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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 States or their allies when engaged in battle; shall be punished
by death or such other punishment as a court-martial may direct.”
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 de-fend 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 States;
(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 States or an ally of the United States were
engaged in battle and required relief and assistance;
(b)
That the accused was in a position and able to render relief and assistance
to these troops, 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.
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 with-out justification is
shameful within the meaning of this article.
(c)
Surrender; deliverup. “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.”
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 States—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
Maximum
punishment. All offenses under Article 99.
Death or such other punishment as a court-martial may direct.
Next Article > Article
100—Subordinate compelling surrender >
Above
Information from Manual for Court Martial, 2002, Chapter 4, Paragraph
23
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