Part IV · Punitive Articles
Article 112. Drunkenness and other incapacitation offenses · MCM ¶ 49
2024 Manual for Courts-Martial, United States
See all changes(a) Text of statute.
(a) DRUNK ON DUTY.—Any person subject to this chapter who is drunk on duty shall be punished as a court-martial may direct.
(b) INCAPACITATION FOR DUTY FROM DRUNKENNESS OR DRUG USE.—Any person subject to this chapter who, as a result of indulgence in any alcoholic beverage or any drug, is incapacitated for the proper performance of duty shall be punished as a court-martial may direct.
(c) DRUNK PRISONER.—Any person subject to this chapter who is a prisoner and, while in such status, is drunk shall be punished as a court-martial may direct.
(b) Elements.
(1) Drunk on duty.
(a) That the accused was on a certain duty; and
(b) That the accused was drunk while on this duty.
(2) Incapacitation for duty from drunkenness or drug use.
(a) That the accused had certain duties to perform;
(b) That the accused was incapacitated for the proper performance of such duties; and
(c) That such incapacitation was the result of previous indulgence in intoxicating liquor or any drug.
(3) Drunk prisoner.
(a) That the accused was a prisoner; and
(b) That while in such status the accused was drunk.
(c) Explanation.
(1) Drunk on duty.
(a) Drunk. “Drunk” means—
(i) the state of intoxication by alcohol that is sufficient to impair the rational and full exercise of mental or physical faculties; or
(ii) the state of meeting or exceeding a blood alcohol content limit with respect to alcohol concentration in a person’s blood of 0.08 grams of alcohol per 100 milliliters of blood and with respect to alcohol concentration in a person’s breath of 0.08 grams of alcohol per 210 liters of breath, as shown by chemical analysis.
(b) Duty. “Duty” as used in this article means military duty. Every duty which an officer or enlisted person may legally be required by superior authority to execute is necessarily a military duty. Within the meaning of this article, when in the actual exercise of command, the commander of a post, or of a command, or of a detachment in the field is constantly on duty, as is the commanding officer on board a ship. In the case of other officers or enlisted persons, “on duty” relates to duties or routine or detail, in garrison, at a station, or in the field, and does not relate to those periods when, no duty being required of them by orders or regulations, officers and enlisted persons occupy the status of leisure known as “off duty” or “on liberty.” In a region of active hostilities, the circumstances are often such that all members of a command may properly be considered as being continuously on duty within the meaning of this article. So also, an officer of the day and members of the guard, or of the watch, are on duty during their entire tour within the meaning of this article.
(c) Nature of offense. It is necessary that the accused be drunk while actually on the duty alleged, and the fact the accused became drunk before going on duty, although material in extenuation, does not affect the question of guilt. If, however, the accused does not undertake the responsibility or enter upon the duty at all, the accused’s conduct does not fall within the terms of this article, nor does that of a person who absents himself or herself from duty and is drunk while so absent. Included within the article is drunkenness while on duty of an anticipatory nature such as that of an aircraft crew ordered to stand by for flight duty, or of an enlisted person ordered to stand by for guard duty.
(d) Defenses. If the accused is known by superior authorities to be drunk at the time a duty is assigned, and the accused is thereafter allowed to assume that duty anyway, or if the drunkenness results from an accidental over dosage administered for medicinal purposes, the accused will have a defense to this offense.
(2) Incapacitation for duty from drunkenness or drug use.
(a) Incapacitated. “Incapacitated” means unfit or unable to properly perform duties as a result of previous alcohol consumption or drug use. Illness resulting from previous indulgence is an example of being “unable” to perform duties.
(b) Affirmative defense. The accused’s lack of knowledge of the duties assigned is an affirmative defense to this offense.
(3) Drunk prisoner.
(a) Prisoner. See subparagraph 24.c.(1).
(b) Drunk. See subparagraph 49.c.(1)(a).
(d) Maximum punishment.
(1) Drunk on duty. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 9 months.
(2) Incapacitation for duty from drunkenness or drug use. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months.
(3) Drunk prisoner. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months.
(e) Sample specification s.
(1) Drunk on duty. In that __________ (personal jurisdiction data), was, (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20 __, found drunk while on duty as __________.
(2) Incapacitation for duty from drunkenness or drug use. In that _________ (personal jurisdiction data), was, (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20 __, as a result of previous overindulgence in intoxicating liquor or drugs incapacitated for the proper performance of (his) (her) duties.
(3) Drunk prisoner. In that __________ (personal jurisdiction data), a prisoner, was (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20 __, found drunk.
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
BCD, TF, 9 months, E-1. (Category 1)
Sample specification
In that __________ (personal jurisdiction data), was, (at/on board—location), on or about __________, found drunk while on duty as __________.
Elements
(1) That (state the time and place alleged), the accused was on duty as (state the nature of the military duty); and
(2) That the accused was drunk while on this duty.
Definitions & other instructions
“Drunk” means either (1) the state of intoxication by alcohol that is sufficient to impair the rational and full exercise of mental or physical faculties, or (2) the state of meeting or exceeding a blood alcohol content limit with respect to alcohol concentration in a person's blood of 0.08 grams of alcohol per 100 milliliters of blood and with respect to alcohol concentration in a person's breath of 0.08 grams of alcohol per 210 liters of breath, as shown by chemical analysis.
“Duty” means military duty. Every duty which an officer or enlisted person may legally be required by superior authority to execute is necessarily a military duty.
“On duty” means duties or routine or detail, in garrison, at a station, or in the field. It does not relate to those periods when the person has no duty required of them by order or regulation and is therefore considered “off duty” or “on liberty”. (In a region of active hostilities, the circumstances are often such that all members of a command may properly be considered as being continuously on duty.)
(Commanders, while in the field or on board a ship, are constantly on duty when in the actual exercise of command.)
(An officer of the day and members of the guard, or of the watch, are on duty during their entire tour.)
NOTE 2. If there is evidence that the accused used both alcohol and other drugs, the following instruction on proximate cause may be appropriate:
You have heard evidence that the accused used both alcohol and other drugs. The term “drunk” relates only to intoxication by alcohol. To find the accused guilty of the offense of being drunk on duty, you must be convinced beyond a reasonable doubt that the accused’s intoxication by alcohol was a proximate cause of the impairment of the rational and full exercise of the accused’s mental or physical faculties. This means that the impairment of the rational and full exercise of the accused’s mental or physical faculties must have been the natural and probable result of the accused’s intoxication by alcohol. A proximate cause does not have to be the only cause, nor must it be the immediate cause. However, it must be a direct or contributing cause that plays a material role, meaning an important role, in bringing about the impairment.
It is possible for the use of both alcohol and other drugs to each contribute as a proximate cause to the impairment of the rational and full exercise of the accused’s mental or physical faculties. If the accused’s intoxication by alcohol was a proximate cause of the impairment, the accused will not be relieved of criminal responsibility because his use of other drugs was also a proximate cause of the impairment.
In determining whether the accused’s intoxication by alcohol was a proximate cause of the impairment of the rational and full exercise of his/her mental or physical faculties, and the role, if any, of the use of other drugs, you must consider all relevant facts and circumstances, including, but not limited to, (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides).
NOTE. If there is evidence (1) that the accused may not have been drunk while actually on the duty alleged or (2) that the accused may not have actually performed the duty alleged, the following instruction may be appropriate:
To be guilty of this offense, the accused must have been drunk while actually on the duty alleged. If the accused was drunk but did not actually undertake the responsibility or enter upon the duty at all, the accused is not guilty of this offense. (An accused may be guilty of this offense if the accused was drunk while on duty of an anticipatory nature, such as that of an aircraft crew ordered to stand by for a flight duty, or of an enlisted person ordered to stand by for guard duty.)
NOTE 3. NOTE 3: If there is evidence that the accused was permitted to assume the duty by a superior authority who knew the accused was drunk, the following instruction should be given.
It is a defense to this offense if, at the time the duty was assigned, a superior authority knew the accused was drunk and thereafter allowed the accused to assume the duty anyway. You may not convict the accused of this offense unless you are convinced beyond a reasonable doubt that the accused’s superiors did not allow (him)(her) to assume this duty while knowing that (he)(she) was drunk.
NOTE 4. NOTE 4: If there is evidence that the accused may have accidentally overdosed on prescribed medication, the following instruction should be given.
It is a defense to this offense if the accused’s drunkenness resulted from an accidental overdose administered for medicinal purposes. You may not convict the accused of this offense unless you are convinced beyond a reasonable doubt that the accused’s drunkenness did not result from such an accidental overdose.
Source: Instruction 3a-49-1 · 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
2/3 x 3 months, 3 months, E-1. (Category 1)
Sample specification
In that __________ (personal jurisdiction data), was, (at/on board—location), on or about __________, as a result of previous overindulgence in intoxicating liquor or drugs incapacitated for the proper performance of (his) (her) duties.
Elements
(1) That the accused had certain duties to perform, to wit: (state the duties alleged);
(2) That (state the time and place alleged), the accused was incapacitated for the proper performance of such duties; and
(3) That such incapacitation was the result of previous indulgence in intoxicating liquor or any drug.
Definitions & other instructions
“Duty” means military duty. Every duty which an officer or enlisted person may legally be required by superior authority to execute is necessarily a military duty.
“Incapacitated” means unfit or unable to properly perform duties as a result of previous alcohol consumption or drug use. Illness resulting from previous indulgence is an example of being “unable” to perform duties.
NOTE 2. Mistake of Fact. The accused’s lack of knowledge of the duties assigned is an affirmative defense to this offense. If there is evidence raising such a defense, the following instruction should be given.
The evidence has raised the issue of ignorance on the part of the accused concerning the (duty) (duties) he/she was required to perform in relation to the offense of Incapacitation for Duty from Drunkenness or Drug Use.
If the accused, at the time of the offense, did not know that he was required to perform the (duty) (duties) alleged, then he/she cannot be found guilty of the offense of Incapacitation for Duty from Drunkenness or Drug Use.
The ignorance, no matter how unreasonable it might have been, is a defense. In deciding whether the accused did not know that he was required to perform the (duty) (duties) alleged, you should consider the probability or improbability of the evidence presented on the matter.
You should consider the accused's (age) (education) (experience) (__________) along with the other evidence on this issue, (including, but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).
The burden is on the prosecution to establish the guilt of the accused. If you are convinced beyond a reasonable doubt that at the time of the alleged offense(s) the accused knew that he was required to perform the (duty) (duties) alleged, then the defense of ignorance does not exist.
NOTE 3. Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
Source: Instruction 3a-49-2 · 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
2/3 x 3 months, 3 months, E-1. (Category 1)
Sample specification
In that __________ (personal jurisdiction data), a prisoner, was (at/on board—location), on or about __________, found drunk.
Elements
(1) That the accused was a prisoner; and
(2) That (state the time and place alleged), while a prisoner, the accused was drunk.
Definitions & other instructions
A “prisoner” is a person who is in confinement or custody imposed pursuant to lawful apprehension, pre-trial restraint, or pre-trial confinement, or by the sentence of a court-martial, who has not been set free by a person with authority to release the prisoner.
“Drunk” means either (1) the state of intoxication by alcohol that is sufficient to impair the rational and full exercise of mental or physical faculties or (2) the state of meeting or exceeding a blood alcohol content limit with respect to alcohol concentration in a person's blood of 0.08 grams of alcohol per 100 milliliters of blood and with respect to alcohol concentration in a person's breath of 0.08 grams of alcohol per 210 liters of breath, as shown by chemical analysis.
Source: Instruction 3a-49-3 · view original on jagcnet.army.mil