UCMJ Article 99
Misbehavior Before the Enemy
The MCM states under Article 99 (Misbehavior Before the Enemy) any service member may be subject to prosecution if they:
- run away;
- shamefully abandon, surrender, or deliver up any command, unit, place, or military property which it is his duty to defend;
- through disobedience, neglect, or intentional misconduct endanger the safety of any such command, unit, place, or military property;
- cast away his arms or ammunition;
- is guilty of cowardly conduct;
- quit his place of duty to plunder or pillage;
- cause false alarms in any command, unit, or place under control of the armed forces;
- willfully fail 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
- 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.
In order to be subject to prosecution for running away, it must be demonstrated that the accused was in the presence of the enemy, misbehaved by running away, and that the act of running away was done so with the intent to avoid actual or impending combat with the enemy.
The accused may be subject to charges of shamefully abandoning, surrendering, or delivering up command if they are in the presence of or before the enemy and without justification, they abandoned, surrendered, or delivered up a command, unit, place, ship, or military property that the accused had been charged, by orders or circumstances, to defend.
A conviction of endangering safety of a command, unit, place, ship, or military property may applicable if, while before or in the presence of the enemy, the accused committed an act of disobedience, neglect, or intentional misconduct that endangered the safety of a command, unit, place, ship, or military property they had a duty to defend.
Charges of casting away arms or ammunition may applicable if the accused cast away certain arms or ammunition while before or in the presence of the enemy.
The accused may be subject to charges of cowardly conduct if they committed an act of cowardice, out of fear, before or in the presence of the enemy.
In order to be subject to prosecution for quitting place of duty to plunder or pillage, in must be demonstrated the accused quit their place of duty with the intent to plunder or pillage public or private property while before or in the presence of the enemy.
A conviction of causing false alarms may be possible if the prosecution demonstrates that, without reasonable or sufficient justification, the accused caused an alarm in a certain command, unit, or place under control of the armed forces of the United States while before or in the presence of the enemy.
Charges of willfully failing to do utmost to encounter enemy may be possible if the accused willfully failed to perform their duty to encounter, engage, capture, or destroy certain enemy troops, combatants, vessels, aircraft, or a certain other thing while servicing before or in the presence of the enemy.
Failing to afford relief and assistance may be charged if the accused, while before or in the presence of the enemy, failed to provide relief and assistance to certain troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or an ally of the United States who were engaged in battle and required relief and assistance that did not interfere with the mission of the accused.
Understanding Article 99 (Misbehavior before the enemy) of the UCMJ
For the purposes of Article 99, enemy refers to any organized oppositional forces in a time of war or any hostile opposing body with whom our forces may be engaged. The term enemy includes civilians as well as members of opposing military organizations.
Before or in the presence of the enemy refers to a tactical relation, not a distal proximity.
Running away is characterized by the unauthorized departure from an area with the intent to avoid actual or impending combat.
Shamefully abandoning, surrendering, or delivering up of command is primarily applied to commanders with a responsibility to defend a specific location. Shameful is equated to an action committed “without justification” while surrender and deliver up are synonymous with one another.
Endangering safety of a command, unit, place, ship, or military property includes elements of neglect and intentional misconduct. Neglect is the absence of conduct circumstances. Intentional Misconduct is not an error in judgement; it is a willfully and intentionally committed act of misconduct.
Cowardice is defined as any “misbehavior motivated by fear”; it does not include the feelings of apprehension associated with fear, but rather an intentional act of misconduct committed as a result of fear.
Quitting place of duty to plunder and pillage is self-explanatory to an extent. The accused must have abandoned with place of duty with the intent to plunder or pillage. However, the act of quitting with the intent to plunder and pillage is sufficient for a service member to be charged whether or not the plundering and pillaging came to fruition.
Casting false alarms refers to the spreading of reports or rumors that are false or disturbing in nature as well as the falsification of alarm signals.
Maximum Possible Punishment for Violations of Article 99
Service members convicted of an Article 99 violation face a maximum possible punishment of death or other punishment a court-martial may direct.
How do you defend against Article 99 Misbehavior Before the Enemy 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 17 years of experience in military law and a sought-after speaker and lecturer on military law. In 2015 the firm recruited R. Davis Younts, a former prosecutor who was the number one rated Senior Defense Counsel in the Air Force and has taught at the Army and Air Force JAG Schools and successfully achieved acquittals in multiple rape, sexual assault, and sexual contact cases in courts-martial in multiple branches of the service.
If you or someone you know is facing Article 99 charges for Misbehavior Before the Enemy, you need to speak with a Military defense attorney right away. Please call Crisp and Associates Military at 888-258-1653 for a free consultation.
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