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Punitive Articles of the UCMJ
Article 99—Misbehavior before the enemy
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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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