Part IV · Punitive Articles

Article 99. Misbehavior before the enemy · MCM ¶ 27

2024 Manual for Courts-Martial, United States

Recent revisions Summary of changes
(a) Text of statute. 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.
(b) 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 defend 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.
(c) 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 or in the presence of the enemy. Whether a person is before or in the presence of 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 without justification is shameful within the meaning of this article.
(c) Surrender; deliver up. “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 defense 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.
(d) Maximum punishment. All offenses under Article 99. Death or such other punishment as a court-martial may direct.
(e) Sample specifications.
(1) Running away. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20 __, (before) (in the presence of) the enemy, run away (from (his) (her) company) (and hide) (_____), (and did not return until after the engagement had been concluded) (__________).
(2) Shamefully abandoning, surrendering, or delivering up command. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20 __, (before) (in the presence of) the enemy, shamefully (abandon) (surrender) (deliver up) __________, which it was (his) (her) duty to defend.
(3) Endangering safety of a command, unit, place, ship, or military property. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20 __, (before) (in the presence of) the enemy, endanger the safety of __________, which it was (his) (her) duty to defend, by (disobeying an order from __________ to engage the enemy) (neglecting (his) (her) duty as a sentinel by engaging in a card game while on (his) (her) post) (intentional misconduct in that (he) (she) became drunk and fired flares, thus revealing the location of (his) (her) unit) (_____).
(4) Casting away arms or ammunition. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20 __, (before) (in the presence of) the enemy, cast away (his) (her) (rifle) (ammunition) (_____).
(5) Cowardly conduct. In that __________ (personal jurisdiction data), (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20 __, (before) (in the presence of) the enemy, was guilty of cowardly conduct as a result of fear, in that ____________.
(6) Quitting place of duty to plunder or pillage. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20 __, (before) (in the presence of) the enemy, quit (his) (her) place of duty for the purpose of (plundering) (pillaging) (plundering and pillaging).
(7) Causing false alarms. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20 __, (before) (in the presence of) the enemy, cause a false alarm in (Fort _____) (the said ship) (the camp) (_____) by (needlessly and without authority (causing the call to arms to be sounded) (sounding the general alarm) (_____).
(8) Willfully failing to do utmost to encounter enemy. In that __________ (personal jurisdiction data), being (before) (in the presence of) the enemy, did, (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20 __, by, (ordering (his) (her) troops to halt their advance) (__________), willfully fail to do (his) (her) utmost to (encounter) (engage) (capture) (destroy), as it was (his) (her) duty to do, (certain enemy troops which were in retreat) (__________).
(9) Failing to afford relief and assistance. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20 __, (before) (in the presence of) the enemy, fail to afford all practicable relief and assistance to (the USS __________, which was engaged in battle and had run aground, in that (he) (she) failed to take her in tow) (certain troops of the ground forces of __________, which were engaged in battle and were pinned down by enemy fire, in that (he) (she) failed to furnish air cover) (__________) as (he) (she) properly should have done.
Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

Death or other lawful punishment. (Criteria)

Sample specification

In that __________, (personal jurisdiction data) did, (at/on board—location), on or about __________, (before) (in the presence of) the enemy, run away (from (his) (her) company) (and hide) (__________), (and did not return until after the engagement had been concluded) (__________).

Elements

(1) That (state the time and place alleged), the accused was (before) (in the presence of) the enemy);

(2) That the accused misbehaved by running away (and __________); and

(3) That the accused intended to avoid actual or impending combat with the enemy by running away.

Definitions & other instructions

“Running away” means an unauthorized departure by the accused from (his) (her) (place of duty) (__________). “Running away” does not necessarily mean that the accused actually ran from the enemy or that the accused’s departure was motivated by fear or cowardice. The departure by the accused, however, must have been with the intent to avoid actual or impending combat, and must have taken place (before) (in the presence of) the enemy.

“Before or in the presence of the enemy” is a question of tactical relationship with the enemy rather than 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 or in the presence of the enemy” although miles from enemy lines. On the other hand, an organization some distance from the front or immediate area of combat which is not part of a tactical operation then going on or in immediate prospect is not “before or in the presence of the enemy.” To determine whether or not the accused was “before or in the presence of the enemy,” you should consider all the circumstances, including the duty assignment of the accused, the mission of the accused’s organization, and the tactical relationship of the accused and (his) (her) organization with the enemy.

“Enemy” includes organized opposing forces 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 the citizens of the other.

NOTE 2. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
Source: Instruction 3a-27-1 · view original on jagcnet.army.mil

NOTE 1. Applicability of offense limited to commanders. This specification concerns primarily commanders chargeable with responsibility for defending a command, unit, place, ship, or military property. Abandonment by a subordinate would ordinarily be chargeable as running away.
NOTE 2. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

Death or other lawful punishment. (Criteria)

Sample specification

In that __________ (personal jurisdiction data) did, (at/on board—location), on or about __________, (before) (in the presence of) the enemy, shamefully (abandon) (surrender) (deliver up) __________, which it was (his) (her) duty to defend.

Elements

(1) That (state the time and place alleged), the accused was charged by (orders (specify the orders)) (or) (circumstances (specify the circumstances)) with the duty to defend (a) certain (command) (unit) (place) (ship) (military property), namely, (state what was to be defended);

(2) That, without justification, the accused shamefully (abandoned) (surrendered or delivered up) that (command) (unit) (place) (ship) (military property); and

(3) That this act occurred while the accused was (before) (in the presence of) the enemy.

Definitions & other instructions

The behavior of the accused was “shameful” if the (command) (unit) (place) (ship) (military property) was (abandoned) (surrendered or delivered up) except as a result of the utmost necessity or unless directed to do so by competent authority. Surrender or abandonment, without absolute necessity, is shameful.

(“Abandon” means to completely separate oneself from all further responsibility to defend that (command) (unit) (place) (ship) (military property). (Stated differently, “abandon” means (relinquishing control) (giving up) (yielding) (leaving) because of threatened dangers or encroachments.))

“Before or in the presence of the enemy” is a question of tactical relationship with the enemy rather than 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 or in the presence of the enemy” although miles from enemy lines. On the other hand, an organization some distance from the front or immediate area of combat which is not part of a tactical operation then going on or in immediate prospect is not “before or in the presence of the enemy. To determine whether or not the accused was “before or in the presence of the enemy,” you should consider all the circumstances, including the duty assignment of the accused, the mission of the accused’s organization, and the tactical relationship of the accused and (his) (her) organization with the enemy.

“Enemy” includes organized opposing forces 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 the citizens of the other.

Source: Instruction 3a-27-2 · view original on jagcnet.army.mil

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

Death or other lawful punishment. (Criteria)

Sample specification

In that __________ (personal jurisdiction data) did, (at/on board—location), on or about __________, (before) (in the presence of) the enemy, endanger the safety of __________, which it was (his) (her) duty to defend, by (disobeying an order from __________ to engage the enemy) (neglecting (his) (her) duty as a sentinel by engaging in a card game while on (his) (her) post) (intentional misconduct in that (he) (she) became drunk and fired flares, thus revealing the location of (his) (her) unit) (__________).

Elements

(1) That (state the time and place alleged), it was the duty of the accused to defend (a) certain (command) (unit) (place) (ship) (military property), namely, (state what was to be defended);

(2) That the accused did (state the act or failure to act alleged);

(3) That such (act) (failure to act) amounted to negligence, disobedience, or intentional misconduct;

(4) That the accused thereby endangered the safety of the (command) (unit) (place) (ship) (military property); and

(5) That this (act) (failure to act) occurred while the accused was before or in the presence of the enemy.

Definitions & other instructions

(“Negligence” is the absence of due care. It is an act or failure to act by a person under a duty to use due care which demonstrates a lack of care (for the safety of others) (__________) which a reasonably careful person would have used under the same or similar circumstances.)

(“Intentional misconduct” does not include a mere error in judgment.)

“Before or in the presence of the enemy” is a question of tactical relationship with the enemy rather than 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 or in the presence of the enemy” although miles from enemy lines. On the other hand, an organization some distance from the front or immediate area of combat which is not part of a tactical operation then going on or in immediate prospect is not “before or in the presence of the enemy. To determine whether or not the accused was “before or in the presence of the enemy,” you should consider all the circumstances, including the duty assignment of the accused, the mission of the accused’s organization, and the tactical relationship of the accused and (his) (her) organization with the enemy.

“Enemy” includes organized opposing forces 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 the citizens of the other.

NOTE 2. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), may be applicable. Instruction 5-5, Causation may be appropriate when causation is in issue.
Source: Instruction 3a-27-3 · view original on jagcnet.army.mil

NOTE. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

Death or other lawful punishment. (Criteria)

Sample specification

In that __________ (personal jurisdiction data) did, (at/on board—location), on or about __________, (before) (in the presence of) the enemy, cast away (his) (her) (rifle) (ammunition) (__________).

Elements

(1) That (state the time and place alleged), the accused was before or in the presence of the enemy; and

(2) That, at the time specified, the accused cast away (his) (her) (rifle) (ammunition) (__________).

Definitions & other instructions

“Cast away” means to intentionally dispose of, throw away, discard, or abandon, without proper authority or justification.

“Before or in the presence of the enemy” is a question of tactical relationship with the enemy rather than 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 or in the presence of the enemy” although miles from enemy lines. On the other hand, an organization some distance from the front or immediate area of combat which is not part of a tactical operation then going on or in immediate prospect is not “before or in the presence of the enemy. To determine whether or not the accused was “before or in the presence of the enemy,” you should consider all the circumstances, including the duty assignment of the accused, the mission of the accused’s organization, and the tactical relationship of the accused and (his) (her) organization with the enemy.

“Enemy” includes organized opposing forces 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 the citizens of the other.

Source: Instruction 3a-27-4 · view original on jagcnet.army.mil

NOTE. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

Death or other lawful punishment. (Criteria)

Sample specification

In that __________ (personal jurisdiction data) (at/on board—location), on or about __________, (before) (in the presence of) the enemy, was guilty of cowardly conduct as a result of fear, in that __________.

Elements

(1) That (state the time and place alleged), the accused committed an act of cowardice by (state the alleged act of cowardice);

(2) That this conduct occurred while the accused was before or in the presence of the enemy; and

(3) That this conduct was the result of fear.

Definitions & other instructions

Conduct is “cowardly” only if it amounts to misbehavior which was motivated by fear. A mere display of apprehension is not sufficient. “Cowardly conduct” is the refusal or abandonment of a performance of duty (before) (in the presence of) the enemy as a result of fear.

“Before or in the presence of the enemy” is a question of tactical relationship with the enemy rather than 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 or in the presence of the enemy” although miles from enemy lines. On the other hand, an organization some distance from the front or immediate area of combat which is not part of a tactical operation then going on or in immediate prospect is not “before or in the presence of the enemy. To determine whether or not the accused was “before or in the presence of the enemy,” you should consider all the circumstances, including the duty assignment of the accused, the mission of the accused’s organization, and the tactical relationship of the accused and (his) (her) organization with the enemy.

“Enemy” includes organized opposing forces 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 the citizens of the other.

Source: Instruction 3a-27-5 · view original on jagcnet.army.mil

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

Death or other lawful punishment. (Criteria)

Sample specification

In that __________ (personal jurisdiction data) did, (at/on board—location), on or about __________, (before) (in the presence of) the enemy, quit (his) (her) place of duty for the purpose of (plundering) (pillaging) (plundering and pillaging).

Elements

(1) That (state the time and place alleged), the accused was (before) (in the presence of) the enemy;

(2) That, at the time specified, the accused quit (his) (her) place of duty; and

(3) That the accused’s intention in so quitting was to plunder or pillage public or private property.

Definitions & other instructions

“Plunder” and “pillage” mean to unlawfully seize or appropriate public or private property.

The word “quit” means that the accused went from or remained absent from (his) (her) place of duty without proper authority.

“Place of duty” includes any place of duty whether permanent or temporary, fixed or mobile.

Proof that plunder or pillage actually occurred or was committed by the accused is not required. It is sufficient that the accused merely quit (his) (her) place of duty with the intent to plunder or pillage, even if the intended misconduct is not done.

“Before or in the presence of the enemy” is a question of tactical relationship with the enemy rather than 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 or in the presence of the enemy” although miles from enemy lines. On the other hand, an organization some distance from the front or immediate area of combat which is not part of a tactical operation then going on or in immediate prospect is not “before or in the presence of the enemy.” To determine whether or not the accused was “before or in the presence of the enemy,” you should consider all the circumstances, including the duty assignment of the accused, the mission of the accused’s organization, and the tactical relationship of the accused and (his) (her) organization with the enemy.

“Enemy” includes organized opposing forces 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 the citizens of the other.

NOTE 2. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
Source: Instruction 3a-27-6 · view original on jagcnet.army.mil

NOTE. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

Death or other lawful punishment. (Criteria)

Sample specification

In that __________ (personal jurisdiction data) did, (at/on board—location), on or about __________, (before) (in the presence of) the enemy, cause a false alarm in (Fort __________) (the said ship) (the camp) (__________) by (needlessly and without authority (causing the call to arms to be sounded) (sounding the general alarm)) (__________).

Elements

(1) That (state the time and place alleged), an alarm was caused in a certain (command) (unit) (place) under control of the armed forces of the United States, namely, (state the organization or place alleged);

(2) That the accused caused the alarm by (state the manner alleged);

(3) That the alarm was caused without any reasonable or sufficient justification or excuse; and

(4) That this act occurred while the accused was before or in the presence of the enemy.

Definitions & other instructions

“Alarm” means any excitement, commotion, or apprehension of danger. An “alarm” can be caused by (the spreading of any false or disturbing rumor or report) (the false sounding or giving of any alarm signal established for an alert or notification of approaching danger) (or) (a wrongful and intentional act which falsely creates the wrong impression about the (condition) (movements) (operations) of the enemy or friendly forces).

“Before or in the presence of the enemy” is a question of tactical relationship with the enemy rather than 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 or in the presence of the enemy” although miles from enemy lines. On the other hand, an organization some distance from the front or immediate area of combat which is not part of a tactical operation then going on or in immediate prospect is not “before or in the presence of the enemy.” To determine whether or not the accused was “before or in the presence of the enemy,” you should consider all the circumstances, including the duty assignment of the accused, the mission of the accused’s organization, and the tactical relationship of the accused and (his) (her) organization with the enemy.

“Enemy” includes organized opposing forces 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 the citizens of the other.

Source: Instruction 3a-27-7 · view original on jagcnet.army.mil

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

Death or other lawful punishment. (Criteria)

Sample specification

In that __________ (personal jurisdiction data) being (before) (in the presence of) the enemy, did, (at/on board—location), on or about __________, by (ordering (his) (her) own troops to halt their advance) (__________), willfully fail to do (his) (her) utmost to (encounter) (engage) (capture) (destroy), as it was (his) (her) duty to do, (certain enemy troops which were in retreat) (__________).

Elements

(1) That (state the time and place alleged), the accused was serving before or in the presence of the enemy;

(2) That the accused had a duty to (encounter) (engage) (capture) (destroy) certain enemy (troops) (combatants) (vessels) (aircraft) (__________); and

(3) That the accused willfully failed to do (his) (her) utmost to perform this duty by (state the manner in which (he) (she) failed to perform).

Definitions & other instructions

“Willfully failed” means intentionally failed. “Utmost” means taking every reasonable measure called for by the circumstances, keeping in mind such factors as the accused’s rank or grade, responsibilities, age, intelligence, training, (and) physical condition (and __________).

“Before or in the presence of the enemy” is a question of tactical relationship with the enemy rather than 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 or in the presence of the enemy” although miles from enemy lines. On the other hand, an organization some distance from the front or immediate area of combat which is not part of a tactical operation then going on or in immediate prospect is not “before or in the presence of the enemy.” To determine whether or not the accused was “before or in the presence of the enemy,” you should consider all the circumstances, including the duty assignment of the accused, the mission of the accused’s organization, and the tactical relationship of the accused and (his) (her) organization with the enemy.

“Enemy” includes organized opposing forces 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 the citizens of the other.

NOTE 2. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.
Source: Instruction 3a-27-8 · view original on jagcnet.army.mil

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

Death or other lawful punishment. (Criteria)

Sample specification

In that __________ (personal jurisdiction data) did, (at/on board—location), on or about __________, (before) (in the presence of) the enemy, fail to afford all practicable relief and assistance to (the U.S.S. __________, which was engaged in battle and had run aground, in that (he) (she) failed to take her in tow) (certain troops of the ground forces of __________, which were engaged in battle and were pinned down by enemy fire, in that (he) (she) failed to furnish air cover) (__________) as (he) (she) properly should have done.

Elements

(1) That certain (state the troops, combatants, vessels, or aircraft of the armed forces alleged) belonging to the United States or an ally of the United States were engaged in battle and required relief and assistance;

(2) That the accused was in a position and able to render relief and assistance to these (troops) (combatants) (vessels) (aircraft), without jeopardy to (his) (her) mission;

(3) That (state the time and place alleged), the accused failed to afford all practicable relief and assistance as (he) (she) properly should have done in that (state what the accused is alleged to have failed to do); and

(4) That, at the time specified, the accused was before or in the presence of the enemy.

Definitions & other instructions

“All practicable relief and assistance” means all relief and assistance reasonably required which could be provided within the limitations imposed upon the accused by reason of (his) (her) own specific task or mission.

“Before or in the presence of the enemy” is a question of tactical relationship with the enemy rather than 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 or in the presence of the enemy” although miles from enemy lines. On the other hand, an organization some distance from the front or immediate area of combat which is not part of a tactical operation then going on or in immediate prospect is not “before or in the presence of the enemy.” To determine whether or not the accused was “before or in the presence of the enemy,” you should consider all the circumstances, including the duty assignment of the accused, the mission of the accused’s organization, and the tactical relationship of the accused and (his) (her) organization with the enemy.

“Enemy” includes organized opposing forces 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 the citizens of the other.

NOTE 2. Defense. If the task or mission of the accused was so important that it could not be delayed or deviated from, no offense is committed by failing to afford such relief and assistance.
Source: Instruction 3a-27-9 · view original on jagcnet.army.mil