UCMJ Article 98: Misconduct as a Prisoner

The MCM states under Article 98, any service member, while in the hands of the enemy in a time of war, is subject to prosecution if they:

1. to secure 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 held by the enemy as civilian or military prisoners; or

2. while in authority over such persons, maltreats them without justifiable cause.

For “acting without authority to the detriment of another for the purpose of securing favorable treatment” to apply, the prosecution must demonstrate the following:

1. that without proper authority, the accused acted in a manner contrary to law, custom, or regulation;

2. that the act was committed while the accused was in the hands of the enemy in time of war;

3. that the act was done to secure favorable treatment of the accused by the captors and

4. that other prisoners held by the enemy, either military or civilian, suffered some detriment because of the accused’s act.

“Maltreating prisoners while in a position of authority” applies if:

1. the accused maltreated a prisoner held by the enemy;

2. the act occurred while the accused was in the hands of the enemy in time of war;

3. the accused held a position of authority over the person maltreated and

4. the act was without justifiable cause.

Understanding Article 98 (Misconduct as a Prisoner) of the UCMJ

“Acting without authority to the detriment of another to secure favorable treatment” and “maltreating prisoners while in a position of authority” must have been committed during a time of war and while the accused was in the hands of the enemy; however, there are additional qualifiers for each charge.

“Acting without authority to the detriment of another to secure favorable treatment” requires the accused to have engaged in unauthorized conduct by a prisoner of war, which would result in improvement by the enemy of the accused’s condition and must have operated to the detriment of other prisoners either by way of closer confinement, reduced rations, physical punishment, or other harm. The prisoner’s conduct must be contrary to law, custom, or regulation.

Escape from the enemy is authorized by custom. An escape or escape attempt that results in closer confinement or other measures against fellow prisoners still in the hands of the enemy is not an offense under this article.

“Maltreating prisoners while in a position of authority” requires the accused to have been in a position of authority over the other prisoners. This may be due to the accused holding a senior rank, designation by the captors, or voluntary election/selection by the other prisoners.

The maltreatment must be actual, 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.

Maximum Possible Punishment for Violations of Article 98

The maximum possible punishment for violating Article 98 includes any punishment other than death that a court-martial may direct.

How do you defend against Article 98 Misconduct as a Prisoner charges?

When you are facing the combined resources of the military as well as the current cultural climate, you need to be prepared to defend your career and your freedom. Crisp and Associates, LLC has a team of experienced trial attorneys who have won these cases. This team includes the firm’s founder, Jonathan Crisp, a highly respected former Army JAG with over 23 years of experience in military law and a sought-after speaker and lecturer on martial law. Donald Gordon has litigated cases before the Discharge Review Board, the Board for Correction of Military Records, and the Board for Correction of Naval Records regarding various matters and a diverse background of clients.

If you or someone you know is facing Article 98 charges for Misconduct as a Prisoner, you must speak with a Military defense attorney immediately. Please call Crisp and Associates Military at 888-258-1653 for a free consultation.