Article 108 — Military property of United States—Loss, damage, destruction, or wrongful disposition

Part IV · Punitive Articles

Article 108. Military property of United States—Loss, damage, destruction, or wrongful disposition · MCM ¶ 43

2024 Manual for Courts-Martial, United States

See all changes

(a) Text of statute. Any person subject to this chapter who, without proper authority—

(1) sells or otherwise disposes of;

(2) willfully or through neglect damages, destroys, or loses; or

(3) willfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of; any military property of the United States, shall be punished as a court-martial may direct .

(b) Elements.

(1) Selling or otherwise disposing of military property.

(a) That the accused sold or otherwise disposed of certain property (which was a firearm or explosive);

(b) That the sale or disposition was without proper authority;

(d) That the property was of a certain value.

(2) Damaging, destroying, or losing military property.

(a) That the accused, without proper authority, damaged or destroyed certain property in a certain way, or lost certain property;

(b) That the property was military property of the United States;

(c) That the damage, destruction, or loss was willfully caused by the accused or was the result of neglect by the accused; and

(d) That the property was of a certain value or the damage was of a certain amount.

(3) Suffering military property to be lost, damaged, destroyed, sold, or wrongfully disposed of.

(a) That certain property (which was a firearm or explosive) was lost, damaged, destroyed, sold, or wrongfully disposed of;

(b) That the property was military property of the United States;

(c) That the loss, damage, destruction, sale, or wrongful disposition was suffered by the accused, without proper authority, through a certain omission of duty by the accused;

(d) That the omission was willful or negligent; and

(e) That the property was of a certain value or the damage was of a certain amount.

(1) Military property. Military property is all property, real or personal, owned, held, or used by one of the armed forces of the United States. Military property is a term of art, and should not be confused with Government property. The terms are not interchangeable. While all military property is Government property, not all Government property is military property. An item of Government property is not military property unless the item in question meets the definition provided in this paragraph. It is immaterial whether the property sold, disposed, destroyed, lost, or damaged had been issued to the accused, to someone else, or even issued at all. If it is proved by either direct or circumstantial evidence that items of individual issue were issued to the accused, it may be inferred, depending on all the evidence, that the damage, destruction, or loss proved was due to the neglect of the accused. Retail merchandise of Service exchange stores is not military property under this article.

(2) Suffering military property to be lost, damaged, destroyed, sold, or wrongfully disposed of. “To suffer” means to allow or permit. The willful or negligent sufferance specified by this article includes: deliberate violation or intentional disregard of some specific law, regulation, or order; reckless or unwarranted personal use of the property; causing or allowing it to remain exposed to the weather, insecurely housed, or not guarded; permitting it to be consumed, wasted, or injured by other persons; or loaning it to a person, known to be irresponsible, by whom it is damaged.

(3) Value and damage. In the case of loss, destruction, sale, or wrongful disposition, the value of the property controls the maximum punishment which may be adjudged. In the case of damage, the amount of damage controls. As a general rule, the amount of damage is the estimated or actual cost of repair by the Government agency normally employed in such work, or the cost of replacement, as shown by Government price lists or otherwise, whichever is less.

(4) Firearm or explosive. For purposes of determining the maximum punishment for this offense ( see subparagraphs d.(1)(b) and d.(3)(b)), the term “explosive” includes ammunition. See generally R.C.M. 103(11), (12).

(d) Maximum punishment.

(1) Selling or otherwise disposing of military property.

(a) Of a value of $1,000 or less. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.

(b) Of a value of more than $1,000 or any firearm or explosive. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.

(2) Through neglect damaging, destroying, or losing, or through neglect suffering to be lost, damaged, destroyed, sold, or wrongfully disposed of, military property.

(a) Of a value or damage of $1,000 or less. Confinement for 6 months, and forfeiture of two-thirds pay per month for 6 months.

(b) Of a value or damage of more than $1,000. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.

(3) Willfully damaging, destroying, or losing, or willfully suffering to be lost, damaged, destroyed, sold, or wrongfully disposed of, military property.

(a) Of a value or damage of $1,000 or less. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.

(b) Of a value or damage of more than $1,000, or of any firearm or explosive. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.

(e) Sample specification s.

(1) Selling or disposing of military property. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, without proper authority, (sell to __________) (dispose of by __________) __________, [(a firearm) (an explosive)] of a value of (about) $__________, military property of the United States.

(2) Damaging, destroying, or losing military property. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, without proper authority, (willfully) (through neglect) (damage by __________) (destroy by __________) (lose) __________, of a value of (about) $__________, military property of the United States (the amount of said damage being in the sum of (about) $__________).

(3) Suffering military property to be lost, damaged, destroyed, sold, or wrongfully disposed of. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, without proper authority, (willfully) (through neglect) suffer __________, [(a firearm) (an explosive)] (of a value of (about) $__________) military property of the United States, to be (lost) (damaged by __________) (destroyed by __________) (sold to __________) (wrongfully disposed of by __________) (the amount of said damage being in the sum of (about $__________).

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

(1) $1000 or less: BCD, TF, 1 year, E-1. (Category 1)

(2) More than $1000: DD, TF, 10 years, E-1. (Category 2)

(3) Any firearm or explosive regardless of value: DD, TF, 10 years, E-1. (Category 2)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location) on or about __________, without proper authority, (sell to __________) (dispose of by __________) __________, [(a firearm) (an explosive)] of a value of (about) $__________, military property of the United States.

Elements

(1) That (state the time and place alleged), the accused

(a) sold (state the property alleged ) (, a firearm,) (, an explosive,) to (state the person/entity alleged); or

(b) disposed of (state the property alleged) (, a firearm,) (, an explosive,) by (state the alleged manner of disposal);

NOTE 2. Firearm or explosive alleged. Use the appropriate language in the brackets above only when it is alleged that the property is a firearm or explosive.

(2) That the (sale) (disposition) was without proper authority;

(3) That the property was military property of the United States; and

(4) That the property was of a value of $ __________ (or less).

Definitions & other instructions

“Military property” is real or personal property owned, held, or used by one of the armed forces of the United States which either has a uniquely military nature or is used by an armed force in furtherance of its mission. Not all “government property” is “military property” even if the government agency possessing it is an armed force of the United States.

(“Sell to,” as used in this specification, means the transfer of possession of property for money or other valuable consideration which the buyer gives, pays or promises to give or pay for the property. The accused does not have to possess the property to sell it, but (he) (she) must transfer any apparent claim of right to possession to a purchaser.)

NOTE 3. Disposition alleged. When disposition is alleged, the first instruction below must be given. The other instruction may be given. See NOTE 4 below when abandonment of the property by the accused is raised by the evidence.

“Dispose of,” as used in this specification, means an unauthorized transfer, relinquishment, getting rid of, or abandonment of the use of, control over, or ostensible title to the property.

(The disposition may be permanent, as in a sale or gift, or temporary, as in a loan or pledging the property as collateral.)

NOTE 4. Abandonment as disposition. An abandonment where the government is deprived of the benefit of the property is a wrongful disposition, such as where an accused leaves a jeep unattended after having wrongfully appropriated and wrecked it. US v. Faylor, 24 CMR 18 (CMA 1957). When the location and circumstances of the “abandonment” raise the issue that the government never lost control or benefit of the property, the issue becomes more complex. Compare US v. Schwabauer, 37 MJ 338 (CMA 1993) (unauthorized relinquishing possession of individual weapon in full view of NCOs in combat zone) with US v. Holland, 25 MJ 127 (CMA 1987) (accused stored stolen engines in government warehouse and the government never totally lost or gave up control over the engines).

NOTE 5. Firearm and explosive defined. If the property is alleged to be a firearm or explosive, definitions may be appropriate. See RCM 103 (11) & (12).

“Firearm” means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive.

“Explosive” means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuzes (other than electrical circuit breakers), detonators, and other detonating agents, smokeless powders, any explosive bomb, grenade, missile, or similar device, and any incendiary bomb or grenade, fire bomb, or similar device. “Explosive” includes ammunition.

NOTE 6. Explosive or firearm—variances. If the property is alleged to be an explosive or firearm and an issue as to its nature is raised by the evidence, give the instructions below.

The government has charged that the property (sold) (disposed of) was (a firearm) (an explosive). To convict the accused as charged, you must be convinced beyond a reasonable doubt of all the elements, including that the property was of the nature alleged.

If you are convinced of all the elements beyond a reasonable doubt except that the property was of the nature as alleged you may still convict the accused. In this event, you must make appropriate findings by excepting the words “(a firearm) (an explosive).”

NOTE 7. “Some” value. If there is an issue whether the item had value, the following may be appropriate:

When property is alleged to have a value of $1000.00 or less, the prosecution is required to prove only that the property has some value. (When, as here (you have evidence of the nature of the property) (the property has been admitted in evidence as an exhibit and can be examined by the members), you may infer that it has some value. The drawing of this inference is not required.)

NOTE 8. Other instructions. Instruction 7-3, Circumstantial Evidence and Instruction 7-15, Variance, may be applicable. An appropriately tailored “abandoned property” instruction (See Instruction 3a-45-1, Larceny) may be applicable if an issue is raised that the property was abandoned by the government before the accused sold or disposed of it.

References

Military property: US v. Schelin, 15 MJ 218 (CMA 1983) and US v. Simonds, 20 MJ 279 (CMA 1985). Disposition: US v. Joyce, 22 MJ 942 (AFCMR 1986).

Source: Instruction 3a-43-1 · view original on jagcnet.army.mil

Maximum punishment

(1) Willful damage, destruction or loss:

(a) $1000 or less: BCD, TF, 1 year, E-1. (Category 1)

(b) More than $1000: DD, TF, 10 years E-1. (Category 2)

(2) Through neglect damaging, destroying, or losing:

(a) $1000 or less: 2/3 x 6 months, 6 months, E-1. (Category 1)

(b) More than $1000: BCD, TF, 1 year, E-1. (Category 1)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, without proper authority, (willfully) (through neglect) (damage by __________) (destroy by __________) (lose) __________, of a value of (about) $ __________, military property of the United States (the amount of said damage being in the sum of (about) $ __________)

Elements

(1) That (state the time and place alleged), the accused, without proper authority, (damaged) (destroyed) (lost) (state the property alleged) (, a firearm,) (, an explosive,) (by (state the manner alleged));

NOTE 2. Firearm or explosive alleged. Use the appropriate language in the brackets above only when it is alleged that a firearm or explosive was willfully damaged, destroyed, or lost.

(2) That the property was military property of the United States;

(3) That the (damage) (destruction) (loss) was (willfully caused) (the result of neglect) by the accused; and

(4) That the (property was of a value of $__________) (damage amounted to $ __________).

Definitions & other instructions

NOTE 3. Damage alleged. When damage is alleged, the instruction below should be given. See US v. Ortiz, 24 MJ 164 (CMA 1987) (CMA adopted a definition of damage that encompasses physical injury to the property. Physical injury, in turn, encompasses rendering military property useless, even temporarily, for its intended purpose by means of disassembly, reprogramming, or removal of a component. Disconnecting a sensor in otherwise operational aircraft that prevented the aircraft from being flown until the sensor was reconnected was “damage.”) and US v. Peacock, 24 MJ 410 (CMA 1987) (Actual, physical damage is required. Placing foreign objects in aircraft fuel tanks that temporarily disabled the tanks was “damage.”)

Property may be considered “damaged” if there is actual physical injury to it. (“Damage” also includes any change in the condition of the property which impairs, temporarily or permanently, its operational readiness, that is, the purpose for which it was intended.) (“Damage” may include disassembly, reprogramming, or removing a component so long as that act, temporarily or permanently, renders the property useless for the purpose intended.)

NOTE 4. Destruction alleged. When destruction is alleged, the following instruction should be given:

Property may be considered “destroyed” if it has been sufficiently injured to be useless for the purpose for which it was intended, even if it has not been completely destroyed.

NOTE 5. Willfulness alleged. If the accused’s act or omission is alleged to have been willful, the following instruction should be given. See also NOTE 9 to this instruction when willfulness has been charged and the evidence raises that causation may have only been negligent.

“Willfully” means intentionally or on purpose.

NOTE 6. Neglect alleged. If the accused’s act or omission is alleged to have been negligent, the following instruction should be given. If neglect is raised as a lesser included offense, use the instruction following NOTE 9.

(Damage) (Destruction) (A loss) is the result of neglect when it is caused by the absence of due care, that is, (an act) (or) (a failure to act) by a person who is under a duty to use due care which demonstrates a lack of care for the property of others which a reasonably prudent person would have used under the same or similar circumstances.

NOTE 7. Firearm and explosive defined. If the property is alleged to be a firearm or explosive, definitions may be appropriate. See RCM 103 (11) & (12).

“Firearm” means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive.

NOTE 8. Explosive or firearm—variances. If the property is alleged to be an explosive or firearm and an issue as to its nature is raised by the evidence, give the instructions below. If there is an issue whether the loss, damage or destruction was willful, the instructions following NOTE 9, should also be given.

The government has charged that the property was willfully (damaged) (lost) (destroyed) and was (a firearm) (an explosive). To convict the accused as charged, you must be convinced beyond a reasonable doubt of all the elements, including that the property was willfully (damaged) (lost) (destroyed) and is of the nature alleged.

If you are convinced of all the elements beyond a reasonable doubt except the element that the property was of the nature as alleged you may still convict the accused. In this event you must make appropriate findings by excepting the words “(a firearm) (an explosive).”

NOTE 9. “Some” value. If there is an issue whether the item had value, the following may be appropriate:

NOTE 10. Lesser included offense. Damage, destruction or loss through neglect is a lesser included offense of willful damage, destruction or loss. When this lesser included offense is raised by the evidence, the following instructions should be given:

(Damage) (Destruction) (A loss) through neglect is a lesser included offense of willful (damage) (destruction) (loss). (Acts) (Omissions) of the accused, without proper authority, which result in (damage) (destruction) (loss), which are not willful, might constitute the lesser offense of (damage) (destruction) (loss) through neglect. (Damage) (Destruction) (A loss) is the result of neglect when it is caused by the absence of due care, that is, (an act) (or) (a failure to act) by a person who is under a duty to use due care which demonstrates a lack of care for the property of others which a reasonably prudent person would have used under the same or similar circumstances.

If you are not satisfied beyond a reasonable doubt that the accused is guilty of willful (damage) (destruction) (loss) but you are satisfied beyond a reasonable doubt of all the other elements of the offense and that the (damage) (destruction) (loss) was caused by the accused, without proper authority, through neglect, you may find (him) (her) guilty of the lesser offense of (damage) (destruction) (loss) through neglect.

NOTE 11. Causation in issue. If the evidence raises an issue whether the accused’s neglect caused the loss, damage, destruction, sale, or disposition, use Instruction 5-5, Lack of Causation, Intervening Cause, or Contributory Negligence.

NOTE 12. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is normally applicable when willfulness is alleged. Instruction 7-16, Variance - Value, Damage, or Amount, may be applicable. Instruction 7-15, Variance, may be applicable. Instruction 5-1157, Evidence Negating Mens Rea, may be applicable if there is evidence the accused had a mental state that may have affected his ability to act willfully. Instruction 5-21, Voluntary Intoxication, may be applicable if there is evidence the accused’s intoxication may have affected his ability to act willfully. An appropriately tailored “abandoned property” instruction(See, Instruction 3-45-1, Larceny) may be applicable if an issue is raised that the property was abandoned by the government.

References

Military property: US v. Schelin, 15 MJ 218 (CMA 1983); US v. Simonds, 20 MJ 279 (CMA 1985).

Source: Instruction 3a-43-2 · view original on jagcnet.army.mil

Maximum punishment

(1) Willfully suffering property to be damaged, lost, destroyed, sold, or wrongfully disposed of:

(a) $1000 or less: BCD, TF, 1 year, E-1. (Category 1)

(b) More than $1000: DD, TF, 10 years, E-1. (Category 2)

(2) Through neglect suffering property to be damaged, lost, destroyed, sold, or wrongfully disposed of:

(a) $1000 or less: 2/3 x 6 months, 6 months, E-1. (Category 1)

(b) More than $1000: BCD, TF, 1 year, E-1. (Category 1)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, without proper authority, (willfully) (through neglect) suffer __________, [(a firearm) (an explosive)] (of a value of (about) $ __________) military property of the United States, to be (lost) (damaged by __________) (destroyed by __________) (sold to __________) (wrongfully disposed of by __________) (the amount of said damage being in the sum of (about $________).

Elements

(1) That (state the time and place alleged), (state the property alleged) (, a firearm,) (, an explosive,) was (lost) (damaged by __________) (destroyed by __________) (sold to __________) (wrongfully disposed of by __________);

NOTE 2. Firearm or explosive alleged. Use the appropriate language in the brackets above only when it is alleged that a firearm or explosive was willfully lost, damaged, destroyed, sold, or disposed of.

(2) That the property was military property of the United States;

(3) That the (loss) (damage) (destruction) (sale) (wrongful disposition) was suffered by the accused, without proper authority, through an omission of duty by the accused;

(4) That the omission of duty was (willful) (negligent); and

(5) That the (property was of a value of $__________) (damage amounted to $__________).

Definitions & other instructions

“Suffered” means to allow or permit.

“Omission of duty” means a failure to do one’s duty.

(“Sold to,” as used in this specification, means the transfer of possession of property for money or other valuable consideration which the buyer gives, pays, or promises to give or pay for the property. The accused does not have to possess the property to sell it, but (he) (she) must transfer any apparent claim of right to possession to a purchaser.)

NOTE 3. Wrongful disposition alleged. When wrongful disposition is alleged, the first instruction below must be given. The other instruction may be given. See NOTE 3 below when abandonment of the property by the accused is raised by the evidence.

“Wrongfully disposed of,” as used in this specification, means an unauthorized transfer, relinquishment, getting rid of, or abandonment of the use of, control over, or ostensible title to the property.

(The disposition may be permanent, as in a sale or gift, or temporary, as in a loan or pledging the property as collateral.)

NOTE 4. Abandonment as wrongful disposition. An abandonment where the government is deprived of the benefit of the property may be a wrongful disposition such as where an accused leaves a jeep unattended after having wrongfully appropriated and wrecked it. US v. Faylor, 24 CMR 18 (CMA 1957). When the location and circumstances of the “abandonment” raises the issue that the government never lost control or benefit of the property, the issue becomes more complex. Compare US v. Schwabauer, 37 MJ 338 (CMA 1993) (unauthorized relinquishing possession of individual weapon in full view of NCOs in combat zone) with US v. Holland, 25 MJ 127 (CMA 1987) (accused stored stolen engines in government warehouse and the government never totally lost or gave up control over the engines). Faylor, Schwabauer, and Holland, all supra, involved intentional disposition and not suffering property to be wrongfully disposed of.

NOTE 5. Damage alleged. When damage is alleged, the instruction below should be given. See US v. Ortiz, 24 MJ 164 (CMA 1987) (CMA adopted a definition of damage that encompasses physical injury to the property. Physical injury, in turn, encompasses rendering military property useless, even temporarily, for its intended purpose by means of disassembly, reprogramming, or removal of a component. Disconnecting a sensor in otherwise operational aircraft that prevented the aircraft from being flown until the sensor was reconnected was “damage.”) and US v. Peacock, 24 MJ 410 (CMA 1987) (Actual, physical damage is required. Placing foreign objects in aircraft fuel tanks that temporarily disabled the tanks was “damage.”).

NOTE 6. Destruction alleged. When destruction is alleged, the following instruction should be given:

Property may be considered “destroyed” if it has been sufficiently injured to be useless for the purpose for which it was intended, even if it has not been completely destroyed.

NOTE 7. Willfulness alleged. If the accused’s omission is alleged to have been willful, the following instruction should be given. See also NOTE 11 to this instruction when willfulness has been charged and the evidence raises that causation may have only been negligent.

“Willfully” means intentionally or on purpose.

NOTE 8. Neglect alleged. If the accused’s omission is alleged to have been negligent, the following instruction should be given. If neglect is raised as a lesser included offense to willfulness, use the instruction following NOTE 11.

An omission is the result of neglect when it is caused by the absence of due care, that is, a failure to act by a person who is under a duty to use due care which demonstrates a lack of care for the property of others which a reasonably prudent person would have used under the same or similar circumstances.

NOTE 9. Firearm and explosive defined. If the property is alleged to be a firearm or explosive, definitions may be appropriate. See RCM 103 (11) & (12). See also 18 USC sections 232(5) and 844(j) as to “explosives.”

“Firearm” means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive.

NOTE 10. Explosive or firearm—variance. If the property is alleged to be an explosive or firearm and an issue as to its nature is raised by the evidence, give the instruction in the first three paragraphs below. If there is an issue whether suffering the loss, damage, destruction, sale or wrongful disposition was willful, the instructions following NOTE 11 should also be given.

The government has charged that the accused willfully suffered the property to be (damaged) (lost) (destroyed) (sold) (wrongfully disposed of) and that the property was (a firearm) (an explosive). To convict the accused as charged, you must be convinced beyond a reasonable doubt of all the elements, including that the accused’s omission was willful and that the property is of the nature alleged.

NOTE 11. “Some” value. If there is an issue whether the item had value, the following may be appropriate:

NOTE 12. Lesser included offense. Suffering damage, destruction, loss, sale, or wrongful disposition through neglect is a lesser included offense of willfully suffering damage, destruction, loss, sale, or wrongful disposition. When this lesser included offense is raised by the evidence, the following instructions should be given:

Suffering property to be (damaged) (destroyed) (lost) (sold) (wrongfully disposed of) through neglect is a lesser included offense of willfully suffering the property to be (damaged) (destroyed) (lost) (sold) (wrongfully disposed of). An omission of duty by the accused, without proper authority, which results in the accused’s suffering the property to be (damaged) (destroyed) (lost) (sold) (or wrongfully disposed of), which is not willful, might constitute the lesser offense of suffering property to be (damaged) (destroyed) (lost) (sold) (wrongfully disposed of) through neglect. Suffering property to be (damaged) (destroyed) (lost) (sold) (wrongfully disposed of) is the result of neglect when it is caused by the absence of due care, that is, a failure to act by a person who is under a duty to use due care which demonstrates a lack of care for the property of others which a reasonably prudent person would have used under the same or similar circumstances.

If you are not satisfied beyond a reasonable doubt that the accused is guilty of willfully suffering the property to be (damaged) (destroyed) (lost) (sold) (wrongfully disposed of), but you are satisfied beyond a reasonable doubt of all the other elements of the offense and that the (damage) (destruction) (loss) (sale) (wrongful disposition) was caused by the accused’s sufferance, without proper authority, through neglect, you may find (him) (her) guilty of the lesser offense of suffering the property to be (damaged) (destroyed) (lost) (sold) (wrongfully disposed of) through neglect.

NOTE 13. Causation in issue. If the evidence raises an issue whether the accused’s neglect caused the loss, damage, destruction, sale, or disposition, give Instruction 5-5, Lack of Causation, Intervening Cause, or Contributory Negligence.

NOTE 14. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is normally applicable when willfulness is alleged. Instruction 7-16, Damage and Amount, may be applicable. Instruction 7-15, Variance, may be applicable. Instruction 5-15, Evidence Negating Mens Rea, may be applicable if there is evidence the accused had a mental state that may have affected his ability to act willfully. Instruction 5-21, Voluntary Intoxication, may be applicable if there is evidence the accused’s intoxication may have affected his ability to act willfully. An appropriately tailored “abandoned property” instruction (See Instruction 3-45-1, Larceny), may be applicable if an issue is raised that the property was abandoned by the government.

References

(1) Military property: US v. Schelin, 15 MJ 218 (CMA 1983) and US v. Simonds, 20 MJ 279 (CMA 1985).

(2) Disposition: US v. Joyce, 22 MJ 942 (AFCMR 1986).

(3) Negligence in Article 108(3) may be by act or omission: US v. Fuller, 25 MJ 514 (ACMR 1987). This language in Fuller is probably dicta.

Source: Instruction 3a-43-3 · view original on jagcnet.army.mil

Article 108. Military property of United States—Loss, damage, destruction, or wrongful disposition · MCM ¶ 43

3a-43-1 · SELLING OR DISPOSING OF MILITARY PROPERTY

3a-43-2 · DAMAGING, DESTROYING, OR LOSING MILITARY PROPERTY

3a-43-3 · SUFFERING MILITARY PROPERTY TO BE LOST, DAMAGED, SOLD, OR WRONGFULLY DISPOSED OF