Maximum punishment

DD, TF, 3 years, E-1. (Category 2)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, unlawfully kill __________, (by negligently __________ the said __________ (in) (on) the __________ with a __________) (by driving a (motor vehicle) (__________) against the said __________ in a negligent manner) (__________), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).

Elements

(1) That (state the name or description of the alleged victim) is dead;

(2) That (his) (her) death resulted from the (act) (failure to act) of the accused, to wit: (state the act or failure to act alleged), (state the time and place alleged);

(3) That the killing by the accused was unlawful;

(4) That the (act) (failure to act) of the accused which caused the death amounted to simple negligence; and

(5) That, under the circumstances, the conduct of the accused was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces).

Definitions & other instructions

(“Conduct prejudicial to good order and discipline” is conduct which causes a reasonably direct and obvious injury to good order and discipline.)

(“Service discrediting conduct” is conduct which tends to harm the reputation of the service or lower it in public esteem.)

Killing of a human being is unlawful when done without legal justification or excuse. An intent to kill or injure is not required.

“Simple negligence” is the absence of due care, that is, (an act) (failure to act) by a person who is under a duty to use due care which exhibits a lack of that degree of care for the safety of others which a reasonably careful person would have used under the same or similar circumstances.

The government has alleged that the conduct in question in (The) Specification (___) of (The) (Additional) Charge (___) was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. To convict the accused of the offense charged, you must be convinced beyond a reasonable doubt of all the elements, including that the accused’s conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. If you are convinced of all the elements except the element of the service discrediting nature of the conduct, you may still convict the accused of the offense charged. In this event, you must make appropriate findings by excepting the language “of a nature to bring discredit upon the armed forces.” On the other hand, if you are convinced of all the elements except the element of prejudice to good order and discipline in the armed forces, you may still convict the accused of the offense charged. In this event, you must make appropriate findings by excepting the language “to the prejudice of good order and discipline in the armed forces.” Of course, if you are convinced beyond a reasonable doubt that the conduct in question was both to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces, then you may convict the accused as charged provided you are convinced beyond a reasonable doubt as to the other elements of (The) Specification (___) of (The) (Additional) Charge (___).

References

US v. Kick, 7 MJ 82 (CMA 1979); US v. Martinez, 42 MJ 327 (CAAF 1995).