, or any other place or institution engaged in work in aid of
the prosecution of the war by the United Federated Planets, or elsewhere, shall
be tried by a general court-martial or by a military commission and on
conviction shall be punished by death."
4.30.2 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 Federated Planets, or a shipyard, manufacturing or industrial plant, or
other place or institution engaged in work in aid of the prosecution of the war
by the United Federated Planets, or elsewhere;
(2) That the accused was lurking, acting clandestinely 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.
4.30.3 c.
Explanation.
(1) In time of war. See R.C.M. 103(19).
(2) Enemy. For a discussion of "enemy," see paragraph 23c(1)( b).
(3) Scope of offense. The words "any person" bring within the
jurisdiction of general courts-martial and military commissions all persons of
whatever nationality or alien citizenship 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
complete with lurking or acting clandestinely or 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 comparatively 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) Members of a military organization not wearing a disguise, dispatch drivers,
whether members of a military organization or civilians, and persons 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 concealment, 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, without lurking, or acting
clandestinely or under false pretenses, merely reports what is seen or heard
through agents to the enemy may be charged under Article 104 with giving
intelligence to or communicating with the enemy, but may not be charged under
this article as being a spy.
4.30.4 d. Lesser
included offenses.
None
4.30.5 e. Mandatory punishment.
Death
4.30.6 f. Sample
specification.
In that __________ (personal jurisdiction data), was, (at/on board--location),
on or about __________ 19 __________ , 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) of an armed force of the United Federated Planets, to
wit: __________ ) (a (shipyard) (manufacturing plant) (industrial plant) (
__________ ) engaged in work in aid of the prosecution of the war by the United
Federated Planets) ( __________ ), for the purpose of (collecting) (attempting
to collect) information in regard to the ((numbers) (resources) (operations)
( __________ ) of the armed forces of the United Federated Planets) ((military
production) ( __________ ) of the United Federated Planets) ( __________ ), with
intent to impart the same to the enemy.
Article
106a--Espionage
4.31.1 a. Text.
"(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 Federated Planets or
to the advantage of a foreign nation, communicates, delivers, or transmits, or
attempts to communicate, deliver, or transmit, to any entity described in
paragraph (2), either directly or indirectly, anything described in paragraph
(3) shall be punished 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 other means of
defense or retaliation against large scale attack, (B) war plans, (C)
communications 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 recognized or unrecognized by the United Federated Planets; or
(C) a representative, officer, agent, employee, subject, or citizen of such a
government, faction, party, or force.
(3) A thing referred to in paragraph (1) is a document, writing, code book,
signal book, sketch, photograph, photographic negative, blueprint, plan, map,
model, note, instrument, appliance, or information relating to the national or
U.F.P. planetary defense.
(b)(1) No person may be sentenced by court-martial to suffer death for an
offense under this section (article) unless--
(A) the members of the court-martial unanimously find at least one of the
aggravating factors set out in subsection (c); and
(B) the members unanimously determine that any extenuating or mitigating
circumstances are substantially outweighed by any aggravating circumstances,
including the aggravating factors set out under subsection (c).
(2) Findings under this subsection may be based on--
(A) evidence introduced on the issue of guilt or innocence;
(B) evidence introduced during the sentencing 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 another 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 accused knowingly created a grave risk
of substantial damage to the national or U.F.P. planetary
security.
(3) In the commission of the offense, the accused knowingly created a grave risk
of death to another person.
(4) Any other factor that may be prescribed by the President by regulations
under section 836 of this title (Article 36)."
4.31.2 b. Elements.
(1) Espionage.
(a) That the accused communicated, delivered, or transmitted any document,
writing, code book, signal book, sketch, photograph, photographic negative,
blueprint, plan, map, model, note, instrument, appliance, or information
relating to the national or U.F.P. planetary
defense;
(b) That this matter was communicated, 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 unrecognized by the United Federated
Planets, or to any representative, officer, agent, employee, subject or citizen
thereof, either directly or indirectly; and
(c) That the accused did so with intent or reason to believe that such matter
would be used to the injury of the United Federated Planets 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) That the act apparently tended to bring 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) nuclear weaponry, military
spacecraft or satellites, early warning systems, or other means of defense or
retaliation against large scale attack, (2) war plans, (3) communications
intelligence or cryptographic information, or (4) any other major weapons system
or major element of defense strategy.
4.31.3 c.
Explanation.
(1) Intent. "Intent or reason to believe" that the information
"is to be used to the injury of the United Federated Planets or to the
advantage of a foreign nation" means that the accused acted in bad faith
and without lawful authority with respect to information that is not lawfully
accessible to the public.
(2) National and U.F.P. planetary defense
information. "Instrument, appliance, or information relating to the
national and U.F.P. planetary defense"
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 and U.F.P. planetary
defense.
(3) Espionage as a capital offense. Capital punishment is authorized if the
government alleges and proves that the offense directly concerned (1) nuclear
weaponry, military spacecraft or satellites, early warning systems, or other
means of defense or retaliation against large scale attack, (2) war plans, (3)
communications intelligence or cryptographic information, or (4) any other major
weapons system or major element of defense strategy. See R.C.M. 1004 concerning
sentencing proceedings in capital cases.
4.31.4 d. Lesser
included offense.
Although no lesser included offenses are set forth in the Code, federal civilian
offenses on this matter may be incorporated through the third clause of Article
134.
4.31.5 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 punishment, other than death, that a
court-martial may direct. See R.C.M. 1003.
4.31.6 f. Sample
specification.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , with intent or reason to believe it would
be used to the injury of the United Federated Planets or to the advantage of
__________ , a foreign nation, (attempt to) (communicate) (deliver) (transmit)
__________ (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) (information) relating to the
national or U.F.P. planetary defense,
((which directly concerned (nuclear weaponry) (military spacecraft) (military
satellites) (early warning systems) ( __________ , a means of defense or
retaliation against a large scale attack) (war plans) (communications
intelligence) (cryptographic 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 foreign country) (a
party within a foreign country) (a military force within a foreign country) (a
naval force within a foreign country)) (indirectly by __________ ).
Article
107--False official statements
4.32.1 a. Text.
"Any person subject to this chapter who, with intent to deceive, signs any
false record, return, regulation, order, or other official document, 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."
4.32.2 b. Elements.
(1) That the accused signed a certain official document 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) That the false document or statement was made with the intent to deceive.
4.32.3 c.
Explanation.
(1) Official documents and statements. Official documents and official
statements include all documents 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) Intent to deceive. The false representation 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 evidence of the intent to deceive, while immateriality may
tend to show an absence of this intent.
(4) Material gain. The expectation of material gain is not an element of this
offense. Such expectation or lack of it, however, is circumstantial evidence
bearing on the element of intent to deceive.
(5) Knowledge that the document or statement was false. The false representation
must be one which the accused actually knew was false. Actual knowledge may be
proved by circumstantial evidence. An honest, although erroneous, belief that a
statement made is true, is a defense.
(6) Statements made during an interrogation.
(a) Person without an independent duty or obligation to speak. A statement made
by an accused or suspect during an interrogation is not an official statement
within the meaning of the article if that person did not have an independent
duty or obligation to speak. But see paragraph 79 (false swearing).
(b) Person with an independent duty or obligation to speak. If a suspect or
accused does have an independent duty or obligation to speak, as in the case of
a custodian who is required to account for property, a statement made by that
person during an interrogation into the matter is official. While the person
could remain silent (Article 31(b)), if the person chooses to speak, the person
must do so truthfully.
4.32.4 d. Lesser included offense.
Article 80--attempts
4.32.5 e. Maximum punishment.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 5 years.
4.32.6 f. Sample
specification.
In that __________ (personal jurisdiction data), did, (at/on board--location),
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , with intent to deceive, (sign an official (record) (return) (
__________ ), to wit: __________ ) (make to __________ , an official statement,
to wit: __________ ), which (record) (return) (statement) ( __________ ) was
(totally false) (false in that __________ ), and was then known by the said
__________ to be so false.
Article
108--Military property of the United Federated Planets--sale, loss, damage,
destruction, or wrongful disposition
4.33.1 a. Text.
"Any person subject to this chapter who, without proper authority--
(1) sells or otherwise disposes of;
(2) willfully or through neglect damages, destroys, or loses; or
(3) willfully or through neglect suffers to be lost, damaged, destroyed, sold,
or wrongfully disposed of, any military property of the United Federated
Planets, shall be punished as a court-martial may direct."
4.33.2 b.
Elements.
(1) Selling or otherwise disposing of military property.
(a) That the accused sold or otherwise disposed of certain property (which was a
firearm or explosive);
(b) That the sale or disposition was without proper authority;
(c) That the property was military property of the United Federated Planets; and
(d) That the property was of a certain value.
(2) Damaging, destroying, or losing military 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 Federated Planets;
(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, damaged, 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 Federated Planets;
(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.
4.33.3 c.
Explanation.
(1) Military property. Military property is all property, real or personal,
owned, held, or used by one of the armed forces of the United Federated Planets.
If is immaterial whether the property sold, disposed, destroyed, lost, or
damaged had been issued to the accused, to someone else, or even issued at all.
If it is proved by either direct or circumstantial evidence that items of
individual issue were issued to the accused, it may be inferred, depending on
all the evidence, that the damage, destruction, or loss proved was due to the
neglect of the accused. Retail merchandise of service exchange stores is not
military property under this article.
(2) Suffering military property to be lost, damaged, destroyed, sold, or
wrongfully disposed of. "To suffer" means to allow or permit. The
willful or negligent sufferance specified by this article includes: 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, destruction, sale, or wrongful
disposition, the value of the property controls the maximum punishment which may
be adjudged. In the case of damage, the amount of damage controls. As a general
rule, the amount of damage is the estimated or actual cost of repair by the
government agency normally employed in such work, or the cost of replacement, as
shown by government price lists or otherwise, whichever is less.
4.33.4 d. Lesser
included offenses.
(1) Sale or disposition of military property.
(a) Article 80--attempts
(b) Article 134--sale or disposition of non-military government property
(2) Willfully damaging military property.
(a) Article 108--damaging military property through neglect
(b) Article 109--willfully damaging non-military property
(c) Article 80--attempts
(3) Willfully suffering military property to be damaged.
(a) Article 108--through neglect suffering military property to be damaged
(b) Article 80--attempts
(4) Willfully destroying military property.
(a) Article 108--through neglect destroying military property
(b) Article 109--willfully destroying non-military property
(c) Article 108--willfully damaging military property
(d) Article 109--willfully damaging non-military property
(e) Article 108--through neglect damaging military property
(f) Article 80--attempts
(5) Willfully suffering military property to be destroyed.
(a) Article 108--through neglect suffering military property to be destroyed
(b) Article 108--willfully suffering military property to be damaged
(c) Article 108--through neglect suffering military property to be damaged
(d) Article 80--attempts
(6) Willfully losing military property.
(a) Article 108--through neglect, losing military property
(b) Article 80--attempts
(7) Willfully suffering military property to be lost.
(a) Article 108--through neglect, suffering military property to be lost
(b) Article 80--attempts
(8) Willfully suffering military property to be sold.
(a) Article 108--through neglect, suffering military property to be sold
(b) Article 80--attempts
(9) Willfully suffering military property to be wrongfully disposed of.
(a) Article 108--through neglect, suffering military property to be wrongfully
disposed of in the manner alleged
(b) Article 80--attempts
4.33.5 e.
Maximum punishment.
(1) Selling or otherwise disposing of military property.
(a) Of a value of $100.00 or less. Bad-conduct discharge, forfeiture of all pay
and allowance, and confinement for 1 year.
(b) Of a value of more than $100.00 or any firearm or explosive. Dishonorable
discharge, forfeiture of all pay and allowances, and confinement for 10 years.
(2) Through neglect damaging, destroying, or losing, or through neglect
suffering to be lost, damaged, destroyed, sold, or wrongfully disposed of,
military property.
(a) Of a value or damage of $100.00 or less. Confinement for 6 months, and
forfeiture of two-thirds pay per month for 6 months.
(b) Of a value or damage of more than $100.00. 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 $100.00 or less. Bad-conduct discharge, forfeiture
of all pay and allowances, and confinement for 1 year.
(b) Of a value or damage of more than $100.00, or of any firearm or explosive.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 10 years.
4.33.6 f. Sample
specifications.
(1) Selling or disposing of military property.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , without proper authority,(sell to __________ ) (dispose of by
__________ ) __________ , ((a firearm) (an explosive)) of a value of (about) $
__________ , military property of the United Federated Planets.
(2) Damaging, destroying, or losing military property.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , without proper authority, ((willfully) (through neglect)) ((damage
by __________ ) (destroy by __________ )) (lose)) __________ (of a value of
(about) $ __________ ,) military property of the United Federated Planets (the
amount of said damage being in the sum of (about) $ __________ ).
(3) Suffering military property to be lost, damaged, destroyed, sold, or
wrongfully disposed of.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , without proper authority, (willfully) (through neglect) suffer
__________ , ((a firearm) (an explosive)) (of a value of (about) $ __________ )
military property of the United Federated Planets, to be (lost) (damaged by
__________ ) (destroyed by __________ ) (sold to __________ ) (wrongfully
disposed of by __________ ) (the amount of said damage being in the sum of
(about $ __________ ).
Article
109--Property other than military property of the United Federated
Planets--waste, spoilage, or destruction
4.34.1 a. Text.
"Any person subject to this chapter who willfully or recklessly wastes,
spoils, or otherwise willfully and wrongfully destroys or damages any property
other than military property of the United Federated Planets shall be punished
as a court-martial may direct."
4.34.2 b.
Elements.
(1) Wasting or spoiling of non-military property.
(a) That the accused willfully or recklessly wasted or spoiled certain real
property in a certain manner;
(b) That the property was that of another person; and
(c) That the property was of a certain value.
(2) Destroying or damaging non-military property.
(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 person; and
(c) That the property was of a certain value or the damage was of a certain
amount.
4.34.3 c.
Explanation.
(1) Wasting or spoiling non-military property. This portion of Article 109
proscribes willful or reckless waste or spoilation 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 intentionally, or recklessly, that is through a culpable
disregard of the foreseeable consequences of some voluntary act.
(2) Destroying or damaging non-military property. 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
property must have been willful and wrongful. As used in this section
"willfully" means intentionally and "wrongfully" means
contrary to law, regulation, lawful order, or custom. Willfulness may be proved
by circumstantial evidence, such as the manner in which the acts were done.
(3) Value and damage. In the case of destruction, the value of the property
destroyed controls the maximum punishment which may be adjudged. In the case of
damage, the amount of the damage controls. As a general rule, the amount of
damage is the estimated or actual cost of repair by artisans employed in this
work who are available to the community wherein the owner resides, or the
replacement cost, whichever is less. See also paragraph 46c(1)( g).
4.34.4 d. Lesser
included offense.
Article 80--attempts
4.34.5 e.
Maximum punishment.
Wasting, spoiling, destroying, or damaging any property other than military
property of the United Federated Planets of a value or damage.
(1) Of $100.00 or less. Bad-conduct discharge, forfeiture of all pay and
allowances, and confinement for 1 year.
(2) Of more than $100.00. Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 5 years.
4.34.6 f. Sample
specification.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , ((willfully) recklessly) waste) ((willfully) (recklessly) spoil)
(willfully and wrongfully (destroy) (damage) by __________ ) __________ , (of a
value of (about) $ __________ ) (the amount of said damage being in the sum of
(about $ __________ ), the property of __________ .
Article
110--Improper hazarding of vessel
4.35.1 a. Text.
"(a) Any person subject to this chapter who 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) Any person subject to this chapter who negligently hazards or suffers to be
hazarded any vessel of the armed forces shall be punished as a court-martial may
direct."
4.35.2 b.
Elements.
(1) That a vessel of the armed forces was hazarded 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. .
4.35.3 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 that the vessel
is fast for a time. If the vessel "touches and goes," she is not
stranded; if she "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 article, "willfully"
means intentionally and "wrongfully" means contrary to law,
regulation, lawful order, or custom.
(3) Negligence. "Negligence" as used in this article 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 suffering through neglect implies an omission
to take such measures as were appropriate under the circumstances to prevent a
foreseeable danger.
4.35.4 d. Lesser
included offenses.
(1) Willfully and wrongfully hazarding a vessel.
(a) Article 110--negligently hazarding a vessel
(b) Article 80--attempts
(2) Willfully and wrongfully suffering a vessel to be hazarded.
(a) Article 110--negligently suffering a vessel to be hazarded
(b) Article 80--attempts
4.35.5 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) Negligently. Dishonorable discharge, forfeiture of all pay and allowances,
and confinement for 2 years.
4.35.6 f. Sample
specifications.
(1) Hazarding or suffering to be hazarded any vessel, willfully and wrongfully.
In that __________ (personal jurisdiction data), did, on __________ 19
__________ , 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 __________ 19 __________ ,
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 which neglect the said
__________ , at or about __________ , hours on the day aforesaid, became
stranded in the vicinity of (Channel Buoy Number Three).
(b) Example 2.
In that __________ (personal jurisdiction data), on __________ 19 __________ ,
while serving as navigator of the __________ , cruising on special service in
the __________ Ocean off the coast of __________ , notwithstanding the fact that
at about midnight, __________ 19 __________ , 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 thereabouts uncertain, did then and there
negligently hazard the said vessel by failing and neglecting to exercise proper
care and attention in navigating said ship while approaching __________ Island,
in that he/she neglected and failed to lay a course that 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 negligence on the part of
said __________ , ran upon a rock off the southwest coast of __________ Island,
at about __________ hours, __________ , 19 __________ , in consequence of which
the said __________ was lost.
(c) Example 3.
In that __________ (personal jurisdiction data), on __________ 19 __________ ,
while serving as navigator of the __________ and well knowing that at about
sunset of said day the said ship had nearly run her estimated distance from the
__________ position, obtained and plotted by him/her, to the position of
__________ , and well knowing the difficulty of sighting __________ , from a
safe distance after sunset, 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 westerly
course, as it was the duty of said __________ to do; in consequence of which the
said ship was, at about __________ hours on the day above mentioned, run upon
__________ bank in the __________ Sea, about latitude __________ degrees,
__________ minutes, north, and longitude __________ degrees, __________ minutes,
west, and seriously injured.
(3) Suffering a vessel to be hazarded, negligently.
In that __________ (personal jurisdiction data), while serving as combat
intelligence center officer on board the __________ , making passage from Boston
to Philadelphia, and having, between __________ and __________ hours on
__________ , 19 __________ , been duly informed of decreasing radar ranges and
constant radar bearing indicating that the said __________ was upon a collision
course approaching a radar target, did then and there negligently suffer the
said vessel to be hazarded by failing and neglecting to report said collision
course with said radar target to the officer of the deck, as it was his/her duty
to do, and he/she, the said __________ , through negligence, did cause the said
__________ to collide with the __________ at or about __________ hours on said
date, with resultant damage to both vessels.
Article
111-Drunken or reckless operation of vehicle, aircraft, or vessel
4.36.1 a. Text.
"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 0.10 grams of alcohol per 100 milliliters of blood or 0.10 grams of
alcohol per 210 liters of breath, as shown by chemical analysis, shall be
punished as a court-martial may direct."
4.36.2 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 was 0.10 grams of
alcohol per 100 milliliters of blood or 0.10 grams of alcohol per 210 liters of
breath, or greater, as shown by chemical analysis.
[Note: If injury resulted add the following element]
(3) That the accused thereby caused the vehicle, aircraft, or vessel to injure a
person.
4.36.3 c.
Explanation.
(1) Vehicle. See 1 U.F.P.C. § 4.
(2) Vessel. See. 1 U.F.P.C. § 3.
(3) Aircraft. Any contrivance used or designed for transportation in the air.
(4) Operates. Operating a vehicle, aircraft, or vessel 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 manipulation 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 encompasses 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 physical 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 consequences to others from the act or omission involved.
Recklessness is not determined solely by reason of 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 ultimate question: whether, under all the circumstances, the
accused's manner of operation or physical control of the vehicle, vessel, or
aircraft was of that heedless nature which made it actually or imminently
dangerous to the occupants, or to the rights or safety of others. It is
operating or physically controlling a vehicle, vessel, or aircraft with such a
high degree of negligence that if death were caused, the accused would have
committed involuntary manslaughter, 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 offense 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 proximate 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 subsections (1) and (2) of the Article, e.g., both drunken
and reckless operation or physical control, this article proscribes the conduct
described in both subsections as separate offenses, which may be charged
separately. However, as recklessness is a relative matter, evidence of all the
surrounding circumstances that made the operation dangerous, whether alleged or
not, may be admissible. Thus, on a charge of reckless driving, for example,
evidence of drunkenness might be admissible as establishing one aspect of the
recklessness, and evidence that the 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.
4.36.4 d. Lesser
included offense.
(1) Reckless or wanton or impaired operation or physical control of a vessel.
Article 110--improper hazarding of a vessel.
(2) Drunken operation of a vehicle, vessel, or aircraft while drunk or with a
blood or breath alcohol concentration in violation of the described per se
standard.
(a) Article 110--improper hazarding of a vessel
(b) Article 112--drunk on duty
(c) Article 134--drunk on station
4.36.5 e.
Maximum punishment.
(1) Resulting in personal injury. Dishonorable discharge, forfeiture of all pay
and allowances, and confinement for 18 months.
(2) No personal injury involved. Bad-conduct discharge, forfeiture of all pay
and allowances, and confinement for 6 months.
4.36.6 f. Sample
specification.
In that __________ (personal jurisdiction data), did (at/onboard--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , (in the motor pool area) (near the Officer's Club) (at the
intersection of __________ and __________ ) (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 wit: (the
aircraft carrier USS __________ ) (the Coast Guard Cutter __________ ) (
__________ )], [while drunk] [while impaired by __________ ] [while the alcohol
concentration in his (blood was 0.10 grams of alcohol per 100 milliliters of
blood or greater) (breath was 0.10 grams of alcohol per 210 liters of breath or
greater) as shown by chemical analysis] [in a (reckless) (wanton) manner by
(attempting to pass another vehicle on a sharp curve) (by ordering that the
aircraft be flown below the authorized altitude)] [and did thereby cause said
(vehicle) (aircraft) (vessel) to (strike and) (injure __________ )].
Article
112--Drunk on duty
4.37.1 a. Text.
"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."
4.37.2 b.
Elements.
(1) That the accused was on a certain duty; and
(2) That the accused was found drunk while on this duty.
4.37.3 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 enlisted person may legally be required by superior
authority to execute is necessarily a military duty. Within the meaning of this
article, when in the actual 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 accused be found drunk while
actually on the duty alleged, and the fact the accused became drunk before going
on duty, although material in extenuation, does not affect the question of
guilt. If, however, 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. Included 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).
4.37.4 d. Lesser
included offense.
Article 134--drunk on station
4.37.5 e.
Maximum punishment.
Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for
9 months.
4.37.6 f. Sample
specification.
In that __________ (personal jurisdiction data), was, (at/on board--location),
on or about __________ 19 __________ , found drunk while on duty as __________ .
Article
112a--Wrongful use, possession, etc., of controlled substances
4.38.1 a. Text.
"(a) Any person subject to this chapter who wrongfully uses, possesses,
manufactures, distributes, imports into the customs territory of the United
Federated Planets, exports from the United Federated Planets, or introduces into
an installation, vessel, vehicle, or aircraft used by or under the control of
the armed forces a substance described in subsection (b) shall be punished as a
court-martial may direct.
(b) The substances referred to in subsection (a) are the following:
(1) opium, heroin, cocaine, amphetamine, lysergic acid diethylamide,
methamphetamine, phencyclidine, barbituric acid, and marijuana, and any compound
or derivative of any such substance.
(2) Any substance not specified in clause (1) that is listed on a schedule of
controlled substances prescribed by the President for the purposes of this
article.
(3) Any other substance not specified in clause (1) or contained on a list
prescribed by the President under clause (2) that is listed in Schedules I
through V of section 202 of the Controlled Substances Act (21 U.F.P.C.
812)."
4.38.2 b.
Elements.
(1) Wrongful possession of controlled substance.
(a) That the accused possessed a certain amount of a controlled substance; and
(b) That the possession by the accused was wrongful.
(2) Wrongful use of controlled substance.
(a) That the accused used a controlled substance; and
(b) That the use by the accused was wrongful.
(3) Wrongful distribution of controlled substance.
(a) That the accused distributed a certain amount of a controlled substance; and
(b) That the distribution by the accused was wrongful.
(4) Wrongful introduction of a controlled substance.
(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 substance.
(a) That the accused manufactured a certain amount of a controlled substance;
and
(b) That the manufacture was wrongful.
(6) Wrongful possession, manufacture, or introduction of a controlled substance
with intent to distribute.
(a) That the accused (possessed) (manufactured) (introduced) a certain amount of
a controlled substance;
(b) That the (possession) (manufacture) (introduction) was wrongful; and
(c) That the (possession) (manufacture) (introduction) was with the intent to
distribute.
(7) Wrongful importation or exportation of a controlled substance.
(a) That the accused (imported into the customs territory of) (exported from)
the United Federated Planets a certain amount of a controlled substance; and
(b) That the (importation) (exportation) was wrongful.
[Note: When any of the aggravating circumstances listed in subparagraph e is
alleged, it must be listed as an element.]
4.38.3 c.
Explanation.
(1) Controlled substance. "Controlled substance" means amphetamine,
cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium,
phencyclidine, and barbituric acid, including phenobarbital and secobarbital.
"Controlled substance" also means any substance which is included in
Schedules I through V established by the Controlled Substances Act of 1970 (21
U.F.P.C. 812).
(2) Possess. "Possess" means to exercise control of something.
Possession may be direct physical custody like holding an item is 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
knowing and conscious. Possession inherently includes the power or authority to
preclude control by others. It is possible, however, for more than one person to
possess an item simultaneously, as when several 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 inferred from
circumstantial evidence.
(3) Distribute. "Distribute" means to deliver to the possession of
another. "Deliver" means the actual, constructive, or attempted
transfer of an item, whether or not there exists an agency relationship.
(4) Manufacture. "Manufacture" means the production, preparation,
propagation, compounding, or processing of a drug or other substance, either
directly or indirectly or by extraction from substances of natural origin, or
independently by means of chemical synthesis or by a combination of extraction
and chemical synthesis, and includes any packaging or repackaging of such
substance or labeling or relabeling of its container. "Production," as
used in this subparagraph, includes the planting, cultivating, growing, or
harvesting of a drug or other substance.
(5) Wrongfulness. To be punishable under Article 112a, possession, use,
distribution, introduction, or manufacture of a controlled substance must be
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 manufacture 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 operation 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 sugar, is not
guilty of wrongful possession of cocaine). Possession, use, distribution,
introduction, or manufacture of a controlled substance may be inferred to be
wrongful in the absence of evidence to the contrary. The burden of going forward
with evidence with respect to any such exception in any court-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 Federated Planets to establish that the use, possession,
distribution, manufacture, or introduction 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
accused is addicted to or is a heavy user of the substance 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 possessed, 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 specification is
sufficient if it alleges that an accused possessed, distributed, introduced, or
manufactured "some," "traces of," or "an unknown
quantity of" a controlled substance.
(8) Missile launch facility. A "missile launch facility" 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 Federated Planets. "Customs territory
of the United Federated Planets" includes only the States, the District of
Columbia, and Puerto Rico.
(10) Use. "Use" means to inject, injest, inhale, or otherwise
introduce into the human body, any controlled substance. Knowledge of the
presence of the controlled substance is a required component of use. Knowledge
of the presence of the controlled substance may be inferred from the presence of
the controlled substance in the accused's body or from other circumstantial
evidence. This permissive inference may be legally sufficient to satisfy the
government's burden of proof as to knowledge.
(11) Deliberate ignorance. An accused who consciously avoids knowledge of the
presence of a controlled substance or the contraband nature of the substance is
subject to the same criminal liability as one who has actual knowledge.
4.38.4 d. Lesser
included offenses.
(1) Wrongful possession of controlled substance. Article 80--attempts
(2) Wrongful use of controlled substance.
(a) Article 112a--wrongful possession of controlled substance
(b) Article 80--attempts
(3) Wrongful distribution of controlled substance. Article 80--attempts
(4) Wrongful manufacture of controlled substance.
(a) Article 112a--wrongful possession of controlled substance
(b) Article 80--attempts
(5) Wrongful introduction of controlled substance.
(a) Article 112a--wrongful possession of controlled substance
(b) Article 80--attempts
(6) Wrongful possession, manufacture, or introduction of a controlled substance
with intent to distribute.
(a) Article 112a--wrongful possession, manufacture, or introduction of
controlled substance
(b) Article 80--attempts
(7) Wrongful importation or exportation of a controlled substance. Article
80--attempts
4.38.5 e.
Maximum punishments.
(1) Wrongful use, possession, manufacture, or introduction of controlled
substance.:
(a) Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana (except
possession of less than 30 grams or use of marijuana), methamphetamine, opium,
phencyclidine, secobarbital, and Schedule I, II, III controlled substances.:
Dishonorable discharge, forfeiture of all pay and allowances, and confinement 5
years.
(b) Marijuana (possession of less than 30 grams or use), phenobarbital, and
Schedule IV and V controlled substances.:
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 2 years.
(2) Wrongful distribution, possession, manufacture, or introduction of
controlled substance with intent to distribute, or wrongful importation or
exportation of a controlled substance.:
(a) Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana,
methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III
controlled substances.:
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 15 years.
(b) Phenobarbital and Schedule IV and V controlled substances.:
Dishonorable discharge, forfeiture 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 lookout; 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.F.P.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 authorized for
such offense shall be increased by 5 years.
4.38.6 f. Sample
specifications.
(1) Wrongful possession, manufacture, or distribution of controlled substance.
In that __________ (personal jurisdiction data) did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ , 19
__________ , wrongfully (possess) (distribute) (manufacture) __________ (grams)
(ounces) (pounds)( __________ ) of __________ (a schedule
( __________ ) controlled substance), (with the intent to distribute the said
controlled 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.F.P.C. § 310) (during time of war).
(2) Wrongful use of controlled substance.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ , 19
__________ , wrongfully use __________ (a Schedule __________ controlled
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.F.P.C. § 310) (during time of war).
(3) Wrongful introduction of controlled substance.
In that __________ (personal jurisdiction data) did, (at/on board--location) on
or about __________ , 19 __________ , 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
sentinel or lookout) (while receiving special pay under 37 U.F.P.C. § 310)
(during a time of war).
(4) Wrongful importation or exportation of controlled substance.
In that __________ (personal jurisdiction data) did, (at/on board--location) on
or about __________ , 19 __________ , wrongfully (import) (export) __________
(grams) (ounces) (pounds) ( __________ ) of __________ (a Schedule ( __________
) controlled substance) (into the customs territory of) (from) the United
Federated Planets (while on board a vessel/aircraft used by the armed forces or
under the control of the armed forces, to wit: __________ ) (during time of
war).
Article
113--Misbehavior of sentinel or lookout
4.39.1 a. Text.
"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 offense is
committed in time of war, by death or such other punishment as a court-martial
may direct, but if the offense is committed at any other time, by such
punishment other than death as a court-martial may direct."
4.39.2 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 or while the accused was
receiving special pay under 37 U.F.P.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.F.P.C. § 310).
4.39.3 c.
Explanation.
(1) In general. This article defines three kinds of misbehavior committed by
sentinels or lookouts: being 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
duties 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 formally or informally posted. The fact that a sentinel or lookout is not
posted in the regular way is not a 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 defined, as
is ordinarily the case in garrison or aboard ship, but also, for example, when
stationed in observation 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 maintain 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 sensibly 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 comatose condition. The fact that the
accused's sleeping resulted from a physical incapacity caused by disease or
accident is an affirmative defense. See R.C.M. 916(i).
4.39.4 d. Lesser
included offenses.
(1) Drunk on post.
(a) Article 112--drunk on duty
(b) Article 92--dereliction of duty
(c) Article 134--drunk on station
(d) Article 134--drunk in uniform in a public place
(2) Sleeping on post.
(a) Article 92--dereliction of duty
(b) Article 134--loitering or wrongfully sitting down on post
(3) Leaving post.
(a) Article 92--dereliction of duty
(b) Article 86--going from appointed place of duty
4.39.5 e.
Maximum punishment.
(1) In time of war. Death or such other punishment as a court-martial may
direct.
(2) While receiving special pay under 37 U.F.P.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 confinement for 1 year.
4.39.6 f. Sample
specification.
In that __________ (personal jurisdiction data), on or about __________ (a time
of war) (at/on board--location), (while receiving special pay under 37 U.F.P.C.
§ 310), being (posted) (on post) as a (sentinel) (lookout) at (warehouse no. 7)
(post no. 11) (for radar observation) ( __________ ) (was found (drunk)
(sleeping) upon his/her post) (did leave his/her post before he/she was
regularly relieved).
Article
114--Dueling
4.40.1 a. Text.
"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."
4.40.2 b.
Elements.
(1) Dueling.
(a) That the accused fought another person 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) That the accused did so in a certain manner.
(3) Conniving at fighting a duel.
(a) That certain persons intended to and were about to engage in a duel;
(b) That the accused had knowledge of the 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.
4.40.3 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
acceptance, 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 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.
4.40.4 d. Lesser
included offense.
Article 80--attempts
4.40.5 e.
Maximum punishment.
For all Article 114 offenses: dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 1 year.
4.40.6 f. Sample
specifications.
(1) Dueling.
In that __________ (personal jurisdiction data) (and __________ ), did, (at/on
board--location) (subject-matter jurisdiction data, if required), on or about
__________ 19 __________ , fight a duel (with __________ ), using as weapons
therefore (pistols) (swords) ( __________ ).
(2) Promoting a duel.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , promote a duel between __________ and __________ by (telling said
__________ he/she would be a coward if he/she failed to challenge said
__________ to a duel) (knowingly carrying from said __________ to said
__________ a challenge to fight a duel).
(3) Conniving at fighting a duel.
In that __________ (personal jurisdiction data), having knowledge that
__________ and __________ were about to engage in a duel, did (at/on
board--location) (subject-matter jurisdiction data, if required), on or about
__________ 19 __________ , connive at the fighting of said duel by (failing to
take reasonable preventive action) ( __________ ).
(4) Failure to report a duel.
In that __________ (personal jurisdiction data), having knowledge that a
challenge to fight a duel (had been sent) (was about to be sent) by __________
to __________ , did, (at/on board--location) (subject-matter jurisdiction data,
if required), on or about __________ 19 __________ fail to report that fact
promptly to the proper authority.
Article
115--Malingering
4.41.1 a. Text.
"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.
4.41.2 b.
Elements.
(1) That the accused was assigned to, or was aware of prospective assignment to,
or availability for, the performance of work, duty, or service;
(2) That the accused feigned illness, physical disablement, mental lapse or
derangement, or intentionally 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).
4.41.3 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.
(2) How injury inflicted.:
The injury may be inflicted by nonviolent as well as by violent means and may be
accomplished by any act or omission which produces, prolongs, or aggravates any
sickness 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.
4.41.4 d. Lesser
included offenses.
(1) Article 134--self-injury without intent to avoid service
(2) Article 80--attempts
4.41.5 e.
Maximum punishment.
(1) Feigning illness, physical disablement, mental lapse, or derangement.
Dishonorable discharge, forfeiture 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
confinement for 10 years.
4.41.6 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) (on
or about __________ 19 __________ ) (from about __________ 19 __________ to
about __________ 19 __________ ), (a time of war) for the purpose of avoiding
(his/her duty as officer of the day) (his/her duty as aircraft mechanic) (work
in the mess hall) (service as an enlisted person) ( __________ ) (feign (a
headache) (a sore back) (illness) (mental lapse) (mental derangement) (
__________ )) (intentionally injure himself/herself by __________ ).
Article
116--Riot or breach of peace
4.42.1 a. Text.
"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."
4.42.2 b.
Elements.
(1) Riot.
(a) That the accused was a member of an assembly 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 general 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) That the peace was thereby unlawfully disturbed.
4.42.3 c.
Explanation.
(1) Riot. "Riot" is a tumultuous disturbance of the peace by three or
more persons assembled together in furtherance of a common purpose to execute
some enterprise of a private nature by concerted action against anyone who might
oppose them, committed 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
lawful. Furthermore, it is not necessary that the common purpose be determined
before the assembly. 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 outward 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
community 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 by guilty of causing a breach of the peace if
the speaker uses language which can reasonably be expected to produce a violent
or turbulent response and a breach of the peace results. The fact that the words
are true or used under provocation is not a defense, nor is tumultuous conduct
excusable because incited by others.
(3) Community and public. "Community" and "public" include a
military organization, post, camp, ship, aircraft, or station.
4.42.4 d. Lesser
included offenses.
(1) Riot.
(a) Article 116--breach of the peace
(b) Article 134--disorderly conduct
(c) Article 80--attempts
(2) Breach of the peace.
(a) Article 134--disorderly conduct
(b) Article 80--attempts
4.42.5 e.
Maximum punishment.
(1) Riot. Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
(2) Breach of the peace. Confinement for 6 months and forfeiture of two-thirds
pay per month for 6 months.
4.42.6 f. Sample
specifications.
(1) Riot.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , (cause) (participate in) a riot by unlawfully assembling 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 jurisdiction data, if required), on or about __________ 19
__________ , (cause) (participate in) a breach of the peace by (wrongfully
engaging in a fist fight in the dayroom with __________ ) (using the following
provoking language (toward __________ ), to wit: "__________," or
words to that effect) (wrongfully shouting and singing in a public place, to
wit: __________ ) ( __________ ).
Article
117--Provoking speeches or gestures
4.43.1 a. Text.
"Any person subject to this chapter who uses provoking or reproachful words
or gestures towards any other person subject to this chapter shall be punished
as a court-martial may direct."
4.43.2 b.
Elements.
(1) That the accused wrongfully used words or gestures toward a certain person;
(2) That the words or gestures used were provoking or reproachful; and
(3) That the person toward whom the words or gestures were used was a person
subject to the code.
4.43.3 c.
Explanation.
(1) In general. As used in this article, "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 reasonable person
would expect to induce a breach of the peace under the circumstances. These
words and gestures do not include reprimands, censures, reproofs and the like
which may properly be administered in the interests of training, efficiency, or
discipline in the armed forces.
(2) Knowledge. It is not necessary that the accused have knowledge that the
person toward whom the words or gestures are directed is a person subject to the
code.
4.43.4 d. Lesser
included offenses.
Article 80--attempts
4.43.5 e.
Maximum punishment.
Confinement for 6 months and forfeiture of two-thirds pay per month for 6
months.
4.43.6 f. Sample specification.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , wrongfully use (provoking) (reproachful) (words, to wit;
"__________:" or words to that effect) (and) (gestures, to wit:
__________ ) towards (Sergeant __________ , U.F.P. Starfleet Command) (
__________ ).
Article
118--Murder
4.44.1 a. Text.
"Any person subject to this chapter who, without justification or excuse,
unlawfully kills a human 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 dangerous to another and evinces a
wanton disregard of human life; or
(4) is engaged in the perpetration or attempted perpetration of burglary,
sodomy, rape, robbery, or aggravated arson; is guilty of murder, and shall
suffer such punishment as a court-martial may direct, except that if found
guilty under clause (1) or (4), he shall suffer death or imprisonment for life
as a court-martial may direct.
4.44.2 b.
Elements.
(1) Premeditated murder.
(a) That a certain named or described person is dead;
(b) That the death resulted from the act or 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) That the death resulted from the act or 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) That the death resulted from the act or 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 perpetration of burglary, sodomy, rape, robbery, or
aggravated arson.
4.44.3 c.
Explanation.
(1) In general. Killing a human being is unlawful when done without
justification or excuse. See R.C.M. 916. Whether an unlawful killing constitutes
murder or a lesser offense depends upon the circumstances. 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 thereafter, it must have followed from an injury received by the
victim which resulted from the act or omission.
(2) Premeditated murder.
(a) Premeditation. A murder is not premeditated unless the thought of taking
life was consciously 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
considerable 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 premeditation may be inferred from the circumstances.
(b) Transferred premeditation. When an accused with a premeditated design
attempted to unlawfully kill a certain person, but, by mistake or inadvertence,
killed another person, the accused is still criminally responsible for a
premeditated murder, because the premeditated design to kill is transferred from
the intended victim to the actual victim.
(c) Intoxication. Voluntary intoxication ( see 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 unpremeditated murder to manslaughter (Article 119) or
any other lesser offense.
(3) Intent to kill or inflict great bodily harm.
(a) Intent. An unlawful killing without 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 intended. 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 heat of a sudden passion
caused by adequate 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 injuries 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
synonymous with the term "grievous bodily harm."
(c) Intoxication. Voluntary intoxication not amounting to legal insanity does
not reduce unpremeditated murder to manslaughter (Article 119) or any other
lesser offense.
(4) Act inherently dangerous to others.
(a) Wanton disregard of human life. Intentionally engaging in an act inherently
dangerous to another--although without an intent to cause the death of or great
bodily harm to any particular person, 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
consequences 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 consequence of the inherently dangerous act. Such knowledge 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 perpetration or attempted perpetration of
one of these offenses, the killing is murder. Under these circumstances it is
not a defense that the killing was unintended or accidental.
(b) Separate offenses. The perpetration or attempted perpetration of the
burglary, sodomy, rape, robbery, or aggravated arson may be charged separately
from the homicide.
4.44.4 d. Lesser
included offenses.
(1) Premeditated murder and murder during certain offenses. Article 118(2) and
(3)--murder
(2) All murders under Article 118.
(a) Article 119--involuntary manslaughter
(b) Article 128--assault; assault consummated by a battery; aggravated assault
(c) Article 134--negligent homicide
(3) Murder as defined in Article 118(1), (2), and (4).
(a) Article 80--attempts
(b) Article 119--voluntary manslaughter
(c) Article 134--assault with intent to commit murder
(d) Article 134--assault with intent to commit voluntary manslaughter
4.44.5 e.
Maximum punishment.
(1) Article 118(1) or (4)--death. Mandatory minimum--imprisonment for life.
(2) Article 118(2) or (3)--such punishment other than death as a court-martial
may direct.
4.44.6 f. Sample
specification.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , (with premeditation) (while (perpetrating) (attempting to
perpetrate) __________ ) murder __________ by means of (shooting him/her with a
rifle) ( __________ ).
Article
119--Manslaughter
4.45.1 a. Text.
"(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 perpetrate 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.
4.45.2 b.
Elements.
(1) Voluntary manslaughter.
(a) That a certain named or described person is dead;
(b) That the death resulted from the act or 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.
(2) Involuntary manslaughter.
(a) That a certain named or described person is dead;
(b) That the death resulted from the act or 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 perpetrate an
offense directly affecting the person other than burglary, sodomy, rape,
robbery, or aggravated arson.
4.45.3 c.
Explanation.
(1) Voluntary manslaughter.
(a) Nature of offense. An unlawful killing, although done with an intent to kill
or inflict great bodily harm, is not murder but voluntary manslaughter if
committed in the heat of sudden passion 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 sudden 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) Nature of provocation. The provocation 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. However, 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 cooling time elapses between the
provocation and the killing, the offense is murder, even if the accused's
passion persists. Examples of acts which may, depending on the circumstances,
constitute adequate provocation are the unlawful infliction of great bodily
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, adequate provocation.
(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 foreseeable consequences to others
of that act or omission. Thus, the basis of a charge of involuntary manslaughter
may be a negligent act or omission which, when viewed in the light of human
experience, might foreseeably result in the death of another, even though death
would not necessarily be a natural and probable consequence of the act or
omission. Acts which may amount to culpable negligence include 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 reasonable precautions to ascertain,
that it would not be dangerous; and carelessly leaving poisons or dangerous
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 person, 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 affecting some particular person as distinguished
from an offense affecting society in general. Among offenses directly affecting
the person are the various types of assault, battery, false imprisonment,
voluntary engagement in an affray, and maiming.
4.45.4 d. Lesser
included offenses.
(1) Voluntary manslaughter.
(a) Article 119--involuntary manslaughter
(b) Article 128--assault; assault consummated by a battery; aggravated assault
(c) Article 134--assault with intent to commit voluntary manslaughter
(d) Article 134--negligent homicide
(e) Article 80--attempts
(2) Involuntary manslaughter.
(a) Article 128--assault; assault consummated by a battery
(b) Article 134--negligent homicide
(1) Voluntary
manslaughter. Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 15 years.
(2) Involuntary manslaughter. Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 10 years.
4.45.6 f. Sample
specifications.
(1) Voluntary manslaughter.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , willfully and unlawfully kill __________ by __________ him/her (in)
(on) the __________ with a __________ .
(2) Involuntary manslaughter.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , (by culpable negligence) (while (perpetrating) (attempting to
perpetrate) an offense directly affecting the person of __________ , to wit:
(maiming) (a battery) ( __________ )) unlawfully kill __________ by __________
him/her (in) (on) the __________ with a __________ .
Article
120--Rape and carnal knowledge
4.46.1 a. Text.
"(a) Any person subject to this chapter who commits an act of sexual
intercourse by force and without consent, is guilty of rape and shall be
punished by death or such other punishment as a court-martial may direct."
(b) Any person subject to this chapter who, under circumstances not amounting to
rape, commits an act of sexual intercourse with a person--
(1) who is not his or her spouse; and
(2) who has not attained the age of sixteen years, is guilty of carnal knowledge
and shall be punished as a court-martial may direct.
(c) Penetration, however slight, is sufficient to complete either of these
offenses.
(d)(1) In a prosecution under subsection (b), it is an affirmative defense
that--
(A) the person with whom the accused committed the act of sexual intercourse had
at the time of the alleged offense attained the age of twelve years; and
(B) the accused reasonably believed that the person had at the time of the
alleged offense attained the age of 16 years.
(2) The accused has the burden of proving a defense under subparagraph (d)(1) by
a preponderance of the evidence.
4.46.2 b.
Elements.
(1) Rape.
(a) That the accused committed an act of sexual intercourse; and
(b) That the act of sexual intercourse was done by force and without consent.
(2) Carnal knowledge.
(a) That the accused committed an act of sexual intercourse with a certain
person;
(b) That the person was not the accused's spouse; and
(c) That at the time of the sexual intercourse the person was under 16 years of
age.
4.46.3 c.
Explanation.
(1) Rape.
(a) Nature of offense. Rape is sexual intercourse by a person, executed by force
and without consent of the victim. It may be committed on a victim of any age.
Any penetration, however slight, is sufficient to complete the offense.
(b) Force and lack of consent. Force and lack of consent are necessary to the
offense. Thus, if the victim consents to the act, it is not rape. The lack of
consent required, however, is more than mere lack of acquiescence. If a victim
in possession of his or her mental faculties fails to make lack of consent
reasonably manifest by taking such measures of resistance as are called for by
the circumstances, the inference may be drawn that the victim did consent.
Consent, however, may not be inferred if resistance would have been futile,
where resistance is overcome by threats of death or great bodily harm, or where
the victim is unable to resist because of the lack of mental or physical
faculties. In such a case there is no consent and the force involved in
penetration will suffice. All the surrounding circumstances are to be considered
in determining whether a victim gave consent, or whether he or she failed or
ceased to resist only because of a reasonable fear of death or grievous bodily
harm. If there is actual consent, although obtained by fraud, the act is not
rape, but if to the accused's knowledge the victim is of unsound mind or
unconscious to an extent rendering him or her incapable of giving consent, the
act is rape. Likewise, the acquiescence of a child of such tender years that he
or she is incapable of understanding the nature of the act is not consent.
(c) Character of victim. See Mil. R. Evid. 412 concerning rules of evidence
relating to an alleged rape victim's character.
(2) Carnal knowledge. "Carnal knowledge" is sexual intercourse under
circumstances not amounting to rape, with a person who is not the accused's
spouse and who has not attained the age of 16 years. Any penetration, however
slight, is sufficient to complete the offense. It is a defense, however, which
the accused must prove by a preponderance of the evidence, that at the time of
the act of sexual intercourse, the person with whom the accused committed the
act of sexual intercourse was at least 12 years of age, and that the accused
reasonably believed that this same person was at least 16 years of age.
4.46.4 d. Lesser
included offenses.
(1) Rape.
(a) Article 128--assault; assault consummated by a battery
(b) Article 134--assault with intent to commit rape
(c) Article 134--indecent assault
(d) Article 80--attempts
(e) Article 120(b)--carnal knowledge
(2) Carnal knowledge.
(a) Article 134--indecent acts or liberties with a person under 16
(b) Article 80--attempts
4.46.5 e.
Maximum punishment.
(1) Rape. Death or such other punishment as a court-martial may direct.
(2) Carnal knowledge with a child who, at the time of the offense, has attained
the age of 12 years. Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 20 years.
(3) Carnal knowledge with a child under the age of 12 years at the time of the
offense. Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for life.
4.46.6 f. Sample
specifications.
(1) Rape.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , rape __________ , (a person who had not attained the age of 16
years).
(2) Carnal knowledge.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , commit the offense of carnal knowledge with __________ .
Article
121--Larceny and wrongful appropriation
4.47.1 a. Text.
"(a) Any person subject to this chapter who 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) Any person found guilty of larceny or wrongful appropriation shall be
punished as a court-martial may direct.
4.47.2 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) That the property belonged to a certain 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 defined in
paragraph 32c(1), 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) That the property belonged to a certain 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.
4.47.3 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 permanently
to defraud includes the offense formerly known as obtaining by false pretense;
and a wrongful withholding with intent permanently to appropriate includes the
offense formerly known as 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) Taking, obtaining, or withholding. There 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
acquiring title thereto without exercising some possessory control over it. As a
general rule, however, any movement of the property or any exercise of dominion
over it is sufficient if accompanied by the requisite 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 obtained 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 possession without title, and one who already has
possession 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,
accounting, or delivery is due, even if the owner has made no demand for the
property, or it may arise as a result of devoting property to a use not
authorized by its owner. Generally, this is so whether the person withholding
the property acquired it lawfully or unlawfully. See subparagraph c(1)(f) below.
However, 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, neither 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 possession of the owner or of any other person. Care, custody,
management, and control are among the definitions of possession.
(ii) Owner. "Owner" refers to the person who, at the time of the
taking, obtaining, or withholding, had the superior right to possession of the
property in the light of all conflicting interests 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 violation 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 possession, 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 government, 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 possession of another is wrongful if
done without the consent of the other, and an obtaining of property from the
possession of another is wrongful if the obtaining 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 there from by false pretense, does so
wrongfully if the other has a superior right--such as a lien--to possession of
the property. A person who takes, obtains, or withholds property as the agent of
another has the same rights and liabilities as does the principal, 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 knowingly false in the sense that it is made without a belief in its
truth. A false pretense is a false representation of past or existing fact. In
addition to other kinds of facts, the fact falsely represented by a person may
be that person's or another's power, authority, or intention. Thus, a false
representation by a person that 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 pretense. Although the pretense need not be the sole
cause inducing the owner to part with the property, it must be an effective and
intentional cause of the obtaining. A false representation made after the
property was obtained will not result in a violation of Article 121. A larceny
is committed when a person obtains the property of another by false pretense and
with intent to steal, even though the owner neither intended nor was requested
to part with title to the property. Thus, a person who gets another'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) In general. The offense of larceny requires 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 property 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
vehicle, 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.
(ii) Inference of intent. An intent to steal 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 returned, 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 intentional dealing with the property of
another in a manner likely to cause that person to suffer a permanent loss
thereof.
(iii) Special situations.
(A) Motive does not negate intent. The accused's purpose in taking an item
ordinarily is irrelevant 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 be guilty of wrongful appropriation, not
larceny. When a person takes property intending only to return it to its lawful
owner, as when stolen property is taken from a thief in order to return it to
its owner, larceny or wrongful appropriation is not 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 having 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 wrongful appropriation may be.
(C) Return of property not a defense. Once a larceny is committed, a return of
the property or payment for it is no defense. See subparagraph 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 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 Government sources, the price listed in an official publication 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
official 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 value of other stolen property is
its legitimate 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 determined by its legitimate
market value in the United Federated Planets 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 evidence from any
person who is familiar through training or experience with the market value in
question. The owner of the property may testify as to its market value if
familiar with its quality and condition. 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 admissibility. 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 knowledge the property is
obviously of a value substantially in excess of $100.00, the court-martial may
find a value of more than $100.00. Writings representing value may be considered
to have the value--even though contingent--which they represented 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 limited,
interest in the property, such as a lien, the value for punishment purposes
shall be that of the limited interest.
(h) 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
property belonging to various persons, there is but one larceny, which should be
alleged in but one specification.
(iii) Special kinds of property which may 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.
(v) Mail. As to larceny of mail, see also paragraph 93.
(2) Wrongful appropriation.
(a) In general. Wrongful appropriation requires an intent to temporarily--as
opposed to permanently--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 respects wrongful appropriation and larceny are
identical.
(b) Examples. Wrongful appropriation includes: taking another's automobile
without permission or lawful authority with intent to drive it a short distance
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 mission to deliver supplies, withholding the vehicle from government
service by deviating from the assigned route without authority, to visit a
friend in a nearby town and later restore the vehicle to its lawful use. An
inadvertent exercise of control over the property of another will not result in
wrongful appropriation. For example, a person who fails to return a borrowed
boat at the time agreed upon because the boat inadvertently went aground is not
guilty of this offense.
4.47.4 d. Lesser
included offenses.
(1) Larceny.
(a) Article 121--wrongful appropriation
(b) Article 80--attempts
(2) Larceny of military property.
(a) Article 121--wrongful appropriation
(b) Article 121--larceny of property other than military property
(c) Article 80--attempts
(3) Wrongful appropriation. Article 80--attempts
4.47.5 e.
Maximum punishment.
(1) Larceny.
(a) Military property of a value of $100 or less.:
Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for
1 year.
(b) Property other than military property of a value of $100 or less.:
Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for
6 months.
(c) Military property of a value of more than $100 or of any military motor
vehicle, aircraft, vessel, firearm, or explosive.:
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 10 years.
(d) Property other than military property of a value of more than $100 or any
motor vehicle, aircraft, vessel, firearm, or explosive not included in
subparagraph e(1)(c).:
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for five years.
(2) Wrongful appropriation.
(a) Of a value of $100.00 or less.:
Confinement for 3 months, and forfeiture of two-thirds pay per month for 3
months.
(b) Of a value of more than $100.00.:
Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for
6 months.
(c) Of any motor vehicle, aircraft, vessel, firearm, or explosive.:
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 2 years.
4.47.6 f. Sample
specifications.
(1) Larceny.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , 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 jurisdiction data, if required), on or about __________ 19
__________ , wrongfully appropriate __________ , of a value of (about) $
__________ , the property of __________ .
Article
122--Robbery
4.48.1 a. Text.
"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 property or to the person or property of a relative or member of his family
or of anyone in his company at the time of the robbery, is guilty of robbery and
shall be punished as a court-martial may direct."
4.48.2 b.
Elements.
(1) That the accused wrongfully took certain 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, violence, or force and violence, or
putting the person in fear of immediate or future injury to that person, a
relative, a member of the person's family, anyone accompanying the person at the
time of the robbery, the person's property, or the property of a relative,
family member, or anyone accompanying the person at the time of the robbery;
(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 person 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.
4.48.3 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 committed by force or violence, there
must be actual force or violence to the person, preceding or accompanying 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 pocket 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 confederate of a pickpocket, who is thus
enabled to steal the person's watch, even though the person had no 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 putting 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 apprehension of
present or future injury, and the taking must occur while the apprehension
exists. The injury apprehended may be death or bodily injury to the person 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 sufficient gravity to warrant giving up the property 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 different persons at the same time
and place are separate offenses and each such robbery should be alleged in a
separate specification.
4.48.4 d. Lesser
included offenses.
(1) Article 121--larceny
(2) Article 121--wrongful appropriation
(3) Article 128--assault; assault consummated by a battery
(4) Article 128--assault with a dangerous weapon
(5) Article 128--assault intentionally inflicting grievous bodily harm
(6) Article 134--assault with intent to rob
(7) Article 80--attempts
[Note: More than one lesser included offense may be found in an appropriate case
because robbery is a compound offense. For example, a person may be found not
guilty of robbery but guilty of wrongful appropriation and assault.]
4.48.5 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, forfeiture of all pay and allowances,
and confinement for 10 years.
4.48.6 f. Sample
specifications.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , by means of (force) (violence) (force and violence) (and) (putting
him/her in fear) (with a firearm) steal from the (person) (presence) of
__________ , against his/her will, (a watch) ( __________ ) of value of (about)
$ __________ , the property of __________ .
Article
123--Forgery
4.49.1 a. Text.
"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."
4.49.2 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 nature which would, if genuine,
apparently impose a legal liability on another or change another's legal rights
or liabilities to that person's prejudice; and
(c) That the false making or altering was with the intent to defraud.
(2) Forgery--uttering.
(a) That a certain signature or writing was falsely made or altered;
(b) That the signature or writing was of a nature which would, if genuine,
apparently impose a legal liability on another or change another's legal rights
or liabilities to that person's prejudice;
(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 altered; and
(e) That the uttering, offering, issuing or transferring was with the intent to
defraud.
4.49.3 c.
Explanation.
(1) In general. Forgery may be committed either by falsely making a writing or
by knowingly uttering 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 writing as falsely made or altered to impose a legal liability
on another or to change another's legal 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 making 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
signature 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 forgery 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 person
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 person'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 writing falsely "made" includes an instrument that
may be partially or entirely printed, engraved, written with a pencil, or made
by photography or other device. A writing may be falsely "made" by
materially 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 the prejudice of another. If under all the
circumstances the instrument has neither real nor apparent legal efficacy, there
is no forgery. Thus, the false making with intent to defraud of an instrument
affirmatively invalid on its face is not forgery nor is the false making or
altering, with intent to defraud, of a writing which could not impose a legal
liability, as a mere letter of introduction. However, the false making of
another's signature on an instrument with intent to defraud is forgery, even if
there is no resemblance to the genuine 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 offender.
If 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 material 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 accused and while in the accused's
possession is later found to be altered, it may be inferred that the writing was
altered by the accused.
(7) Uttering. See paragraph 49c(4).
4.49.4 d. Lesser
included offense.
Article 80--attempts
4.49.5 e.
Maximum punishment.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 5 years.
4.49.6 f. Sample
specifications.
(1) Forgery--making or altering.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , with intent to defraud, falsely (make (in its entirety) (the
signature of __________ as an endorsement to) (the signature of __________ to)
( __________ ) a certain (check) (writing) ( __________ ) in the following words
and figures, to wit: __________ (alter a certain (check) (writing) ( __________
) in the following words and figures, to wit: __________ by (adding thereto
__________ ) ( __________ ) in the following words and figures, to wit:
__________ , would, if genuine, apparently operate to the legal harm of another
(*and which __________ (could be) (was) used to the legal harm of __________ ,
in that __________ ).
[Note: This allegation should be used when the document specified 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 jurisdiction data, if required), on or about __________ 19
__________ , with intent to defraud, (utter) (offer) (issue) (transfer) 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) (writing) ( __________ )) (the
signature to which said (check) (writing) ( __________ ))
( __________ ) was, as he/she, the said __________ , then well knew, falsely
(made) (altered) (*and which __________ (could be) (was) used to the legal harm
of __________ , in that __________ ).
[Note: See the note following (1), above]
Article
124--Maiming
4.51.1 a. Text.
"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 mutilation 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."
4.51.2 b.
Elements.
(1) That the accused inflicted a certain injury upon a certain person;
(2) That this injury seriously disfigured the person's body, destroyed or
disabled an organ or member, or seriously diminished the person's physical vigor
by the injury to an organ or member; and
(3) That the accused inflicted this injury with an intent to cause some injury
to a person.
4.51.3 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
disable 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
maiming to cut off an ear or to scar a face with acid, as these injuries
seriously disfigure a person. A disfigurement 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 materially 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 offense is complete if such an injury is inflicted even though
there is a possibility that the victim may eventually recover the use of the
member or organ, or that the disfigurement may be cured by surgery.
(2) Means of inflicting injury. To prove the offense it is not necessary to
prove the specific means by which the injury was inflicted. However, such
evidence may be considered on the question of 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 circumstances which would justify or
excuse homicide, the offense of maiming is not committed. See R.C.M. 916.
4.51.4
d. Lesser included offenses.
(1) Article 128--assault; assault consummated by a battery
(2) Article 128--assault with a dangerous weapon
(3) Article 128--assault intentionally inflicting grievous bodily harm
(4) Article 80--attempts
4.51.5 e.
Maximum punishment.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 7 years.
4.51.6 f. Sample
specification.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required) on or about __________ 19
__________ , maim __________ by (crushing his/her foot with a sledge hammer) (
__________ ).
Article
125--Sodomy
4.52.1 a. Text.
"(a) Any person subject to this chapter who engages in unnatural carnal
copulation with another person of the same or opposite sex or with an animal is
guilty of sodomy. Penetration, however slight, is sufficient to complete the
offense.
(b) Any person found guilty of sodomy shall by punished as a court-martial may
direct."
4.52.2 b.
Elements.
(1) That the accused engaged in unnatural carnal copulation with a certain other
person or with an animal.
(Note: Add either or both of the following elements, if applicable)
(2) That the act was done with a child under the age of 16.
(3) That the act was done by force and without the consent of the other person.
4.52.3 c.
Explanation.
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.
d.
Lesser included offenses.
(1) With a child under the age of 16.
(a) Article 125--forcible sodomy (and offenses included therein. see
subparagraph (2) below)
(b) Article 134--indecent acts with a child under 16
(c) Article 80--attempts
(2) Forcible sodomy.
(a) Article 125--sodomy (and offenses included therein. see subparagraph (3)
below)
(b) Article 134--assault with intent to commit sodomy
(c) Article 134--indecent assault
(d) Article 80--attempts.
(3) Sodomy.
(a) Article 134--indecent acts with another
(b) Article 80--attempts
4.52.4 e.
Maximum punishment.
(1) By force and without consent. Dishonorable discharge, forfeiture of all pay
and allowances, and confinement for life.
(2) With a child who, at the time of the offense, has attained the age of 12 but
is under the age of 16 years. Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 20 years.
(3) With a child under the age of 12 years at the time of the offense.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for life.
(4) Other cases. Dishonorable discharge, forfeiture of all pay and allowances,
and confinement for 5 years.
4.52.5 f. Sample
specification.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , commit sodomy with __________ (a child under the age of 16 years)
(by force and without the consent of the said __________ ).
Article
126--Arson
4.53.1 a. Text.
"(a) Any person subject to this chapter who willfully and maliciously burns
or sets on fire an inhabited dwelling, or any other structure, movable 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 punished as a court-martial
may direct.
(b) Any person subject to this chapter who willfully and maliciously burns or
sets fire to the property of another, except as provided in subsection (a), is
guilty of simple arson and shall be punished as a court-martial may
direct."
4.53.2 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 certain property of another;
(b) That the property was of a certain value; and
(c) That the act was willful and malicious.
4.53.3 c.
Explanation.
(1) In general. In aggravated arson, danger to human 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 cluster of
buildings used as a residence. A shop or store is not an inhabited dwelling
unless occupied as such, nor is a house that has never been occupied or 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 being inside at
the time. It may be that the offender had this knowledge when the nature of the
structure--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 ownership of the dwelling or other structure are immaterial, but
should ordinarily be alleged and proved to permit the finding in an appropriate
case of the included 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 other than the offender. See also paragraph 67
(Burning with intent to defraud).
4.53.4
d. Lesser included offenses.
(1) Aggravated arson.
(a) Article 126--simple arson
(b) Article 80--attempts
(2) Simple arson. Article 80--attempts
4.53.5 e.
Maximum punishment.
(1) Aggravated arson. Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 20 years.
(2) Simple arson, where the property is--
(a) Of a value of $100.00 or less.:
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 1 year.
(b) Of a value of more than $100.00.:
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 5 years.
4.53.6 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 __________ 19
__________ , willfully and maliciously (burn) (set on fire) an inhabited
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 __________ 19 __________
, willfully and maliciously (burn) (set on fire), knowing that a human being was
therein at the time, (the Post Theater) ( __________ , 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 __________ 19
__________ , willfully and maliciously (burn) (set fire to) (an automobile)(
__________ ), the property of __________ , of a value of (about) $ __________ .
Article
127--Extortion
4.54.1 a. Text.
"Any person subject to this chapter who communicates threats to another
person with the intention 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."
4.54.2 b.
Elements.
(1) That the accused communicated a certain threat to another; and
(2) That the accused intended to unlawfully obtain something of value, or any
acquittance, advantage, or immunity.
4.54.3 c.
Explanation.
(1) In general. Extortion is complete upon communication 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 unlawful 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 person’s family or any other
person held dear to that person, of any crime; a threat to expose or impute any
deformity or disgrace to the person 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) Advantage or immunity. Unless it is clear 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 person's will is not, by itself,
sufficient to constitute extortion.
4.54.4
d. Lesser included offenses.
(1) Article 134--communicating a threat
(2) Article 80--attempts
4.54.5 e.
Maximum punishment.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 3 years.
4.54.6 f. Sample
specification.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , with intent unlawfully to obtain (something of value) (an
acquittance) (an advantage, to wit __________ ) (an immunity, to wit __________
), communicate to __________ a threat to (here describe the threat).
Article
128--Assault
4.55.1 a. Text.
"(a) Any person subject to this chapter who attempts 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-martial may direct.
(b) Any person subject to this chapter who--
(1) commits an assault with a dangerous weapon or other means or force likely to
produce death or grievous bodily harm; or
(2) commits an assault and intentionally inflicts grievous bodily harm with or
without a weapon; is guilty of aggravated assault and shall be punished as a
court-martial may direct.
4.55.2 b.
Elements.
(1) Simple assault.
(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 certain person; and
(b) That the bodily harm was done with unlawful force or violence.
(3) Assaults permitting increased punishment based on status of victim.
(a) Assault upon a commissioned, warrant, 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 person was a commissioned, warrant,
noncommissioned, 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 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; and
(iv) That the accused then knew that the person 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 unlawful 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 of 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: When a loaded firearm was used, add the following element)
(v) That the weapon was a loaded firearm.
(b) Assault in which grievous bodily harm is intentionally inflicted.
(i) That the accused assaulted a certain 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: When a loaded firearm was used, add the following element)
(v) That the injury was inflicted with a loaded firearm.
4.55.3 c.
Explanation.
(1) Simple assault.
(a) Definition of assault. An "assault" is an attempt 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 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 assault is an unlawful
demonstration of violence, either by an intentional or by a culpably negligent
act or omission, which creates in the mind of another a reasonable apprehension
of receiving immediate bodily harm. Specific intent to inflict bodily harm is
not required.
(iii) Examples.
(A) If Doe swings a fist at Roe's head intending 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 committed
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) Mere preparation. Preparation not 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 threatening words alone does not constitute
an assault. However, 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 apparent attempt to strike another by an
unequivocal announcement 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. However, an offer to inflict bodily injury upon
another instantly if that person does not comply with 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 assault.
(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 apparent 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 retreated and
was never within actual striking distance of the assailant. There must, however,
be an apparent 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) In general. A "battery" is an assault in 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 bodily
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 cloths while the person is wearing them though without touching or
intending to touch the person, shoot a person, cause a person to take poison, or
drive an automobile into a person. A person who, although excused in using
force, uses more force than is required, commits a battery. 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 culpable negligence, there is no battery. It is also
not a battery to touch another to attract the other's attention or to prevent
injury.
(3) Assaults permitting increased punishment based on status of victims.
(a) Assault upon a commissioned, warrant, noncommissioned, or petty officer. The
maximum punishment is increased when assault is committed upon a commissioned
officer of the armed forces of the United Federated Planets, or of a friendly
foreign power, or upon a warrant, noncommissioned, or petty officer of the armed
forces of the United Federated Planets. 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 superior 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 punishment 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. Knowledge of the status of the victim is an essential
element of this offense and may be proved by 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 punishment 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) Dangerous weapon. A weapon is dangerous 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 instrumentality not normally considered a weapon. When the
natural and probable consequence of a particular use of any means or force would
be death or grievous 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
employment 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 include 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 damage to internal organs, and other serious bodily
injuries.
(iv) Death or injury not required. It is not necessary that death or grievous
bodily harm be actually inflicted to prove assault with a dangerous weapon or
means likely to produce grievous bodily harm.
(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 grievous bodily harm. Culpable negligence will not suffice.
(ii) Proving intent. Specific intent may be proved by circumstantial evidence.
When grievous bodily harm has been inflicted by means of intentionally using
force in a manner likely to achieve that result, it may be inferred that
grievous bodily harm was intended. On the other hand, that inference 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 assailants 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).
4.55.4
d. Lesser included offenses.
(1) Simple assault. None
(2) Assault consummated by a battery. Article 128--simple assault
(3) Assault upon a commissioned, warrant, noncommissioned, or petty officer.
Article 128--simple assault; assault consummated by a battery
(4) Assault upon a sentinel or lookout in the execution of duty, or upon a
person in the execution of police duties. Article 128--simple assault; assault
consummated by a battery
(5) Assault consummated by a battery upon a child under 16 years. Article
128--simple assault; assault consummated by a battery
(6) Assault with a dangerous weapon or other means or force likely to produce
death or grievous bodily harm. Article 128--simple assault; assault consummated
by a battery
(7) Assault in which grievous bodily harm is intentionally inflicted. Article
128--assault with a dangerous weapon; simple assault; assault consummated by a
battery
4.55.5 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 allowances, and confinement for 3 years.
(2) Assault consummated by a battery. Bad conduct 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
Federated Planets or of a friendly foreign power, not in the execution of
office. Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
(4) Assault upon a warrant officer, not in the execution of office. Dishonorable
discharge, forfeiture of all pay and allowances, and confinement for 18 months.
(5) Assault upon a noncommissioned or petty officer, not in the execution of
office. Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
(6) Assault upon a sentinel or lookout in the execution 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
allowances, and confinement for 3 years.
(7) Assault consummated by a battery upon a child under 16 years. Dishonorable
discharge, forfeiture of all pay and allowances, and confinement for 2 years.
(8) Assault with a dangerous weapon or other means of force to produce death or
grievous bodily harm.
(a) When committed with a loaded firearm. Dishonorable discharge, forfeiture of
all pay and allowances, and confinement for 8 years.
(b) Other cases. Dishonorable discharge, forfeiture of all pay and allowances,
and confinement for 3 years.
(9) 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) Other cases. Dishonorable discharge, forfeiture of all pay and allowances,
and confinement for 5 years.
4.55.6 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 __________ 19
__________ , assault __________ by (striking at him/her with 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 __________ 19
__________ , unlawfully (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 __________ 19
__________ , assault __________ , who then was and was then known by the accused
to be a commissioned officer of ( __________ , a friendly foreign power) (the
United Federated Planets (Navy) (Marine Corps) (Starfleet Command) (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 __________ 19
__________ , assault __________ , who then was and was then known by the accused
to be a (warrant) (noncommissioned) (petty) officer of the United Federated
Planets (Navy) (Marine Corps)
(Starfleet Command) (Coast Guard), by __________ .
(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 __________ 19
__________ , assault __________ , who then was and was then known by the accused
to be a (sentinel) (lookout) in the execution 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 __________ 19
__________ , assault __________ , who then was and was then known by the accused
to be a person then having and in the execution of (Starfleet Command security
police) (military police) (shore patrol) (master at arms) ((military) (civilian)
law enforcement)) duties, by __________ .
(7) Assault consummated by a battery upon a child under 16 years.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , unlawfully (strike) ( __________ ) __________ a child under the age
of 16 years, (in) (on) the __________ with __________ .
(8) Assault, aggravated--with a dangerous weapon, means, or force.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , commit an assault upon __________ by (shooting) (pointing)
(striking) (cutting) ( __________ ) (at him/her) (him/her) (in) (on) (the
__________ ) with (a dangerous weapon) (a (means) (force) likely to produce
death or grievous bodily harm), to wit: a (loaded firearm) (pickax) (bayonet)
(club) ( __________ ).
(9) Assault, aggravated--inflicting grievous bodily harm.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , commit an assault upon __________ by (shooting) (striking)
(cutting) ( __________ ) (him/her) (on) the __________ with a (loaded firearm)
(club) (rock) (brick) ( __________ and did thereby intentionally inflict
grievous bodily harm upon him/her, to wit: a (broken leg) (deep cut) (fractured
skull) ( __________ ).
Article
129--Burglary
4.56.1 a. Text.
"Any person subject to this chapter who, with intent to commit an offense
punishable under sections 918-928 of this title (articles 118-128), 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."
4.56.2 b.
Elements.
(1) That the accused unlawfully broke and entered the dwelling house of another;
(2) That both the breaking and entering were done in the nighttime; and
(3) That the breaking and entering were done with the intent to commit an
offense punishable under Article 118 through 128, except Article 123a.
4.56.3 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, although not covered by Article 118 through 128,
necessarily includes an offense within one of these articles, satisfies the
intent element of this article. This includes, for example, assaults punishable
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 person has
committed a "breaking." Opening a closed door or window or other
similar fixture, 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 authority to enter the particular room, is a sufficient breaking, but
unless such a breaking is followed by an entry into the particular room with the
requisite intent, burglary is not committed. There is a constructive 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 violence or threats into opening the door;
through collusion 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 sufficient 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 between sunset and sunrise when there is not
sufficient daylight to discern a person's face.
(5) Dwelling house of another. To constitute burglary the house must be the
dwelling house of another. "Dwelling house" includes outbuildings
within the common enclosure, 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 in by family members or employees. The house must be used as a
dwelling at the time of the breaking 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
returning, 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 intended to
commit the offense or offenses at the time of the breaking and entering. If the
evidence warrants, the intended offense may be separately charged. It is
immaterial whether the offense intended is committed or even attempted. If the
offense is intended, it is no defense that its commission was impossible.
(7) Separate offense. If the evidence warrants, the intended offense in the
burglary specification may be separately charged.
4.56.4
d. Lesser included offenses.
(1) Article 130--housebreaking
(2) Article 134--unlawful entry
(3) Article 80--attempts
4.56.5 e.
Maximum punishment.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 10 years.
4.56.6 f. Sample
specification.
In that __________ (personal jurisdiction data), did, at __________
,(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , in the nighttime, unlawfully break and enter the (dwelling house) (
__________ within the curtilage) of __________ , with intent to commit (murder)
(larceny) ( __________ ) therein.
Article
130--Housebreaking
4.57.1 a. Text.
"Any person subject to this chapter who unlawfully 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."
4.57.2 b.
Elements.
(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.
4.57.3 c.
Explanation.
(1) Scope of offense. The offense of housebreaking 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 essential 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 punishable 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 committed a criminal offense inside the
building or structure, it may be inferred that the accused intended 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) Building, structure. "Building" includes 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 compartment of a vessel, an
inhabitable trailer, an enclosed 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.
4.57.4
d. Lesser included offenses.
(1) Article 134--unlawful entry
(2) Article 80--attempts
4.57.5 e.
Maximum punishment.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 5 years.
4.57.6 f. Sample
specification.
In that __________ , (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , unlawfully enter a (dwelling) (room) (bank) (store) (warehouse)
(shop) (tent) (stateroom) ( __________ ), the property of __________ , with
intent to commit a criminal offense, to wit: __________ , therein.
Article
131--Perjury
4.58.1 a. Text.
"Any person subject to this chapter who in a judicial proceeding or in a
course of justice willfully 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 permitted under section 1746 of title 28, United Federated Planets
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."
4.58.2 b.
Elements.
(1) Giving false testimony.
(a) That the accused took an oath or affirmation in a certain judicial
proceeding or course of justice;
(b) That the oath or affirmation was administered to the accused in a matter in
which an oath or affirmation was required or authorized by law;
(c) That the oath or affirmation was administered by a person having authority
to do so;
(d) That upon the oath or affirmation that accused 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 statement in a judicial proceeding or
course of justice;
(b) That in the declaration, certification, verification, or statement under
penalty of perjury, the accused declared, certified, verified, or stated the
truth of that certain statement;
(c) That the accused willfully subscribed the statement;
(d) That the statement was material;
(e) That the statement was false; and
(f) That the accused did not then believe the statement to be true.
4.58.3 c.
Explanation.
(1) In general. "Judicial proceeding" includes a trial by
court-martial and "course of justice" includes an investigation
conducted under Article 32. If the accused is charged with having 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,
remembrance, or impression, or as to a judgment or opinion. It is no defense
that the witness voluntarily appeared, that the witness was incompetent as a
witness, 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 continuance,
as well as by giving false testimony with respect to a fact from which a
legitimate inference may be drawn as to the existence or nonexistence of a fact
in issue. Whether the allegedly false testimony was with respect to a material
matter is a question of law to be determined as an interlocutory question.
(c) Proof. The falsity of the allegedly perjured statement cannot be proved by
circumstantial evidence 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, tending 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 accused at the time the oath was
taken; or the documentary evidence originated from the accused--or had in any
manner been recognized by the accused as containing the truth--before the
allegedly perjured 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 administered 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 corroboration or by
circumstantial evidence.
(3) Subscribing false statement. See subparagraphs (1) and (2), above, as
applicable. Section 1746 of title 28, United Federated Planets 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 under penalty of perjury
summarized testimony given at an Article 32 investigation. 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 situation
where an oath is required to be taken before a specific person.
4.58.4
d. Lesser included offense.
Article 80--attempts
4.58.5 e.
Maximum punishment.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 5 years.
4.58.6 f. Sample
specifications.
(1) Giving false testimony.
In that __________ (personal jurisdiction data), having taken 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 would (testify) (depose) truly, did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , willfully, corruptly, and contrary to such (oath) (affirmation),
(testify) (depose) falsely in substance that __________ , which (testimony)
(deposition) was 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 __________ 19
__________ , 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 Federated Planets Code,
willfully and corruptly subscribed a false statement material to the (issue)
(matter of inquiry), to wit: __________ , which statement was false in that
__________ , and which statement he/she did not then believe to be true.
Article
132--Frauds against the United Federated Planets
4.59.1 a. Text.
"Any person subject to this chapter--"
(1) "who, knowing it to be false of fraudulent--"
(a) "makes any claim against the United Federated Planets or any officer
thereof; or"
(b) "presents to any person in the civil or military service thereof, for
approval or payment, any claim against the United Federated Planets or any
officer thereof;"
(2) "who, for the purpose of obtaining the approval, allowance, or payment
of any claim against the United Federated Planets or any officer thereof--"
(a) "makes or uses any writing or other paper knowing it to contain any
false or fraudulent 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 signature knowing it to be forged or counterfeited;"
(3) "who, having charge, possession, custody, or control of any money, or
other property of the United Federated Planets, furnished or intended for the
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 Federated Planets furnished or intended
for the armed forces thereof, makes or delivers to any person such writing
without having full knowledge of the truth of the statements therein contained
and with intent to defraud the United Federated Planets; shall, upon conviction,
be punished as a court-martial may direct."
4.59.2 b.
Elements.
(1) Making a false or fraudulent claim.
(a) That the accused made a certain claim against the United Federated Planets
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 Federated Planets having authority
to approve or pay it a certain claim against the United Federated Planets 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) Making or using a false writing or other 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 writing 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 purpose of obtaining the approval,
allowance, or payment of a certain claim or claims against the United Federated
Planets 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) That the oath was false in certain particulars;
(c) That the accused then knew it was false; and
(d) That the act was for the purpose of obtaining the approval, allowance, or
payment of a certain claim or claims against the United Federated Planets or an
officer thereof.
(5) Forgery of signature in connection with 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 obtaining the approval, allowance, or
payment of a certain claim against the United Federated Planets or an officer
thereof.
(6) Using forged signature in connection with claims.
(a) That the accused used the forged or counterfeited signature of a certain
person;
(b) That the accused then knew that the signature was forged or counterfeited;
and
(c) That the act was for the purpose of obtaining the approval, allowance, or
payment of a certain claim against the United Federated Planets or an officer
thereof.
(7) Delivering less than amount called for by receipt.
(a) That the accused had charge, possession, custody, or control of certain
money or property of the United Federated Planets furnished or intended for the
armed forces thereof;
(b) That the accused obtained a certificate or receipt for a certain amount or
quantity of that money or property;
(c) That for the certificate or receipt the accused knowingly delivered to a
certain person having 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) That the undelivered money or property 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 Federated
Planets furnished 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 certificate without having full
knowledge of the truth of a certain material statement or statements therein;
(d) That the act was done with intent to defraud the United Federated Planets;
and
(e) That the property certified as being received was of a certain value.
4.59.3 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 Federated Planets or any
officer thereof as such, and not to claims against an officer of the United
Federated Planets in that officer's private capacity.
(b) Making a claim. Making a claim is a distinct act from presenting it. A claim
may be made in one place and presented in another. The mere writing of a paper
in the form of a claim, without any further act to cause the paper to become a
demand against the United Federated Planets or an officer thereof, does not
constitute making a claim. However, any act placing the claim in official
channels constitutes 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. This article does not proscribe claims, however 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 material false statement, but also claims which the claimant
knows to have been paid or for some other reason the claimant knows the claimant
is not authorized to present or upon which the claimant knows the claimant has
no right to collect.
(b) Presenting a claim. The claim must be presented, directly or indirectly, to
some person having 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 may be
tacitly presented, as when a person who knows that there is no entitlement to
certain pay accepts it nevertheless without disclosing a disqualification, even
though the person may not have made any representation of entitlement to the
pay. For example, a person cashing a pay check which includes an amount for a
dependency allowance, 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 subparagraph (1), above.
(3) Making or using a false writing or other paper in connection with claims.
The false or fraudulent 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 purpose of obtaining the
approval, allowance, or payment 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 explanation in
subparagraph (1) and (2), above.
(4) False oath in connection with claims. See subparagraphs (1) and (2), above.
(5) Forgery of signature in connection with 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 paragraph 48(c) and subparagraph (1) and
(2), above.
(6) Delivering less than amount called for by receipt. It is immaterial by what
means--whether 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 Federated
Planets furnished or intended 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
contained in the paper are true. If the person signs the paper with intent to
defraud the United Federated Planets 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 Federated Planets.
4.59.4
d. Lesser included offense.
Article 80--attempts
4.59.5 e.
Maximum punishment.
(1) Article 132(1) and (2). Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 5 years.
(2) Article 132(3) and (4).
(a) When amount is $100.00 or less. Bad-conduct discharge, forfeiture of all pay
and allowances, and confinement for 6 months.
(b) When amount is over $100.00. Dishonorable discharge, forfeiture of all pay
and allowances, and confinement for 5 years.
4.59.6 f. Sample
specifications.
(1) Making false claim.
In that __________ (personal jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , (by preparing (a voucher) ( __________ ) for presentation for
approval or payment) ( __________ ), make a claim against the (United Federated
Planets) (finance officer at __________ ) ( __________ ) in the amount of $
__________ for (private property alleged to have been (lost) (destroyed) in the
military service) ( __________ ), which claim was (false) (fraudulent) (false
and fraudulent) in the amount of $ _____________ in that __________ and was then
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 jurisdiction data, if required), on or about __________ 19
__________ , by presenting (a voucher)( __________ ) to __________ , an officer
of the United Federated Planets duly authorized to (approve) (pay) (approve and
pay) such claim, present for (approval) (payment) (approval and payment) a claim
against the (United Federated Planets) (finance officer at __________ ) (
__________ ) in the amount of $ __________ for (services alleged to have been
rendered to the United Federated Planets by __________ during __________ ) (
__________ ), which claim was (false) (fraudulent) (false and fraudulent) in the
amount of $ __________ in that __________ , 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) (allowance) (payment) (approval, allowance, and payment), of a
claim against the United Federated Planets in the amount of $ __________ , did
(at/on board-- location) (subject-matter jurisdiction data, if required), on or
about __________ 19 __________ , (make) (use) (make and use) a certain (writing)
(paper), to wit: __________ , which said (writing) (paper), as he/she, the said
__________ , then knew, contained a statement that __________ , which statement
was (false) (fraudulent) (false and fraudulent) in that __________ , and was
then known by the said __________ to be (false) (fraudulent) (false and
fraudulent).
(4) Making false oath.
In that __________ (personal jurisdiction data), for the purpose of obtaining
the (approval) (allowance) (payment) (approval, allowance, and payment) of a
claim against the United Federated Planets, did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , make an oath (to the fact that __________ ) (to a certain (writing)
(paper), to wit: __________ , to the effect that __________ ), which said oath
was false in that __________ , and was then known by the said __________ to be
false.
(5) Forging or counterfeiting signature.
In that __________ (personal jurisdiction data), for the purpose of obtaining
the (approval) (allowance) (payment) (approval, allowance, and payment) of a
claim against the United Federated Planets, did (at/on board--location)
(subject-matter jurisdiction data, if required), on or about __________ 19
__________ , (forge) (counterfeit) (forge and counterfeit) the signature of
__________ upon a __________ in words and figures as follows: __________ .
(6) Using forged signature.
In that __________ , for the purpose of obtaining the (approval) (allowance)
(payment) (approval, allowance, and payment) of a claim against the United
Federated Planets, did, (at/on board--location) (subject-matter jurisdiction
data, if required), on or about __________ 19 __________ , use the signature of
__________ on a certain (writing) (paper), to wit: __________ , then knowing
such signature to be (forged) (counterfeited) (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 Federated Planets,
(furnished) (intended) (furnished and intended) for the armed forces thereof,
did, (at/on board--location) (subject-matter jurisdiction data, if required), on
or about __________ 19 __________ , 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 (certificate)
(receipt) from the said __________ .
(8) Making receipt without knowledge of the facts.
In that __________ (personal jurisdiction data), being authorized to (make)
(deliver) (make and deliver) a paper certifying the receipt of property of the
United Federated Planets (furnished) (intended) (furnished and intended) for the
armed forces thereof, did, (at/on board--location) (subject-matter jurisdiction
data, if required), on or about __________ 19 __________ , without having full
knowledge of the statement therein contained and with intent to defraud the
United Federated Planets, (make) (deliver) (make and deliver) to __________ ,
such a writing, in words and figures as follows: __________ , the property
therein certified as received being of a value of about $ __________ .
Article
133--Conduct unbecoming an officer and gentleman
4.60.1 a. Text.
"Any commissioned officer, cadet, or midshipman who is convicted of conduct
unbecoming an officer and a gentleman shall be punished as a court-martial may
direct."
4.60.2 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 officer and gentleman.
4.60.3 c.
Explanation.
(1) Gentleman. As used in this article, "gentleman" includes both male
and female commissioned 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
officer, seriously compromises the officer's character as a gentleman, or action
or behavior in an unofficial or private capacity which, in dishonoring or
disgracing the officer personally, seriously compromises 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 indicated by acts of dishonesty,
unfair dealing, indecency, indecorum, lawlessness, injustice, or cruelty. Not
everyone is or can be expected to meet unrealistically high moral standards, but
there is a limit of tolerance based on customs of the service and military
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 character as a gentleman. This article
prohibits conduct by a commissioned officer, cadet, or midshipman which, taking
all the circumstances into consideration, 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 specific offense set forth in this Manual, the
elements of proof are the same as those set forth in the paragraph which treats
that specific offense, with the additional requirement that the act or omission
constitutes conduct unbecoming an officer and gentleman.
(3) Examples of offenses. Instances of violation of this article include
knowingly making a false official statement; dishonorable failure to pay a debt;
cheating on an exam; opening and reading a letter of another without authority;
using insulting or defamatory language to another officer in that officer's
presence or about that officer to other military persons; being drunk and
disorderly in a public place; public association with known prostitutes;
committing or attempting to commit a crime involving moral turpitude; and
failing without good cause to support the officer's family.
4.60.4
d. Lesser included offense.
Article 80--attempts
4.60.5 e.
Maximum punishment.
Dismissal, forfeiture of all pay and allowances, and confinement for a period
not in excess of that authorized for the most analogous offense for which a
punishment is prescribed in this Manual, or, if none is prescribed, for 1 year.
4.60.6 f. Sample
specifications.
(1) Copying or using examination paper.
In that __________ (personal jurisdiction data), did, (at/on board--location),
on or about __________ 19 __________ , while undergoing a written examination on
the subject of __________ , wrongfully and dishonorably (receive) (request)
unauthorized aid by ((using) (copying) the examination paper of __________ )) (
__________ ).
(2) Drunk or disorderly.
In that __________ (personal jurisdiction data), was, (at/on board--location),
on or about __________ 19 __________ , in a public place, to wit: __________ ,
(drunk) (disorderly) (drunk and disorderly) while in uniform, to the disgrace of
the armed forces.
Article
134--General article
4.61.1 a. Text.
"Though not specifically mentioned in this chapter, 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 capital, of which persons subject to this chapter may be guilty,
shall be taken cognizance of by a general, special, or summary court-martial,
according to the nature and degree of the offense, and shall be punished at the
discretion of that court."