Punitive Articles

Military officers, cadets, and midshipmen are held to the highest personal and professional standards. When those standards are not met, officers may be administratively punished or even criminally prosecuted for violating Article 133, UCMJ, conduct unbecoming an officer and a gentleman.

When your military career, future, and freedom are on the line, you need an experienced law firm in your corner. The attorneys at MJA are all military officers who served on active duty and have defended against some of the most serious offenses under the UCMJ. Contact one of our military defense lawyers today to learn more.

Definition and Elements

Conduct unbecoming an officer and a gentleman is defined as any “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.”  The term “gentleman” includes both male and female commissioned officers, cadets, and midshipmen.

To be guilty of violating Article 133, the Government must prove two elements:

      (1) That the officer, cadet or midshipman did or omitted to do a certain act; and

      (2) That, under the circumstances, the act or omission constitutes conduct unbecoming an officer and gentleman.

Because of how vague the elements and definition are, conduct unbecoming an officer and a gentleman is one of the most nebulous and abused charges under the UCMJ.

Conduct Unbecoming Explained

Generally speaking, Article 133 prohibits conduct by a commissioned officer, cadet, or midshipman which compromises their standing as an officer and as a gentleman. Contrary to popular belief and depictions in movies, enlisted service members cannot be charged with “conduct unbecoming” in violation of Article 133. This charge is reserved solely for officers, cadets, and midshipmen.

The offense of “conduct unbecoming an officer and a gentleman” is based on the idea that officers are expected to possess certain moral attributes that make them fit to lead. For example, an officer who is dishonest, unfair in his treatment of others, indecent, indecorous, lawless, unjust, or cruel should not be leading our nation’s sons and daughters.

Article 133 explains that while officers should not be held to unrealistically high moral standards, the “customs of the service and military necessity” do require a basic minimum which all officers must meet without seriously compromising their standing or character as a leader.

Importantly, Article 133 includes acts that are also punishable under other UCMJ articles, provided that the misconduct also amounts to conduct unbecoming an officer and a gentleman. For example, a commissioned officer who steals property may be charged with violating both conduct unbecoming (Article 133) and larceny (Article 121).

Examples of Conduct Unbecoming

The Manual for Courts-Martial provides a number of examples of conduct which could be considered unbecoming an officer and a gentleman. These 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.

But these are only examples. Officers under investigation for almost any type of misconduct (including non-criminal offenses) are often hit with “conduct unbecoming” allegations as a type of catch-all charge. 

Military courts have previously found that it was NOT conduct unbecoming a senior officer to merely loan money to a subordinate or for an officer to visit a legal brothel with enlisted members where the officer did not seek or engage in sex. These cases are exceptions, however, and should not be used as a guide for acceptable conduct.

Defenses

Any defense for conduct unbecoming an officer is highly fact specific. In some cases there may be no direct or circumstantial evidence to corroborate the allegation, or it may be that the complaining witness has a motive to make a false allegation, all of which are relevant to defending against the charge.

Additionally, commands often try to punish officers for conduct that is merely inappropriate or unsuitable. That is not the legal standard. Rather than simply lacking good taste, “unbecoming conduct” means conduct that is “morally unfitting and unworthy.”  A skillful attorney can identify deficiencies in the Government’s case and ensure that all relevant facts are brought to light.

Maximum Punishment

The maximum punishment for conduct unbecoming an officer is dismissal (the officer equivalent of a dishonorable discharge), forfeiture of all pay and allowances, and confinement for a period not to exceed that authorized for the most analogous offense for which a punishment is prescribed in this Manual, or, if none is prescribed, for 1 year.

Protect Your Freedom and Military Career

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you. We have defended service members facing investigation, trial, and discipline for the most serious offenses under the UCMJ, and will ensure that every avenue of defense is aggressively pursued on your behalf.  

Call us today at (843) 773-5501 for a free consultation.

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Defending Service Members Charged with Malingering

“Malingering” is the criminal offense of feigning mental or physical illness, or intentionally hurting oneself, in order to avoid military duties. While this military-specific offense may sound archaic, malingering is still prosecuted in the military and carries serious punishment.

MJA has defended service members charged with the most serious offenses under the UCMJ, including malingering. Contact our military defense lawyers now to learn more.

ELEMENTS

A violation of Article 83, UCMJ (malingering), generally requires three 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, mental 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.

If the offense was committed in time of war or in a hostile fire pay zone, an additional element is added to the offense.

MALINGERING EXPLAINED

Malingering is best described as any act designed to avoid performance of any work, duty, or service normally expected of a service member. This can be an attempt to avoid all duty or only a particular job.

According to the Manual for Courts-Martial, the “nature or permanency of a self-inflicted injury is not material on the question of guilt. . . . 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.”

HOW INJURY IS INFLICTED

An injury may be inflicted by violent or nonviolent means, and “may be accomplished by any act or omission which produces, prolongs, or aggravates any sickness or disability.” For example, voluntary starvation which weakens a service member is considered a self-inflicted injury and act of malingering if done for the purpose of avoiding work, duty, or military service. Bona fide suicide attempts should not be charged as the criminal offense of malingering.

MAXIMUM PUNISHMENT

The maximum punishment for malingering varies depending on whether the service member is simply feigning illness or intentionally hurt themselves. For example, the act of feigning illness, physical disablement, mental lapse, or mental derangement carries the risk of a dishonorable discharge, total forfeitures, and confinement for a year. In contract, intentional self-inflicted injury carries up to 5 years confinement.

These punishments increase to 5 years and 10 years confinement, respectively, if the feigned illness or self-inflicted injury occurs in a hostile fire pay zone or time of war.

PROTECT YOUR FREEDOM AND MILITARY CAREER 

MJA has defended service members facing investigation, court-martial, and discipline for some of the most serious offense under the UCMJ, including malingering. Call us today at (843) 773-5501 for a free consultation.

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Article 117a, UCMJ, colloquially referred to as the UCMJ’s “revenge porn” article, criminalizes the wrongful broadcast or distribution of intimate visual images. Article 117a was codified in response to the 2017 “Marines United” scandal in which nude images of female servicemembers and civilians were posted on Facebook by military members.

Elements

To be punishable under Article 117a, UCMJ, the Government must prove that:

1. The accused knowingly and wrongfully broadcast or distributed an intimate visual image of another person or a visual image of sexually explicit conduct involving another;
2. The accused knew or reasonably should have known that the intimate visual image was made under circumstances in which the person depicted in the intimate visual image retained a reasonable expectation of privacy regarding any broadcast or distribution of the intimate visual image;
3. The accused knew or reasonably should have known that the broadcast or distribution of the intimate visual image was likely—(A) to cause harm, harassment, intimidation, emotional distress, or financial loss for the person depicted in the intimate visual image; or (B) to harm substantially the depicted person with respect to that person’s health, safety, business, calling, career, financial condition, reputation, or personal relationships; and
4. The accused’s conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.

The Government must also show that the intimate visual image or visual image of sexually explicit conduct involved a person who—(A) was at least 18 years of age at the time the intimate visual image was created; (B) is identifiable from the image itself or from information displayed in connection with the image; and (C) did not explicitly consent to the broadcast or distribution of the intimate visual image.

Definitions

Article 117a defines an “intimate visual image” as a “visual image that depicts the private area of person.” The term “private area” means the “naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple.” Article 117a broadly defines “sexually explicit conduct” to include “actual or simulated genital-genital contact, oral-genital contact, anal-genital contact, or oral-anal contact, whether between persons of the same or opposite sex, bestiality, masturbation, or sadistic or masochistic abuse.”

Defenses

There are many potential defenses to an Article 117a allegation. Article 117a is a specific intent crime which requires proof that the accused “knowingly and wrongfully broadcast or distributed” the image. Evidence of any degree of voluntary intoxication, whether by drugs or alcohol, may be admissible for the purpose of raising a reasonable doubt as to the existence of actual knowledge and specific intent.  Additionally, the Government cannot prevail on a charge under Article 117a if the person depicted in the image is not identifiable, explicitly consented to the broadcast or distribution of the image, or if the accused did not know or reasonably should have known that the person depicted in the image had a reasonable expectation of privacy regarding any broadcast or distribution of the image. The statute defines a “reasonable expectation of privacy” as “circumstances in which a reasonable person would believe that a private area of the person, or sexually explicit conduct involving the person, would not be visible to the public.”  An Article 117a charge also be defeated if there is no proof that the conduct had a reasonably direct and palpable connection to the military mission or military environment. In other words, there must be a military nexus to the offense.

Maximum Punishment

The maximum punishment for a violation of Article 117a is dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

Protect Your Freedom and Your Military Future

When your life, career, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys have decades of combined military justice experience and will zealously fight for you. We have defended servicemen and women facing investigations, trials, and discipline for the most serious offenses under the UCMJ and will ensure that every avenue of defense is aggressively pursued on your behalf. Call us today at (843) 773-5501 for a free consultation.

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Assault & Battery

Assault and battery are closely related, but they are not quite the same. The distinction is usually whether contact occurs. One can commit an assault without committing a battery; however, one cannot commit a battery without also committing an assault.

Article 128 of the UCMJ deals with assault and battery. For purposes of this post, only Assault and Aggravated Assault will be covered. The UCMJ provides the following elements for the offenses of Assault and Aggravated Assault:

Assault

• An attempt to do bodily harm to another person;
• An offer to do bodily harm to another person; or
• Actually doing bodily harm to another person.

Aggravated Assault

• An offer to do bodily harm with a dangerous weapon with the intent to do bodily harm; or
• Inflicting substantial bodily harm or grievous bodily harm on another person while committing an assault.

The UCMJ expands these elements to fit multiple types of offenses. These include simple assault; assault consummated by battery; assault upon a commissioned, warrant, noncommissioned, or petty officer; assault upon a sentinel or lookout in the execution of duty or upon a person executing law enforcement duties.

Assault Explained

Assault does not require a person to be physically harmed, even though there are many instances where an assault is committed which does cause physical harm. The military (and most civilian criminal courts) has a strong interest in preventing unlawful harmful conduct between people. In fact, American citizens have a constitutional right to personal liberty, which includes freedom from unlawful harmful conduct by others. Because the interest is so high, the UCMJ punishes conduct along the entire spectrum of assault. Since the root of an assault is in a threat of violence, Art. 128 prohibits even threats of bodily harm.

Typically, the punishment for assault increases with the level of danger of the conduct. This is why aggravated assault is set out in Art. 128 separately. Aggravated assault is just that; it specially includes conduct involving dangerous weapons or substantial bodily harm. Art. 128 defines a dangerous weapon as one which is used in a manner of inflicting death or grievous bodily harm.

Defenses

Defenses to an assault case depend on the individual circumstances. As with all cases, the elements of the crime must have been committed by the individual. However, since there are various types of the offense of assault, defenses to the elements will change depending on the type of assault alleged.

For instance, consider the intent elements of aggravated assault. Aggravated assault can come in two types: assault with a dangerous weapon or assault which inflicts substantial or grievous bodily injury. To be guilty of the former, the accused must have specifically intended to do bodily harm while using a dangerous weapon. But to be guilty of the latter, the accused only must have generally intended to assault another person; it does not require a specific intent to cause substantial bodily harm.

Maximum Punishment

Since Article 128 encompasses such a wide variety of conduct, the maximum punishment a person can receive depends on the specification of assault. Maximum punishment of some of the more frequently charged crimes are as follows:

• Simple assault: Confinement for 3 months and 2/3 pay forfeiture for three months
• Assault consummated by battery: Bad conduct discharge; forfeiture of all pay and allowances; confinement for 3 years.
• Assault upon a commissioned officer: Dishonorable discharge (DD); forfeiture of all pay and allowances; confinement for 3 years.
• Assault consummated by battery upon a child under 16, a spouse, an intimate partner, or an immediate family member: DD; forfeiture of all pay and allowances; confinement for 2 years.
• Agg. assault with a dangerous weapon: DD; forfeiture of all pay/allowances – total forfeitures; confinement of 3-8 years.
• Agg assault inflicting substantial bodily harm: DD; forfeiture of all pay/allowances; confinement of 3-8 years.
• Agg. assault inflicting grievous bodily harm: DD; forfeiture of all pay/allowances; confinement of 5-10 years.
• Agg. assault with intent to commit murder, rape, or rape of a child: DD; forfeiture of all pay/allowances; confinement of 20 years.
• Agg. assault with intent to commit voluntary manslaughter, robbery, arson, burglary, and kidnapping: DD; forfeiture of all pay/allowances; confinement of 10 years.

Protect Your Freedom and Your Military Future

When your life, career, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys have decades of combined military justice experience and will zealously fight for you. We have defended servicemen and women facing investigations, trials, and discipline for the most serious offenses under the UCMJ, including assault, and will ensure that every avenue of defense is aggressively pursued on your behalf. Call us today at (843) 773-5501 for a free consultation.

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People are often surprised to learn that extramarital sexual conduct, which includes “adultery”, is a crime in the military. While this military-specific offense might seem harmless enough to civilians, the military takes such conduct very seriously. Service members convicted of extramarital sexual conduct can receive a federal criminal conviction, confinement, and a punitive discharge from the military.

MJA has defended countless service members facing investigation, court-martial, and discipline for extramarital sexual conduct, including adultery. Contact one of our military defense lawyers today to learn more.

Background

Historically, extramarital sexual conduct like adultery was criminalized to maintain good order and discipline within the military. It’s not difficult to imagine the negative impact adultery could have on morale or mission accomplishment if a commanding officer was found to be sleeping with the spouse of one of his Soldiers, or if a deployed service member was constantly distracted by the fear that their spouse would be hit on by service members back home.

In 2019, the specific crime of “Adultery” was replaced with the more general offense of “Extramarital sexual conduct” under Article 134, UCMJ. The new offense, which incorporates the elements of “adultery”, is designed to prevent and criminalize sexual conduct which negatively impacts the military environment.

Elements

However, not all acts of extramarital sexual conduct are criminal. Extramarital sexual conduct is only illegal for members of the armed forces under certain circumstances. To be punishable under Article 134, UCMJ, the Government must prove three elements:

• That the accused wrongfully engaged in extramarital conduct with a certain person;
• That, at the time, the accused knew that they or the other person was married to someone else; and
• That, under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces; (ii) was of a nature to bring discredit upon the armed forces; or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

“Extramarital sexual conduct” includes the following sexual acts between persons of the same or opposite sex: genital to genital sexual intercourse; oral to genital sexual intercourse; anal to genital sexual intercourse; and oral to anal sexual intercourse.

Terminal Element

For consensual sexual conduct to be punishable under Article 134, UCMJ, the government must prove what’s called the “terminal element.” The terminal element is necessary for all Article 134 offenses. It requires the government prove that the conduct at issue was either: (i) to the prejudice of good order and discipline in the armed forces; or (ii) was of a nature to bring discredit upon the armed forces.

To the prejudice of good order and discipline refers only to acts directly prejudicial to good order and discipline. While every improper act by a service member could be viewed as prejudicial in some indirect or remote sense, that is not enough to make the conduct criminal under Article 134. Rather, the prejudice to good order and discipline must be “reasonably direct and palpable.”

Alternatively, extramarital sexual conduct may be punishable if it’s of a nature to bring discredit upon the armed forces. “Discredit” means to injure the reputation of. This includes any “conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem.”

Defenses

Article 134 allows the defense of mistake of fact if the accused had an honest and reasonable belief that either he or his paramour were unmarried or legally separated. If the accused can put forward evidence supporting this belief, the burden is on the government to prove otherwise.

The 2019 revisions to the Manual for Courts-Martial (MCM) also added a new affirmative defense: legal separation. For this defense to apply, both parties must be either unmarried or legally separated at the time of the conduct. Importantly, legal separation can only occur by court order.

Maximum Punishment

A service member convicted under Article 134 for extramarital sexual misconduct faces a maximum punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.

Protect Your Freedom and Military Career

When your life, career, and future are on the line, you need an experienced military law firm in your corner. Our experienced and skilled military attorneys will aggressively defend you at every step. With decades of combined military justice experience as both former active duty judge advocates and private defense attorneys, we zealously defend each of our clients.

For a free consultation, call us today at (843) 773-5501.

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Manslaughter is among the most serious UCMJ offenses. It’s a crime that everyone has heard of but only a few understand the legal definition. So what’s the difference between voluntary and involuntary manslaughter? What are the possible punishments? And, most importantly, how do you defend against a charge of manslaughter? Find out these answers, and more, below.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ, including manslaughter. Contact one of our military defense lawyers today to learn more.

Article 119, UCMJ (Manslaughter)

There are two types of manslaughter under the UCMJ: voluntary and involuntary.  Voluntary manslaughter occurs when a person is unlawfully killed “in the heat of sudden passion caused by adequate provocation.”  Involuntary manslaughter is when a death results from “culpable negligence” or occurs during the commission of certain offenses.  The elements for these offenses are as follows:

Voluntary Manslaughter

• That a certain named or described person is dead;
• That the death resulted from the act or omission of the accused;
• That the killing was unlawful; and
• That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon the person killed.

Involuntary Manslaughter

• That a certain named or described person is dead;
• That the death resulted from the act or omission of the accused;
• That the killing was unlawful; and
• 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, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery, or aggravated arson.

Manslaughter Explained

Voluntary manslaughter, like murder under Article 118, requires the intent to kill or inflict great bodily harm. The difference between the two acts is that voluntary manslaughter occurs if the unlawful killing is “committed in the heat of sudden passion caused by adequate provocation.”  Common examples of circumstances which may constitute adequate provocation are unlawful infliction of great bodily harm, unlawful imprisonment, and when one spouse catches another spouse in an act of adultery. Adequate provocation does not excuse the homicide but does preclude a conviction of murder.

Involuntary manslaughter, on the other hand, does not require a specific intent to kill or inflict great bodily injury.  Rather, involuntary manslaughter occurs when a death is the result of “culpable negligence.”  Culpable negligence is greater than simple negligence—as is required for a charge of Negligent Homicide under Article 134—and is defined as a “negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to other of that act or omission.” 

In other words, culpable negligence occurs if an act might foreseeably result in someone’s death.  Common examples of acts that could be considered culpable negligence include conducting target practice in the direction of an inhabited house or pointing a pistol in jest at someone and pulling the trigger, believing, but without taking reasonable precautions to determine, whether it was loaded.

Defenses

Rule for Court-Martial (R.C.M.) 916 provides defenses to manslaughter. These include justification (that the death caused was in the proper performance of a legal duty and is justified and not unlawful), obedience to orders, self-defense, accident, and lack of mental responsibility.

An experienced military attorney will be able to evaluate your case to determine what defense may apply and what evidence is needed to support that defense. An accused’s abillity to raise a defense may be limited by the facts or law, or may become difficult to raise if the service member provides a statement to law enforcement during the investigation.

Maximum Punishment

The maximum punishment for voluntary manslaughter is a dishonorable discharge and confinement for 15 years.  Involuntary manslaughter carries the risk of a dishonorable discharge and confinement for 10 years.  The maximum punishment for both charges increases by 5 years of confinement for the death of a child under 16 years of age.

Pretrial Confinement

Service members suspected of manslaughter are often placed in pretrial confinement pending court-martial. This is a devastating punishment which significantly impacts a service member’s ability to prepare for trial. What’s worse, it prevents them from being with loved ones when it matters most. Service members held in pretrial confinement beyond their end of active service (EAS/ETS) are not entitled to pay and allowances while in confinement.

Any commissioned officer may order any enlisted person into pretrial confinement. Officers may only be ordered into pretrial confinement by their commanding officer. Within 7 days of the imposition of pretrial confinement, a “detached and neutral” officer is required to independently review the confinement decision. The officer may order that the service member be released from pretrial confinement. Later, the military judge assigned to the case may also order their release.

MJA has successfully fought to have service members released from pretrial confinement confinement for some of the most serious UCMJ offenses, including manslaughter. When properly litigated, a service member unlawfully confined may be entitled to significant sentencing credit and even back pay.

Know Your Rights

The decisions you make while under investigation will directly impact your likelihood for success at trial. Here are some key rights you can, and should, invoke:

Right to remain silent. Service members have an absolute right to remain silent if questioned about a suspected UCMJ violation. Providing a statement to law enforcement almost never helps and may result in additional charges. If the statement you make is different from that of the alleged victim, you may be charged with making a false official statement or obstructing justice. “Cooperating” with law enforcement won’t prevent the command from taking adverse action against you–it just makes the government’s case stronger.

Right to refuse consent. There is also no obligation to consent to any search or seizure of your person or property. If investigators have probable cause to believe that there is evidence of a crime in a certain location, they must obtain an authorization from your commander before conducting a search. Absent probable cause, the only way law enforcement can search or seize your property is with your consent. Providing consent gives law enforcement the right to search your phone, vehicle, residence, or person for evidence which they intend to use against you. Don’t be fooled.

Right to counsel. Service members suspected of a crime have the absolute right to consult with an attorney, military or civilian, before waiving their rights. It is crucial to consult with an attorney if you are suspected of a crime. Remember that no matter the specific legal circumstances you are facing, you are entitled to legal counsel and should utilize it.

Protect Your Freedom and Your Military Future

When your life, career, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys have decades of combined military justice experience and will zealously fight for you. We have defended service members facing investigations, trials, and discipline for the most serious offenses under the UCMJ, including manslaughter, and will ensure that every avenue of defense is aggressively pursued on your behalf. Contact MJA on our website or call us today at (843) 773-5501 for a free consultation.

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Absence Without Leave (AWOL)

There are multiple punitive articles that deal with military members who leave their place of duty without authorization. Several articles deal with specific instances of unauthorized absence. For example, Article 85 deals with Desertion, which includes such conduct as leaving a place of duty without authority and with the intent to remain away permanently; or Article 95, which punishes sentinels or lookouts on duty who leave their post without being relieved. But given that the military is committed to good order and discipline, the UCMJ also provides a general prohibition against being absent from a place of duty without authorization in any circumstance.

Article 86 prohibits absence without leave – colloquially known as AWOL. Per the UCMJ, Article 86 “is designed to cover every case not elsewhere provided for in which any member of the armed forces is . . . not at the place where the member is required to be at a prescribed time.” This article ranges from a general failure to appear at an appointed place of duty to more serious conduct such as abandoning a watch, guard, or duty post. Article 86 charges may be adjudicated at non-judicial punishment (NJP) or court-martial.

Elements

For an unauthorized absence to be punishable under the UCMJ, the Government must prove the following elements depending on specific absence alleged:

1. Failure to go to appointed place of duty.
   • That a certain authority appointed a certain time and place of duty for the accused;
   • That the accused knew of that time and place; and
   • 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.
   • That a certain authority appointed a certain time and place of duty for the accused;
   • That the accused knew of that time and place; and
   • 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.
   • 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;
   • That the absence was without authority from anyone competent to give him or her leave; and
   • That the absence was for a certain period of time.
   • That the absence was terminated by apprehension [If applicable].
4. Abandoning watch or guard.
   • That the accused was a member of a guard, watch, or duty;
   • That the accused absented himself or herself from his or her guard, watch, or duty section;
   • That absence of the accused was without authority; and
   • That the accused intended to abandon his or her guard, watch, or duty section [If applicable].
5. Absence from unit, organization, or place of duty with intent to avoid maneuvers or field exercises.
   • 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;
   • That the absence of the accused was without authority;
   • That the absence was for a certain period of time;
   • That the accused knew that the absence would occur during a part of a period of maneuvers or field exercises; and
   • That the accused intended to avoid all or part of a period of maneuvers or field exercises.

Defenses

There are two main defenses to Article 86 that can be asserted. The first deals with actual knowledge. In order to be convicted of being AWOL, the accused must have actual knowledge of his appointed time and place of duty. For example, where a member’s unit is ordered to report at 1400 on 1 December 2019, but his documentation says 1400 on 5 December 2019 (and no one tells him any different), he cannot be said to be absent without leave on 2 December 2019. Actual knowledge is vital to an Article 86 prosecution.

Another good defense to Article 86 deals with inability to return. Where a member who is AWOL is dealing with a difficulty that prevents him from returning, such as sickness or lack of transportation, evidence of the difficulty can be used to mitigate the penalties the accused is subject to. Typically, an inability to return defense is an extenuating circumstance rather than a complete defense to prosecution. However, when a member on authorized leave, without fault, is unable to return when leave expires, that person has not committed the offense of being AWOL.

Undiagnosed mental health conditions may also play a role in a servicemember’s decision to go AWOL. Upon return to military custody, it is critical that the servicemember receive immediate and appropriate medical treatment. A mental health diagnosis can be important evidence in extenuation and may later form the basis for a discharge upgrade if the servicemember is separated from the military under general or other than honorable conditions.

Maximum Punishments

The maximum punishment for AWOL increases based on the length of absence and how the absence is terminated, whether through a voluntary surrender or by apprehension. Maximum punishments range from confinement for 1 month and forfeiture of 2/3 pay for 1 month to confinement for 18 months, dishonorable discharge, and forfeiture of all pay and allowances. The severity of punishment will depend on the specification charged and the circumstances surrounding the conduct.

Protect Your Freedom and Your Military Future

When your life, career, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys have decades of combined military justice experience and will zealously fight for you. We have defended servicemen and women facing investigations, trials, and discipline for the most serious offenses under the UCMJ and will ensure that every avenue of defense is aggressively pursued on your behalf. Call us today at (843) 773-5501 for a free consultation.

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Murder is one of the most serious charges a person–military or civilian–can face. While people often think that murder is limited to only premeditated killings, that’s not always the case in the military. So what are the different types of murder under the Uniform Code of Military Justice (UCMJ)? What are the possible punishments for each? And, most importantly, how do you defend against such a charge? Find out these answers, and more, below.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ, including murder. Contact one of our military defense lawyers today to learn more.

Article 118, UCMJ (Murder)

Any person subject to the UCMJ who, without justification or excuse, unlawfully kills a human being is guilty of murder.  There are four ways murder can occur under the UCMJ:

Premeditated Murder

• That a certain named or described person is dead;
• That the death resulted from the act or omission of the accused;
• That the killing was unlawful; and
• That, at the time of the killing, the accused had a premeditated design to kill.

Intent to Kill or Inflict Great Bodily Harm

• That a certain named or described person is dead;
• That the death resulted from the act or omission of the accused;
• That the killing was unlawful; and,
• That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon a person.

Act Inherently Dangerous to Another

• That a certain named or described person is dead;
• That the death resulted from the intentional act of the accused;
• That this act was inherently dangerous to another and showed a wanton disregard for human life; and,
• That the accused knew that death or great bodily harm was a probable consequence of the act; and,
• That the killing was unlawful.

During Certain Offenses

• That a certain named or described person is dead;
• That the death resulted from the act or omission of the accused;
• That the killing was unlawful; and,
• That, at the time of killing, the accused was engaged in the perpetration or attempted perpetration of burglary, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery, or aggravated arson.

Murder Explained

The difference between premeditated murder and unpremeditated murder comes down to intent.  Premeditation means that the thought of taking a life was “consciously conceived and the act or omission by which it was taken was intended.”  This requires that the person form a “specific intent to kill someone” and “consideration of the act intended.”  Premeditation does not necessarily mean that the murder was planned out long in advance—once a “fixed purpose to kill has been deliberately formed, it is immaterial how soon afterwards it is put into execution.”

Defenses

Rule for Court-Martial (R.C.M.) 916 provides defenses to murder.  These include justification (that the death caused was in the proper performance of a legal duty and is justified and not unlawful), obedience to orders, self-defense, accident, and lack of mental responsibility.

Voluntary intoxication (either by drugs or alcohol) is not a defense but may be admitted to raise reasonable doubt about the existence of actual knowledge, specific intent, willfulness, or premeditation. Voluntary intoxication may reduce premeditated murder to unpremeditated murder, but it will not reduce murder to manslaughter or any other lesser offenses.

An experienced military attorney will be able to evaluate your case to determine what defense may apply and what evidence is needed to support that defense. An accused’s abillity to raise a defense may be limited by the facts or law, or may become difficult to raise if the service member provides a statement to law enforcement during the investigation.

Maximum Punishment

The maximum sentence for premeditated murder or murder committed during certain other offenses is death.  Both charges carry a mandatory minimum sentence of imprisonment for life with the eligibility for parole.  The maximum sentence for unpremeditated murder under Article 118(2) or (3) is such punishment other than death as a court-martial may direct.

Pretrial Confinement

Service members suspected of murder are often placed in pretrial confinement pending court-martial. This is a devastating punishment which significantly impacts a service member’s ability to prepare for trial. What’s worse, it prevents them from being with loved ones when it matters most. Service members held in pretrial confinement beyond their end of active service (EAS/ETS) are not entitled to pay and allowances while in confinement.

Any commissioned officer may order any enlisted person into pretrial confinement. Officers may only be ordered into pretrial confinement by their commanding officer. Within 7 days of the imposition of pretrial confinement, a “detached and neutral” officer is required to independently review the confinement decision. The officer may order that the service member be released from pretrial confinement. Later, the military judge assigned to the case may also order their release.

MJA has successfully fought to have service members released from pretrial confinement confinement for some of the most serious UCMJ offenses, including murder. When properly litigated, a service member unlawfully confined may be entitled to significant sentencing credit and even back pay.

Know Your Rights

The decisions you make while under investigation will directly impact your likelihood for success at trial. Here are some key rights you can, and should, invoke:

Right to remain silent. Service members have an absolute right to remain silent if questioned about a suspected UCMJ violation. Providing a statement to law enforcement almost never helps and may result in additional charges. If the statement you make is different from that of the alleged victim, you may be charged with making a false official statement or obstructing justice. “Cooperating” with law enforcement won’t prevent the command from taking adverse action against you–it just makes the government’s case stronger.

Right to refuse consent. There is also no obligation to consent to any search or seizure of your person or property. If investigators have probable cause to believe that there is evidence of a crime in a certain location, they must obtain an authorization from your commander before conducting a search. Absent probable cause, the only way law enforcement can search or seize your property is with your consent. Providing consent gives law enforcement the right to search your phone, vehicle, residence, or person for evidence which they intend to use against you. Don’t be fooled.

Right to counsel. Service members suspected of a crime have the absolute right to consult with an attorney, military or civilian, before waiving their rights. It is crucial to consult with an attorney if you are suspected of a crime. Remember that no matter the specific legal circumstances you are facing, you are entitled to legal counsel and should utilize it.

Protect Your Freedom and Your Military Future

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you. We have defended service members facing investigation, trial, and discipline for the most serious offenses under the UCMJ, and will ensure that every avenue of defense is aggressively pursued on your behalf.  Contact MJA today on our website or call us at (843) 773-5501 for a free consultation.

The post Understanding Article 118, UCMJ – Murder appeared first on Military Justice Attorneys.

The United States military has a zero-tolerance policy when it comes to illegal drugs. Under Article 112a of the Uniform Code of Military Justice (UCMJ), anyone who wrongfully possesses, uses, manufactures, imports, or distributes certain controlled substances can be court-martialed and face up to five years in prison, among other penalties.

What Is Article 112a?

Article 112a consists of seven elements related to controlled substances. They are:

• Possession
• Use
• Distribution
• Introduction into a military installation, vessel, vehicle, or aircraft
• Manufacturing
• Possession, manufacture, or introduction with intent to distribute
• Importation into and exportation from the United States

There are some similarities between Article 112a offenses and civilian drug charges. First, the substances involved should be controlled ones. Second, the actions involving the drug (use, possession, etc.) were wrongful under the circumstances. Thirdly, defendants accused of manufacturing, importing, exporting, and distributing controlled substances are punished more severely than users.

Maximum Penalties for Article 112a Violations

The maximum punishment for those convicted depends on the controlled substance involved, the amount at issue, and the activity or status of the servicemember when the illegal action(s) occurred. For example, any personnel convicted of wrongfully using, possessing, manufacturing, or introducing the following substances can be dishonorably discharged, forfeit all pay and allowances, and be imprisoned for up to two years:

• Marijuana (with use or possession, the amount must be under 30 grams)
• Phenobarbital
• Schedules IV and V drugs

When the following substances are involved, the penalties are dishonorable discharge, forfeiture of all pay and allowances, and imprisonment for up to five years:

• Marijuana (except use or possession of under 30 grams)
• Amphetamine
• LSD
• Cocaine
• Heroin
• Opium
• Methamphetamine
• Secobarbital
• Phencyclidine
• Schedules I, II, and III drugs

Five years will be added to the maximum term of confinement if, at the time of the alleged offense, the defendant was:

• On duty as a lookout or sentinel on board a military vessel or aircraft or at a missile launch facility
• Serving in time of war
• On duty in a military confinement facility
• Receiving special pay under 37 U.S.C. § 310

Simple cases of use or possession are handled via administrative action, such as nonjudicial punishment or a summary court-martial. More serious cases typically result in a special or general court-martial.

Protect Your Freedom and Your Military Future

In the U.S, military, having a gram of marijuana in your possession can be enough to destroy a promising future. Not only can you face military penalties that strip you of your healthcare and retirement benefits but, depending on the circumstances, you could also face felony charges in a civilian court.

If you or someone you know is facing Article 112a charges, contact the skilled and assertive team at Military Justice Attorneys. We have defended servicemen and women facing investigations, trials, and discipline for Article 112a offenses and will ensure that every avenue of defense is aggressively pursued on your favor. Call us today at (843) 773-5501 for a free consultation.

The post Understanding Article 112a – Wrongful use, possession, etc of controlled substances appeared first on Military Justice Attorneys.